Immortality and the Law

The Rising Power of the American Dead

Ray D. Madoff

View Inside Price: $30.00


May 11, 2010
208 pages, 6 1/8 x 9 1/4
ISBN: 9780300121841
Cloth

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This book takes a riveting look at how the law responds to that distinctly American dream of immortality. While American law provides virtually no protections for the interests we hold most dear—our bodies and our reputations—when it comes to property interests, the American dead have greater control than anywhere else in the world. Moreover, these rights are growing daily. From grave robbery to Elvis impersonators, Madoff shows how the law of the dead has a direct impact on how we live. Madoff examines how the rising power of the American dead enables the deceased to exert control over their wealth forever through grandiose schemes like "dynasty trusts" and perpetual private charitable foundations and to control their creative works and identities well into the unforeseeable future. Madoff explores how the law of the dead can, in essence, extend the reach of life by granting virtual immortality to individuals. All of this comes, Madoff contends, at real costs imposed on the living.

Ray D. Madoff is a professor at Boston College Law School. She is the lead author of Practical Guide to Estate Planning and has written in a wide variety of areas involving property and death.

"A sparkling polemic...Madoff convincingly argues [that] we are granting the dead ever more elaborate property rights, which are crowding out the rights of the living."—Christopher Caldwell, the Financial Times

"You don't have to be an attorney or a dead person to love this book. Along with clear, scrupulously researched coverage of perennial topics like trusts and disinheritance, Madoff covers death's terra incognita: posthumous conception, organ donation by executed convicts, the ever-shifting death criteria debate. Even cryonics gets its due. (Can the wife of a frozen 'not really dead' person remarry?  Who has to pay his bills when he reanimates?) For every topic, Madoff digs up diverting examples. What other law book includes the tale of the socialite who asked to be buried in her baby blue Ferrari 'with the seat slanted comfortably'?"—Mary Roach, author of Stiff and Bonk

"Ray Madoff has pulled off an extraordinary feat. Immortality and the Law is a compelling read about a fascinating topic; a survey of death, laws, and taxes that somehow manages to be neither dreary nor gruesome. Deftly mixing historical anecdote, legal analysis, and a fine sense of humor, the author relates how Americans have historically treated the dead, and how our laws are subtly but powerfully changing to give those no longer among us an increasing range of powers. Read this book before you die!"—Debora L. Spar, President, Barnard College

"This is a well-written and well-crafted book on a neglected subject—how we treat the wishes of the dead, and how the wishes of the dead impact our law and our society. In this succinct but careful treatment of the subject, Madoff describes how we can and cannot control what happens to our bodies, what happens to our property, and what happens to our reputations, when we are no longer here to make decisions and defend ourselves. It is a book full of insights and surprises, and a constant delight to read. It deserves a wide audience."—Lawrence Friedman, Marion Rice Kirkwood Professor of Law, Stanford Law School

“We normally don’t think that dead people have any legal rights. But in her  carefully reasoned and exquisitely written book, Immortality and the Law, Ray D. Madoff, a professor at Boston College Law School, not only reminds us of our current legal system’s treatment of the dead but documents the extent to which the rights of the dead are expanding and rapidly encroaching on the rights of the living.

 

Whether it is on issues of reproductive procedures, artistic creations, copyright protections, reputational interests, trust provisions, property rights or charitable giving, our laws are increasingly giving greater privileges to the dead while not calculating the costs exacted on the living. Particular striking is the author’s analysis of charitable trusts, many of them foundations, which are founded largely on the twin pillars of donor intent and perpetuity. Both insure the “dead hand” of the past and limit the extent to which great wealth can be spent to solve today’s societal problems.

Is this shift in the law good for our society and for our democracy? Has it tilted too much against the interests of the living? Professor Madoff argues that it has. She makes a persuasive argument that a balance must be restored.”—Pablo Eisenberg, Senior Fellow, Georgetown Public Policy Institute

"The book’s greatest achievement resides in its lively delivery, featuring captivating examples that render the material accessible to student and scholar alike.  The book’s scope extends well beyond the dynasty trust, presenting colorful accounts of other interests subject to varying degrees of postmortem control such as the disposition of one’s human remains, posthumous publicity and reputational concerns, and intellectual property created by the decedent.  Law students enrolled in my 4-credit Trusts and Estates course lavished the book with praise, perhaps entertained by anecdotes such as a composer’s unsuccessful attempt to obtain a copyright license from Stephen Joyce, grandson of author James Joyce, to set eighteen words of Finnegans Wake to music (said Stephen, “To put it politely, mildly, my wife and I don’t like your music.”), the shocking postmortem instructions to burn unpublished manuscripts of Virgil’s Aeneid and Franz Kafka’s The Trial, or the dubious graveyard provenance of specimens used by the University of Pennsylvania for its then-novel course, first offered in 1745, in the study of human anatomy. Immortality and the Law is a commendable addition to any library. I have certainly added it to mine."—Reid Kress Weisbord, Journal of the American Taxation Association

"Overall, this is an interesting discussion of a specialized legal area."—A. H. Cooley, CHOICE

"A fascinating history."—Obit magazine

"Immortality and the Law is a highly original, engaging, important and wide-ranging book of broad interest to citizens as well as scholars. Why should the dead be not only quick but also control present and future generations? A must read."—Michael Kammen