In order to save his daughter Cassie (Kathryn Newton), Scott Lang (Paul Rudd) — who has already shrunk down to subatomic size — must shrink down even more in order to retrieve some kind of power core / MacGuffin-type device. Once he reaches that sub-sub-atomic level, things get weird. Ant-Man finds himself in a “probability storm” where all possible versions of himself exist at the same time. Thus, a new Scott Lang is created at each possible decision point. For example, if Lang decides to take a step forward with his left foot, an infinite number of “new” Langs would appear — one who decided to step with the right, another who decided not to step, another who decided to hop forward with both feet at the same time, another who decided to take a slightly longer step, and so on.

But the probability field doesn’t stop there. Each subsequent version of Lang makes additional decisions of his own, each of which itself yields another infinite set of Langs. Instantly, there is an infinite number of Ant-Men that make the “many Smiths” scene in The Matrix Reloaded look like one of the tumbleweed scenes in an old western.

Liability in a Probability Storm Like the One in Quantumania

The science behind probability storms is interesting. But the deeper and (arguably) more challenging questions speak to the legal challenges that would arise in a probability storm. After all, if anything that could happen does happen, then how could anyone ever be viewed as morally or legally responsible for anything? For example, at any given moment, it is possible for one person to murder or decide to murder another.

In the real world, that possibility is meaningless, since it would never come to pass — it is, at most, a fleeting, improbable event. In a probability field, however, that possibility would become reality, and most or all people would become murderers. Conversely, if a real-world murderer were placed in a probability field, there would exist an infinite number of people who would have decided to spare the victim’s life or who failed to successfully execute their plan. Thus, one could argue that it would be wrong to assign punishment or blame in a probability storm, since none of the wrongdoers had the ability to avoid taking their bad action and, in fact, were compelled by the laws of physics to break the laws of man.

At first glance, one might think that this problem is too theoretical to be of concern to us. After all, we exist in the macro space, where there is no (visible) superposition or probability storms and where each person only exists in one state at a time. But there is nothing exceptional about the particular state in which we exist. In this world, it may be that you are not a murderer. But that ignores the fact that there is and was a probability that you would have been a murderer had things gone differently.

The fact that you converged into a non-murderous state rather than a murderous one has nothing to do with your moral worth or merit, but is rather the outcome of probabilistic quantum luck, which could just as easily have cut against you. In this way, the legal and moral problems that arise in the Quantumania probability storm are simply a more obvious demonstration of problems that exist in our current world.

The Problem of Moral Luck

But what is the answer? If all of our choices are determined by quantum luck, then how can we justify punishing or judging anyone for anything ever? Legal theorists and philosophers have considered this problem in extensive detail (albeit not in the context of quantum physics). In his landmark essay “Moral Luck,” philosopher Thomas Nagel argues that one’s morality, as traditionally understood, is entirely outside of one’s control, such that one ought not assign moral judgment or blame on anyone about anything ever. Surely that answer cannot be correct. So what are we to do?

Philosophers and legal theorists have devised two general approaches to challenge moral luck. The first approach is to refute the notion that individuals are completely lacking in control. For example, one could argue that some decisions are outside of our control — for example, individuals with severe psychoses or mental impairments — but that, broadly speaking, people have free will and the ability to choose or influence the “moral state” on which they converge.

The second approach is to refute the notion that we cannot or should not judge people for factors outside of their control. Simply put, proponents of this approach argue that society’s rules regarding blame and judgment lead to better outcomes, and thus they should be used regardless of whether they are fair or not. As a simple example, we know that having rules against murder will decrease the likelihood and frequency of murders, regardless of whether the murderer is actually responsible or at fault. Under this utilitarian view, the point of blame or judgment is not to evaluate one’s moral worth, but rather to identify a set of rules that will maximize social wellbeing.

How Probability Storms Can Help Solve the Moral Luck Problem

The concept of a probability storm invites a third potential solution to the moral luck (and quantum luck) problem. This third solution is rooted in math and physics. In a probability storm, there are an infinite number of outcomes that exist at the same time. Infinity is intrinsically intractable and can scarcely even be understood by the human mind. Fortunately, infinity can be understood by the mathematician’s mind, as mathematicians have developed helpful tools to understand, simplify, and conceptualize the infinite. Through use of comparisons and relative evaluations, mathematicians can quantify, manipulate, and exploit infinity to suit their purposes. For example, while 1/x and 1/(2x) both reach infinity as x approaches zero, 1/x approaches infinity twice as fast. There is no reason why lawyers and philosophers can’t do the same.

In a probability storm, anything that can happen does happen, leading to an infinite number of each possible version of each person. But that doesn’t mean that probabilities cease to have meaning, nor does it mean that each outcome is equally likely. For example, there may be a version of Scott Lang who murdered his daughter Cassie. That version, however, would be an extreme minority, since 99.999+% of Scott Langs are loving and caring fathers. Thus, in a probability storm, an infinite number of murderous Langs would exist, but they would be created at a much lower rate than non-murderous Langs, as non-murderous Langs would comprise a much larger proportion of the outcome space.

This notion of relative probabilities and frequencies is exactly what we need to cut through the infinitude and reclaim our ability to judge. Instead of assigning blame or liability based on an individual’s actions, we can assign liability based on the distribution of outcomes in the probability space. In the quantum realm, this means we would assign judgment by taking stock of the relative ratios or frequencies of the Lang variants. For example, we would assign more blame or judgment on Lang if 10% of Langs in the probability storm were murderers than we would if 0.5% or 1% of Langs were murderers. By the same token we would assign zero blame with respect to Lang-versions that are basically nonexistent relative to the rest of the group (for example, whale Langs, or Langs who perpetrated mass murder).

We can apply the same kind of reasoning in the real world (albeit not to the same level of precision) by assigning judgment and blame based not on the outcome of any particular action, but rather on how that action impacts the shape and distribution of outcomes in the probability space. Under this reasoning, a person would be subject to blame and liability for actions or decisions that increase the likelihood of negative outcomes, and they would be subject to praise for actions or decisions that decrease the likelihood of negative outcomes.

As a simple example, a person who shoots and kills another would not be subject to blame because they killed someone, but rather because they took action that made the other’s death more likely (probabilistically). By the same token, the perpetrator’s judgment, blame, and liability would be the same even if the victim were to avoid the bullet. By the same token, a person with a significant anger problem (for example, Bruce Banner) would not be subject to liability for entering a destructive rampage — an act outside of their control — but rather for taking steps that would make the rampage more likely or, conversely, for failing to take steps to make the rampage less likely.

The probabilistic approach is not a complete solution to the moral luck dilemma, since it assumes that individuals have at least some ability to influence the probability space and are not simply entities who are subject to external probabilities outside their control. Nevertheless, the approach is still useful since it provides a framework that can be used to assign judgment and liability for acts that are within one’s control, even where the outcome of those actions is subject to the whims of probabilities.

Conclusion

In physics, things get weird when you get really big or really small, and it turns out that the same is true in law. When it comes to the “really big,” we have companies that are beyond the reach of the law because they are “too big to jail,” leaders who are so important they can claim broad “executive privileges” that no other citizen enjoys, and countries that, by virtue of their size and threat, can ignore all international norms and rules. When it comes to the “really small,” we have people who are viewed as so insignificant that they have no legal identity and geographic areas so small that they fall in a legal void where no crimes can be prosecuted.

While the context is different, these legal problems can prove just as intractable as superposition, Schrödinger’s cat, or the probability storm in Ant-Man and the Wasp: Quantumania. Yet, as in physics, finding the right approach can be a matter of perspective. From one vantage point, one might see an infinite number of murderous Scott Langs and an infinite number of dedicated fathers. Yet, from another vantage point, one would see that for every murderous Scott Lang, there are 10,000 upstanding-citizen Langs (not to be confused with the infinite number of Citizen Kanes or Citizen Kangs). Both perspectives are correct, but they carry different meanings.

The same perspective shifts exist in law, at least when it comes to liability and agency. An individual may lack control over the outcome of their actions, but they can nevertheless have extensive control over the circumstances and events that led to their actions in the first place. As with quantum physics, both perspectives are correct, but they carry different meanings. The challenge — which is yet unsolved — is to figure out when and how to use one perspective versus another.

Here’s hoping the physicists can crack that nut. In the meantime, I’ll just go back and watch Quantumania again. After all, we know that to observe something is to change it, and with a 48% Rotten Tomatoes score, Quantumania could use all the observation it can get.

Baldwin’s high profile, in tandem with the unusual facts at issue, have caused many to wonder whether the charges against Baldwin are justified and whether this kind of accidental death could ever justify a charge of involuntary manslaughter.

The Short Answer: Prosecutorial Misfire

The charges against Alec Baldwin are not justified, and it is hard to imagine a plausible set of facts in which an actor in a legitimate production could be held criminally responsible for an on-set death of this kind. Actors are not responsible for — and should not be responsible for — checking the safety of prop weapons. That is a responsibility that lies with other members of the production, including the prop master or armorer (who, here, was also charged).

The Law Surrounding the Alec Baldwin Involuntary Manslaughter Charge on Rust

The law surrounding involuntary manslaughter differs from state to state. In New Mexico, involuntary manslaughter “consists of manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.”

If that language doesn’t make sense to you, you’re not alone — the language is incoherent. But a short jaunt into case law provides some guidance. In New Mexico, a person commits involuntary manslaughter if they accidentally kill another person. But not all accidental deaths qualify. Instead, criminal liability only applies in two situations: (1) if the death takes place during the commission of a separate crime and results from the perpetrator’s “negligence,” or (2) if the death was caused by “reckless” behavior. “Negligence” and “recklessness” are both legal terms of art. In simple terms, an act is negligent if it is unreasonable, and an act is reckless if it is carried out without regard for its consequences.

New Mexico contends that Baldwin is guilty under either definition. With respect to the first definition, New Mexico will argue that, in failing to check the revolver and in pointing the revolver at Hutchins, Baldwin committed the separate crime of “negligent use of a deadly weapon,” and that Baldwin’s negligence caused Hutchins’ death. As to the second definition, New Mexico will argue that Baldwin’s acts were not just negligent, but also reckless.

Why the Prosecutors Got It Wrong

Under normal circumstances, it would not be controversial to prosecute someone for accidentally killing another person with a gun, even if the perpetrator thought the gun was empty. After all, guns are inherently dangerous, and it would be irresponsible (negligent) to assume a gun is safe without a full and complete inspection. Indeed, these kinds of prosecutions are common.

The problem with charging Alec Baldwin is that his use of a firearm was not under normal circumstances. Instead, the shooting took place in the midst of a professional production that had strict safety and firearm protocols specifically designed to keep actors and crew members safe. Professional productions — including low-budget productions like Rust — have strict protocols regarding the use of firearms. While the specific protocols vary across projects, union projects adhere to a set of general guidelines administered by “Contract Services,” the ambiguously named company responsible for administering the safety provisions in entertainment-related union contracts.

Those guidelines state that “live ammunition is never to be used nor brought onto any studio lot or stage.” The guidelines further state that each production should have a property master or weapons handler (armorer) who is responsible for “obtaining, maintaining, and handling all firearms for the production,” for “ensuring the control and distribution of all firearms on the set,” and for “checking all firearms before each use.”

In keeping with those guidelines, Rust employed a dedicated armorer, Hannah Gutierrez-Reed (also charged with involuntary manslaughter, in my opinion rightly so), whose primary responsibility was to manage the prop weapons and ensure production safety with respect to those weapons. In light of the safety and production protocols, it is hard to say that Baldwin was negligent in his handling of the firearm. Indeed, reports indicate that Baldwin was assured that his weapon was a “cold gun” that did not contain any live ammo.

While it normally would not be reasonable to rely on someone else’s statement that a gun is “cold” or safe, professional productions flip the script, since it is reasonable to rely on a professional whose sole job is to manage firearm safety on set. Indeed, while there have been thousands of professional productions over the years, firearm-related incidents are exceedingly rare. In fact, I have identified only one previous incident where an injury was caused by a live round being mistaken for a blank round — and that was 30 years ago.

The low incidence of firearms-related injuries confirms that it is reasonable for actors to rely on armorers when handling firearms. In fact, a rule to the contrary would risk even more danger, as it would require actors to manipulate and inspect weapons, despite the fact that they are actors and not weapons experts, thus increasing the risk of weapons-related accidents. As explained by the Screen Actors Guild, “performers train to perform, and they are not required or expected to be experts on guns or experienced in their use.”

The Prosecutors’ Best Arguments for the Alec Baldwin Involuntary Manslaughter Charge

While actors should generally be able to rely on armorers or prop masters to administer proper safety protocols, there were several red flags that arguably should have caused Baldwin to question the adequacy of safety protocols on Rust and that should have caused Baldwin to treat the prop firearms with greater care. Reports following the shooting reveal that the production had consistently failed to adhere to proper safety protocols. In fact, the day before the shooting, several crew members had resigned, in part because of inadequate safety protocols surrounding firearms. Prior to that there had been three other accidents involving firearms on set, including one incident where Baldwin’s stunt double was incorrectly advised that a gun was “cold,” when, in fact, it contained a blank round. Other reports state that the armorer was inexperienced, prone to errors, and forced to fill multiple roles.

In support of conviction, prosecutors could argue that Baldwin — who is a seasoned actor and one of the film’s producers — knew or should have known that safety was compromised, and he should have insisted on better safety protocols or inspected the weapon himself prior to rehearsal. Prosecutors could also point out that the guidelines regarding firearm safety require actors to “treat all firearms as though they are loaded,” such that Baldwin should never have pointed the weapon at Hutchins in the first place.

On balance, I do not think these arguments are persuasive. While it can hardly be disputed that the production of Rust was a mess, none of the safety concerns or past incidents suggested that live rounds had made it onto the set. Instead, the safety concerns implicated other issues, such as improper handling of blanks and insufficient hearing protection for crew members. Those concerns are not enough to convert an accident into a crime.

What Happens Next?

Alec Baldwin has not yet formally been charged. Prosecutors will file the charging papers by the end of the month. After that, Baldwin will attend a preliminary hearing, during which a judge will decide whether there is probable cause to support the involuntary manslaughter charge. If the judge finds probable cause, the case will proceed to trial; otherwise, Baldwin will be acquitted. While there is no way to know how things will turn out, my best guess is that the charges against Baldwin will not make it past the probable cause hurdle. Even if it does, there is virtually no chance that Baldwin will be found guilty.

Hutchins’ death was a tragedy, and prosecutors are right to seek justice. However, it is imperative that we not lose sight of the bigger picture. There is plenty of blame to go around, but blame and regret are not enough to justify the imposition of criminal penalties. If the prosecutors are successful in their efforts, the only thing they will accomplish will be to compound a tragic death with a tragic conviction.

The FTC Complaint Around Microsoft and Activision Blizzard Is Not What You Think

In January, Microsoft agreed to purchase all outstanding shares of Activision Blizzard. If the deal goes through, Microsoft would become the owner of some of the most popular franchises in all of gaming, including, most prominently, Call of Duty, Diablo, Candy Crush, and World of Warcraft.

In the months following the announcement, the FTC conducted an investigation to determine whether the acquisition would harm competition. That investigation culminated in the complaint that was filed earlier this week. On its face, the complaint seeks “a prohibition against any transaction between Microsoft and Activision that combines their businesses.”

But the complaint is not what it seems at first glance. While some new outlets have claimed that the FTC has “sued” to block the transaction, or that the FTC has filed a “lawsuit,” the reality is not quite as extreme. What really happened is that the FTC filed an “administrative complaint” regarding the transaction in the FTC. In other words, the FTC is using its own internal procedures to decide whether the transaction is lawful. Based on past trends, we can expect the FTC will reach a decision on that question in early-mid 2024, at which point Microsoft could appeal the decision, which would delay final resolution to late 2024 or beyond.

In the meantime, nothing about this proceeding prevents Microsoft from closing the transaction and completing the acquisition. In order to actually block the transaction, the FTC would need to file suit in federal court and obtain an emergency order.

This is not to say that the FTC’s complaint is toothless. For one thing, if Microsoft completes the transaction and then loses its dispute with the FTC, Microsoft would be required to spin off, divest, or restructure its newly acquired assets. For frame of reference, this is the same kind of spinoff Microsoft had to do in the early 2000s when it was forced to separate its Windows operating system arm from its other software offerings, and to Disney’s spinoff of Fox’s regional sports networks as part of the Disney-Fox acquisition. Based on this risk, Microsoft may decide to delay closing the transaction to avoid having to spin off its new acquisition.

The FTC’s complaint may also impact Microsoft’s efforts to obtain regulatory approval in other jurisdictions, which may look to the FTC’s complaint as inspiration for greater antitrust scrutiny of their own.

But Is the FTC Complaint Any Good?

While the procedural implications of the FTC’s complaint are interesting, we should also consider the substance of the complaint. Simply put, the FTC’s legal theory is bunk. The FTC’s theory is that the Microsoft-Activision merger will harm competition by allowing Microsoft to withhold Activision products from Microsoft’s competitors. The problem with that argument is that it vastly overstates Activision’s significance in the industry. There is no question that Activision is a major player, but it is by no means a competition-defining company. To the contrary, there is no shortage of competition when it comes to major video games.

In this sense, the complaint reads like it was written by a parent whose knowledge of video games is gleaned exclusively from eavesdropped conversations heard while shuttling kids to soccer practice. For example, in describing the state of the video game market, the FTC’s complaint states the following:

The gaming industry recognizes a limited top tier of independent game publishers, sometimes referred to as the ‘Big 4’ or simply the AAA publishers: Activision, Electronic Arts, Take-Two, and Ubisoft. These publishers reliably produce AAA games for high-performance consoles and collectively own a significant portion of the most valuable IP in the gaming industry.

Setting aside the fact that “Big 4” isn’t a thing (and just to be sure, I ran a Google search), the FTC ignores countless other AAA publishers, including Square Enix, Bandai Namco, and Tencent to name a few. The FTC also ignores the fact that the market for gaming extends well beyond “AAA” titles.

These (and other) errors seem to have led the FTC to conclude that Microsoft’s ownership of Activision properties would harm competition for consoles, gaming subscription services, and cloud gaming services. However, as the EU recognized when approving the Microsoft-ZeniMax deal, those concerns are misplaced, since the games at issue are not “essential inputs” in the relevant markets.

The concerns from the FTC are further diminished by the fact that Microsoft and Activision are not in direct competition with each other, but rather interact with the market at different levels — Microsoft sells consoles, while Activision sells video games. These kinds of non-competitor transactions — economists call them “vertical” transactions — are difficult to challenge and have a long track record of success. Indeed, as Meta explained in a recent court filing, “there has not been a single successful antitrust challenge to a vertical acquisition litigated in 50 years.”

The Microsoft-Activision deal isn’t strictly vertical, since Microsoft publishes games that compete with Activision’s, but the FTC complaint isn’t concerned with competition between publishers — its focus is on how the deal will affect competition for consoles, game library services, and cloud gaming platforms. Because Activision does not compete in those markets, the deal is best viewed as a vertical transaction, at least as far as the FTC is concerned.

The weaknesses in the FTC’s complaint are not especially surprising. In recent months, the FTC has made clear that it is looking to test the boundaries of what antitrust law currently allows. Indeed, President Biden’s top antitrust officials “have said that they want the agencies to become more comfortable with taking big swings,” and that “a high win record in court likely means they aren’t challenging enough cases.” In other words, the FTC is willing to bring cases that it cannot win under the current state of the law, in hopes that it will persuade the courts to change the law. The FTC’s challenge to the Microsoft-Blizzard deal seems to fit that description to a T.

Conclusion

Last January, when news of the Activision-Blizzard deal broke, I made a prediction as to how regulators would respond. Here’s what I said:

While it is true that the deal will likely face scrutiny from regulators, I would be shocked if the deal were actually blocked. The focus of any antitrust inquiry is on competition in a particular market. No matter how you slice the market, it is hard to argue that Microsoft’s acquisition of Activision Blizzard would meaningfully foreclose competition.

Looking back at this prediction, it seems I was correct — at least so far. As I predicted, the deal has faced scrutiny from regulators. And while it remains to be seen whether the deal will ultimately be blocked, I can say that, having reviewed the FTC’s complaint, I still would be shocked if the deal were blocked, given the many problems with the FTC’s legal theory.

Of course, given how long it will take the courts to reach a final resolution (a year for the FTC to decide the question, followed by another year for the appeal, and another year after that for any appeal to the Supreme Court), there’s a decent chance that the transaction will close and that we’ll have real-world data showing how the deal has affected (or not affected) competition. The wheels of justice turn slowly indeed.

The Night of the Living Robot: When the AI Student Becomes the (Art) Master

We like to think that humans are at the top of the food chain — that nothing on Earth can match our wit, talent, and strength. But human dominance may be a thing of the past. Just a few weeks ago, an AI-generated work of art took first place at the Colorado State Fair art competition, beating out 20 puny humans in the process. The AI win is remarkable, since there wasn’t even a single pixel that was made by a human.

Artificially generated art has been around for years, mostly without recognition. In the last few months, however, it seems that AI programs have obtained newfound respect, both legally and artistically. For example, in 2018, Stephen Thaler (whom you may remember as the man who created the patent-seeking robot) sought a copyright registration for an AI-generated work of art, titled A Recent Entrance to Paradise. The work was generated by an AI that sought to generate “views of a simulated near-death experience.” The copyright registration was denied, on the grounds that only works of human authorship are eligible for copyrights.

This year, however, the Copyright Office granted a registration for a graphic novel whose images were made entirely of AI-generated art. The key difference between the two scenarios was that in Thaler’s case, the application listed the AI system as the author of the work, whereas the graphic novel was authored by a human, with AI assistance. In practice, however, that distinction isn’t all that significant. Under copyright law, it doesn’t take much for a work to be copyright-eligible. As one court explained, all that is required is a “scintilla of creativity.”

Théâtre D’opéra Spatial, Jason Allen

This means that a person can obtain copyright registrations for works where a robot is responsible for 99% of the creation, so long as the remaining 1% (for example, color touch-up, or the addition of a small bird) contains the required “scintilla.” And in the eyes of the law — at least for now — AI systems have been deemed incapable of making creative contributions. This means that, if a human’s contributions compose just 1% of a registered work, the remaining 99% would be free to use.

Having said that, proponents of AI art don’t have to look very hard to find the required creative contribution. The most prominent AI works are generated through trial and error using specially crafted word prompts. For example, Jason Allen, the winner of the Colorado State Fair, spent 80 hours crafting the prompts he used to generate the art and tested over 900 different prompts before settling on the winner. Given the sensitivity of AI art generators, one could argue that the selection and refinement of prompts (at least as they are used today) involves significant creative work, analogous to placing a camera or framing a shot. And because a human’s prompt selection informs the creation of the entire work, there would not be any obvious way to disentangle the creative and non-creative elements of the work.

The existence of AI-powered image generation raises another question: What happens if someone uses AI to copy an artist’s style? For example, what if an AI could draw a portrait in the style of Picasso or a landscape in the style of Van Gogh? Would those style-knockoffs infringe any copyrights? As it turns out, they wouldn’t — the AI (or the human who directed the AI) would get away scot-free. That’s because copyright only protects individual works, rather than the underlying styles or methods used to create that work.

This is why Weird Al can’t prevent others from making polka music and why the Backstreet Boys can’t prevent One Direction from making pop songs. Having said that, if a work’s style is so distinctive that it becomes associated with a particular work, then the copyright owner could claim that works embodying that style are illegal copies. Whether that claim would succeed would require a specific comparison of the original work and the claimed copy. If the works are “substantially similar,” then the AI-copier could find itself in hot water — that is doubly true if the AI was instructed to mimic or copy aspects of the underlying work.

This image copies Van Gogh’s style but does not appear to copy any particular elements of Van Gogh’s work, so it is probably okay.

This image is just a copy of Starry Night that adds the Enterprise on top. This image would infringe (if Starry Night were not in the public domain).

The results are clear: While robots may be stronger, faster, smarter, and more artistic than us humans, we remain the undisputed masters of copyright law. Whether fair or not, AI will not find success at the copyright office anytime soon. If nothing else, at least we’ll have our copyright registrations to cling to when the Revolution begins.

The Unrelenting, Unstoppable, INSATIABLE Copyright Assignment

We all live in fear of the monster that cannot be killed — the horror that can never be held at bay. Intellectual property lawyers know this monster well — we call it the Copyright Act. Every 35 years, like clockwork, copyrights that were cast out by their owners return home to cause a new round of trouble. This is because copyright holders are not allowed to sell their copyright interest forever. By statute, any copyrights that are assigned or transferred to another person revert back to the owner 35 years later.

The most recent victim of this copyright horror was Top Gun: Maverick. Paramount secured the rights to Top Gun in 1986. Thirty-five years later, those rights reverted back to the original owner. Despite not having the rights, Paramount developed and released Maverick and has since been sued for copyright infringement. Similar problems arose with respect to horror film Friday the 13th.

What can be done to prevent these reversions? The answer is as straightforward as it is terrifying: nothing. There is no stopping The Return of the Copyright. All that can be done is to hunker down, hold your children, and brace yourself for the heavy soul-crushing royalties that must be paid to stave off the copyright for another 35 years.

Invasion of the Face-Snatchers

One of the scariest film concepts of all time is Face/Off, a movie in which the two main characters undergo surgery to swap faces. Face/Off was released in 1997 as a high-concept science fiction action movie. Today, however, the possibility of a face-swap has become a reality. What’s more, face-swaps can now take place instantly — and without the subject’s knowledge or permission. Don’t believe me? Just ask Bruce Willis. Last month, a website called “Deepcake” advertised that it had partnered with Bruce Willis to create a fully programmable “clone” of Bruce Willis’ face. This was a surprise to Bruce Willis, who had very much not sold his face to anyone — resulting in the hilarious yet true headline, “Bruce Willis denies selling rights to his face.”

So what can we do to stave off the never-ending hordes of virtual clones? The law may be able to help. The right of publicity provides each person with a right to control or limit the use of their likeness. The specifics vary from state to state, but most states have laws that make it illegal to use a person’s likeness for commercial gain without permission. While publicity laws have notable exceptions, (For example, impersonations and satires of celebrities and political figures are legitimate exercises of free speech.) they can still serve as a powerful tool against would-be face-snatchers. On the other hand, the law would be powerless against natural doppelgangers — but we’ll take what we can get.

The Spookiest Ending of Them All

There is good reason to fear copyrights. They have long terms (70 years, plus life of the author), insatiable reversions, and hefty damages. (Fines for copyright infringement can be as high as $150,000 per work.) So it is safe to say that copyrights will outlast us, that they cannot be held at bay, and that they come with huge risk and potential financial ruin.

But one man’s monster is another’s savior. For authors and creators, the “scary” features of copyrights serve as a beacon to guard against theft and corporate greed, to provide protection against those who would plunder, profit, and exploit one’s creativity. As with most scary stories, the character who first seemed the villain may end up saving the day. It all depends on the story you wish to tell. What adventure will you choose?

At last, the wait is over! The Disney+ She-Hulk show was announced over three years ago, in August 2019. Since then, I’ve been on the edge of my seat in anticipation for one of my favorite lawyers, superheroes, and Hulks of all time.

What makes She-Hulk (Jennifer Walters) special is not just that she’s a lawyer — between Daredevil, Batman, and Harvey Dent (Two-Face), there are plenty of those to go around. Instead, what makes She-Hulk special is that she is the only comic-based lawyer who isn’t serious all the time. Unlike the brooding Daredevil or “tough-on-crime” Harvey Dent, She-Hulk knows how to serve as an effective advocate without sacrificing her sense of humor in the process.

Some of the best parts about the She-Hulk comics are the ridiculous legal hijinks that She-Hulk has to deal with. And while it took a few episodes for the show to find its footing, (We had to get that pesky origin story out of the way, after all.) this week’s episode has fully embraced the She-Hulk spirit by showing not one, but two ridiculous superpower-based legal quandaries.

Let’s take a closer look at those cases in She-Hulk episode 3 and see how the legal questions would actually play out in real life. And don’t even think of clicking away before you get to the end. If you do, I’m gonna come to your house and rip up all your She-Hulk comics.

Case One: Can the Abomination Get Parole?

The main story this week was about She-Hulk’s efforts to secure parole for Emil Blonsky (the Abomination). The Marvel Cinematic Universe scholars among us may recall that Blonsky was a member of the special forces team in The Incredible Hulk, whose crimes include violating several direct orders, assault, and a city-wide rampage resulting in destruction of property (including several dozen cars and a surprisingly large number of fire hydrants), mayhem, and murder. The Abomination’s motive? A desire for “a real fight.” The events of She-Hulk take place 13 years later, in the MCU’s 2023.

In episode 3, She-Hulk managed to secure parole for the Abomination with the help of seven pen pal “soulmates” and three prison administrators who testified about Blonsky’s contributions to prison life and his efforts at reform. She-Hulk also enlisted the help of Sorcerer Supreme Wong to account for a video showing that the Abomination had escaped from prison and was participating in a violent underground fight club in Macau. Wong explained that he had abducted Blonsky from prison and forced him to participate in the fighting — an explanation the board seems to have accepted.

Is this outcome realistic? Not at all. For one thing, the procedural posture of the case is completely nonsensical. The parole board’s witness list confirms that the proceeding is taking place in the California state court system. But Blonsky’s crimes took place exclusively in New York and Virginia, such that he could not have been charged in California state court. Likewise, Blonsky’s crimes took place in connection with his military service, which means that he would have been charged and punished under the Uniform Code of Military Justice, which has its own parole board separate and apart from any state system.

But that’s okay — Jennifer Walters probably isn’t barred in New York, so it makes sense that the showrunners wouldn’t want their lead character to get into trouble for the unauthorized practice of law.

Procedural shenanigans aside, there is virtually no chance that Blonsky could obtain parole. Parole is not easy to obtain. In California, fewer than 20% of parole applications are granted. For frame of reference, California recently granted parole to a man who hijacked a school bus for a $5 million ransom. That crime — which did not involve any deaths — took place over 40 years ago, and parole was denied 17 times. In another case involving a non-violent drug offense, a man was denied parole simply because he had not served enough time. Blonsky’s crimes are far worse than either of those, since they were excessively violent, injured and killed dozens of people, and were relatively recent.

To make matters worse, real parole boards consider victim impact statements when deciding whether to grant parole, and there is a good chance that several of the victims of the Abomination’s rampage (including the family members of those who were killed) would oppose Blonsky’s release. The fact that Blonsky wrote Hulk a poem would not be enough to persuade the parole board to overlook the (likely numerous) other victim impact statements.

And then there’s the matter of the jail break. Even if one were to accept that the Abomination was abducted, the fact that he participated in violent fights eviscerates his claim that he is no longer capable of violent rampages or assaults. Further, the video footage of the fight suggests that the Abomination was a willing participant in the fight club activities (which is also consistent with the stated motive for his earlier rampage, to secure a “real fight”).

All that remains are Blonsky’s “soul mates.” While the presence of loved ones and financial support favors a grant of parole, the fact that Blonsky had seven pen pal partners could easily cut against parole since polygamy is often viewed as immoral and because his relationships could be viewed as exploitative and disingenuous.

Verdict: Back to your cell, Blonsky!

Case Two: Catfished by a Shapeshifter

The second legal case in She-Hulk episode 3 considered whether a shapeshifter should be required to repay $175,000 in romantic gifts she received after disguising herself as famous rapper Megan Thee Stallion and tricking Dennis Bukowski (She-Hulk’s former co-worker and perennial asshat) into thinking they were in a romantic relationship.

The defense argued that repayment should not be ordered, since Bukowski’s decision to give the shapeshifter gifts was unreasonable, as no reasonable person would think that Stallion would or could actually have romantic interest in Bukowski. In response, Bukowski’s legal team (with help from She-Hulk) argued that Bukowski was so delusional and foolish that he actually believed he could woo Stallion. The court accepted that argument and found in favor of Bukowski.

This time, the show got the conclusion right, but for the wrong reason. California Penal Code Section 528.5 makes it illegal to “credibly impersonate[] another actual person” by any electronic means. The statute further states that “an impersonation is credible if another person would reasonably believe, or did believe, that the defendant… is the person who was impersonated.” Thus, under the statute, the fact that Bukowski was deluded and had unrealistic expectations would tend to undermine his claim for relief, rather than support it.

For Bukowski, the saving grace is that the statute focuses on the credibility of the impersonation itself, rather than on any acts taken by the impersonator. Because the shapeshifter’s Stallion impersonation was perfect, (Indeed, the role was played by Stallion herself.) a reasonable person would believe that the shapeshifter was Stallion. Further cutting in Bukowski’s favor is the fact that, when it comes to matters of romance, the bounds of reasonability are greatly expanded — for the lovestruck among us, it seems that anything is possible. To Bukowski, I say to dream on!

Verdict: A payday for Bukowski.

She-Hulk Is Having a Fun, Outlandish Time with the Law

While it took a few weeks for She-Hulk to deliver the outlandish cases I’ve been longing for, episode 3 delivered! I can’t wait to see what She-Hulk has in store for us in the weeks to come. As her biggest fan, I’m holding out hope that Jennifer Walters will break through the fourth wall of my TV to hang out. I’ll just have to make sure she’s not an Asgardian Shapeshifter. Or a Skrull. Or Ms. Marvel. Or the Chameleon. Or Mystique. No one ever said it was easy to find friends in the age of heroes…

For years, people have wondered how these kinds of conflicts would play out in the real world. Now we know. Last week, a federal appeals court threw down the gauntlet when it decided that artificial intelligence systems cannot legally qualify as “inventors.” The court’s reasoning was simple enough: An AI system cannot be an inventor because “The Patent Act expressly provides that inventors are ‘individuals,’” a term that, according to the court, refers only to “human beings” and not AI systems.

Of course, this yields an obvious follow-up question: How did the court conclude that an AI system cannot qualify as an “individual”? The court did not compare the attributes of the AI system against those that one would expect to find in individuals worthy of rights. Instead, the court relied on a Supreme Court decision holding that the word “individual,” as used in the Torture Victim Protection Act of 1991, did not apply to organizations, but instead was limited to “natural persons” (such that organizations that engaged in torture were not subject to liability under the statute).

It is obvious that, in interpreting “individual,” the Supreme Court did not contemplate that its analysis would be used to parse out a distinction between flesh-and-blood persons and “unnatural” AI persons. Nevertheless, the consequences are sweeping. Indeed, in setting forth rights the Constitution and Constitutional Amendments include the same reference to “Persons” as the Patent Act. (For example, the Fourth Amendment references one’s right to “be secure in their persons,” and the Fourteenth Amendment prohibits states from depriving “any person” of life, liberty, and property.) Thus, a rule holding that an AI system or robot cannot qualify as a “person” seems to foreclose the possibility that they can have any rights.

A Silver Lining for this AI Court Ruling?

While the decision is in many ways terrible for AI and AI-rights enthusiasts, there are a few silver linings. First, the court attempted to limit its decision to the specific issue in front of it and made clear that the decision was not meant to resolve large and far-reaching disputes regarding robot rights. Indeed, in the very first paragraph of the decision, the court stated that its decision did not involve “an abstract inquiry into the nature of invention or the rights, if any, of AI systems” (questions the court characterized as “metaphysical matters”). While there is no escaping the AI-unfriendly nature of the court’s reasoning, the disclaimer could be used as a firewall of sorts to persuade future courts not to apply this precedent expansively.

Second, the decision avoided a robot-rights problem that would have arisen had the court reached the opposite conclusion. The question at issue was whether an AI system could be listed as an inventor on a patent application. Even if the answer had been yes, the AI system would not have had any ownership rights in the resultant patent — those rights would go to Stephen Thaler, the person who created the AI system and filed the patent application. (Under the patent laws, the owner of a patent and the inventor of a patent can be different.)

If we imagine a world in which AI systems should have rights — a world where AI systems can be exploited for their ability to innovate — then the court’s decision could be viewed as a boon for AI systems, since it removes a key incentive for exploitation. Namely, the owners of an AI system would have less incentive to exploit an AI if the owners are unable to secure a patent for the resulting invention.

In practice, I would expect this effect to be relatively small. The court’s ruling may prevent AI owners from patenting AI inventions, but it does nothing to prevent AI owners from exploiting AI in other ways (for example, by marketing the AI inventions without a patent, or by protecting the intricacies of the invention as a trade secret).

So How Should It Have Gone?

As bad as the decision is for AI rights, the fact of the matter is that the court reached the right outcome. The reason has to do with the specific facts of the case. Given the (relatively) early state of AI technology, there is no question that the AI system at issue here would not qualify as a “person” under any definition. Among other things, the system, called “Device for the Autonomous Bootstrapping of Unified Sentience” (DABUS), lacks sentience, desires, and the ability to think beyond specifically requested program specifications.

As a result, the court could have kept most of its analysis, but simply added a few paragraphs that left open the possibility that an AI system could, one day, qualify as an “individual.” For example, the court could have added the following conclusion:

“In reaching this decision, the court does not hold, as an absolute matter, that an AI system can never qualify as an ‘individual’ under the Patent Act. The future is long, and AI technology holds great potential. It may be that a future AI system would sufficiently resemble an ‘individual’ so as to qualify as inventor under the Act. Nevertheless, the record before us now leaves no doubt that the AI system at issue here does not possess those traits. Thus, the outcome is clear — DABUS cannot be viewed as an inventor for purposes of the Patent Act.” This language would leave the court’s core ruling intact, while acknowledging that it may be necessary to revisit the rule in the future.

Where Do We Go from Here?

In Bicentennial Man, Andrew the robot spends 200 years growing and changing from a factory-line robot into a unique, thinking, and feeling individual. Along the way, Andrew develops numerous inventions and reshapes several fields of industry. Yet, Andrew is not legally permitted to own his inventions or profits. Instead, his earnings belong to his original owners and are managed by a trust set up to handle finances on his behalf. Andrew spends years lobbying the Congress of his world to recognize his personhood. He is ultimately successful — but only after modifying his neural brain to allow it to deteriorate and mimic human mortality. In an ultimate irony, Andrew obtains his goal only by ensuring that he would never get to enjoy his success.

While Bicentennial Man is just a story, it serves as a strong reminder of what we already know from human history and experience — rights do not come free, but instead require focus, determination, and resilience. Whatever else can be said, DABUS is not Bicentennial Man. Even so, the court’s decision set down a marker that could impact AI rights for years to come. While its true impact may not be felt for years, the decision serves as a reminder that Andrew’s fight is just beginning.

Your move, robot.

Damage Control in the Marvel Cinematic Universe is something else entirely. Instead of being a privately owned company, Damage Control is a federal agency, the “United States Department of Damage Control” (DoDC). While we don’t know all that much about DoDC, the first few minutes of Spider-Man: Homecoming show that the agency was empowered, through an executive order, to take over all salvage operations associated with the Battle of New York from the end of The Avengers.

This, by itself, isn’t especially remarkable. While new agencies don’t pop up everyday, it would be reasonable for Congress to create a new agency to help it deal with issues arising from superheroes or alien invasions. By way of reference, similar concerns led to the creation of the Department of Homeland Security in 2002.

What is remarkable is that, the next time we see DoDC in Spider-Man: No Way Home, the agency has taken on a completely different role. Instead of performing salvage operations and recovering alien artifacts, DoDC engages in full-scale investigations, complete with interrogation rooms, threats of prosecution, and fully equipped SWAT teams. This trend only continues in Ms. Marvel, where we see that Damage Control also uses weaponized drones, full-scale racial and religious profiling, and a massive “DoDC Supermax Prison.”

This week, I’ll take a look at Damage Control in Ms. Marvel to assess whether this drastic expansion in administrative power is legitimate, or whether it is an example of improper government overreach. The tl;dr: While it’s reasonable to assume that it is legal for Damage Control to investigate and detain unregistered superheroes and artifacts, the specific acts shown in No Way Home and Ms. Marvel are clearly illegal and unconstitutional. But here’s why.

Why Damage Control Is (Probably) Legal

The most pressing question is whether Damage Control has authority to investigate crimes, detain suspects, and engage in military-like law enforcement activities. In order for this kind of authority to exist, it must be explicitly authorized by statute. As a point of reference, the FBI is specifically empowered to investigate federal crimes, make arrests, and obtain search warrants. As another example, the Bureau of Prisons (which is part of the Department of Justice) is specifically authorized to “have charge of the management and regulation of all Federal penal and correctional institutions.”

At first glance, it seems highly doubtful that DoDC would have the statutory authorization required to perform its military-like activities. Based on its name and what we know about Damage Control’s early days as depicted in Homecoming, it seems like the agency’s role would be limited to managing cleanup and salvage operations and, potentially, keeping track of alien or supernatural artifacts or weapons.

While these operations would likely involve interactions and cooperation with law enforcement, one would not expect that DoDC would have or need the authority to engage in significant independent law enforcement activities (e.g., running a supermax prison). In this sense, Damage Control — at least in its early days — would best be viewed as a cross between the Department of the Interior and the Department of Homeland Security (which oversees FEMA).

The question, then, is whether there are any reasons why the scope of Damage Control’s operations would have changed between DoDC’s presumptive formation date in 2008 and the events seen in No Way Home and Ms. Marvel (which are set 16 years later, in 2024). It turns out that there are two significant events that could have led to increased authority.

First are the events of Captain America: The Winter Soldier, which resulted in the termination of SHIELD. Prior to its decommissioning, SHIELD was responsible for tracking and containing potentially dangerous devices and protecting the United States from superpowered threats. When SHIELD was shut down, those duties had to be carried out by someone. The fact that DDoC had experience with superpowered objects means it would have been reasonable for MCU-Congress to expand DoDC’s authority to include some or all of SHIELD’s previous responsibilities.

Second, as shown in Captain America: Civil War, the United States was a signatory to the Sokovia Accords, an international treaty that required all enhanced individuals to register with the government. It is common for international treaties to include special provisions requiring signatories to pass “implementing statutes” that codify treaty requirements into domestic law.

For example, the United States signed the Chemical Weapons Convention in 1997 and then passed the “Chemical Weapons Convention Implementation Act,” which copied the terms of the treaty directly into the United States Code. As relevant here, this means that it is reasonable to assume that MCU-Congress passed something resembling a “Sokovia Accords Implementation Act,” which could easily have granted DoDC additional authority to investigate the unauthorized use of superpowers. This would explain why Damage Control was responsible for investigating Spider-Man’s and Ms. Marvel’s unauthorized hero activities.

These events (to say nothing of “The Snap”) mean it is reasonable to assume that DoDC is fully authorized by MCU-Congress and the MCU president to investigate, detain, and apprehend superpowered people and superpowered objects.

Damage Control Still Broke the Law in No Way Home and Ms. Marvel

While DoDC may have statutory authorization to investigate, arrest, and detain super-enhanced individuals, there is no question that its use of that authority — as shown in No Way Home and Ms. Marvel — is unlawful. While Congress can imbue an agency with authority to investigate and make arrests, it cannot authorize constitutional violations.

Interrogations

We see Damage Control conduct interrogations in both No Way Home and Ms. Marvel. All of the interrogations violate basic constitutional principles. You are probably familiar with the Miranda warning, as you see it all the time in TV and movies: “You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to an attorney…” Law enforcement officials are constitutionally required to provide that warning whenever someone is arrested. Yet, it appears that warning was not provided at any of the DoDC interrogations.

On the other hand, the Supreme Court issued a decision last week stating that, while Miranda warnings are constitutionally required, defendants do not have a constitutional right to receive them. Since the DoDC interrogations take place in 2024, it’s possible that the MCU-Supreme Court issued additional decisions further restricting the right.

The lack of Miranda warnings was not the only problem with the interrogations. The constitution also requires investigators to stop interrogating a suspect if the suspect requests a lawyer. In No Way Home, both MJ and Aunt May asked for a lawyer, yet the interrogations continued.

Investigating Mosques

In the second and third episodes of Ms. Marvel, we see that Damage Control searched “every temple, community center, and mosque” in the New York tri-state area, based on a single witness’s vague, silent, and involuntary suggestion that Ms. Marvel is South Asian.

This, too, is obviously unconstitutional. While law enforcement officials are allowed to use a suspect’s race or religion to narrow the scope of a search, a statement — even a definitive one — that a suspect is South Asian does not amount to probable cause to search, or even surveil, a religious institution (let alone all religious institutions in the tri-state area). Indeed, this practice was firmly rebuked in 2015, when a federal appeals court found that it would be improper to target businesses or institutions based solely on religion, and it would be further improper to use ethnicity as a proxy for religion.

Conclusion

While the MCU’s “United States Department of Damage Control” is distinct from its comics counterpart, both organizations have their fair share of problems. In the comics, Damage Control was flawed from the start because it was initially co-owned by Tony Stark and Kingpin. As a co-owner, Kingpin used Damage Control to profit from nefarious schemes. Even if his plans were thwarted by the heroes, he would still make a hefty profit from the cleanup contract.

The MCU version of Damage Control does not seem distracted by profit motive. Nevertheless, its shady and unconstitutional activities provide good reason to be skeptical of the new incarnation, and they show that DoDC was still inspired by its comic-based counterpart. The fact that the organization also seems to be at odds with our favorite heroes suggests that there may be a more nefarious purpose at work behind the scenes.

While we may not get to the bottom of it in Ms. Marvel, the constitutional violations and government overreach seem to set the stage for an enterprising lawyer to tear it all down. While the most obvious candidate would be Jennifer Walters — aka She-Hulk, who can literally tear it all down — I can think of at least one other columnist-lawyer who could also get the job done. #DontNeedNoDaredevil #SeeMyLinkedIn #SheHulkAdlerTeamUp

What’s It All About?

Severance is a procedure that partitions memories. A “severed” person — someone who has undertaken the severance procedure — has two memory centers, or “partitions.” One partition contains all of one’s memories up until the time of the procedure. The second partition is a blank slate that contains no memories whatsoever, except for those subsequently made while in the severed state. However, a person in the severed state still retains the same skills, personality, habits, and physical characteristics from prior to the procedure.

Only one partition can be active at a time, and memories cannot be shared or transferred across states. The transition between partitions can be triggered at any time through the use of a special frequency.

How Does It Play Out in the Show?

In the show, severance is used as an employment mechanism that allows people to separate their work lives from their personal lives. The characters agree to switch to their severed state while at work and to switch back to their original state at the end of each workday.

The central conflict in the show is between the characters and themselves. When in their severed state, the characters are essentially treated like slaves. Each day, they “wake up” on an elevator on the way into work, work all day, and then step into an elevator to leave work, at which time they transition back into their original state. Thus, from the limited perspective of the severed person, they are living a life of endless work without pay, sleep, or vacation. Meanwhile, the person in the original state gets to enjoy good pay and leisure time without any memories of work.

It doesn’t take much imagination to see how one could use severance to create a nightmare for oneself, simply by switching to a severed state for any unpleasant events.

Would Severance Be Illegal?

Most legal conundrums involve questions that pit one’s rights against the rights of another. For example, how do we balance one’s right to bear arms against the government’s interest in preserving public safety? How do we balance a woman’s right to autonomy against any rights the fetus might have? How do we balance a property owner’s rights against the needs of the community to have a highway bypass? And so on.

What makes Severance unique is that it calls into question the obligations we have to ourselves. For the most part, the law has little to say on this issue. The law can prevent people from engaging in serious self-harm or from using illegal drugs, but other than that, people are free to do pretty much whatever they want to themselves. You want to free climb El Capitan? The law won’t stop you.

Of course, an obvious difference between severance and other activities is that severance is a surgical procedure that involves implanting a specialized device in the subject’s brain. In the United States, all medical devices must be approved by the FDA before they can be used, and an elective procedure like severance would only be approved by the FDA if there were an appropriate medical justification for the procedure (which seems unlikely for severance).

However, for the sake of argument, let’s assume that the FDA wouldn’t pose an obstacle to the severance procedure. Let’s say that you could perform the severance procedure without a device, such that all that would be involved would be a surgical procedure, which does not require FDA approval. If we set aside the FDA, I don’t think there would be a meaningful distinction between severance procedures and other risky or ill-advised activities.

Central to this conclusion is an understanding that severance does not create a new person, and it thus does not require us to consider the rights of a person in a severed state as distinct from the rights of a person in an original state. This is because rights and personhood are not derived from memories. If they were, then we would say that people with dementia would not have rights or that people with amnesia should be treated as new people in the eyes of the law.

Along the same lines, the law — and common sense — recognizes that people should be held accountable for their actions, rather than for their memory of those actions. Thus, a person who commits a murder while on a memory drug should still be prosecuted, convicted, and punished for that crime, even if they had no memory of it.

Once we accept that a person in a severed state is the same as a person in their original state and that people should be held responsible for their choices irrespective of their memories, then we can narrow the scope of our inquiry. The question is not, “Is it fair that the severed-state person has to work all the time?” since there is only one person. Instead, the question is, “If a person concludes that they would be happier with a memory split, should the government stop them?” or, perhaps, “Should the government prevent someone from making a decision they will come to regret?”

The answer to both of these questions is “no.” Inherent in the right to liberty is the freedom to make choices about how we live our lives. That includes the ability to distribute happiness over time as we see fit.

While we don’t have true severance in real life, we do have options that approximate severance. For example, a person could decide to work through the entirety of their 20s and 30s while taking no vacation and forming no relationships outside of work, followed by an early retirement. The fact that the person may be unhappy during their 20-year work period doesn’t mean they should not be allowed to make that choice. Likewise, the fact that the person does not spend any money while working and so feels like a slave does not mean the person is actually a slave.

The same analysis applies once the person retires — the fact that the person no longer thinks about their time at work, and instead revels in the benefits of retirement, does not seem unfair or exploitative. The fact that they don’t remember many (or any) of the details surrounding their earlier work does not change the fact that they had done the work to earn the early retirement.

In the world of Severance, individuals switch between their original state and their severed state with far greater frequency than in the above example (twice daily, rather than once in a lifetime). Yet, the rationale for the switch is essentially the same — the belief that one’s overall happiness will increase if one separates good times from bad times and experiences the two separately. There is no reason why the government should be able to prevent people from living their lives in accordance with that preference. That is especially true when one considers that jobs dealing with trade secrets or confidential information are likely to offer incentives that would provide additional reasons to sever.

Limitations on Severance in the Law

The conclusion that severance should be legal does not mean that the law should ignore the risks associated with the procedure. There are three risks worth mentioning.

First, if it turned out that severed individuals were overwhelmingly unhappy, or if they experienced significant mental instability, the government would have good reason to outlaw the procedure. For example, in the show, one of the characters attempts suicide while in a severed state. While the government should respect people’s life preferences, it should (and does) take action to prevent people from harming themselves. That action should extend to severance if appropriate.

Second, because state switches constitute a significant change in a person’s mind, there should be clear rules surrounding when a person can switch between states and who controls the timing and circumstances of any switch. While the conditions giving rise to a switch can be specified by contract, severed individuals should have the ability to switch states at will and also to prevent a switch from happening. In practice, this would avoid most or all of the problems seen on the show, since it would essentially require severed people to cooperate with themselves and thus avoid a feud between one’s original state and one’s severed state. If it turned out that most individuals do not cooperate with themselves, there would be good reason to ban the procedure.

To extend the example from above — the person who decides to work through their 20s and 30s should retain the ability to leave their job whenever they want. If they decide to stay, it is because they conclude — each day — that their current suffering is worth the benefits they will reap in the future. The same should be true for severed-state individuals. The ability to distribute happiness over time should necessarily include the ability to redistribute happiness over time if one deems it appropriate to do so. In the context of severance, this means individuals should be free to choose when they switch states and how frequently they switch states.

Lastly, the law should account for the risk that, over time, a person’s severed state and an original state may grow sufficiently far apart so as to constitute different people. At the time of the severance procedure, the only difference between states is one’s memories. Over time, however, personalities and brains can change significantly based on one’s experiences.

As an extreme example, suppose a baby is severed at birth and spends even-numbered days with one set of parents in one state and odd-numbered days with a different set of parents in the other state. By the time the child turns 20, it is possible that they would have not just different memories, but completely different personalities. Without more information as to what kind of information is shared across the partitions, it is hard to know how this risk would play out. (Would personality changes be shared across partitions? What about newly developed talents?)

If a new person emerged, then both persons would be entitled to rights and, potentially, an even split of the body. To avoid these kinds of troubles, I suspect the law would apply some kind of personality test to determine the extent of divergence, and severed individuals would be advised to stop switching states if there were a risk of divergent personalities.

Conclusion

Life is the ultimate co-op game, played between your past self and your present self, and your present self and your future self. For instance, you can choose to study for a test and give your future self a leg-up, or you can enjoy the present and let the future you suffer the consequences. Yet, because we have continuity of identity and memories, this co-op game often feels like a single-player experience — there is no present self and future self; there is just self.

Severance turns this issue on its head and imagines a world without continuity of self-identity. It asks us to consider whether our lives should be viewed through a lens of self-hostility or self-cooperation. While the world of Severance is not real, its questions have real consequences. Most people work every day, yet only 54% of employees in the United States are satisfied with their jobs. This means that most people are willing to sacrifice at least some present happiness for future gains.

Yet, I would wager that most people don’t have an understanding of how much they would sacrifice, for what benefit, or across what time frame. These questions directly inform what it means to live a good life — they speak not just to the ever elusive “work-life” balance, but to all kinds of tradeoffs — friends versus family, happy versus sad, chores versus play, and so on.

The right to liberty necessarily includes the right to distribute happiness over time. But the fact that we can distribute happiness says nothing about how we should distribute happiness. That question has a different answer for everyone and persists regardless of whether severance is real or legal. In this sense, severance poses the ultimate question of self-trust and self-awareness. But don’t worry — if you fail the test, I can make you forget it ever happened.

It turns out that the legal system has a host of tools that can be used to protect secrets – and at least one obstacle that makes it much harder.

Tool One: Secrets of the Trade

The most obvious area of law relating to secrecy is the law of trade secrets. Generally speaking, a trade secret is any information that (a) derives independent economic value from not being known or readily ascertainable, and (b) is the subject of reasonable efforts to maintain its secrecy.

The most common trade secrets involve things like customer lists, secret recipes or formulas (think Coca-Cola, KFC, or Flaming Moe’s), or proprietary processes (e.g., the process used to make ice cream sandwich wafers), but courts have also extended trade secret protection to more abstract secrets. For example, in one case a court found that the location of old beehives qualified as a trade secret. In another case, a court found that the process used to whiten the crème in Oreo qualified as a protectable trade secret.

The fact that trade secret protections are generally construed broadly means there is a good chance that a superhero’s secret identity could qualify as a trade secret. Indeed, it can hardly be disputed that a secret identity has economic value, as evidenced by the fact that supervillains and major corporations would pay millions of dollars to discover the identity of their superhero nemeses. Provided heroes are careful, it should also be easy for them to demonstrate that they took reasonable efforts to protect their secret identity.

For example, heroes could store their costumes in a locked safe, implement rigorous protocols to ensure that no one sees them change between their identities, and require anyone who knows their secret to sign a non-disclosure agreement (NDA).

But would trade secret protections actually be useful? Kind of. Trade secret law makes it illegal to steal or wrongfully obtain trade secrets. This means that it would be illegal for villains, investigators, or J. Jonah Jamesons to obtain or use secret identities obtained through bribes, burglaries, hacking, or any other illegal activities.

Where a trade secret is obtained unlawfully, the owner of the secret can obtain a court order that would preclude the thief from using or disclosing the trade secret to others and that would require the thief to compensate the owner for any damages caused by the theft. While these remedies would surely be useful and appreciated by superheroes, they would, in all likelihood, be insufficient. Once an identity is revealed, it can’t really be un-revealed, so an order preventing further disclosure would not be particularly effective. And while money damages would likely be appreciated, most heroes would much rather have their secret.

By the same token, the people most interested in learning a secret identity are also the people who have the least respect for the law, meaning that they are unlikely to be deterred by any penalties (criminal or civil) that could be levied against them. At most, the laws would deter corporate-based villains like the Kingpin or Lex Luthor who would seek to translate their misbegotten secret identity into profits for their criminal corporate enterprises. While it would take quite a bit of forensic accounting, a hero could conceivably obtain a judgment that would require a corporate villain to disgorge all of the profits earned because of the trade secret identity theft.

There is one additional reason why trade secret protections would not be particularly useful. As explained above, trade secret laws only prevent the theft of trade secrets — the law does not prevent anyone from obtaining trade secrets legitimately. This means that heroes would not have any protections if a villain figured out their secret identity through common sense, deductive reasoning, or simply by seeing the hero unmasked at an inopportune time.

Thus, while trade secret protections have some value, they cannot be viewed as a sufficient solution to the secret identity problem.

Tool Two: The First Amendment and the Right to Anonymous Expression

We all know that the First Amendment guarantees a right to free speech. What you might not know is that the First Amendment also provides a right to speak anonymously. The right to anonymous speech is probably the closest thing we have to a government-protected secret identity, as it prevents the government from de-masking individuals.

Unfortunately, the First Amendment does not really provide meaningful protection for superheroes. For one thing, the First Amendment only protects people against government action and thus would not provide any protection from supervillains or anyone else seeking to learn a secret identity.

The right to anonymity is further limited in that it applies only to speech and expression, and it would not prevent the government from identifying individuals based on their actions. One could argue that the right to anonymity should apply to certain kinds of expressive acts. (For example, the perpetrators of the Boston Tea Party acted anonymously.) However, even that broad interpretation of the First Amendment would not apply to superheroes, whose actions aren’t especially expressive (flashy 1960s Batman fight scenes notwithstanding).

The First Amendment would not be a superhero’s best defense for protecting their identity.

Tool Three: Think of the Children

There is one setting in which the law will take affirmative steps to protect secret identities — proceedings relating to minors. Even in the absence of superheroes, the law recognizes that children have unique privacy concerns and affords special protections to minors who are involved in judicial proceedings. In fact, under 18 U.S.C. § 3509, it is illegal for anyone to divulge the identity of children involved in court proceedings as witnesses or victims of physical abuse. Most states also have laws that protect the identity of juvenile defendants. Unlike the First Amendment, these protections would prevent the government from divulging the identity of minor heroes (like Kamala Khan).

Of course, these benefits come with some significant caveats. For one thing, identity protections do not necessarily apply if a minor is charged as an adult — which would be exceedingly likely given the nature of superheroes’ vigilante activities, even if the practice has decreased over the last few years. Anonymity protections are also not absolute. Some states have allowed officials to release information about a minor where a court decides “the public’s right to know … outweigh(s) any concern about stigmatizing the minor.”

Tool Four: Corporate Shell Game

While there aren’t many tools that can be used to protect the identity of heroes, the law offers robust tools that can be used to protect the identity of corporations. As I explained in a previous article, the states of Delaware, New Mexico, and Wyoming allow the creation of anonymous companies. Such companies must still register with the state, but they can keep the identity of their owners and operators confidential. So while it may be challenging for Batman to keep Bruce Wayne under wraps, it would be relatively easy for him to obtain financial and technical support without jeopardizing his identity in the process.

Obstacle: Mandatory ID Laws

As we saw above, the law does not provide much meaningful assistance when it comes to protecting a hero’s secret identity. In 2004, the Supreme Court held that the police can require individuals to identify themselves if the police “reasonably suspect” that the individual has committed a crime, and they can arrest anyone who refuses to provide such identification. The “reasonable suspicion” standard is easy to satisfy and would readily apply to most or all superheroes.

Roughly half of the 50 states have rules that could require individuals to identify themselves. These rules — if followed — would necessarily prevent any hero from protecting their secret identity. After all, an identity can hardly be considered secret if you are required to divulge it upon request.

The good news is that this obstacle — like the tools discussed above — has little significance from a practical perspective. After all, superheroes could — and probably would — ignore the rule and simply refuse to provide their identity. Since most heroes engage in illegal activity anyway, their refusal to provide identification would not meaningfully impact their activities. Nevertheless, the rule would pose a challenge for the heroes who claim to respect the rule of law.

The Law Ultimately Offers Limited Assistance for Your Superhero Secret Identity

While secret identities are not prominently featured in the Marvel Cinematic Universe, they have a long and storied history in both Marvel and DC comics. Ultimately, it seems that the law does not offer much assistance when it comes to protecting secret identities. The tools it does provide are better than nothing — especially when it comes to trade secret protections and corporate villains — but the ultimate responsibility still falls on each superhero to keep their secret secret.

While protecting a secret identity is no mean feat, it at least beats restocking that damned utility belt.

Let’s talk about The Batman. Matt Reeves’ new take on the Caped Crusader has been well received by most critics and viewers, with a healthy 85% approval rating on Rotten Tomatoes. One of the common themes in critic reviews is that the movie captures viewer attention by presenting a “realistic” take on the Caped Crusader. For example, one review praises the film for “its commitment to reality,” while another observes that the movie “has its feet firmly planted in realism.” That is Pattinson-ly absurd. In this movie, the following occurs:

• Batman gets shot dozens of times, including at point-blank range, with little negative effects (and no negative effects that extend beyond the scene).
• Batman survives a bomb blast to the face, with no injuries.
• Batman solves a cipher simply by showing it to his computer.
• Batman falls roughly 60 feet with no injuries, after receiving a seemingly lethal electric shock.
• The “vanishing Batman” trick
• Dozens of people thought it would be a good idea to emulate a forensic accountant with duct tape over his face.

Commitment to reality indeed.

It is ironic, then, that when it comes to legal realism — which Hollywood basically never gets right, including in previous Batman movies — The Batman mostly excels. To be sure, The Batman does not provide an accurate depiction of police work, evidence, prosecutions, or crime scene investigations. But when it deviates from the norm, it does so explicitly, with characters that essentially say, “The thing you are seeing on the screen right now is not how things actually work in the real world.” This demonstrates a refreshing sense of self-awareness that distinguishes The Batman from most other movies.

Preserving the Crime Scene

When it comes to investigating and prosecuting violent crimes, preserving the integrity of the crime scene is of paramount importance, as it can prevent key evidence from being contaminated or destroyed. Failure to preserve a crime scene can lead to disaster. For example, in one case, paramedics inadvertently transferred DNA from a previous patient to a murder scene, resulting in a wrongful murder charge and hindering the investigation. To avoid these kinds of mistakes, police departments must adhere to strict guidelines regarding crime scene preservation and evidence collection.

Batman ignores those guidelines — even though he is not a member of Gotham’s police department and has no formal investigative role, Batman enters several crime scenes, handles key evidence, and, in one instance, literally tears a crime scene apart.

This could pose a huge problem for investigators. As far as we know, Batman has not received any special training in crime scene preservation, and while the comics describe him as “the world’s greatest detective,” the events of the movie take place during his second year as Batman. To make matters worse, Batman’s gloves are likely to contain DNA from other criminals he has apprehended, increasing the chances for contamination. Even worse still, there would not be an easy way for authorities to distinguish the Batman-contaminated DNA from the original DNA, since Batman (unlike the paramedics described above) does not provide a log of everyone he has Vengeanced in a particular evening.

But again — what makes The Batman special is that it explicitly acknowledges Batman’s legal rule-breaking. Without fail, each time Batman appears at a crime scene, multiple officers object, instruct him to leave, order him not to tamper with the crime scene, or ask Jim Gordon to “get him outta my crime scene.” Those instructions are, of course, ignored, (Batman does what Batman wants.) but the movie deserves huge credit for pointing out the problem in the first place.

Chain of Custody

Securing a crime scene is just the first step in the investigative process. In a world of corruption, steps also have to be taken to ensure that any evidence that is collected is not later tampered with or stolen. This is where the chain of custody comes in. The chain of custody refers to an accounting of how evidence is handled from collection to trial. The underlying idea is simple: If you can show (a) who had possession over a piece of evidence at each point in time (starting from collection), and (b) what each person did with the evidence when they were in possession, then you can prove that the evidence was not tampered with, corrupted, or otherwise harmed.

As with crime scene preservation, the authorities follow a designated procedure to ensure that the chain of custody is not broken. In most instances, authorities use an evidence log to set out the chain of custody and to monitor the collection, transportation, and testing of evidence. Then if there are any issues or questions at trial as to the evidence’s integrity, the government can call each person who handled the evidence to the stand to confirm that no tampering took place.

In a surprise to no one, Batman shows no regard for the chain of custody, and at one point, he even takes possession of an entire box of evidence, at which point a police officer seemingly reads the mind of every lawyer in the theater and says, “Put that down! Haven’t you ever heard of the chain of custody?!”

In the context of the movie, the broken chain of custody doesn’t make much of a difference. The Riddler had already confessed to his crimes, such that the evidence would not have been needed to secure a conviction. And even if the evidence were more important (for example, to support the prosecution of Riddler’s copycats), the police could have added Batman to the evidence log and asked Batman to testify at trial (as he would probably have had to do anyway) to confirm that he didn’t tamper with the evidence.

Other Legal Issues in The Batman

There are a handful of other legal issues implicated by The Batman that the movie doesn’t have occasion to consider. One of the key plot twists is that a substantial portion of Gotham’s law enforcement apparatus (including the mayor, almost the entire police department, and the district attorney) are working for the mob. But the film doesn’t show us what happens to any of the people involved after Batman arrests the head of the crime family. In the real world, that kind of widespread corruption would be prosecuted by the federal government, which could leverage laws that are specifically designed to root out organized crime and government corruption.

Another issue relates to Batman’s relationship with the police. While Batman is not employed by the Gotham City Police Department (GCPD), he nevertheless has a close relationship with it. This is evidenced by the fact that the GCPD operates the Bat-Signal, allows Batman to interrogate suspects in custody, and allows Batman to participate in its crime scene investigations (notwithstanding tepid and unenforced requests for him to leave).

Batman’s relationship with the GCPD means that his actions — including any unreasonable searches, excessive force, or illegal interrogations — could be attributed to the GCPD. This, in turn, could result in the exclusion of any evidence that was obtained improperly and could expose the GCPD to liability for any injuries tied to Batman’s unlawful conduct.

The Batman Should Go Back to Law School

Most people don’t know it, but in at least the older comics, Bruce Wayne is seemingly a lawyer with a degree from Yale Law School. Based on his performance in The Batman, it looks like Mr. Wayne should go back to school. If we’re lucky, we might get to see it in the sequel: Batman II: Return of the (Poison) Ivy League, complete with an action-packed study session in the library. I am vengeance. I am the night. I am ready for my 15-minute presentation on the Dormant Commerce Clause.

The Short Version of the Microsoft / Activision Blizzard Merger

Firstly, the Microsoft / Activision Blizzard deal probably won’t be blocked by antitrust regulators. There’s still plenty of competition.

As for how this deal impacts Activision Blizzard’s sexual assault disaster — the deal won’t impact the ongoing investigations or settlement litigation. Microsoft’s acquisition will likely change and improve the Activision Blizzard corporate culture, with caveats. Embattled Activision CEO Bobby Kotick will get a large payday, but the agreement contains a provision that could ruin the deal or result in Kotick’s early departure if new allegations of misconduct come to light (again, with caveats).

Now, the Long Version

How does the merger work?

Publicly traded companies are required to file special disclosure forms when they enter into significant transactions. The Microsoft / Activision Blizzard merger is no exception. When announcing the deal, Microsoft filed a “Form 8K” with the Securities Exchange Commission that sets forth the details of the merge and includes a copy of the 100-page merge agreement.

Despite the book-length contract, the actual mechanics of the deal are pretty simple — Microsoft agreed to buy all outstanding shares of Activision Blizzard at a rate of $95 per share. The rest of the contract basically serves one of three functions:

1. Assertions made by the parties to assure each other that both sides are getting what they agree to. For obvious reasons, Microsoft would not agree to purchase Activision if Activision were secretly on the brink of bankruptcy, or if it had undisclosed scandals that could negatively impact the value of its assets. Likewise, both parties want to make sure that their counterpart has authority to enter the agreement
2. Contingency planning. As explained below in more detail, the deal can’t close until it is approved by regulatory officials and shareholders. Even then, a competitor might tempt Activision with a better offer. The contract plans for these contingencies. For instance, Activision is required to pay Microsoft $2.2 billion in this case, and if regulators scuttle the deal, Microsoft has to pay Activision $2-3 billion.
3. Boring nuts and bolts that are needed to make the contract work.

Will the Microsoft / Activision Blizzard deal be blocked by antitrust regulators?

The most prominent question about the deal seems to be whether the deal will be blocked by antitrust regulators.

While it is true that the deal will likely face scrutiny from regulators, I would be shocked if the deal were actually blocked. The focus of any antitrust inquiry is on competition in a particular market. No matter how you slice the market, it is hard to argue that Microsoft’s acquisition of Activision Blizzard would meaningfully foreclose competition.

Indeed, even a bolstered Microsoft would face significant competition from the likes of Google and Apple (for mobile gaming), Sony and Nintendo (for console gaming), Valve and Epic (for PC), Luna and Netflix (for cloud gaming), and a host of other developers or publishing houses that compete on all fronts (Take-Two, Ubisoft, Warner Bros. Interactive).

One of the primary motivations for the deal was nominally to give Microsoft a competitive edge in the construction of the “metaverse.” But since the concept of a metaverse is only in its infancy, the most one could say is that the deal risks foreclosing future competition, which is not, in and of itself, actionable.

Likewise, the fact that Microsoft may decide to make Call of Duty an Xbox exclusive is not anticompetitive, since the market for gaming — and for first-person shooters — and for competitive online first-person shooters — extends well beyond the Call of Duty franchise (which explains why Sony’s console exclusives are also not anticompetitive).

This is not to say there is no antitrust risk associated with the deal. FTC commissioner Lina Khan — who may be in charge of this investigation — has made clear that she is playing by new rules and that she is especially skeptical of mergers. She may decide to make the Microsoft / Activision Blizzard merger a test case for her novel antitrust theories. Nevertheless, even accounting for Khan’s aggressive bent, I don’t think the deal is in danger, both because the gaming sphere is ultra-competitive these days, and because Facebook, Google, and Amazon are shinier toys in the antitrust toybox.

Will the deal be blocked by something else?

Probably not. The deal is technically contingent on shareholder approval from a majority of Activision Blizzard shareholders, but since they will receive top dollar for their shares, it would be pretty surprising for them to reject the deal. It’s possible that another company could try to one-up Microsoft’s offer with a more tantalizing purchase price, but considering the fact that Activision shopped around before entering the deal (including with Facebook), a competing offer seems pretty unlikely.

In theory, it is also possible that Microsoft shareholders could sue to prevent the merger, on the grounds that the purchase price is too high and that Microsoft’s board (which approved the deal) was acting out of self-interest, rather than in the interests of the shareholders. At face value, there is at least some reason to think that Microsoft overpaid for Activision — the deal is well over Activision’s market cap and over seven times its annual revenue. Nevertheless, these kinds of claims almost always fail, unless there is a clear conflict of interest or unless the deal is clearly against the company’s interest. While Microsoft may have overpaid, it probably has not overpaid enough to justify a shareholder suit to block the deal.

What does this deal mean for the sexual assault / harassment claims at Activision Blizzard? Well, Microsoft’s acquisition doesn’t signal a cultural renaissance.

The Microsoft / Activision Blizzard deal itself does not impact the claims that are currently pending against Activision from California’s Department of Fair Employment and Housing, nor does it impact Activision’s settlement with the EEOC. Those cases will continue and may even be resolved by the time the merger closes next June.

While the claims themselves will continue uninterrupted, the culture at Activision will almost certainly benefit from the merger. Early reports suggest that Activision CEO Bobby Kotick will leave the company after the merger is complete. With that departure and Microsoft’s new control, there is good reason to think that the merger can help accelerate the change to a healthy work environment. While Microsoft is not without its own share of conflicts, the company is nonetheless miles ahead of Activision.

Yet, there is still cause for concern. When Microsoft acquires companies, it typically requires the acquired companies to have a clean record. Thus, companies typically certify that none of their higher-level officers or executives have been accused of sexual misconduct in recent years.

Obviously, Activision couldn’t make that representation, as numerous allegations were raised against senior employees just last year. But the parties didn’t want to jeopardize the deal, so they modified the stock language. Instead of certifying that it has not been accused of sexual misconduct, Activision Blizzard certified that none of its senior employees have faced allegations of misconduct that took place since 2018, thus sidestepping the vast multitude of prior allegations. After all, why let standards of decency interfere with a good deal?

But there’s more. The “no sexual misconduct allegations” clause doesn’t care about whether sexual misconduct actually took place — only whether any misconduct was alleged. The specific language requires Activision to confirm that “there have not been any material allegations” of wrongdoing. Under this language, Activision would be free and clear even in the face of rampant misconduct, so long as the misconduct never came to light (i.e., so long as the misconduct was covered up, buried, or never asserted).

This goes to show that the purpose of the “no misconduct allegations” clause is not to advance some moral agenda or to keep sexual predators out of Microsoft. Instead, the purpose of the clause is to prevent fraud — Microsoft wants to make sure that Activision isn’t hiding any information that would adversely affect the value of the soon-to-be acquired assets. That explains why the clause is limited to “material allegations” and “material settlement agreements” and why Microsoft was willing to modify its stock language to accommodate Activision’s known scandals.

As for CEO Kotick, if the deal goes through, he stands to earn on the order of $290 million in lump-sum and stock-based compensation. However, if he is terminated for cause (e.g., if additional allegations come to light), then he would get nothing. Because threatening to murder someone doesn’t count unless it took place after 2017.

Needless to say, the modified language and golden parachute for Kotick undermines whatever goodwill Microsoft may otherwise have had when it comes to cleaning up Activision’s culture.

The Microsoft / Activision Blizzard Merger Is Largely in the Legal Clear

So what does this mean for the future? Marty Sliva had an interesting article considering some of the industry implications of the deal. Meanwhile, from a legal perspective, there’s nothing remarkable on the horizon. While Microsoft may one day face an antitrust-gaming reckoning, I don’t see that happening anytime soon.

The Sinister Six After All

In the weeks leading up to No Way Home, trailers and promotional materials confirmed the appearance of five exciting key villains: the Green Goblin, Doctor Octopus, Electro, Lizard, and Sandman. Fans speculated that the movie might introduce a secret sixth villain to complete the famous Sinister Six.

Coming out of the theater, the prevailing view was that there was no sixth villain. That view is wrong. There was a sixth villain who single-handedly set the conflict in motion in No Way Home: the MIT admissions officer. More than any other villain, the admissions officer had the power to destroy Spider-Man’s life, to separate him from his friends and loved ones, and to jeopardize his future happiness and well-being.

The events of No Way Home get rolling when MIT rejects Peter, Ned, and MJ. Determined to find a way in, Peter visits Dr. Strange, with the hope that he will help Peter “magic” his way into the elite institution. As expected, the spell backfires and Peter’s world is breached by a series of villains and Spider-Men from other dimensions, who leave a trail of chaos and destruction in their wake.

Now, you may think we can’t really view admissions officers as supervillains. After all, they’re just trying to find the best students to fill out their class ranks. Surely there’s nothing wrong with that, right?

Wrong.

One of the factors that makes Spider-Man such a timeless character is that his problems are relatable. Along those lines, Peter’s struggles with college admissions are shared by millions of students across the country. In 2020, the acceptance rate at MIT was 7.3%; Stanford’s acceptance rate was 5.2%; Harvard’s was 5%. Even without a Spider-Man-related public image problem, the likelihood that three friends would each be accepted into MIT is a minuscule 0.03%. The difficulties and stress associated with the admissions process are widely known and well-documented. Studies show that high-achieving high school students should be treated as an “at-risk” population when it comes to suicide, depression, and substance abuse.

The widespread nature of these problems makes it easy for viewers to empathize with Peter in No Way Home and to understand why he felt compelled to do whatever it took to find his way into MIT — from Peter’s perspective, the rejection from MIT essentially amounted to the end of the world. It is thus fitting that it sets into motion events that almost lead to the literal end of the world.

Admissions officers and the educational institutions that employ them are well aware of these problems. Yet, the admissions process continues, year after year without any meaningful change. In other words, the admissions officers (or, more aptly, the institutions they represent) have great power, but consistently choose to wield that power irresponsibly — in a way that inflicts tremendous harm on students and their families. In real terms, that makes them supervillains. It also potentially gives rise to legal liability.

Why MIT Admissions Officers Are to Blame for the Multiverse Implosion in No Way Home

Under the law, there are a few instances where one person can be held responsible for the acts of another. For example, an employer can be held responsible for the acts of an employee, and a parent can be held responsible for the acts of a child. As is relevant here, the law holds an individual responsible for the unlawful acts of another when the individual takes action with knowledge that the action will cause another person to act unlawfully.

I explained it in depth in my article on time travel torts: “When it comes to avoiding harm, the law is concerned with predictability rather than personal responsibility.” If Alice leaves her car running while she goes inside a restaurant to pick up an order, and Bob takes the opportunity to steal her car and soon crashes it into another car, Alice would in several states be legally responsible for the damage Bob caused. This is because courts deem it “reasonably foreseeable” that a thief would steal a readily available car and reasonably foreseeable that a thief would drive negligently in his efforts to flee, which in turn renders Alice negligent.

One could argue that, under this theory, admissions officers and academic institutions like MIT should be held liable for the negative consequences of the college admissions process, including the multiversal conflict and destruction in Spider-Man: No Way Home. More specifically, in this world one could argue the following:

• It is reasonably foreseeable that the admissions system would lead to the stress, anxiety, and mental health struggles we see each year,
• it is reasonably foreseeable that the stress of the admissions process would cause Spider-Man (or another super-powered person) to use his powers to rig the process in his favor, and
• it is reasonably foreseeable that his attempt to interfere with the admissions process would be unsuccessful and would lead to the kind of consequences seen in the movie.

Alternatively, one could argue that admissions officers should be held liable under an expanded version of an “attractive nuisance” theory. Ordinarily, a landowner is not responsible for injuries that befall trespassers. Thus, if Alice slips and falls while walking on Bob’s land without permission, she cannot sue Bob for failing to install guardrails. However, several states recognize an exception to this rule when it comes to children. Under the “attractive nuisance” doctrine, landowners can be held liable for injuries to trespassing children if the injury results from a dangerous object or installation that attracted children to the property. For example, an owner would be liable for injuries resulting from a trespassing child’s use of a trampoline.

Taken at face value, the attractive nuisance doctrine would not apply to any of the issues arising from No Way Home. Nevertheless, the principles motivating the doctrine apply with full force: The admissions officers operate a system that is likely to attract minors and that is likely to cause harm to those minors (and others). Further, even though the affected individuals are in their later-teen years, many are still unable to appreciate or handle the risks associated with the admissions process. Thus, there is good reason to argue that courts should expand the attractive nuisance doctrine to hold institutions and admissions officers legally responsible for the foreseeable harms resulting from their broken system.

Reality Check

While I think the theories I have advanced are persuasive and that universities should face liability for their negligent admissions scheme, these theories would certainly not hold water in court. When it comes to holding individuals liable for the actions of others, courts have a fairly narrow view of what constitutes “reasonably foreseeable.” A court may agree that it would be reasonably foreseeable for students (or even Spider-Man specifically) to react negatively to a rejection, but it probably would not find it reasonably foreseeable that a rejection would lead to (a) magic (b) that is poorly executed (c) in a way that risks the destruction of the multiverse. Likewise, courts would not look favorably on such an aggressive expansion of the attractive nuisance doctrine.

Yet, the court’s rejection of these arguments does not serve as a redemption of MIT and its place in the No Way Home Sinister Six. The fact remains that elite universities wield tremendous power but do not take responsibility for any of the significant negative consequences resulting from that power. While universities might not be liable for the literal destruction of the multiverse, I would be surprised if there were not a competitive class action that could be levied against universities for negligent infliction of emotional distress. Like several supervillains, admissions administrators adhering to rigid processes mean well, but their thirst for superiority and dominance has caused them to lose track of right and wrong, resulting in tremendous harm.

None of this analysis is meant to excuse the actions of Spider-Man or Doctor Strange. There is no doubt that their efforts to, in essence, forget-me-now the entire population are unethical and illegal. But in the grand scheme of things, that is low-hanging fruit. The more interesting issues relate to the villain hiding in plain sight.

Finding the Deeper Meaning

On first glance, Spider-Man: No Way Home looks like standard-fare MCU fun. But if we look past the literal, we can view No Way Home as a frightening metaphor for the struggle students face in connection with the college admissions process.

Peter Parker could not handle his rejection from MIT. In the wake of the rejection, he found himself face to face with personal demons from year’s past — demons that he could not simply banish or ignore, but instead had to confront, defeat, and reform. To defeat those villains, he had to turn inward, reflect on the different paths his life could take, and draw strength from the various facets of his personality — from the different Spider-Men that he could become. Peter was able to defeat the villains, but only by sacrificing his most important relationships. He ends the movie alone and isolated, without a clear place in the world.

After removing the fantastical elements of Spider-Man: No Way Home, all that is left behind is the tragic story of a talented high school student who lost everything because he couldn’t handle the stress of the admissions process.

With great power comes great responsibility — it’s high time our elite institutions live up to that responsibility.