Tuesday, August 4, 2009

Organ Donation Article's Title Makes One Blogger Lilly-Livered + Are You Missing and Declared Dead?

Posted by Alan Childress

The Lowering The Bar blog, in its post called Law Review Article Titles: Stop the Madness, groans at

Brian Morris, Comment, "YOU'VE GOT TO BE KIDNEYING ME!: The Fatal Problem of Severing Rights and Remedies From the Body of Organ Donation Law," 74 Brooklyn L. Rev. 543, 580 (2009).

LTB asks you to email them your favorite clunker. Jeff's titles are usually entertaining, though they sometimes require unwinding and occasionally put one on obscure-allusion alert.  But my nomination?  I really like the title of a colleague's study of what happens when a court declares someone dead after seven years--and he shows up fairly pissed that he can't get a brake tag or Blockbuster card anymore:

Jeanne L. Carriere, "THE RIGHTS OF THE LIVING DEAD: Absent Persons in the Civil Law," 50 Louisiana L. Rev. 901 (1990).

Actually his insurance/social security beneficiaries may be even more pissed that he showed up at all.  Such implications are nicely explained in this blog, drawing on Jeanne's article and referencing Tom Hanks and Wilson in Cast Away. (Wilson never actually showed.)  There are up to 100,000 "living dead" in the U.S. (or at least from it--I'd pick Crete), Jeanne points out, raising many live issues.  If you want someone in that category to be "dead" faster (just four years), hope they are from Georgia or Minnesota.

The most famous evidence-law case involving The Disappeared is Mutual Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285 (1892).  The widow Hillmon wanted the insurance company to pay up for her maybe-dead husband John whose body apparently showed up in Crooked Creek, Colorado. But Mutual said the body was of a guy named Walters and wanted to prove it with a a letter from Iowa that Walters wrote to his sister, saying he was heading out to Crooked Creek.  While the Supreme Court makes no mention of any inference of veracity to be drawn from the name of the town he chose to die in, it did create an exception to "hearsay" to allow the letter into evidence as some proof that the body in Crooked Creek was actually Walters' (or at least that Walters intended to go there).  The verdict for the widow was, of course, reversed for new trial using the Walters letter (which, btw, many people now think was forged by Mutual).

An evidence-prof's aside:  the Walters letter also said that he was going to Crooked Creek with John Hillmon, so maybe the body was Hillmon's after all!  But many courts have since ruled that such a letter would not constitute proof that the Other Guy went there; it's inadmissible hearsay as to the one not writing the letter.  It can't prove that Hillmon went, just Walters. If you don't see the difference (other than one makes the widow of course lose), you need to gouge out your common sense and go to law school.  We get it right away, and charge you for explaining why.  [Other courts would allow it--your basic law split.]

Of course some people would somehow not be satisfied until they see the long-form death certificate.

http://lawprofessors.typepad.com/legal_profession/2009/08/organ-donation-articles-title-makes-one-blogger-lillylivered-are-you-missing-and-declared-dead.html

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