Mutant Rights In the Real World

[Alisha Mynx]

Once we start delineating humanity on a scale we are in dangerous territory.

We already do that.  At least that's the impression I get whenever I see one of those "evolution of man" pictures where it goes from primordial goo swimmer to caveman to human.

[Navarre]

But scientists are at the point of only debating whether Neanderthals are humans or their own species, based on current taxonomic classification.

So, prior to the Neanderthals on the chart: No.
As of the Neaderthals: Maybe

So Marvel needs to determine conclusively if mutants are Homo sapiens superior or just Homo superior. Then the matter is solved.

[Gaumer]

I think we may be missing on the whole gene theory thing here, guys.

We're talking one gene difference between human and mutant. That's not even enough to have a different sex within the same species.

And here's the jive on this neanderthal convo

http://en.wikipedia.org/wiki/Neanderthal_genome_project

At roughly 3.2 billion base pairs,[3] the Neanderthal genome is about the size of the modern human genome. According to preliminary sequences, 99.7% of the base pairs of the modern human and Neanderthal genomes are identical, compared to humans sharing around 98.8% of base pairs with the chimpanzee.[4]

If chimps ain't humans, neanderthals ain't humans. Close ain't close enough We are the 1%

[greyman24]

It's funny-the radio show also mentioned how this brought up the question of "What does it mean to be human?"

It's interesting. Genetics weren't used to organize kingdoms, phyla, or classes. Mammals are organized according to physical traits (posessing hair, skin, etc.) and biological functions (mammary glands, sweat, etc.). To that end, we rarely judge humanity by genetic traits. If so, as has been pointed out, chimps would be treated practically as one of the family.

Historically, humanity has almost exclusively judged humanity (or equality) based on physical traits. By that reckoning, Beast wouldn't pass the sniff test. The judgement would probably by the public at large would probably be that he mutated into something "other."

[Navarre]

I would guess that's because genetics wasn't sufficiently understood when taxonomic classification was developed?

I guess redheads really are a different species. Must be because Gingers have no souls.   

[Xian]

Mechanically speaking your kitty pride action figure hits every point for the 'doll' classification. They are saying that because the story-line says otherwise it should count.

Actually, that's a side effect.  The initial ruling is the mechanical application and interpretation of the statute... Wolvie's claws, Beast's blue fur, etc... not because of the in-story distinction between mutants and humans.  Marvel's lawyers provided sufficient evidence to swing the civil burden of persuasion in Toy Biz v. US to show the line-wide characterization and tariff of "doll" was incorrect.  Once that was determined, as a matter of administration- not justice or precision per se- the entire Toy Biz line from the affected period was deemed to be Toys and not Dolls, requiring the government to reimburse them for the taxes levied.  You could retroactively claim that means the ruling declared that all of the 6-+ characters represented in in the line (many being non-mutant heroes and in-story humans) are not human but that's not it's meaning even if that is the resultant tax effect.  Put another way, it's not necessary for all mutants to be inhuman for Marvel to have won... only that some of the figures, as taxed, did not meet the statutory definition of doll.

The most famous case of this nature is Nix v. Hedden which was a case about whether tomatoes constituted fruits or vegetables and so the general rule is that statutory terms are to be interpreted based on common usage rather than highly specialized or technical distinctions... so "human" will not turn on genetic or even taxonomic definitions any more than "vegetable" will turn on botany... meaning such parsing (what the story says, what science says, etc) will have no legal significance.  The basic rationale is that the law makers are laymen who use terms generally (and mean them to be read by laymen) rather than technically and, if they mean the more technical meaning, they can include it in the statute.

Also for this reason, this case will have no bearing on "what it means to be human" in any future civil rights type case (assuming the existence of Marvel-styled mutants one day) because the context is what constitutes a "human doll for taxation" not "what is a human for the purposes of civil rights".

Regarding the Barbie example, you probably wouldn't be able to get away with it because you didn't release Fairy Barbie at launch and waived your rights to challenge the tax by paying the doll tax for decades until Fairy Barbie came out.  In other words, it would be a clear case of trying to retroactively redefine your doll line as toys.  By contrast, in Toy Biz, undoubtedly Wolvie and Beast were there at launch and Marvel challenged immediately.  A clear case of trying to fight a wrongful tax classification.

[Navarre]

Xian for Major Spoiler Attorney!   

[greyman24]

Aw, man. You had to go and spoil my beautiful metaphor with harsh facts.

One question. Who determines what is in a "line"? Is it based on a single licensed property through a single manufacturer, or is it more like the marketing definition: a collection of products organized around a target market/audience?

In other words, all Marvel properties through Toy Biz were determined to not have human likenesses at the aggregate. After this ruling, could they also go after previous taxes for Mego, or some other manufacturer?

And, to go back to the Barbie example, maybe Mattel couldn't claim reimbursement for previous taxes paid, but, with the creation of a new "line" of non-human "toys", could claim them under the less expensive classification?

[Xian]

"Line" isn't in the statute, I just used it for convenience sake.  You're taxed by container and on your import forms you need to submit the contents for classification for taxation purposes.  In theory, you could itemize and seek classification of each individual item, but for the sake of paperwork you try to group the items into the most common tax / class brackets as possible so there's less paperwork per submission.  In Marvel's case, undoubtedly each container was filled with action figures and they submitted them all as a class... they can mix lines and licenses, it's just a matter of how they submitted the paperwork (and generally, you will try to unify licenses because there will be different indemnity clauses base on the licensees... that's why Marvel's lawyers are running the case for Toy Biz).  The government could go back and fight for more refined classification, character by character, now that the burden of evidence is on them (since Marvel was able to prove enough of their product was not dolls) but there's a point where you're losing the tax payer more money than you're saving by fighting.

Applied to Barbie, no in-story change or cosmetic thing like wing accessories will turn her into a toy, since the first / main test is visual (the secondary test is whether Barbie competes with domestic dolls and that's pretty certain).  If you radically change Barbie to get the tax break, you'd probably be unable to put that changed figure under the same paperwork as the unchanged Barbie so you don't get any sort of bonus advantage.  The only reason the Marvel thing worked was because the government got sloppy in over-applying "doll" to any action figure... so the advantage is also only for the contested past containers wrongly taxed... going forwards, Marvel have to classify their figures more carefully (and do more paperwork) if they want the tax break.  It's not like all Captain America figures forever more are now toys and not dolls, this was a tax refund case essentially.