Many of the laws of our society are drafted with our mortality in mind, some are even written because we’re mortal. The interplay between death and the law has been studied by scholars and philosophers for centuries, gaining increasing attention with advances in medical science. The certainty of death is one constant not present in the lives of many superheroes. Was Dostoyevsky right, can there be no virtue without immortality, or do these invincible beings create an unnecessary complication in our lives and laws?
Kent Farm was started in 1871 by Nathanial Kent and passed through the Kent family to Martha and Jonathan Kent, Clark Kent’s (Superman) adoptive parents. Ma and Pa Kent are free to give away or sell the farm in any way they choose, however, property law places a number of restrictions on the amount of control that can be exercised over the farm once it is transferred. The law favors the free exchange of land and transfers with restrictions are repugnant to that end. One of the limits on conditional transfers, so-called “dead hand control,” is the Rule Against Perpetuities. This “rule” states that the transfer of property must vest or fail within 21 years and 9 months1 from the death of a measuring life2. At the time of drafting, if the conveyance violates the rule it is invalidated. Thankfully this archaic legalese makes more sense with an example and is being modified or abolished in many jurisdictions.
Example: Ma and Pa Kent want to leave their farm to Clark but they can’t stand the thought of his city-slicker wife Lois ruining the property, or worse yet, selling it. They decide to transfer the parcel to Clark for life so long as the property is used as a farm, otherwise to his cousin Kara. The “so long as” language of the conveyance means that the property has to be used as a farm forever if Clark wants to retain ownership, giving him a “fee simple subject to an executory limitation,” and his cousin an “executory interest.” Under the Rule Against Perpetuities this transfer is invalid because we won’t know within 21 years and 9 months whether Clark will always use the land as a farm. It would be possible for Kara’s executory interest to vest at any point in Clark’s life, or the life of his descendants, which is exactly the kind of possible future transfer the rule was designed to prevent3.
An immortal superhero would create a number of issues with property transfers not seen by mortal land owners. Anytime an immortal superhero is the “measuring life” for a transfer the Rule Against Perpetuities will become moot. A subsequent transfer, implicated at the death of the hero, will never take place.
Ordinarily a transfer to one individual for life then to their first child to reach 21 would not violate the Rule Against Perpetuities because we will know within 21 years and 9 months after the death of the transferee whether or not the transferee will have a child that reaches the age of 21. If the conveyance instead says “to the first child to reach 25″ or any other age over 21, the Rule would be implicated and the transfer will be stricken. If the transferee is an immortal however, it wouldn’t matter that the transfer is invalid because the subsequent transfer will never take place.
Essentially, there can only be a violation of the rule if an improper conveyance is drafted and the superhero happens to die at some point. If the transfer is to an actual immortal4 that will never happen. Some heroes, while immortal, are possibly not invulnerable. Superman for example, will probably live forever without interference from a third party5. Even after he was “killed” in the early ’90s it was revealed that either “the laws of human death do not apply” to him while he’s on our planet (as expressed by the robot custodian of the Fortress of Solitude), or that it will take more than just a physical beating to end his life (Jonathan Kent’s theory). We do know, however, that he is susceptible to red sun radiation, kryptonite, and magic and could potentially meet his end to one of these influences.
Some jurisdictions apply a “wait and see” approach to the Rule Against Perpetuities, waiting 90 years to see whether an interest vested rather than deciding at the time of the conveyance whether it would vest within 21 years and 9 months. This could also be applied to transfers to superheroes like Superman with a future interest in someone else to see if anyone managed to kill him within that 90 year period.
The fact that a transfer “for life” to an immortal will actually be forever probably goes against the grantor’s intent. If the person transferring the property is aware that the superhero is immortal this isn’t the case but for anyone giving property to a superhero’s alter ego they are probably expecting the person to die at some point. When a grantor gives property to one person for life and then to another their intent is violated by immortality. When facts unknown to a grantor invalidate their intent, courts can apply the cy pres doctrine, which alters a conveyance to bring it inline with the original intent. In this case the court would be able to limit the grant to an immortal to some length of time more in line with an average mortal life and then transfer the property to the next person in line.
Intellectual Property Law
The Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (emphasis added)6. The current Copyright Act grants copyright protection to individuals for their life plus 70 years. This length of protection has increased in the past and will probably increase in the future7 but is ultimately bound by the language in the Constitution mandating limited protection. While it is important to protect original expression for some period of time to allow creators time to exploit their works, the drafters of the Constitution felt that protection should be limited in the best interest of art and science as whole in our country. Protection and exclusive use can inhibit the creation of subsequent works while the free exchange and use of ideas fosters a creative culture. The intent of the drafters is obviously frustrated for immortal superhero artists essentially given unlimited control over their creations.
Much of our criminal law system is based around the protection of our fragile lives and imposing punishment for any deprivation thereof. The idea of proportionality pervades this system from our perception of the severity of a crime to the degree of punishment we administer. With the average person in this country living between 70 and 80 years murder represents the violent theft of some portion of our time on this planet. Some jurisdictions even take into account the age of the victim and the expected number of years left in their life when sentencing a criminal. What about sentencing for the murder of someone like Superman who we know is capable of living more than 80,000 years5? Were someone to kill him they would be stealing more time from him than any of us can comprehend (human civilization is less than half that old). Surely that criminal would be owed a punishment greater than the remainder of their 70 to 80 years of life in prison but our sentencing laws are constrained by our short life spans.
As I’ve been discussing in this blog, there are a number of laws that superheroes violate, some of them serious criminal infractions. Proportionality as applied to an immortal criminal suggests that our entire sentencing structure would be inadequate if any of these superheroes went to trial. Small crimes receive small sentences (1 to 5 years), representing a small fraction of human life but time nonetheless that the criminal cannot spend freely. This amount of time in prison, or even 50 and 60 years, would be insignificant to someone with a much longer life span, let alone an infinite one. Also, “life” in prison or the death penalty, our harshest penalties, would be disproportionate to almost any crime a superhero could commit under these circumstances.
With the current cost of incarceration for the average inmate in the Federal Prison system averaging overing $25,000 per year, would anyone want to keep an immortal superhero in prison for “life,” assuming we could?
IN THE NEXT EXCITING INSTALLMENT
Next week we’ll review the new animated movie by DC Universe, “Superman/Batman: Public Enemies.”
1 – 21 years and 9 months may seem like an arbitrary length of time but it is designed around the time it takes a baby to reach the age of legal maturity plus a 9 month period of gestation. Using this computation the legal rights of a child that has just been conceived at the death of the measuring life are preserved.
2 – A measuring life is a life in being at the time a conveyance is drafted that has some relation to the transfer.
3 – Drafters of the Rule Against Perpetuities were primarily concerned with burdening a piece of property with conditions and restrictions that could become a problem for future holders. Burdened land is not as freely bought and sold so the rule was drafted to make sure that if anyone was going to come and claim a right to a parcel of land they had 21 years to grow up and do so or forfeit their rights.
4 – Like the aptly named “Mister Immortal” who always returns to life after dying.
5 – Superman encounters a sentient sun from the future named “Solaris” who reveals that Superman is still alive 83,000 years into the future of the current D.C. comics universe.
6 – U.S. Const. Article I, Section 8, Clause 8.
7 – Copyright duration is largely driven by the copyright on Mickey Mouse. Whenever protection for Disney’s mouse comes to an end some friendly legislator comes up with a way to extend it.