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).

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