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48 Wake Forest L. Rev. 1327 (2013)
Rethinking the Law of the Dead

handle is hein.journals/wflr48 and id is 1357 raw text is: RETHINKING THE LAW OF THE DEAD Tanya D. Marsh* INTRODUCTION There are few subjects as fundamental to the human experience as death. One of the hallmarks of humanity is that we do not casually dispose of what remains.' Instead, humans attach great social and religious significance to the rituals that surround death.2 In societies dominated by a single culture or religion, there is understandable conformity in funeral rites and disposition methods. But America has a unique way of death,3 one that has traditionally respected cultural and religious diversity.4 The body of laws that govern the treatment and disposition of human remains, which I refer to as the law of the dead, has complemented that respectful approach. The law has never prescribed a particular practice and has placed few explicit limits on postmortem rituals and methods of disposition. On the surface, the American law of the dead appears to honor individual choice-a structure seemingly consistent with a diverse society that values freedom of expression, religious freedom, the family, and privacy. * Associate Professor of Law, Wake Forest University School of Law, Winston-Salem, North Carolina. Drafts of this paper were presented at the 2011 Michigan State University College of Law Junior Faculty Workshop and to the faculties at the University of Kentucky College of Law and Saint Louis University School of Law. Many thanks for the helpful suggestions and critiques offered by members of these groups. 1. NIGEL BARLEY, GRAVE MATTERS: A LIVELY HISTORY OF DEATH AROUND THE WORLD 14 (1997) (In the archaeological record, ritual concern with mortal remains is amongst the first signposts that Man has evolved from mere hominid and emerged as a higher being.); Herman Feifel, Psychology and Death: Meaningful Rediscovery, 45 AM. PSYCHOLOGIST 537, 537 (1990) (From the beginnings of recorded history, realization of finitude has been a powerful concern and shaping force. Indeed, many feel that one of humanity's most distinguishing characteristics, in contrast to other species, is its capacity to grasp the concept of a future-and inevitable-death.). 2. Albert N. Hamscher, Pictorial Headstones: Business, Culture, and the Expression of Individuality in the Contemporary Cemetery, 23 MARKERS: ANN. J. Ass'N FOR GRAVESTONE STUD. 6, 8 (2006). 3. See, e.g., JESSICA MITFORD, THE AMERICAN WAY OF DEATH REVISITED 14 (Vintage Books 2000) (1963). 4. See generally JAMES J. FARRELL, INVENTING THE AMERICAN WAY OF DEATH, 1830-1920 (1980). 1327

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