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Steve Bainbridge on Batman:

Steve Bainbridge responds to my post on Batman here, linking to an earlier post of his claiming that Batman actually causes more harm than good because he damages property during his car chase in the first movie and violates corporate law by diverting corporate assets to serve his own personal agenda. The first point is easily dispensed with. Yes, Batman did destroy a lot of property during the final car chase in Batman Begins. However, given that the car chase was necessary to save the entire city from being destroyed by the League of Shadows and most of the inhabitants from being killed in the process, I'd say that the tradeoff was worth it. Perhaps Bruce Wayne should compensate those who lost property in the chase (and maybe in the time that passed between the two movies he did). But even if he failed to do this, the good he accomplished in this scene surely outweighed the harm.

The corporate law point is more interesting. I'm no expert on corporate law, but I'll assume that Bainbridge (who is an expert) is right to conclude that Wayne violated those laws. However, I don't think this aspect of the plot is integral to the message of the movie. Indeed, I'm not even sure that the filmmakers intend for the audience to regard Wayne's actions as illegal. If, as Bainbridge suggests, Wayne violated the rights of minority shareholders, one would expect some of them to sue. And if large amounts of corporate assets were being diverted to unproductive personal projects of Wayne's, one would expect shares of Wayne Industries stock to precipitously decline in value as potential shareholders recognize that buying Wayne stock is a money-losing proposition.

Yet in the second movie, Wayne Enterprises seems to be as successful as ever. Indeed, as I suggested in the original post, diverting some corporate funds to crimefighting might well be in the interests of the stockholders because Gotham City's high crime rate discourages investment and thereby reduces of the value of Wayne Industries stock. As for Bainbridge's claim that Wayne violated antitakeover laws when he regained control of the corporation at the end of Batman Begins, this - if correct - would be consistent with the libertarian theme I identify. After all, most libertarians view antitakover laws as unjustified government restraints on the market. Wayne's takeover of Wayne Industries might well have made the firm more profitable by removing less capable incumbent managers. There may be similar libertarian objections to at least some of the other corporate laws that Bainbridge accuses Wayne of violating. Perhaps the movie can be interpreted as a critique of government's role in the corporate world as well as its role in traditional law enforcement.

In any event, Wayne's corporate lawbreaking is hardly a central focus of the movie. By contrast, the skepticism about government and (relative) optimism about private initiative that I stress in my post really are key themes in both movies, especially the second.

Ultimately, criticizing Batman for violating corporate law is a bit like criticizing the coach in Hoosiers for using basketball strategies that wouldn't work in the real world. The criticism is technically correct, but misses the point of the story.

Related Posts (on one page):

  1. Steve Bainbridge on Batman:
  2. The Libertarian Law and Economics of Batman:
Jim Hu:
I haven't seen it yet, but given the genre, I suspect that Batman also violates various laws of physics/thermodynamics... in which case, why worry about a little corporate law?
7.25.2008 5:30am
Modus Ponens:
Ultimately, praising Batman for its allegedly quasi-libertarian ethos is a bit like praising Red Dawn for its positive portrayal of the 2nd Amendment right to bear arms.

You can't fight off Russian invaders simply by peeing in a radiator.
7.25.2008 7:52am
FlimFlamSam:
I'm curious whether Bainbridge believes that corporate donations to charity violate corporate law for the same reasons, i.e. no real benefit to the shareholders.
7.25.2008 7:53am
Daniel Chapman (mail):
Did someone who just wrote a post titled "The Libertarian Law and Economics of Batman" REALLY just accuse someone ELSE of missing the point of the story?
7.25.2008 8:19am
Chris C. (mail):
Just noting, but Wayne Enterprises is taken private at the end of Batman Begins. Bruce Wayne is implied to be the sole private shareholder beyond any employee and executive holdings.
7.25.2008 8:47am
Arkady:

In any event, Wayne's corporate lawbreaking is hardly a central focus of the movie.


Ya think?
7.25.2008 8:56am
Hoosier:
"You can't fight off Russian invaders simply by peeing in a radiator."

Ha-ha-ha!

Man! Think of the course of Polish history if that actually worked. What's Polish or "Wolverines!"?
7.25.2008 9:00am
skyywise (mail):
@ Jim Hu: Actually, one of the things I enjoyed about The Dark Knight was that very few things got even close to stretching belief in terms of physical ability of Batman fighting or faux-science in terms of gadgets (with one plot driven exception).

Generally though, wouldn't Bruce Wayne have an army of corporate lawyers at Wayne Enterprises to make sure that no matter the business action they would be within the letter of the law?
7.25.2008 9:16am
Happyshooter:
I have an issue with any movie or TV show with a corporate or commerical real estate 'twist'.

People will be watching a show like 'law and order' or a movie and see some criminal or evidence thing and ask me if it is really the law and I won't have the faintest idea.

Then something made-up in business law comes up and I snort or make a snark comment and no one will care it is wrong.

It spoils the show for me, though.
7.25.2008 9:38am
John (mail):
Speaking of legal stuff, how come no comment on the wormy corporate lawyer who was going to rat out certain things? Was that a breach of his duty to his client?
7.25.2008 10:20am
Waldensian (mail):
You do realize that Batman is a fictional character?
7.25.2008 10:21am
Vernunft (mail) (www):
I'm curious whether Bainbridge believes that corporate donations to charity violate corporate law for the same reasons, i.e. no real benefit to the shareholders.
Donations to charity tend to reinforce the image of the corporation as a good citizen and thus indirectly tend to increase profitability. There are cases on this, you know.
7.25.2008 10:29am
Ken Arromdee:
Man! Think of the course of Polish history if that actually worked. What's Polish or "Wolverines!"?

The American guerillas in Red Dawn didn't win the war. They died or escaped, as you'd expect.
7.25.2008 10:30am
Prosecutorial Indiscretion:
People will be watching a show like 'law and order' or a movie and see some criminal or evidence thing and ask me if it is really the law and I won't have the faintest idea.

Then something made-up in business law comes up and I snort or make a snark comment and no one will care it is wrong.


This is one of the many reasons people are lining up to take lower-paying criminal jobs over higher-paying firm jobs. :P
7.25.2008 11:01am
Steve Bainbridge (mail) (www):
Perhaps it is the story that misses the point rather than the other way around. The Batman story has always been a curious example of how the creative arts view business. As Larry Ribstein has written:

Here's my report from three years ago on Batman Begins, quoting a post by Mises Institute:

The butler informs Bruce [Wayne] that Thomas [Bruce's father] nearly drove Wayne Industries into the ground financing a massive public transportation system that Thomas claims would "bring the city together" during a time of economic depression. While there is certainly nothing wrong with philanthropy, the implicit message is that such actions are morally and economically superior to running a successful industry. Wayne Industries is presumably the largest employer in Gotham, but never once is the firm's success or failure mentioned as a determinant of economic stability. Bankrupting the company by pouring money into a monorail is hardly the best way to benefit those in need of jobs and security.

Actually, as I've written in Wall Street &Vine, this is fairly consistent with films' view of capitalism over the years: business is fine, it's shareholders that stink. From this standpoint Batman is not really a criminal. In using the shareholders' money to fund his crusade, he's just following in the footsteps of another popular hero -- Robin Hood.
7.25.2008 11:04am
Happyshooter:
We were watching a movie the other day, it was something like Mr. Magoo's Magic Emporium. It had the Queen from Star Wars in it.

The movie pretty much otherwise was bad, but then it got much worse. The main plot point was that owner gifted this huge shop to the queen woman.

The place had to have been worth over 1 mil just in inventory, real estate, and fixtures. There was no phase-in, or control issues or ghost stock to decrease an appraisal.

Not even with the most friendly accountant and appraiser could he give someone the store without a huge freaking chunk of money to pay the gift taxes-- unless he wanted to stick the girl since he was planning on dying.

I got up and walked out of the room.
7.25.2008 11:15am
Steve Bainbridge (mail) (www):
FlimFlamSam asks:


I'm curious whether Bainbridge believes that corporate donations to charity violate corporate law for the same reasons, i.e. no real benefit to the shareholders.


There's a big difference between naked self-dealing and corporate philanthropy, although the line admittedly gets fuzzy at times. In any case, I addess the issue of corporate philanthropy in detail in a post over at my blog.
7.25.2008 11:24am
A.W. (mail):
An interesting point. I played the batman begins game, and at one point he unleashes alot of destruction (long story). As he talks with Alfred about doing this, Alfred says something close to "I get the feeling that Wayne enterprises will be writing a check to compensate for all the damage done."

So in the game at least he paid for it.
7.25.2008 11:24am
Guest101:

Speaking of legal stuff, how come no comment on the wormy corporate lawyer who was going to rat out certain things? Was that a breach of his duty to his client?

Probably not. The ethical rules of confidentiality make exceptions for future crimes, which the attorney is free to disclose, and as Jim Gordon and Harvey Dent frequently note throughout the film, Batman most certainly breaks a whole lot of laws in his one-man vigilante crusade.

Ilya-- I think some of your speculations are implausible in light of the fact that virtually no one knows that Batman is Bruce Wayne. Thus it seems highly improbable that Wayne would have cut a check to anyone whose property was destroyed by Batman in the first or second film (and there's a lot of wanton and needless destruction of property in the second film too-- see, e.g., the car chase scene and the opening scene in which the Batmobile crashes through the garage wall). Also, since it's clear that Wayne and Lucius Fox go out of their way to disguise the Batman-related expenditures, it's highly unlikely that any minority shareholders in Wayne Industries are aware that the company is partially funding Batman's campaign. Clearly this must entail a whole lot of securities law violations in the company's financial disclosures, not to mention embezzlement.
7.25.2008 11:31am
hls09:
I can no longer resist. Ilya, you need not post anymore on this topic; you have already performed a public service by reminding us that libertarians are mostly acne-riddled 20-year-olds who think "Atlas Shrugged" is the best book ever and are RIDICULOUSLY out of touch with even the fringes of reality.
7.25.2008 11:32am
Guest101:
I'll also add the legal point that made me wince during TDK-- local DAs cannot bring RICO charges, and even if they could, there's nothing particularly creative or outside-the-box about bringing a RICO charge against a group of organized crime figures.
7.25.2008 11:34am
pgepps (www):
given that vigilantism is illegal to begin with, one would assume that Batman-oriented business practices are distinctly gray-market, part of the "dark knight" characterization; but they are coupled with the philanthropy and commercial achievement of the Wayne family. When Batman's needs start sucking in too much of Wayne Industries, that (like the irruptions into Bruce's personal life, etc.) is part of the essential conflict of Batman, who (like Sherlock Holmes and other extra-legal agents of justice) must often "break the law to enforce it." Whether that is a desirable feature, its apparent necessity is continually being transformed--against the artists' wills, it often seems--into a right-libertarian critique of State monopolies on force.
7.25.2008 12:10pm
Jack M. (mail):
one the problems with Superman is precisely his greatness: namely, his nearly limitless powers. This was a great asset during the code era and surviving even later; children and light-hearted readers were easily willing to forget the absurdity of Superman's powers being so vast that no problem was not instantly solvable, and that whole armies of superheroes were virtually powerless to stop him, and his depiction as this nearly boy scout-esque embodiment of what our mothers wanted us to be.

But as Marvel introduced the "power as a human flaw" motif that began with Spiderman and the X-Men and introduced characters who themselves were flawed and limited, and whose powers were limited, casual comic fans gave way to more serious readers; Stan Lee has complained that the rise of the "comic book store" crowd has cut out casual readers, and he would like start selling cheap comics again at Newspaper stands. Ironically, that is Lee's own fault. Plus, the growth of the dark, rebellious anti-hero in popular culture, in the movies of the 70s; in the music of the 70s; and beyond helped to take a once-beloved hero like Superman and make him less interesting.

Batman has become more popular because we are able to limit him (he is human, he gets injured) and have vamped up his villains to be both more human (Riddler has OCD, Two-Face is a schizophrenic who was beaten as a child, Killer Croc is living with a genetic condition, etc.) and interesting. Superman, however, is still both unlimited in power and his villains remain strange and non-human; Brainiac is more brilliant than anyone and an alien; Lex Luthor is smart but unpowered.

In fact, Superman would do well to exist alone in his own world, without the DC continuity; that would insure that his unlimited powers would tackle unlimited problems, unlike now, when he exists ina world where Batman, Green Lantern (another god-like being), etc. are already cleaning up the streets.

Ultimately, any making of Superman more relevant today involves both limiting his powers and changing his character, plus revamping a few of his villains to give them a more grounded story. Right now, as the Big Blue Boy Scout with God-Like powers who battles mostly an ordinary human megalomaniac and a some overpowered alien overlords, he has neither the darkness of character nor the limitations that have drawn readers to other comics in the last 30 years.
7.25.2008 12:23pm
krs:
The corporate law point is more interesting.

I disagree.
7.25.2008 12:39pm
Hoosier:
The corporate law point is more interesting.

(I wonder if this phrase has even been used before.)
7.25.2008 12:41pm
zippypinhead:
Leaving aside the obvious lesson of this thread that some law professors have waaaaay too much time on their hands during the off-season...
As for Bainbridge's claim that Wayne violated antitak[e]over laws when he regained control of the corporation at the end of Batman Begins, this - if correct - would be consistent with the libertarian theme I identify.
But really, didn't you pay close attention to the extended ending of Batman Begins, The Uncut Version? It's an anti-Libertarian ode to the supremacy of corporate law! The Uncut Version gives us a full 30 minutes of riveting action as Bruce Wayne's attorneys compile and make a Hart-Scott-Rodino filing the required 15 days before consummating his unsolicited cash tender offer, and has a great action sequence about how Wayne Enterprises' accountants book all in-kind donations during the course of the movie as being made to Batman, LLC, an IRS 501(c)(3) organization. So Uncut Version movie fans all know that not only was the corporate provision of Batman's toys legal, it got Wayne Enterprises a charitable income tax deduction!

Although rumor has it that as of the end of the movie, Bruce Wayne's homeowners' insurer is still having a few qualms about making a loss payout without first investigating the possible complicity of the homeowner in not effectively mitigating the cause of the catastrophic fire.

Sheesh...
7.25.2008 12:44pm
Daniel Chapman (mail):
How dare you imply that Green Lantern is "godlike!" How could you forget his one obvious weaknes... the, um... color yellow...

If it wasn't for batman, would people even READ DC comics anymore?
7.25.2008 12:51pm
Happyshooter:
I'll also add the legal point that made me wince during TDK-- local DAs cannot bring RICO charges, and even if they could, there's nothing particularly creative or outside-the-box about bringing a RICO charge against a group of organized crime figures.

We have a state level RICO act, but one that only the county prosecutors can use. It is seldom used because the federal act is better and the feds have more manpower to spare. It is also different than the federal act in several ways.

Using the state act, where the federal act didn't cover an activity, would be clever.
7.25.2008 12:56pm
Jack M. (mail):
Daniel,
Haven't you been paying attention? The yellow weakness thing is gone. Parallax and all that. Now, the ring bearer is only limited by his willpower.
7.25.2008 1:04pm
CJColucci:
Generally though, wouldn't Bruce Wayne have an army of corporate lawyers at Wayne Enterprises to make sure that no matter the business action they would be within the letter of the law?

Well, yes, Wayne Enterprises would have an army of coprporate lawyers, but for all their ingenuity, even they could not make sure that whatever Bruce wanted to do with Wayne shares or Wayne assets was legal. Not even Elihu Root in his prime could do that for J.P. Morgan.
7.25.2008 1:05pm
CJColucci:
Oh, and on the Green Lantern yellow weakness thing -- why couldn't he just use his ring to pick up the nearest brown or grey boulder and drop it on a yellow-clad thug?
7.25.2008 1:06pm
Jack M. (mail):
But Happyshooter, correct me if I'm wrong, but can't anybody bring a RICO charge? I mean, isn't RICO sort of like the Sherman Anti-Trust act--anybody can use it in a civil suit?
Or are we talking pure criminal charges?

Yeah, well, Maggie G. isn't exactly noted for her legal acumen. She dropped out of law school in Stranger than Fiction to become a baker, so she really shouldn't be an ADA at all. And Aaron Eckhart is a lobbyist for Tobacco Companies, and I really think that creates a conflict of interest and would disqualify him from being a DA, especially if he targets big tobacco. Plus he seems to condone torture and tries to participate in it against one of the Joker's henchmen. Plausible deniability, anyone? Me thinks he doesn't have much of a career in politics after this.

And killing him off WAS THE WORST.
7.25.2008 1:11pm
Jack M. (mail):
CJColucci:

That was pretty much how every Green Lantern dealt with the problem.

Except Jack Chance. He just shot people.
7.25.2008 1:15pm
Seamus (mail):
I'll also add the legal point that made me wince during TDK-- local DAs cannot bring RICO charges, and even if they could, there's nothing particularly creative or outside-the-box about bringing a RICO charge against a group of organized crime figures.

I'd presume that the State of Gotham has a Little RICO statute.
7.25.2008 1:22pm
Stormy Dragon (mail) (www):
Since Bruce Wayne's take over of Wayne Enterprises was merely a means recovering property he should have already had, but lost when the CEO had him wrongfully declared dead and his assets liquidated, could Bruce Wayne make some sort of justification defense to the anti-takeover law charge?
7.25.2008 1:32pm
Malvolio:
What's Polish for "Wolverines!"?
"Rosomaki!"
7.25.2008 1:53pm
iambatman:
I guess there's really no way I can avoid weighing in on this.

I'm not going to argue whether the themes of Nolan's Batman films are libertarian, as most works carry a lot of potential themes and reading a text is an act of synthesis of reader (or viewer) and creator. But the character of Batman is definitely not a libertarian. Would a libertarian conspire with the state to eliminate his competition? (I refer to the other vigilantes who have started running around in masks, who he leaves trussed up for Gordon to arrest.) He's so plainly trying to create barriers to entrance for his chosen profession it's enough to make one weep into one's copy of the Fountainhead.
7.25.2008 2:42pm
Just Dropping By (mail):
Except Jack Chance. He just shot people.

Anyone who is familiar with Jack T. Chance is clearly a man of culture and intellect. I'm hoping for a follow up on the F-Sharp Bell, myself.
7.25.2008 2:55pm
Jack M. (mail):
Just dropping by,

Thank you. My geekdom has been rewarded with like geekdom

Beware my toll, the F-Sharp Bell!
7.25.2008 2:58pm
Ilya Somin:
I think some of your speculations are implausible in light of the fact that virtually no one knows that Batman is Bruce Wayne. Thus it seems highly improbable that Wayne would have cut a check to anyone whose property was destroyed by Batman in the first or second film (and there's a lot of wanton and needless destruction of property in the second film too-- see, e.g., the car chase scene and the opening scene in which the Batmobile crashes through the garage wall). Also, since it's clear that Wayne and Lucius Fox go out of their way to disguise the Batman-related expenditures, it's highly unlikely that any minority shareholders in Wayne Industries are aware that the company is partially funding Batman's campaign. Clearly this must entail a whole lot of securities law violations in the company's financial disclosures, not to mention embezzlement.

First, Wayne could have compensated these people without revealing that he's Batman (e.g. - by using an intermediary). Second, even if the shareholders don't know that Wayne is Batman, they could surely notice if large amounts of corporate funds are not accounted for and seem to be diverted to nonproductive uses.
7.25.2008 3:01pm
Jack M. (mail):
iambatman: But the character of Batman is definitely not a libertarian. Would a libertarian conspire with the state to eliminate his competition? (I refer to the other vigilantes who have started running around in masks, who he leaves trussed up for Gordon to arrest.) He's so plainly trying to create barriers to entrance for his chosen profession it's enough to make one weep into one's copy of the Fountainhead.

Well, the metaphor falls apart here. Batman's job isn't for profit, so its not business. But if it were, these guys aren't competing, but assisting and/or stealing identity--in effect, forced collaboration or contract under duress. Batman is perfectly legitimate in having the police arrest interlopers who would interfere with his business plan and force themselves into his private business efforts> The purpose of the state here would be to prevent illegal actions that prevent free business enterprise and restrict growth and trade--something I think a libertarian would agree with (correct me if I'm wrong).

And let's not talk about the partnership under duress. And no one has mentioned these CopyBats and trademark dilution....

BTW, Batman is open to collaboration and competition. Harvey Dent.

And now, thanks to this geekiness, I will light myself on fire.
7.25.2008 3:04pm
SATA_Interface:
Considering that most of the destruction in the first film was to the monorail system (at least directly caused by the batmobile via Jim G), it would be acceptable for Wayne to pay for having it restored, as his father built it originally. Wouldn't look out of place at all.
7.25.2008 3:36pm
Guest101:

Wayne could have compensated these people without revealing that he's Batman (e.g. - by using an intermediary).

Could have, but 1) there's not the slightest indication in either film that he actually did; and 2) doing so would be very risky as, even with an intermediary, it would create a paper trail between Bruce Wayne and Batman that would be easy enough for someone to trace.


Second, even if the shareholders don't know that Wayne is Batman, they could surely notice if large amounts of corporate funds are not accounted for and seem to be diverted to nonproductive uses.

Which leads to my speculation, stated above, that Wayne and Fox must be accounting for the expenditures in some fraudulent manner that likely violates the securities laws. Shareholders who, because of the management's fraudulent accounting, don't realize that their rights are being violated tend not to file lawsuits. In any case it makes no sense to assume that shareholders forebear from filing suit out of recognition that vigilante crimefighting efforts are good for the company's bottom line, because they would be unaware of any direct relationship between the company's "nonproductive" expenditures and the crime rate.
7.25.2008 3:39pm
SATA_Interface:
And he wasn't worried about competition, but wanted to keep the Copybats (good turn of phrase, btw) from being injured in his name. He always worries about people being injured under his watch or inspiration.

He discusses it with Alfred when they see it on tv. Same reason why he went down to the city hall to confess his identity - he didn't want to be the cause of more death or to encourage the Joker to kill more hostages.
7.25.2008 3:40pm
iambatman:
Ah, but isn't he then esentially adopting a "nanny state mentality"? Resources on par with the (city) government? Check. Backing up the imposition of his will by force? Double check. Disregard for the rights of others? Check.

Ye gods, I'm surprised at the lack of "The Second Amendment as a check on the tyranny of Batman" arguments.
7.25.2008 3:55pm
zippypinhead:
I'm surprised at the lack of "The Second Amendment as a check on the tyranny of Batman" arguments.
Fuggadaboutit. The Bat Suit is bulletproof. To take out Batman, you'd have to use ordinance of the sort that was pretty clearly not protected by the Heller/Miller "common use" test.

Oh, dear... I already hate myself for weighing in with this straight-faced observation linking Batman and Constitutional jurisprudence. Almost as bad as trying to argue Batman is libertarian. Maybe "Jack M" was onto something when he ended his comment with "And now, thanks to this geekiness, I will light myself on fire?"
7.25.2008 4:13pm
Jack M. (mail):
Batman is adopting a vigilante, not nanny state mentality. He isn't the state, he's executing self-help and help of fellow citizens (crime affects Bruce Wayne and Gothamites both). We don't accuse some passerby who calls the police on a home robbery or mugging a nanny stater. He's being a good citizen. We don't accuse a neighbor of being a nanny stater when calls the cops on drug dealing next door. However, if the state was listening at everyone's door and going into every suspicious circusmtance, it probably would violate some rights.

And Batman isn't stepping on "rights" because he's not the government. The reason Gordon/Dent/el al. tolerate and approve of Batman is precisely that: he does the things they can't do, and they need him to do. If Gordon tortures or breaks legs, he's not only outside the law, but he violates rights. If Batman does it, he's only outside the law.

One of Batman's goals, which the Copybats (thank you for the compliment) corrupt, is to inspire ordinary citizens to stop crime themselves and not be afraid. If the citizens stand up to criminals as a force, criminals lose, because citizens outnumber criminals--hence why Batman feels he can retire when Harvey Dent comes on the scene--the citizens have stood up and elected someone to lead their charge against crime.

Yes, yes, we are all losers for discussing this. :)
7.25.2008 4:41pm
Jack M. (mail):
Btw, if you shoot Batman in the mouth, he dies; the cowl does not protect there. So I think the 2nd amendment could apply here and check Batman from psychosis.
7.25.2008 4:44pm
Henry Bramlet (mail):
I for one don't see anything libertarian about a self-appointed strongman taking it upon himself to deal "justice" upon anyone who seems to cross his line of morality. When Libertarians talk about the fear of government intrusion, isn't it because Governments are basically the Strongmen who can go about depriving us of our liberties? Don't libertarians cherish the safeguards put in place to restrain such strongmen and fight tooth-and-nail to prevent the erosion of those safeguards?

About all that can be said about Batman is that it paints a bleak picture of governments too paralyzed and corrupt to look out for their own people. Well surprise! That's not just a Libertarian premise. Please look at the fiction written during the 70's and 80's (Death Wish, Escape from New York, Batman Keaton Edition, Dirty Harry, etc) and you get the same message. These people weren't wishing for no government, but complaining about a sense that Government was soft on crime and that through regulation and corruption, we had castrated to really catch and punish evil doers.

Batman's philosophy only works in a world where you can tell a bad guy by the dingy look of his hideout, where you can always catch a person in the act, and therefore where due process is completely unnecessary. I don't think there's anything libertarian about that.
7.25.2008 4:46pm
Floridan:
I wonder whether the Batmobile is properly registered with the DMV? And what about insurance?
7.25.2008 4:50pm
iambatman:
The Copybats *are* behaving like Batman, albeit in a low-rent way. Why is it only acceptable to him that other Gothamites stand up to crime through the government (Gordon and Dent)?

And yes, rights can basically be violated by a private party. I'd say, for example, that a murderer pretty effectively interferes with the right to life of his victim. Batman is basically taking on the functions of what he thinks the state *should* do, complete with intrusive spying and savage beat-downs. Henry has the right of it, I think... what kind of libertarian hero is that?
7.25.2008 5:03pm
iambatman:
Come to think of it, given his collaboration with Dent and Gordon, Batman is essentially expanding government (and positioning himself as the Secret Police).

Is this silly? Yes. Doesn't mean I'm not onto something here.
7.25.2008 5:07pm
American Psikhushka (mail) (www):
hls09-

...you have already performed a public service by reminding us that libertarians are mostly acne-riddled 20-year-olds who think "Atlas Shrugged" is the best book ever and are RIDICULOUSLY out of touch with even the fringes of reality.

Really? Can you provide some evidence as to where they are "out of touch with even the fringes of reality"? (Hint: It isn't economics, because libertarian economists were predicting what is happening economically today for years, if not decades in some cases.)

It's generally not a winning strategy to infantilize one's ideological opponents, especially when they are right. Usually when one is arguing a position they provide some arguments, evidence, etc., not ad hominems.
7.25.2008 5:31pm
zippypinhead:
Come to think of it, given his collaboration with Dent and Gordon, Batman is essentially expanding government (and positioning himself as the Secret Police).
Interesting point! There's a well-established legal doctrine to the effect that when a private citizen acts at the explicit behest of the authorities (e.g., by secretly recording a suspect's conversations or conducting a warrantless search of a suspect's private dwelling at police request), that private citizen is converted into an agent of the state, and violations of Constitutional rights by the de facto state agent are fully as actionable as if they'd been carried out directly by the authorities.

Thus a whole new topic for geek discussion: how many Constitutional torts did Batman commit in each movie? What injunctive, exclusionary rule, and/or Bivens remedies can be applied to each of Batman's violations?
7.25.2008 5:41pm
Jack M. (mail):
The Copybats *are* behaving like Batman, albeit in a low-rent way. Why is it only acceptable to him that other Gothamites stand up to crime through the government (Gordon and Dent)?

The Copybats, as Batman says at one point, are merely wearing hockey pads. To Batman, they are merely delusional, dressing up in glorified Halloween outfits. And using guns. big no-no to Batman. The guns are a give away--a true helper to Batman doesn't use lethal force--so they aren't really being him, just infringing upon him and giving him a bad name.

Batman would have no problem with someone assisting him who was trained in the League of Shadows and can use nonlethal force and can meet him at his level. We know that we'll have Robin and Bat-Girl and the JLA later, and even later, Asrael, so hooking up with a partner isn't verboten.

But Batman was born of incredibly unique and intense circumstances--violent ending to parents plus a decade of gruelling, complex training plus all the equipment plus the Wayne billions plus Alfred and Lucious--and so uniquely deals with the problem. These guys in hockey pads and wielding Saturday Night Specials aren't in his league, make his job more dangerous, and threaten innocent lives by their incompetence. So the best bet for an average citizen is to do the average thing: protect one's home, call the police, and enforce the laws.

And I believe a libertarian does believe that some laws are good. In fact, I believe that a strain of libertarian philosophy holds that it is the under enforcement of good laws that creates useless and meaningless laws, gumming up the works and creating too much governmental power where only a little power, properly and efficiently directed, will do. Witness Maggie G's "Duh, RICO!" speech to see that the government in Gotham is waking up to the fact that they have the laws/power to take down crime--they just need to execute efficiently.

Oh dear lord, why am I obsessing about this? I need a girlfriend.
7.25.2008 5:43pm
Jack M. (mail):
that private citizen is converted into an agent of the state, and violations of Constitutional rights by the de facto state agent are fully as actionable as if they'd been carried out directly by the authorities.

Ah, but you forget that Batman is "officially" a wanted vigilante. They mention that at several points in the movie, and thats why the cops immediately chase Batman at the end; they don't know yet that Gordon will blame him for yet another crime (Dent's death).

The authorities in Batman have "plausible deniability" to say they don't work with Batman. Gordon even tries to half-convince Dent that the Bat Signal is an equipment malfunction, and refuses to say directly that Batman is helping them.

So first you would have to prove Batman has been made an agent of the state. The only one alive at the end to prove this is Gordon, and Gordon's not going to give that up. So basically, the state is absolved from Batman's constitutional violations; Batman can only be wanted for Murder/assault, not the 4th Amendment violations.
7.25.2008 5:47pm
Guest101:
Jack M.,

I think your analysis is wrong on several levels, but most simply, even if plausible deniability as to whether Batman is an agent of the state exists after the events of The Dark Knight, it certainly did not exist during the film, when Batman was dropping criminals off of fire escapes and torturing the Joker in a police interrogation room.
7.25.2008 5:53pm
Guest101:
And to follow up on that, the state would therefore be liable for constitutional violations committed by Batman during the movie even if they may arguably not be (or it may not be provable) after the relationship between Batman and the cops changes at the end of the film.
7.25.2008 5:55pm
Jack M. (mail):
I think your analysis is wrong on several levels, but most simply, even if plausible deniability as to whether Batman is an agent of the state exists after the events of The Dark Knight, it certainly did not exist during the film, when Batman was dropping criminals off of fire escapes and torturing the Joker in a police interrogation room.

Must disagree wholeheartedly. Batman was dropping criminals off of fire escapes as a vigilante; no police were there helping him, nor did he claim any special police power. He dropped off criminals to the cops, beaten or tied up, but as a vigilante, which is what you'd expect a non-lethal vigilante to do. No one asked him to do it, nor was he protected or coerced by the police in any provable way.

And as for the Joker scene, if you remember, Batman doesn't walk in the front door, he sneaks in. Gordon's sees him appear behind the Joker, and says loudly, "I'm going for a cup of coffee," giving the plausible story that the slippery Batman snuck in and beat Joker when everyone thought the interrogation was over and no one was there to stop it. In fact, Batman goes so far as to barricade the door with the chair so the police, who see Batman getting violent, try to stop him and are blocked from doing so--more plausible deniability.After all, if the Joker can blow up the station and infiltrate the squad with double crossers, then Batman sneaking in isn't so far fetched.

I think the events of TDS wholly support the notion that Batman cannot be proven to be an agent of the state. Even the end, with Batman talking to Gordon openly in front of the SWAT Team, can support this; Gordon could argue that he was more concerned in capturing the Joker and stopping hundreds of people from dying rather than using man power to capture one vigilante who was not yet blamed for any deaths and yet was a lethal force.
7.25.2008 6:01pm
Jack M. (mail):
I think the mistake being made is the assumption that because Batman and the police share the same goal, it is therefore provable that Batman is their agent. But Batman is a vigilante; he naturally is aligned with the police's goals in stopping the Joker and the Mob. You must show that the police or state actually agreed to have Batman work with them, which you cannot do, because the only person who would be able to prove this is Jim Gordon. And breaking Jim Gordon, as the Joker discovered in "The Killing Joke," is not something even he can do.
7.25.2008 6:05pm
Duffy Pratt (mail):
Umm. Isn't the Joker even more of a libertarian than Batman?
7.25.2008 6:07pm
Jack M. (mail):
Joker's a liar. He claims he's all about chaos and impulsive actions and violent, short-lived desires, but everything done in the movie by him requires extraordinary planning and foresight to achieve the goal of taking over the Gotham underworld. Witness his elaborate plan just to get caught by the police and blow up the station and capture Harvey/Maggie G. Totally thought out well ahead of time.
7.25.2008 6:11pm
iambatman:
Gordon also agreed to give Batman a limited window to take the joker down first in that ending part. Looks like collaboration to me.

Re: Copybats, it doesn't matter if they're necessarily wise or effective... the nanny-Batman-state, by KOing them and leaving them for the cops, is effectively saying "I know better than you, the free individuals of Gotham." I'm also not sure how pointing out the real Batman's aversion to guns is an argument that he's a libertarian.
7.25.2008 6:14pm
zippypinhead:
"Ummm. Isn't the Joker even more of a libertarian than Batman?"
Oh my... Phuleeez don't confuse libertarian with anarchist. One big difference: the latter is usually a lot more fun at parties. And street riots.
7.25.2008 6:21pm
Jack M. (mail):
Gordon also agreed to give Batman a limited window to take the joker down first in that ending part. Looks like collaboration to me.

True. But Gordon will deny it, and I assume we agree he won't give him up. So there's still no proof.

And consider that even if you could prove that Batman was herefore deputized, consider that during this part, no constitutional violations were proven. Batman proceeds to go into an unfinished building with more than enough probable cause and uses non-lethal force to legitimately capture and not cause reckless injury to anyone, including the Joker---saves his life, in fact. And since this was the only action you could prove Batman was deputized for, and he broke no Constitutional limits here, the city is still not liable. He didn't deputize him retroactively for everything done before.

And your argument about the Copybats misses the point. Batman doesn't want a nanny-bat state, or citizens to have to defend themselves with guns. He wants to retire and let efficient law enforcement work, and have no one risk injury. An average citizen might adjudge that another is using his gun recklessly and take it away from him in the heat of the moment when he's acting reckless and potentially injuring himself or you (Batman believes the Copybats threaten his life by being untrained and undisciplined), and its not a nanny state. Its a nanny state if Batman broke into people's homes and took their guns away permanently. Yes, Batman believes he is better than a Copybat at being Batman. That's not the same as believing he is the only one capable of saving the city.
7.25.2008 6:26pm
iambatman:
I think we're on a different page on the matter of collusion. I'm not trying to prove collusion in court (zip, OTOH, may be), just pointing out that it is amply evident to most viewers of the film. To a viewer, I think the Secret Police comparison holds a lot of water. Now, we the audience cheer for Batman all throughout his theoretically troubling actions because Batman is completely smart, dedicated, and altruistic. But, as Alan Moore asks, who watches the watchers? What's the check against corruption in future Batmen?

On Copybats: obviously we will have to agree to disagree, but it seems to me that if Batman allows no vigilantes in his town who do not meet his standards for training, methods, and weapons (and this is the case for every Batman comic from the past 15 years that I know of), he is effectively imposing a monopoly or a cumbersome registration process on the city, and backing it up with some very "statist" seeming powers.
7.25.2008 6:40pm
zippypinhead:
Three thoughts:

1. If Batman is enforcing his vigilante monopoly against the Copybats, then in addition to his other crimes, he's arguably commiting non-price predation in violation of Section 2 of the Sherman Act. Assuming, of course, that you can prove the interstate commerce element of that statute vis a vis Batman.

2. So Gordon and Batman are in a clandestine conspiracy to, inter alia, commit Fourth, Fifth, Sixth and Eighth Amendment violations, as well as Section 1983 and other statutory violations? Heck, I'm sure the FBI and DOJ Public Integrity Section can get to the bottom of that in NO time. Agent Scully, Washington is on the line for you!

3. You've convinced me that based on their boorish behavior towards gun-toting Copybats, Batman and Gordon regularly infringe on Second Amendment rights (and Bruce Wayne probably donates to the Brady Campaign and the Joyce Foundation). In the next Bat-Movie, Levy &Gura will make a cameo appearance to file a Federal suit against Gotham City.

And now for something completely different:
Jack M wrote:
"Oh dear lord, why am I obsessing about this? I need a girlfriend."
My non-libertarian wife, who just read this thread and is laughing uproariously, wholeheartedly agrees with you. But she says my computer playtime is over now, so I have go. And if I don't log off she's putting volokh.com into the kiddie filter's blocked site list. Spoken like a true nanny state fan...
7.25.2008 7:13pm
Henry Bramlet (mail):
Right, Batman is closer to an Anarchist's view of reality: That absent government, society will care for itself.

From a libertarian perspective, I think you are stretching. Batman is only a force for good in a world where "Good Intentions" are enough to ensure a just society. In batman's world, there is no need to prove someone guilty before forcefully apprehending them or throwing them off a roof. It is only enough that Batman "Knows" they are bad.

What if I "Know" you are an enemy combatant intent on detonating a bomb in Los Angeles Harbor? Is it in agreement with libertarian ideals for me to detain you and drop you off at Gitmo some evening? Or to just throw you off a fire escape?

And for another example, a Libertarian should insist that Batman doesn't have the right to go destroying my property unless I hire him or otherwise agree to the exchange of risk for his law enforcement. I have already made that deal with the government (c.f. Constitution). But I have made no such deal with Batman.

Again, the only "libertarian" theme in this movie is that Governments can't do their job...But that is hardly a theme unique to Libertarians.
7.25.2008 7:34pm
JK:
This is why I read VC! You just don't get this stuff at SCOTUSblog!
7.25.2008 7:43pm
Shallow Throat:
JK, yes, this is GOOD reading! The only reason "you just don't get this stuff at SCOTUSblog" is because that site has the nerve to make users input our real name and a valid e-mail address when commenting! SCOTUSblog would be a LOT more interesting if we didn't have to worry about the people we work with and know professionally linking VC-style rants, flames, trolls, and just good old Friday Fantasy Fun with our real identities. After all, there have to be at least 500 (out of 7500 or so) cert. petitions every year that could be made into Monty Python skits without even having to re-write them very much.

But sadly, nobody at SCOTUSblog wants fun and imprudent VC-style comments to come back haunt them at their next confirmation hearing, security clearance renewal, partnership evaluation, or Georgetown cocktail party.

Now, back to our regularly-scheduled dissection of the legality of Batman movie antics taken under color of state action...
7.26.2008 12:02am
Public_Defender (mail):
Professor Somin is right--Batman conclusively proves that libertarianism works in a fantasy world.

We're set if we can just convince Bill Gates to spend is money on a cool suit and cool gadgets instead of stopping disease in Africa.
7.26.2008 7:57am
Stormy Dragon (mail) (www):
>Assuming, of course, that you can prove the interstate
>commerce element of that statute vis a vis Batman.

That would be pretty easy given Batman's recent activities in Hong Kong.
7.26.2008 12:13pm
Jack M. (mail):
I think we're on a different page on the matter of collusion. I'm not trying to prove collusion in court (zip, OTOH, may be), just pointing out that it is amply evident to most viewers of the film. To a viewer, I think the Secret Police comparison holds a lot of water.

I totally agree, I was thinking you were talking about proving this in court. I think its more than plain to the viewer that Gordon has deputized Batman. It's the theme of the movie, which plays in nicely to Nolan's War-on-Terror metpahor; the normal methods of capturing criminals are useless against huge vast conspiracies like the mob and laughable for the Joker. So for justice to reign, the government must act like the new criminals do--more vicious, more ruthless, more torture. But society won't stand for it, so it has to be a "we don't know nothing about Batman" routine, despite the fact that Batman is exactly what Gotham needs.

I think Nolan's movie is advocating that the invasive actions of the War on Terror, such as Guantanamo and water boarding, are necessary and even noble in this new day in age--as the Joker says, he's just "ahead of the curve." The movie says our Constitutional protections hinder us more than help us in this new age.

That's not saying I agree with it. But the movie, through metaphor, makes that argument powerfully.

P.S. did anyone notice the parallels between this movie and the Untouchables? I think Nolan deliberately decided not to obscure Chicago-as-Gotham in order to to draw that comparison. In both movies, law enforcement is powerless to stop super powerful criminals who are emboldened by the law. In both, the police department is rife with traitors. In both, a crusading law enforcer arrives and puts the mob on trial.In both, the crusader starts to bend and break the law in order to get the criminals. Any thoughts?
7.26.2008 4:22pm
Paul R (mail):
The definition of vigilante is a member of a volunteer committee organized to suppress and punish crime summarily (as when the processes of law are viewed as inadequate); broadly : a self-appointed doer of justice. The Wikipedia version of vigilante is "a vigilante is a person who ignores due process of law and enacts their own form of justice in response to a perception of insufficient response by the authorities." Both of these sources agree that a vigilante dispenses justice and punishment, but that is exactly what Batman never does. Batman doesn't fine, imprison or kill the criminals he apprehends, he packages them up and turns them over to the police, sometimes also with the evidence of their crime if needed for a conviction. Batman is a rogue cop, a citizen making citizen arrests, but he never arrogates to himself a right to the retaliatory use of force if retaliatory force is understood as punishment.

I think that what some people in the movie are actually condemning in Batman's 'vigilantism' is a perceived stand against moral relativism; Batman judges which people need to be captured and in moral relativism people, especially people not in an official uniform, should not judge other people. Batman's fight for justice in Gotham inspires people to reject the passivity of moral relativism, and the rejection of moral relativism is exactly the issue highlighted by the two ferries which the Joker put into a variation of a "Prisoner's Dilemma".

The one thing he has done which was potentially problematic was kidnapping Mr. Lau from Hong Kong. However, China is a tyranny and has no extradition treaties, making it a criminal haven. Batman may well have provoked an international incident, but this is not automatically an immoral act. The Batman inhabits that space between the moral and the legal. Where a uniformed policeman is understood as an agent of the law, a suited up Batman is a personification of the moral. The law is supposed to serve a moral purpose and should be subordinate to moral considerations, so Batman is free to act where the law is not.
7.27.2008 10:51am
Hoosier:
OT—Why was the mayor of Gotham wearing so much mascara? Was he on his way to a New York Dolls reunion concert or something? It was very odd.
7.27.2008 1:10pm
Fred (mail):
I think we're all missing the point. What were the basketball strategies that wouldn't work in the real world that the coach in Hoosiers was using?
7.28.2008 11:37pm