Interview: Authors of “The Law of Superheroes” – Lawyers James Daily and Ryan Davidson

James Daily is a graduate of the Washington University in St. Louis School of Law, and holds an M.S. in Computer Science.  He currently works as a research associate with the Stanford University Hoover Institution Project on Commercializing Innovation, and he specializes in intellectual property.  He currently lives in St. Louis, Missouri, and is in no way the local superhero known as “The Gateway.”

Ryan Davidson is a graduate of Notre Dame Law School and currently does general practice in Fort Wayne, Indiana, and is in no way the local superhero known as “The Appleseed.”

Together, Daily and Davidson have created the website, “Law and the Multiverse,” and have written the book, The Law of Superheroes.  Both the website and the book examine the hypothetical legal situations that would occur if superheroes were real; they are also just really fun to read.  You can also like “Law and the Multiverse” on facebook by clicking here.

Nicholas Yanes: Before we get into the topic of your website and book, I want to ask you both some less-fun questions.  Lots of people go to law school because they have no idea what to do after college.  What motivated you two to attend law school?

James Daily:  As I finished college I knew I wanted to practice patent law.  Part of patent law (applying for patents, also called “patent prosecution”) requires a technical background, and my undergraduate degree is in computer science and mathematics.  I wanted to continue my computer science education as well, and so I earned a master’s degree in computer science while attending law school.

Ryan Davidson:  I actually enrolled in a post-baccalaureate pre-medical program at Columbia. My undergraduate degree was in philosophy and history, and as I thought I wanted to go to medical school at the time, I needed to pick up organic chemistry. But a year there showed me that I enjoyed reading and writing too much not to do it for a living. So I withdrew and applied to law school.

Yanes: With many law schools being sued by students who feel that they were misled and many lawyers feeling that the legal market is being over saturated with JDs, what advice would you give to someone thinking about going to law school?

Daily:  My views are pretty well summed up in the book Don’t Go To Law School (Unless).  It sets out the reasons why law school is an extremely bad idea for almost everyone.

Davidson: In general, don’t do it. Legal education is drastically overpriced at the moment, and even if you can go somewhere for free, the job market is terrible. Unless you can convince someone to pay for you to go to a T14 school, the odds of you ending up in a better financial condition than when you started are low.

That being said, there does seem to be change in the wind. Applications to law school are dropping rapidly, and law schools are having to admit more and more students to fill their rolls. Some are even starting to think seriously about the economics of the proposition. But that’s the kind of thing that might make going to law school in five or ten years a decent idea. Right now it’s still problematic.

Yanes: Now to the fun stuff.  How long have you two been fans of comic books?  Do you both have a favorite character and story arc?

Daily:  I have been reading comics at least since I was 9 or 10.  That was about the time of the Death of Superman and Knightfall storylines.  Batman is my favorite individual character, and Knightfall remains a favorite storyline

Davidson: I’ve been a sci-fi and fantasy fan since forever, and that always included dabbling with the comic book world. But it wasn’t until college and a bit after that I started really reading graphic novels in earnest. I’ve always been partial to Marvel though. My favorite character is probably Iron Man, but my favorite story arc is probably either Grant Morrison’s All-Star Superman or Mark Waid’s Kingdom Come.

Yanes:  On this note, there are several comic book characters who are professional lawyers.  Which comic book lawyer do you both think comes closest to reality?  Or at least would be the most fun to work with?

Daily:  Mark Waid has been doing a great job writing Matt Murdock (aka Daredevil) and his law partner Foggy Nelson realistically.  While they aren’t perfect, they’re at least as realistic as most lawyers on TV shows.  That said, while Murdock might be fun to work with, it would also be very stressful because his double life makes him a bit unreliable, to say the least.

Davidson:  Matt Murdock, aka DareDevil, is probably the most accurately portrayed superhero lawyer, but Jennifer Walters, aka She-Hulk, would almost certainly be more fun to hang around. For a variety of reasons.

Yanes:  With more and more advances being made in cybernetics and genetic engineering, as  well as there being significant increases in the patenting of specific genes, and there being an increase in the number of people who dress up as superheroes to patrol their neighborhoods, do either one of you see The Law of Superheroes actually predicting future case law?

Daily:  It’s hard to say.  We try to apply the law as it is today to comic book situations, but in reality the law is always evolving.  As technology and society changes, the law changes with them.  So while we might be correct with regard to the law today, the law may be different tomorrow.

Davidson:  We tried to stick pretty closely to the state of the law as of the time of writing, i.e., late 2011 and early 2012. The question was less “How will the law eventually develop to handle this?” as much as “What would a court do if faced with this particular problem today?” We were much more concerned about accurately portraying existing case law than predicting future decisions.

Yanes:  Comic books often feature laws that ban superhero behavior.  With The Law of Superheroes discussing the Keene Act from Watchmen and the Superhero Registration Act from Marvel Comics, are there any fictional laws that either one of you believe could be legitimately passed in the real world?

Daily:  In the book we lay out an argument for the possible constitutionality of both of those laws.  The Keene Act would be a bit tenuous in our world, but in Watchmen it’s clear that the political climate is quite a bit different (e.g. Nixon being on his fifth term).  So the Supreme Court would also likely be very different.

One fictional law that would definitely be okay would be the DC Universe’s fictional 12th Amendment, which allows registered superheroes to testify in costume and refuse to answer questions about their secret identities.  If this were a mere law it would run afoul of the Confrontation Clause of the Sixth Amendment, but since it’s an amendment itself it’s okay, if oddly specific for an amendment.

Davidson: Most fictional laws have to do with fictional facts, i.e., it wouldn’t make any sense to pass the DC Universe’s version of the “Twelfth Amendment” in the absence of the Justice League or a close analogue. But I think it’s pretty obvious that if superhumans did suddenly emerge on the scene, state and federal legislatures wouldn’t take very long to pass statutes regulating their activities. It’s simply too big an issue to be ignored. Whether than means mask laws as such, a narrower ban on “masked adventuring,” or outright superhuman registration would probably depend a lot on the nature of the superhumans that emerged and the political climate at the time. But it’s likely possible to pass a version of most of the registration laws that appear in comic books, even if the legal mechanism is somewhat different.

Yanes:  While not originally a comic book, The Incredibles from Disney/Pixar features a scene in which a superhero is sued for saving man’s life while he tried to commit suicide.  Could this be a significant problem in the real world (for superheroes and law enforcement)?

Daily: Probably not.  As the Minnesota Supreme Court held in 1975, “There can be no doubt that a bona fide attempt to prevent a suicide is not a crime in any jurisdiction, even where it involves the detention, against her will, of the person planning to kill herself. Had defendant seized complainant as she was about to leap from a building, and had he kept her locked in a safe place until the authorities arrived, it is clear that a conviction for the crime of false imprisonment could not be sustained.”  The attempted suicide in The Incredibles was also by jumping off of a building, so the analogy is clear.  Our research suggests that this is the majority view.

Davidson:  I think James has it. The idea here is that the cause of the plaintiff’s bodily injury is his suicide attempt, not Mr. Incredible’s rescue. There would be major causation issues to overcome before any recovery would be possible.

But more generally, the idea that superheroes would be liable for the bodily injury and property damage that they cause while using their powers has real potential.

Yanes:  A few years ago the X-Men founded their own nation, Utopia.  And both DC and Marvel have histories of independent fictional nations.  How would the US legal system work with these unconventional sovereign bodies?

Daily: Probably the same as it does any other country.  With regard to a new country, the US would recognize it if it was expedient to do so.  With regard to secretive countries such as Wakanda, it wouldn’t be that different from real countries such as Bhutan or Edo-period Japan, which significantly limited contact with other countries.

Davidson:  It depends a lot on whether they were trying to carve themselves out of an existing nation or otherwise occupying space already claimed by someone. If they were, then doing so would potentially antagonize not only the aggrieved nation, but any nation nervous about the other’s respect for its territorial integrity. But the idea that it’s superheroes doing it doesn’t pose any particular issues. Sovereign governments come and go. The USSR split up more-or-less peacefully twenty years ago, as did Czechoslovokia. But the breakup of Yugoslavia was a nightmare, the breakup of Sudan continues to be fraught, and Taiwan has been a politically sensitive issue for half a century.

Yanes:  Since comic book superheroes became popular due to Superman’s appearance in 1938, there have been lawsuits dealing with copyright infringement, ownership of a character or idea, and other legal issues impacting the comic book industry.  In your opinions, what are some of the most important comic book court cases?  In other words, which cases do you think have set the greatest precedent?

Daily:  If important means setting precedent (as opposed to, say, the effect of the case on the market), then we have to look at the comic book cases that made it to appellate court.  One example would be Gaiman v. McFarlane, a 2004 case in which influential 7th Circuit judge Richard Posner explained when a character is separately copyrightable and not just a part of a copyrighted story.  In particular, Judge Posner distinguished between graphic characters and literary characters, holding that the former are more easily separately protected than the latter.

Or we could go back to DC Comics v. Bruns Publications, a 1940 opinion written by Judge Augustus Hand and joined by the famous Learned Hand, which decided that Superman was a separately copyrighted character, paving the way for character copyrights in other comic book characters.

Yanes:  Now, my personal favorite case is when Marvel had the legal status of their characters changed for tax reasons.  Is there a comic book court case that is just so bizarre you love re-reading it?

Daily: That case, of which there were at least four published decisions between 2000 and 2003, is probably my favorite as well.

Yanes:  Overall, what are you hoping that fans and lawyers will get out of The Law of Superheroes?

Daily: We hope readers enjoy exploring a sometimes overlooked aspect of their favorite fictional worlds and hopefully learn a few things about how the law works along the way.

Davidson:  I think a caller on a radio show that we did a few weeks ago put it best, “You’ve giving civics lessons to people who might otherwise never have them.” We clearly aim to entertain, but if people don’t learn something about the legal system, we’ll feel we’ve missed our mark.

Yanes:  Finally, what are your long term goals for this project?  Are you hoping to do a web series, a comic book of your own, launch this into a series about laws in fictional universes, or something else that is cool?

Daily:  We plan to continue writing the blog, attending conventions, and producing Continuing Legal Education courses.  We have some more projects in the early planning stages, but for now we’re focused on the book and the blog.

Davidson:  We’d love to collaborate with creators more, whether in on the ground floor as equal partners, or just as plot consultants. We have a few irons in the fire in both of those directions.

Remember, you can learn more about Daily’s and Davidson’s by visiting the website, “Law and the Multiverse,” and checking out their book, The Law of Superheroes.  You can also like “Law and the Multiverse” on facebook by clicking here.

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