Category Archives: estate law

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.