Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, March 3, 2007

Internet Caskets

CasketAsheesh Agarwal (Attorney, Department of Justice) and Jerry Ellig (Senior Research Fellow, Mercatus Center; Adjunct Professor, George Mason University School of Law) have recently published their article entitled Buried Online: State Laws That Limit e-Commerce in Caskets, 14 Elder L.J. 283 (2006).

Here is the abstract of their article:

Consumers seeking to purchase caskets online could benefit from the Supreme Court's 2005 decision that forbids states from discriminating against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution's Due Process Clause. In Powers v. Harris, the Tenth Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest and states must present real evidence that the discrimination is necessary to accomplish their policy objectives. The Court conducted a fact-intensive analysis and concluded that the states had failed to make a persuasive case in favor of discrimination against out-of-state wine sellers.  Examining the economic evidence, we find that state laws that impede electronic commerce in caskets would almost certainly fail a Granholm-style factual analysis. This implies that such laws would be held unconstitutional under the Commerce Clause if a plaintiff brings a challenge similar to the one in Granholm. The laws are also vulnerable to an equal protection or due process challenge if courts consider whether evidence supports the state's defense.


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