Blog Network

About The Bloggers


Blawgers Ponder Superheroes as State Actors

How would you lawyer comic book fans like it if the next issue of Superman ended with a panel depicting a judge declaring from the bench that: "The case against Defendant Luthor is dismissed. The only evidence of the particular evil deeds with which he is charged in the indictment is that gathered by Mr. Ken ... uh, Superman, at Luthor's lair on July 13 of last year. Because Superman had no warrant, the search was unreasonable, and the evidence must be excluded. As such, the state cannot make out a prima facie case against Mr. Luthor, and he must be released from custody, and all charges dropped"?

I will admit that it's not something I've ever thought about. I don't read comic books. But others have thought -- and written -- about the possibility that your favorite superheroes might be considered state actors, and thus subject to all those pesky constitutional restrictions on their behavior. I was clued in by Ilya Somin's post at the Volokh Conspiracy, which linked to a recent post on the Law and the Multiverse blog (how's that for a niche, Bruce?).

The Multiverse post focused on Batman, and concluded that under current U.S. law, Batman would most certainly be considered a state actor, in light of his active involvement with Commissioner Gordon and such. Why, then, have we never seen the Riddler v. Batman, Gordon, and City of Gotham Section 1983 complaint?

Either all of the criminals in Gotham have incompetent attorneys, the state action doctrine in the DC universe is weaker than it is in the real world, or Gordon has actually managed to keep his reliance on Batman a secret.  I’m going to opt for the second explanation.  Superheroes like Batman are simply too effective for a court to shackle them with the Constitutional limitations of the state, especially with supervillains running around.  Perhaps the DC universe courts have developed a public emergency or necessity exception to the state action doctrine whereby private individuals pressed into public service in an emergency are not held to the same standards as ordinary state actors.

Indeed. Somin also links to a 2006 post of his own, which was largely a legal critique of the movie "Superman Returns," but also makes a compelling argument, based on circumstantial evidence, that Superman is, indeed, an undercover government agent.

As I said, I hadn't thought much about the issue, but now that I have, I'm just hoping no activist judge goes and overextends the state action doctrine to, say, Scooby Doo and the Gang. They always investigate on their own, and only call in the cops when they've got everything figured out (and, usually, a villain tied up and waiting).

Image: University of Northern Florida Pre-Law Program

Posted by Eric Lipman on December 10, 2010 at 10:31 AM | Permalink | Comments (1)


About ALM  |  About  |  Customer Support  |  Privacy Policy  |  Terms & Conditions