Wednesday, March 9, 2011

Madoff on Immortality and the Law

I took the Megabus to DC for last weekend's ALPS conference, which gave me the opportunity to catch up on some reading, including a great 2010 book by Ray D. Madoff (Boston College) entitled Immortality and the Law: The Rising Power of the American Dead.  The book is divided into four chapters: (1) Controlling the Body; (2) Controlling Property (Part 1): Transfers to People; (3) Controlling Property (Part 2): Transfers for Charitable or Other Purposes; and (4) Controlling Reputation.

My first reaction to Madoff's book, after reading about 20 pages, was "ACK!  This is the book that I was going to write!"  But I bravely soldiered on, and after reading more deeply, realized that I was wrong.  As the chapter titles indicate, Madoff covers a broad range of issues related to conflicts between the rights of the dead and the interests of the living.  She focuses on two main themes.  First, that the American treatment of the interests of the dead is different than that of other societies.  Second, that there is a recent and accelerating trend in American law to grant greater rights to the dead, with little attention paid to the costs imposed on the living.  It is this second theme that is most evident, particularly in her discussions of the dead's control of property (personal, real, and intellectual).

One of the ideas that she briefly mentioned in the beginning of the book resonated with me most deeply given my own scholarly interests -- that the dead have increasing control over the disposition of their real, personal, and intellectual property, but limited control over the disposition of their own remains.  What a curious reality.  My summer project may be to try to figure out what's going on there, and whether giving the deceased some property rights in their own remains might be a good thing.

Great stuff, really thought provoking, and of particular interest to Property Profs!

Tanya Marsh

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As the esteemed poet Marvin K. White states---"the dead offer no answers, we must question the living."

This quote I believe supports your review of Madoff's book about property and the dead. We must begin to negotiate with each other about the terms of our deaths and begin to understand more in depth the complexities of the rights of the dead in conjunction with the desires of the living.

This book sounds like a great read and something I will definitely check into.


Posted by: Michael | Mar 9, 2011 12:36:53 PM

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