Immortality and the Law: The Rising Power of the American Dead

by Ray D. Madoff

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.

Genres: Law, Nonfiction, Politics, Economics

208 pages, Hardcover

First published January 1, 2010

Reviews

[Martin]

A completely fascinating and succinct discussion of the increased ability of the dead to wield power, have their wishes met, profit handily and live in perpetuity. Some details blew my mind, others were enormously curious. Utterly utterly interesting, but this topic has to be your kind of thing to enjoy.

[Natalie Lynner · Rating 4 out of 5]

I'd love to write a book like this.

[Lee · Rating 3 out of 5]

Charitable foundations are a bit spooky in that they allow the intentions of a person to be carried out from beyond the grave. I picked this up because I was curious how they work, what their limitations are, etc. The book covers most of what I originally wanted to know in the third chapter: "The defining principle infusing American law of charitable trusts is to give effect to the donor’s wishes as expressed in the donor’s charitable plan... The primary obligation of the trustee is to carry out the donor’s in­tent—regardless of whether the donor is dead or alive and regardless of whether the money could arguably be put to better uses. If the trustee fails to carry out its duties, the state attorney general is authorized and obligated to ensure that the donor’s intent is carried out. Each state at­torney general’s office maintains a charities division devoted to this pur­pose."

I kept reading because the book covers a lot of interesting issues with similar themes. The thesis is that American law around power of dead started out similar to common law countries but became an outlier in the 20th century, giving more power to the dead, and this is a bad thing. It's not just the introduction of perpetual charitable foundations, but also extended copyright, expanded rights of publicity, and failures to tax estates and inheritance sufficiently.

Some odd and ends:
- The definition of legal death, the move toward "cardiopulmonary criteria," then to brain death. In most states "a person can be declared dead when he or she has sus­tained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain."
- Children can be born after their parents in more ways than i'd considered. eg, the move toward a legal standard of brain death means allowed a pregnant woman on a ventilator to have a child three months after her death.
- Japan's resistance to the brain death standard until 2009.
- Practical problems with counting posthumous offspring: eg, estates may already be settled.
- Bequests conditional on who someone marries, what religion they practice, and so on. The US is very permissive with these "dead hand control" conditions.
- How estate taxes can make it difficult to carry out wishes of deceased: taxing estate for value of property that deceased wants destroyed.

[Nate · Rating 4 out of 5]

I love estate stuff, even if it's relatively academic. Loved the presentation of different cases to illustrate problems.

[P · Rating 4 out of 5]

Very informative and easy to read despite the dry subject.