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May|June 2003
Lights, Camera, Lockdown By Dashka Slater
Taking Liberties By Harry N. Scheiber and Jane L. Scheiber


Supermajority rule, the rights of posthumously conceived children, and other ideas from the nation's law reviews.

The Indiana Law Journal has joined the debate over the Rehnquist Court's new federalism. In its winter 2003 issue, the review invited academic heavyweights from across the political spectrum to discuss how Congress might escape the shackles placed on it by the court's interpretation of the Commerce Clause and the Tenth, Eleventh, and Fourteenth Amendments. Robert C. Post and Reva B. Siegel, for instance, write that the currently "juricentric" court should be more deferential to Congress, while Marci A. Hamilton tells Congress to stop complaining and try working within the framework they've been given.

An intriguing contribution comes from Evan Caminker. In an article called "Thayerian Deference to Congress and Supreme Court Supermajority Rule," he resurrects a notion that hasn't had a following since the Lochner Court presided a century ago: requiring the agreement of six or perhaps even seven out of nine justices to invalidate an act of Congress on constitutional grounds.

To many scholars (including Jed Shugerman, who floats a proposal similar to Caminker's in the spring issue of the Georgia Law Review), the Rehnquist Court's penchant for reversing federal statutes in 5-4 rulings is both troubling and historically anomalous. In the past eight years, the Supreme Court has invalidated 16 Congressional statutes (either in whole or in part) by a 5-4 majority, something it had done only 25 times in the previous 207 years. Caminker believes that this trend could jeopardize the "presumption of constitutionality" that acts of Congress are supposed to enjoy.

Nebraska and North Dakota already require a supermajority on their state supreme courts for overturning legislative decisions, and Caminker suggests that the federal government follow their lead, since a supermajority rule would force the U.S. Supreme Court to show more deference to Congress. Whether this benefit outweighs the proposal's inherent drawbacks—losing a case with five justices on your side would certainly smart—is a matter upon which reasonable people can disagree. Indiana Law Journal, Volume 78, Number 1.

California Cryobank, the largest sperm bank in the country, can store semen indefinitely at 312 degrees below Fahrenheit. This winter, the bank and others like it noted a sharp spike in deposits, thanks to an influx of military personnel preparing for deployment to the Persian Gulf. Many male soldiers had read that veterans of the previous Gulf War returned with lower sperm counts; some feared exposure to a chemical or biological attack. Other soldiers, however, were planning for the darker possibility that they might not return at all.

Traditional nuptial vows declare that a marriage will last until "death do us part," but technology now allows men, at least, to leave something of themselves behind. Christopher Scharman's note in the Vanderbilt Law Review, "Not Without My Father: The Legal Status of the Posthumously Conceived Child," ponders what happens when women use the sperm of a deceased husband to become mothers. Despite the rising use of sperm banks, only a handful of states have passed statutes clarifying the legal status of posthumously conceived children. The states that have are unanimous: These children are not the legal offspring of the deceased parent, and they can't inherit anything from their fathers that hasn't been left to them in a will. They also can't receive survivors' benefits from their fathers' insurance or social security.

Posthumously conceived children have fared better in court, however. In the most recent case, a federal judge in Massachusetts held that these children may have a right to inherit even if they are not mentioned in their father's will, provided that he consented to both the conception and support of the children. (The case involved twins born to a woman who underwent in vitro fertilization after her husband died of leukemia; he had donated the sperm when he was told that chemotherapy might render him sterile.)

Scharman holds up the Massachusetts court's decision as a model. He acknowledges the state's need to administer estates efficiently—it's hard to close an estate when you're waiting around for new beneficiaries to be conceived. But like King Lear's Edmund, he is a staunch defender of those born out of wedlock. Posthumously conceived children, he writes, "should not be visited with the long-rejected treatment the law historically extended to illegitimate children." In other words, wherefore base? Vanderbilt Law Review, Volume 55, Number 3.

"It can be stated without fear of contradiction," Thomas Baker writes, "that the truly clever or amusing law review article is the quintessential rara avis." Baker's "Compendium of Clever and Amusing Law Review Writings," published in the Drake Law Review, is a field guide to the species (or, perhaps more accurately, a life list), and while the humorous law review article may be a rare bird, Baker has managed to track down a good many of them.

Baker's article is essentially an annotated bibliography, a list of works he finds funny accompanied by a description of what he finds funny about them. A more serious study of law review humor might have spent many pages and footnotes defining humor, but Baker is content to admit that his criteria "cannot be articulated with any specificity or precision." Instead, he writes, the articles he includes are ones that are "clever and amusing to me." He hopes his reader will feel the same way.

A good many entries address the topic of humor directly. "Snakes, Bananas, and Buried Treasure," for instance, examines lawsuits brought by people who were on the wrong end of a practical joke gone awry. Other articles (like "Legal Tales from Gilligan's Island") attempt a kind of tongue-in-cheek close reading of popular culture. A third category of articles in the compendium are ones written by Baker himself. He cites his own work four times, including "Tyrannous Lex," an attempt to measure the "Gross Legal Product" of the United States.

Some of the articles in the compendium aren't humorous at all. After the entry for "She's Got Bette Davis['s] Eyes: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses," Baker admits that there is "nothing funny about this article, or its subject," other than its title. Drake Law Review, Volume 51, Number 1.

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