Category Archives: estate law

John Carter

John Carter is Disney’s adaptation of Edgar Rice Burroughs’ Barsoom works, drawing mostly from the first book, A Princess of Mars. Actually, it’s really Andrew Stanton’s adaptation, he of WALL-E fame, because it doesn’t seem like Disney had any actual input, into the film or its marketing. The result is… problematic. But lo and behold, they’ve got a lawyer character who winds up touching on a bit of estate law. So we’ll take a look at that. Some pretty significant spoilers follow. Continue reading

Dollhouse: Haunted

We’ve written generally about the TV series Dollhouse before, but this is our first look at the legal issues raised by a particular episode from season one.  The show was recent enough that we’ll give a spoiler warning.

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Superman Returns

Superman Returns was a pretty good movie (though hopefully the Man of Steel reboot will be an improvement).  The legal issues the movie raises are quite a bit different from our usual crime & torts fare, which is a nice change of pace.  Spoilers inside:

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Smallville III: Doppelgängers and Direct Democracy

This marks the third post in our series on Smallville (1, 2), which ended its run a week ago. This time we’re looking at two plot elements in Season Ten: Lionel Luthor’s reappearance and the vote to overturn the Vigilante Registration Act. Spoilers, as always, follow.

I. Dopplegängers

Early in Season Ten, Clark accidentally activates a “Mirror Box,” which transports him to Earth-2, an alternate universe where Lionel Luthor, not Jonathan and Martha Kent, discover Clark the day of the meteor shower. The world is a rather bleak and terrifying place, and the alternate version of Clark is really quite a monster. Of interest for us is that the alternate version of Lionel manages to cross back into the “real” world when Clark returns. Of course, the “real” Lionel died several seasons ago, so Evil Lionel represents something of a surprise for our heroes.

Lionel goes about reclaiming the assets and property disbursed upon “his” death several years before. We talked about resurrection and probate law a while ago, and this winds up being pretty much the same analysis. The key here is that Evil Lionel is passing himself off as Real Lionel, and no one has any reason to suspect otherwise. The only way to really prove that he’s a doppelgänger is to have Real Lionel make an appearance, and that’s not going to happen. Even exhuming the body wouldn’t be conclusive proof, given the apparent state of cloning technology in the Smallville universe. Remember Lana faking her own death a few seasons ago? Using a clone. Lionel could have done the same thing here, and it’d be very, very difficult to prove otherwise. And really, a court is going to have a much easier time believing that someone like Lionel faked his own death than it will believing that he’s from an alternate reality.

Furthermore, other than Tess and Oliver, most of the LuthorCorp execs, i.e. the people with the most vested interest in Lionel’s status, are probably pretty excited to have him back, seeing as the business always seemed to do better when he was in charge. Lex did okay, but he’s still dead, and the Oliver/Tess administration seems to be mostly a series of disappointing quarterly reports and inconveniently fatal explosions. A return to the old guard would plausibly be welcomed.

So ultimately, while it may take some explaining, the mere fact of Evil Lionel’s presence will probably speak for itself, and it’s entirely possible that after some months, he could wind up getting most of his assets back. Particularly as the estate seems to still be winding down, given the continuing discovery of artifacts like the Mirror Box. Assets still in the estate would be his merely for the asking.

II. Direct Democracy and the VRA

A fairly serious plot arc in season ten is the Vigilante Registration Act, which seems to be pretty similar to the Superhuman Registration Act we’ve been discussing over here. This Act is even less worked out than the SHRA, but the show spends a lot less time playing with the details, so this winds up being less of a problem than it is in the Marvel Universe, particularly as the act seems to have been in force only for a few months, and with only a few dozen targets. But the same kind of constitutional issues are present, and the analysis is basically the same, so we won’t duplicate that discussion here.

The new wrinkle is that midway through the season, there is a popular vote to overturn or repeal the VRA. While Law and the Multiverse has, we hope, demonstrated itself as having a charitable eye for Acceptable Breaks from Reality where getting the law right would make for bad television, we are here coming to an exception: this portrayal of the legislative process is spectacularly, unforgivably wrong.

Why? Because there is absolutely no mechanism, constitutional or otherwise, for direct democratic referendum on any piece of federal legislation. Never has been, and unless the Constitution is amended, there never will be. The Constitution explicitly and self-consciously creates a system of representation and permits no direct participation of the people in the legislative process.

The federal constitutional amendment process, for example, is initiated by either Congress or the state legislatures.  Unlike many states, the people are never directly consulted about amendments.  Even more, despite the massive hype surrounding the Presidential election, direct election of the President is actually a myth: the fact that the popular vote matters at all is a feature of political custom and state law, not constitutional law. The Constitution provides that the President shall be elected by the Electoral College, not by the popular vote, and though states may determine their own means for choosing their Electors–including popular vote–Electors are under no constitutional obligation to vote the way their state’s popular vote goes, and state laws attempting to punish “faithless electors” have yet to be ruled on by the Supreme Court (probably because it’s never made a difference). So for starters, the federal government of the United States is way less democratic than most people probably think.

Getting the mechanics of the Presidential or congressional elections wrong is one thing, and probably excusable. Not everyone is a policy wonk. And in other cases, we’ve been pretty forgiving about authors and editors who don’t have the details of administrative law figured out. A lot of lawyers are pretty fuzzy there too. But making up an entirely new, unprecedented, and quite probably unconstitutional political form goes beyond the pale. This is high school civics stuff, not high-level political theory. Citizens of the United States have absolutely no opportunity to vote upon federal legislation. None. Zero. Nada. So a vote to “repeal” the VRA is completely meaningless.

Okay, theoretically, it’s possible for a repeal bill to be written that has as its trigger the results of the popular vote.  Triggers are a common feature of legislation, but they are usually based on either time or a future action of the legislature (e.g. a declaration of war).  Using a popular vote as a trigger would likely be so politically and legally controversial that the debate over the legitimacy of the procedure would probably overwhelm the debate over the underlying issue.  And of course the repeal bill would still have to be passed by Congress and signed by the President.

It’s also not clear under which enumerated power of Congress the popular vote could be taken under.  Remember, regular federal elections are handled by the states, though somewhat regulated by the federal government through laws like HAVA.  It’s quite possible that Congress would have to ask or bribe the states to handle the voting.  If any state abstained from participating in the vote that would call into question the legitimacy of the whole process.  The whole thing is, at best, a giant mess.)

If the writers wanted to come up with a high-stakes vote on the legislation, they could have. Witness the drama and wrangling that went into getting the ACA passed last year. It did come down to a few key votes, some of which were late at night or right down to the wire, and the drama dominated the news cycle for weeks at a time. But it was all representatives and senators doing the voting, responding to pressure from the public, not citizens voting on their own behalf. This would have made Martha Kent’s role even bigger, as instead of simply giving a stump speech here and there, she’d have been actively involved in the process. Of course, that would have meant paying Annette O’Toole more, and while that’s no bad thing for the episodes she’s been in, it may not have been possible for budgetary or logistical reasons.

Still, shame on the writers for not finding a way to do this even within the bounds of the Hollywoodland legal system. Even if they’d fudged the process of actually getting a bill through Congress, that’d have been okay. Congressional procedure is notoriously arcane, and in the light of the ACA last year, any writer worth his salt should be intimidated by the thought of getting that right. Any TV show that gets bicameralism and presentment down gets a free pass on legislative procedure as far as we’re concerned, as that’s the about as much legislative procedure as adult Americans can be expected to know. But this? Bad writers! No biscuit!

III: Conclusion

So with this post we’ve got one thing the authors get basically right, i.e. Evil Lionel can probably claim Real Lionel’s assets without too much difficulty, and one outrageously wrong, i.e. there is absolutely no provision in the American political system for direct popular referenda on federal legislation. There’s plenty more to look at in this series, so we’ll probably return to it at least once or twice more.

Immortals and Compound Interest

A number of people have asked, both in comments and in emails, why compound interest isn’t the solution to all of our immortals’ money problems. It’s not a bad question, and it’s shown up in a number of places.

It turns out that this isn’t nearly as workable a solution in practice as it is on paper. There are two main reasons for this. The first is historical, and the second economic, but together they conspire to make living off your interest a little harder than it sounds.

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Tron: Legacy

When we watch movies, we necessarily engage in at least some suspension of disbelief. That’s why we’re there. But when you’re an expert in a particular field, and Hollywood plays free and loose with the rules of that field–or occasionally gets them right!–you tend to notice. Physicists have been reviewing movies for their scientific accuracy for a while now. This is the first in a series of posts where we analyze the legal content of movies likely to appeal to comic book fans.

Tron: Legacy, sequel to the classic, raises a few interesting legal points. This is not intended to be a review of the movie but rather a quick brief on some of these issues. There are some spoilers though, so you have been warned.

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I’m not dead yet! Resurrection and Probate Law

Superheros and supervillians too numerous to count have, for various reasons, been killed, lost, or otherwise presumed dead, only to come back at a convenient date. It’s gotten a little silly at times.

The legal system has pretty well-established rules for what to do when someone dies. If they’ve got a will, their property will generally be distributed according to its dictates (no naughty trying to disinherent current spouses!) and if they don’t have a will, i.e. they die intestate, the law is pretty clear about how their estate is to be distributed. Most states have adopted some version of the Uniform Probate Code, or UPC, which other than the UCC and MPC is actually one of the more successful uniform laws in terms of its adoption by the various states.

The law even has a way of handling situations where a person is not actually known to be dead but is clearly no longer around. A person who is legally absent, i.e. a person whose whereabouts are unknown for quite some time, will generally be presumed dead after a few years. Five to seven is pretty common, though interestingly for the citizens of Metropolis, New York only give you three (NY CLS EPTL § 2-1.7). It usually takes a court proceeding to get someone officially declared dead in the absence of a body, and in general, the courts will presume that a person is alive until there is clear evidence to the contrary or state statue operates to force presumption.

That last bit is actually of interest to our consideration of law and the multiverse. Pretty much every state has a statute saying that if one is legally absent for a specified period of time, a court can declare one to be dead. But a few states also have a provision that exposure to a “specific peril of death” can permit a court to rule one dead before the specified period expires. See, e.g., 20 Pa. Cons. Stat. § 5701(c). As superheros are exposed to specific perils of death basically all the time, and would not generally be suspected to be dead in the absence of such a peril, it seems likely that a court, or at least a genre blind one, would be willing to rule on a superhero’s death pretty quickly. Which makes things a bit complicated if they aren’t actually dead.

So what happens when, after they have been declared dead, a person turns up again? The Straight Dope has a good article on this subject, so I shall attempt to avoid repeating that discussion here, but their discussion of a rather interesting case on the subject could stand to be expanded.

Southern Farm. Bureau Life Ins. Co. v. Burney, 590 F.Supp. 1016 (E.D.Ark. 1984) is the big case here. In 1976, John Burney of Helena, Arkansas, ran into financial difficulties. On June 11, he was involved in a traffic accident on a bridge crossing the Mississippi River and managed to clamber over the railing and down the bridge into the river, where he swam to Mississippi instead of back home to Arkansas. He caught a bus and spent the next six years living in Florida as “John Bruce,” complete with a new wife and child, neither of whom had any inkling of his former life. He returned to Arkansas in 1982 to visit his father and was discovered. Unfortunately for him, Burley’s wife and business partners had filed claims on various life insurance policies taken out on him and received benefits totaling $470,000. The wife, who may have been annoyed at finding out that her husband had completely abandoned his family and set up another one, contacted the insurer immediately. The insurer was annoyed and promptly sued Burley into next Tuesday.

Here’s where things get interesting for whack-a-mole-type supers: Burley’s wife and business partners, who had no knowledge of Burley’s whereabouts and had assumed that he had died in the accident, wound up a total of $470,000 richer. The judge let them keep that money, theorizing that “the policy of the law is to encourage settlement of litigation and to uphold and enforce contracts of settlement* if they are fairly arrived at, not in contravention of law or public policy.” (Id. at 1022). Burley wound up being found liable for $470,000 plus interest–whether or not he paid is another matter–but the people who received property as a result of his death were permitted to keep it.

The implication here–and there really isn’t much case law beyond this, because most people who are presumed to be dead are actually dead–is that if a person dies or is presumed to be dead, courts are not going to be very eager to disturb the settlement of property distributed via inheritance or devise unless there is a clear statutory reason to do so. Many states have statutes addressing this subject, but they’re all over the place.

– Cal. Prob. Code § 12408 specifies that a person who reappears after being presumed dead may recover any of his estate which has not been distributed, but property that has been distributed is only recoverable if it is “equitable under the circumstances,” and not at all if five years have passed.

– Va. Code Ann. § 64.1-113 provides that property which has not been distributed and property which is in the hands of someone who received it as a result of the presumption of death shall be returned to the person presumed dead, but bona fide purchasers of estate property are allowed to keep it. Pennsylvania takes a different approach.

– 20 Pa.C.S. § 5703 requires that if a person is declared dead in whole or in part on the basis of his continued absence, no property can be distributed out of his estate without the distributee posting a bond for the value of the property. Clearly, a superhero who fears that he may erroneously be declared dead at some point should consider moving to Philadelphia.

– New York doesn’t seem to have a statute on this subject at all, meaning that any property distributed because a person is presumed to have died could be pretty difficult to get back.

So this really becomes a question of the state’s law where our supposedly deceased character’s will or estate would be probated. A returning or resurrected character could find that they get back most of the property they lost, or they could wind up with nothing. The longer they take to come back, the more likely the second outcome is.

*Apparently the insurance company never thought that Burley was dead, but it chose to settle with the claimants rather than fight. The judge reasoned that they had figured the likelihood of Burley actually being alive into their settlement.