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Immortality and the Law: The Rising Power of the American Dead
Abstract
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.
... But the temporal politics associated with wealth (especially extreme wealth) alters the significance and visibility of death. New techniques are developed to allow people to assert control over assets after their own deaths and to combat inheritance tax (Madoff, 2010;Friedman, 2009). Ownership of estates and control of trusts is justified on the basis that wealth survives intact from one generation to the next. ...
... Since the 1970s, ideological, legislative, and legal shifts in the United States have increased the capacity of wealthy individuals to exert influence beyond their own deaths via trusts and property rights. In addition to campaigns against inheritance tax (such as George W Bush's 2000 policy pledge to unwind 'death taxes'), a series of legislative measures over the late twentieth century reversed various measures that had sought to prevent granting legal rights to the dead (Friedman, 2009;Madoff, 2010). The 'Rule Against Perpetuities', which had survived intact since early modern England, was steadily repealed in state after state, to the point where some states now allow for use and beneficiaries of property to be stipulated up to 1,000 years into the future. ...
Moral and pragmatist sociology has studied capitalism as a set of institutions that require justification, which has historically been offered through forms of rewarding and meaningful work, anchoring the human life course in a narrative of individual and collective progress. However, emerging with neoliberalism, then becoming explicit after 2008, contemporary capitalism has become organised around the logic of assets and wealth as opposed to labour and production. This provokes a vacuum of justification. Once all actors are (as Minsky argued) balance sheet actors and profit becomes a function of sheer temporality, the economy ceases to function as a moral order and instead becomes imbued with existential concerns of temporality, durability, survival, and finitude. Possessed only of certain contingently acquired assets and liabilities, the self becomes wholly contingent in the sense described by Heidegger; that is, as ‘thrown’ into having had a past and into a relationship of ‘care’ towards the future. The article identifies symptoms of this existential condition in empirical studies of wealth elites, for whom (in the absence of conventional liberal and production-based measures of worth) problems of meaning, purpose, and finitude are endemic.
... These scholars were split on whether the inconsistencies behind the charitable exception created an impetus to permit perpetuities for all property, or whether charitable trusts should be held to the same standards as other trusts (Gray, 1915). Regardless, courts and scholars on all sides of the issue agreed that there was no logical or practical reason that charities should be perpetual while other transfers were not (Madoff, 2010). ...
... An analysis of million-dollar gifts given in 2016 shows the large majority of gifts (1,042 gifts) go to colleges and universities, followed by health (215 gifts), and arts and cultural organizations (180 gifts) (IUPUI Lilly Family School of Philanthropy, 2023). Further, Madoff (2010) argues that the biggest beneficiaries of foundations are the trustees and banks who earn large salaries and fees. Some trusts legally spend more on trustee fees and other administrative expenses than on charitable endeavors (Madoff, 2010, p. 108). ...
This paper uses critical legal studies (CLS) and critical nonprofit studies (CNS) to examine the charitable exception to the Rule Against Perpetuities (RAP). In the middle-ages, RAP sought to lessen the worry that the so-called “dead-hand” of landholders would exert outsized influence over subsequent generations. RAP forbids people from putting conditions on property transfers use unless those conditions expire no later than 21 years after a life in being, but an exception is made for charities. The exception exists because charities are assumed to be almost always beneficial to society; an assumption CLS and CNS question. By questioning such assumptions about the charitable exception to RAP, we reveal the extent to which the nonprofit sector is deliberately constructed to benefit the powerful, and the extent to which it can be deliberately remade.
... Across all three, an emphasis on testation, the wishes of the dead, and how these could or should be honoured, can be identified. This pattern cumulates in contemporary laws on charitable bequests and the unequalled opportunities these provide for individuals to achieve legal immortality for their soul, their name and/or their charitable plans (Madoff, 2010). This, in turn, has given rise to one of the most vivid expressions of spectrality in foundation discourse: manus mortis, the 'dead hand' of donors. ...
... The notion of donors' dead hands, that is the influence a donor can or should exert from beyond the grave, has agitated legal scholars for millennia. From debates about limiting foundations' lifecycles in early Islamic debates on the waqf form (Meier, 2009), to various states' attempts at limiting the dead hand through mortmain statutes (Fries, 2005;Madoff, 2010), the issue gained particular prominence from the late 19th century onwards (Goff, 1921;Hobhouse, 1880). Portraying deceased donors as a deadweight that prevents rather than enables progress (Meier, 2009), the challenges of respecting the intentions of past donors and how these conflict with intergenerational sovereignty continue to agitate legal (Atkinson, 2007;Brody, 2007;Sisson, 1988) and philosophical debates (Lechterman, 2016) to this day. ...
Foundations are frequently referred to as a donor's dead hand, as a way to exert social, political, economic and cultural influence from beyond the grave. Building on this, our paper argues for a greater focus on and consideration of the significance of the spectral in philanthropy research and practice, particularly in relation to foundations. We argue that spectrality offers a focal phenomenon in philanthropy and a focal theory for moving foundation inquiry forward. Based on our systematic review of the social sciences literature on the spectral, we identify and offer four thematic clusters to frame insights about foundations in relation to relationality and decentring, narratives and representations, ethics and politics, continuity and change. Connecting foundation scholarship with existing debates about the spectral and vice versa, our work offers a basis for reflection and future research on the part of those immersed in the foundation world, and contributes to emergent scholarship about the spectral in organization and management studies.
... The brain tumor had not affected the regions of Thomas' brain responsible for thinking, at least not yet, but would lead to the progressive deterioration of his physical capabilities. Thomas' case attracted worldwide media attention, and subsequent academic attention as well, though mostly confined to legal journals (Madoff 2010;Shuster 1994;LaBouff 1992) and bioethics publications (Schwarcz 2017;Cron 2014;Pommer 1993). Born 1 January 1944 as World War II ended, Thomas had three sisters and two attentive parents (Donaldson 1990, p. 7). ...
In October of 2018, Norman Hardy became the first individual to be cryopreserved after successful recourse to California’s then recently passed End of Life Options Act. This was a right not afforded to Thomas Donaldson, who in 1993 was legally denied the ability to end his own life before a tumor irreversibly destroyed his brain tissue. The cases of Norman Hardy and Thomas Donaldson reflect ethical and moral issues common to the practice of assisted dying, but unique to cryonics. In this essay, I explore the intersections between ideologies of immortality and assisted dying among two social movements with seemingly opposing epistemologies: cryonicists and medical aid in dying (MAiD) advocates. How is MAiD understood among cryonicists, and how has it been deployed by cryonicists in the United States? What are the historical and cultural circumstances that have made access to euthanasia a moral necessity for proponents of cryonics and MAiD? In this comparative essay, I examine the similarities between the biotechnological and future imaginaries of cryonics and MAiD. I aim to show that proponents of both practices are in search of a good death, and how both conceptualize dying as an ethical good. Cryonics members and terminal patients constitute unique biosocial worlds, which can intersect in unconventional ways. As temporalizing practices, both cryonics and MAiD reflect a will to master the time and manner of death.
... Brain death (BD) is the accepted legal and medical standard in the US. [1]. Its determination is based on updated guidelines for both children [2] and adults [3] that delineate a regimented series of clinical criteria conducted largely at the bedside. ...
The diagnosis of brain death (BD †) is legally and medically accepted. Recently, several high-profile cases have led to discussions regarding the integrity of current criteria, and many physiologic problems have been identified to support the necessity for their reevaluation. These include a global variability of the criteria, the suggestion of a clinical "hierarchy," and the resultant approximation of BD. Further ambiguity has been exposed through case reports of reversible BD, and an inconsistent understanding from physicians who are viewed as experts in this domain. Meeting BD criteria clearly does not equate to a physiologic "death" of the brain, and a greater community perspective should be considered as the dialogue moves forward.
... The importance of grandparents is, broadly speaking, proportional to the mutual availability or exposure of grandparents and grandchildren. To be sure, grandparents may influence their grandchildren and possibly subsequent generations of kin even after they die, through such mechanisms as wills and trusts, college legacy admission provisions, and wealth creation (e.g., Madoff 2010). But many of the most important mechanisms through which grandparents may influence grandchildren, especially when grandparents assist parents in raising children, require mutual exposure of grandparent and grandchild generations. ...
In this article, we report analyses of the effects of fertility and mortality trends on the mutual exposure of grandparents and grandchildren and their consequences for multigenerational processes of social mobility in the United States from 1900 to 2010. Using historical vital statistics and stable population models, we report systematic analyses of grandparent-grandchild exposures from both prospective (grandparent) and retrospective (grandchild) perspectives. We also estimate exposure levels and trends specific to education levels of grandparents and grandchildren and decompose the overall trend into the effect of changing mortality, fertility level, and fertility timing. We show that changes in mutual exposure of grandparent and grandchild generations may have contributed to an increasing association between grandparents’ and grandchildren’s educational attainments.
... While the will diminished in importance and primogeniture faded away, trusts emerged as a means of controlling wealth across generations. This system also conveniently bypasses the probate system (Casner 1960, Madoff 2010. 21 In general, trusts enable the very wealthy to maintain control of assets over generations. ...
This article outlines the emergence of digital estate planning, a new way of managing post-mortem data, considering its cultural history and political stakes. I argue that Web 2.0 logics of interaction and inclusivity, and the subsequent valorization of social data, have led to a new form of accumulation. Unlike estate planners, who are legal professionals paid to manage the finances of wealthy clientele, digital estate planners are start-up company founders who handle the digital possessions of the masses. Because digital estate planning companies are not lucrative, often providing free services, they tend to quickly fold and vanish. Communicative traces do not contain intrinsic monetary worth in isolation. They are, however, speculatively valuable in aggregate, becoming potential networked heirlooms. They provide legible personality profiles of individuals to advertisers, government agencies, and companies such as Facebook and Google. Communicative traces also contain value in their capacity to produce and maintain social networks and affective bonds. Despite the failures of digital estate planning as an enterprise, networked heirlooms point to the dual financial and affective value of personal data under late capitalism.
... In a study of 200 banks in over 45 countries, a team of US economists found that a "increase in government support leads to a higher ratio of impaired loans [. . .] [and] arise in bank risk taking" (Madoff, 2010). As a result, an International Monetary Fund (IMF) study found that US banks were carrying state subsidies worth USD70 billion in 2012; the European banks USD300 billion and in the UK and Japan up to USDUS110 billion. ...
... Matching voices can be added by impersonators, or the voices may be reused or synthesized from recorded speech. Furthermore, although the postmortem use of one's recorded likeness is legally protected (Madoff, 2010), autonomous virtual doubles may necessitate reinterpretation of relevant laws. A person's virtual double may be associated with ideas or behaviors that are incompatible with the original person's lifestyle. ...
Just as physical appearance affects social influence in human communication, it may also affect the processing of advice conveyed through avatars, computer-animated characters, and other human-like interfaces. Although the most persuasive computer interfaces are often the most human-like, they have been predicted to incur the greatest risk of falling into the uncanny valley, the loss of empathy attributed to characters that appear eerily human. Previous studies compared interfaces on the left side of the uncanny valley, namely, those with low human likeness. To examine interfaces with higher human realism, a between-groups factorial experiment was conducted through the internet with 426 midwestern U.S. undergraduates. This experiment presented a hypothetical ethical dilemma followed by the advice of an authority figure. The authority was manipulated in three ways: depiction (digitally recorded or computer animated), motion quality (smooth or jerky), and advice (disclose or refrain from disclosing sensitive information). Of these, only the advice changed opinion about the ethical dilemma, even though the animated depiction was significantly eerier than the human depiction. These results indicate that compliance with an authority persists even when using an uncannily realistic computer-animated double.
... Identifying inheritance as one cause of inequality is not new, but the extent to which this has become increasingly the case has been explored by a number of scholars (Graetz and Shapiro, 2005;Beckert, 2008). Madoff (2010) in her analysis notes this trend but also identifies how in the United States a host of incremental ad hoc legal reforms in trust and copyright over the last 20 or so years have substantially increased the power of the dead over the living. In an age of increased longevity, law in this way has been attentive to and complicit with the fantasy of living forever while at the same time being increasingly inattentive to the needs of so many of the living. ...
Facing death, reflecting on one’s legacies (material and ethical, personal and political) and the legal and interpersonal attempts to resolve or prevent inheritance conflicts, all bring to the fore constructions of memory and identity, intergenerational relations, and the complexities of doing and undoing family and kinship. Consequently, drawing attention to inheritance, keeping sight of it, and bringing it into play is a useful piece of the puzzle of ageing across a range of disciplines and this article provides an overview of some of the key themes in this emerging field.
... In Hawaii, as in most U.S. states, the deceased need not have explicitly agreed to donation; parents and close relatives, for instance, can donate the body of their deceased kin. [17] Hawaii legislation governing donation states that the persons otherwise entitled by law to control the disposition of a decedent's body shall faithfully carry out the directions of the decedent, but no proof of such directions is required. [18] In that sense, the act of registering to donate one's body is a strong proxy for donating, since it alone clearly articulates the intent to donate. ...
Background:
Human cadavers are crucial to numerous aspects of health care, including initial and continuing training of medical doctors and advancement of medical research. Concerns have periodically been raised about the limited number of whole body donations. Little is known, however, about a unique form of donation, namely co-donations or instances when married individuals decide to register at the same time as their spouse as whole body donors. Our study aims to determine the extent of whole body co-donation and individual factors that might influence co-donation.
Methods and findings:
We reviewed all records of registrants to the University of Hawaii Medical School's whole body donation program from 1967 through 2006 to identify married registrants. We then examined the 806 married individuals' characteristics to understand their decision to register alone or with their spouse. We found that married individuals who registered at the same time as their spouse accounted for 38.2 percent of married registrants. Sex differences provided an initial lens to understand co-donation. Wives were more likely to co-donate than to register alone (p = 0.002). Moreover, registrants' main occupational background had a significant effect on co-donations (p = 0.001). Married registrants (regardless of sex) in female-gendered occupations were more likely to co-donate than to donate alone (p = 0.014). Female-gendered occupations were defined as ones in which women represented more than 55 percent of the workforce (e.g., preschool teachers). Thus, variations in donors' occupational backgrounds explained co-donation above and beyond sex differences.
Conclusions:
Efforts to secure whole body donations have historically focused on individual donations regardless of donors' marital status. More attention needs to be paid, however, to co-donations since they represent a non-trivial number of total donations. Also, targeted outreach efforts to male and female members of female-gendered occupations might prove a successful way to increase donations through co-donations.
... Current U.S. legislation governing the commerce in cadavers constrains the purchase and sale of cadavers while facilitating their acquisition and transfer to meet medical demands (Madoff, 2010: 22–28). Since 1968, the Uniform Anatomical Gift Act (UAGA), adopted by every U.S. state, has provided a legal framework for such commerce (National Conference of Commissioners on Uniform State Laws, 1968). ...
This study examines the U.S. commerce in human cadavers for medical education and research to explore variation in legitimacy in trades involving similar goods. It draws on archival, interview, and observational data mainly from NewYork State to analyze market participants’ efforts to legitimize commerce and resolve a jurisdictional dispute. Building on literature on professions, the study shows that how goods are traded, not only what is traded, proves integral to constructing legitimacy, thus suggesting a practice-based view of moral markets.The professionals, including a group of “gatekeepers,” construct a narrative distinction between their own commerce and an implicitly less moral alternative and geographically insulate their trades from the broader commerce, creating in effect two circuits.Yet the professionals also promote specific practices of trade within their circuit to help them distinguish their own pursuit from an alternative course of action.The study’s findings shed light on the micro-foundations of market legitimization and on the role of morals in sustaining professional jurisdictions.
This book collects together a series of original essays in honor of the American Law Institute’s (ALI’s) Centennial. The essays are authored by leading experts in their fields, often including current and former Restatement Reporters. The essays also provide a wide range of perspectives on both methodology and the law. The volume coverage focuses on specific ALI undertakings, including some of the more important Restatements and Codes; several leading Principles projects; statutory projects such as the Model Penal Code and the Uniform Commercial Code; themes that cut across substantive fields of law (such as Restatements and codification or Restatements and the common law); and the ALI’s institutional history over the past century. The resulting book is a unique and compelling contribution to its fields of study.
In the United States, medical examiner and coroner offices are legally responsible for the bodies and human remains falling under their jurisdiction by state statutes, and they have the primary responsibility for mass fatality management and disaster victim identification. Missing persons statutes explicitly authorize law enforcement to collect certain personal information as well as prescribe certain data to be collected or steps to be taken during such investigations. The primary statutory scheme governing federal disaster relief in the United States is the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 USC. The military, as a significant source of manpower and resources, is often called upon for federal relief and participates in homeland security. Congress consolidated all transportation agencies into the Department of Transportation in 1967. The ethical and legal concerns specific to disaster victim identification per se centers on the notion of respect for persons.
Technology has necessitated and intensified changes in all spheres of human endeavors, including administering justice and ensuring human security. However, before the outbreak of the Covid-19, technological advancements have not significantly impacted the administration of justice and human security in Nigeria. The administration of justice and human security in Nigeria was manually operated with minimal or no digital input. In this regard, this study employs a doctrinal and non-doctrinal method in examining how has technology impacted on the administration of justice and human security during the Covid19 experience. The study uses an online questionnaire survey sent to 321 respondents (randomly selected) who reside in Nigeria. Analytical and descriptive methods were utilised in analysing data obtained. The study found that the outbreak of the covid19 in Nigeria has necessitated the use of technology in the administration of justice and human security. Although, some institutions in Nigeria are not effectively utilizing technological facilities in the administration of justice and human security, giving some inherent challenges. The study therefore concludes and recommends that, though the COVID-19 affected the smooth administration of justice and human security, it has led to the use of other faster and possible ways of administering justice and human security in Nigeria. In this regard, the Nigerian government needs to embrace and intensify technology in the administration of justice and human security.
The common practice of retaining organs and tissues after the autopsy dissection is a potential legal liability for forensic pathologists and the offices they work for. In 1988, a coroner and the coroner’s office were successfully sued for corneal procurements without the consent of the next of kin. That led to later lawsuits of forensic pathologists and medical examiner offices over the retention of brains for formalin fixation and neuropathologic examination without consent, although the autopsies were not consent based. National Association of Medical Examiners became involved in this ligation and filed numerous amicus briefs. These later lawsuits were not successful. After caselaw on the subject, such lawsuits have largely abated. Nonetheless, the threat of such lawsuits remains, and statutory language can be promulgated to mitigate the risk.
In recent times, cyberspace is being widely used so that everyone has a digital account. It naturally entails its own legal issues. Undoubtedly, one of the main issues is that what fate awaits the account and its content upon the account holder’s death? This issue has been neglected not only by the primary creators of digital accounts but also by many legal systems in the world, including Iran. To answer this question, we first need to distinguish between the account and the information contained therein. The account belongs to the company that creates it and allows the user to use it only. Hence, following the death of the account holder, the account will be lost but the information will remain because it was created by him/her and thus belongs to him/her. However, does this mean that the information will be inherited by the user’s heirs after his/her death? Can the user exercise his/her right to transfer account content to a devisee through a testament? Comparing digital information with corporeal property, some commentators believe that the property will be inherited like corporeal property. This is a wrong deduction because the corporeal property can disclose the privacy of the owner and third parties less than the one in cyberspace. This paper aims to show what happens to a digital account after its user passes away and examine the subject using the content analysis method in various legal systems in the world, especially in Iran as a case study. The required information is collected from law books, articles, doctrines, case laws, and relevant laws and regulations of different countries. To protect the privacy interests of the deceased and others, it is concluded that the financially valuable information published by the account holder before his/her death can be transferred to successors. As a rule, the information that may violate privacy by divulging should be removed. However, given that this information may be a valuable source in the future to know about the present, legislators are suggested to make digital information, which may no longer lead to the invasion of the decedent’s privacy, available to the public after a long time.
The practice of giving the wealthy perpetual control of their assets is re-emerging in an era of great wealth inequality, long after it had been banned in common law countries. The philosophical justification for such control rests on the claim that there are posthumous rights to wealth, and that such rights do not extend in problematic way to other goods, such as political suffrage. On the basis of such a claim, we give people freedom of testation, and deem them vulnerable to posthumous harm. I present a short history of legally sanctioned posthumous control of property in common law, and I argue that its philosophical justification is untenable. No principled case for posthumous rights to wealth survives scrutiny, and the large and powerful institutions that enforce such rights are morally illegitimate.
The purpose of this research is to explore ways in which non-governmental organizations (NGOs) can become more sustainable in light of a crucial challenge facing them today: that of financial instability. In the charitable sector in the U.S, NGOs, especially small-scale NGOs, have struggled with securing daily operating revenue rather than revenue for long-term program operations, in spite of the continuing needs of their beneficiaries (Janus, 2018; Le, 2017; Meehan & Jonker, 2017). Fundraising has come to involve relationships between NGOs and institutional donors such as foundations, government agencies and corporations. Competition among NGOs and rampant power asymmetry between donors and grantees has come to define grantmaking in the neoliberal era (Gilmore, 2016; Janus, 2018; Le, 2017; Meehan & Jonker, 2017; Parks, 2008). Although revenue streams have been diversified through sound alternatives to conventional grantmaking, grant funding nonetheless remains a regular source of funds (Janus, 2018; Le, 2017; Meehan & Jonker, 2017). The objective of this research is to examine the challenges that both NGOs and institutional donors are confronting, and to think about how to establish best practices for both NGOs and donors to enable viable alternatives to conventional grantmaking as well as sustainable donor-NGO relations. Secondary data and literature from leading academics, as well as interviews with NGOs, foundations, social ventures, and academics have led me to conclude that the ideal relationship between institutional donors and NGOs should be co-creation, and ideally mutually beneficial collaborations, rather than typical competitive models (RSF Social Finance, “Shared Gifting,” n.d.). I argue that transformative change in the donor-NGO relationship is possible through three approaches: 1) a paradigm shift from competition to systemic thinking to handle limited resources, 2) grantees’ need-based grantmaking practices, and 3) the right regulations and policies to close loopholes in grantmaking. In the end, all sectors should recognize their responsibility to play their roles for the public good of their communities (Eisenberg, 2004). This means that it is important that both NGOs’ and their institutional donors’ priorities do not experience mission creep nor focus on sustainability, but, rather, fulfill their missions in a prompt manner (Gilmore, 2016; Walker, 2017). When NGOs are able to determine the best way to pursue their missions on their own terms (Burton & Barnes, 2017; Le, 2017), and institutional donors, in turn, provide the best support for them with tax-exempt money, donor-NGO relations could become unprecedentedly powerful for the charitable sector and social cohesion.
This fascinating and ambitious book proposes a new strategy ("the Ramo Plan") to tackle the current global socioeconomic crisis. Issuing a direct challenge to the status quo, the author lays out a bold set of policies to overcome the West-East divide and lead us to a more successful and secure future. Alongside the presentation of a new economic approach, this book provides a thorough survey of the major forces behind the decline in economic growth rates. It examines the state of the major world economies, explores the impact of the global debt crisis, identifies the income and wealth gaps in the United States and other countries, and explains the relationship between these issues and the spread of alienation, radicalism and terrorism. Imaginative and refreshing, this is valuable and original reading for students and academics interested in international political economy, economic development, sustainable development, and social economics, as well as global policy, area studies, globalization studies, and international relations.
Findings from research concerning the human body and a broad range of diseases are made internationally and nationally, and need to be analysed, developed and integrated into an overall context. This leads to a confluence of various ethical and legal concepts and entails both challenges and burdens. This chapter attempts to highlight a selection of these topics. General medical and public health law as well as the Swiss Federal Act on Research Involving Humans all provide personalised medicine with a partly solid, partly fragmentary legal basis. An increasing number of foreigners travel to Switzerland to make use of the assisted suicide service offered by some organizations which could be prohibited in their own countries. This development is called 'suicide tourism'. The chapter also discusses the legal and ethical aspects concerning the handling of corpses and the display of human remains.
The places and methods for burying the dead have always been a concern of human civilization. Many histories have been written about our changing views of memorials and remembrance, often based upon tombstones and statuary in cemeteries. Often overlooked, however, are the written records associated with cemeteries. This article provides an overview of some of the issues that lead to irregularities in recordkeeping, difficulties with access to and preservation of many of these records, and serious problems that result from poor maintenance of records. Suggestions are offered to begin efforts to address some of these issues, and a call for assistance from the professional archival community to advance the preservation of these vital records is put forth. It is important to recognize that cemetery records are a rich source of historical information that are not recognized as such, and, as a result, are not being protected as they should be.
Purpose
– The purpose of this paper is to investigate who rules the world. The hypothesis is that it is the 0.1 per cent of owners and controllers of capital.
Design/methodology/approach
– This study used secondary sources including the Bureau Van Dyk and The World Top Incomes database to look at distributions of income and wealth (stock ownership). This is supplemented with a secondary source analysis and with some interviews.
Findings
– The top point one per centers, the wealthy, those on the top incomes and transnational capitalist class are all distinct but overlapping categories that describe the (white) men and (few) women who hold power through their ownership and/or control of capital and who are thereby directly or indirectly able to act hegemonically on an emerging global basis.
Research limitations/implications
– Theorists of the global school of capitalism Alveredo et al. , 2013 argue that there has been a qualitatively new twenty-first century transnational capitalism in the process of emerging (see Robinson, 2012a). This paper tests this assumption and relates it to the work by Hamm 2010.
Social implications
– The flip side of this progressively widening concentration of income and wealth into fewer (0.1 per cent) hands brings new lows to the polarisation of class, exploitation and domination. All of these have intensified since the 1980s with the end of the Keynesian Compromise. This north/south accentuated division has implications for social justice.
Originality/value
– This seeks to identify empirical evidence to support the theory of an emerging transnational capitalist class.
This article explores the role that funerary practices and burial decisions play in the construction of national and political identities amongst Muslim immigrants in Germany. Drawing on ethnographic research and interviews with Islamic undertakers, migrant families, and religious leaders in Berlin it argues that the act of burial serves as a powerful means to assert belonging in migratory settings. While local burial laws impact the feasibility of Islamic funerary rites, this article suggests that family ties, ideas about the soil, and feelings of social exclusion play a larger role in shaping burial outcomes than the laws of the dead. By conferring a sense of fixity or permanence to identities that are more fluid or ambivalent in life, determining where a dead body belongs helps demarcate social and communal boundaries.
The relationship between life, death, and personhood is articulated by the body, without which there would be no such relationship to begin with. How do secular institutions and modes of knowledge understand, produce, and manage this relationship? What can this tell us about the secular and the body in its purview? As part of a larger ethnography of “American Immortalism,” I tackle these issues through a case study of “neuropreservation” in cryonics, the practice of preserving people at very low temperatures at the time of legal death with the hope that they might be revived in the future. Cryonicists are scientifically oriented secularists, and yet find themselves in frequent conflict with secular medical and legal institutions over the categories of life, death, and personhood. Whilst recent critical reevaluations of secularism focus on its entanglements with religion, these differences serve to highlight some tensions internal to the secular as they are played out in the United States. I will use the figure of the cryopreserved patient to focus on the secular body as a body produced institutionally in the interplay between law and medicine, suspended in the indeterminacies of the mind–body problem and caught in the tensions between two secular epistemologies, rationalism and materialism. What appears in this midst is speculative matter, matter that has indeterminate speculative status, but serves as a medium for speculation.
Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like “dead hand” control; analyzing UPC provisions pertaining to the harmless error rule, reformation, and ademption by extinction; and evaluating law reforms such as proposals to abolish attestation or prevent the disinheritance of children.
The recent Chinese Trust Act has created a stir in trusts scholarship by taking no position on the location of title in the trust assets, not requiring that title to vest in the trustee. The Act thus permits settlors to retain title in the trust assets despite having appointed another as trustee. Leading trust scholars have criticised the Chinese Act’s noncommittal approach, pointing to the difficulties created by settlors continuing to own the trust assets. The present article attempts to evaluate the efficacy of such “shapeless trusts” and “settlor title retention trusts” by examining the career of the Chinese Act’s principal predecessor – the Israeli Trust Act of 1979, which established the world’s first shapeless trust regime. I identify two advantages of such regimes. One is their making trustees’ duties and beneficiaries’ effective remedies applicable in fiduciary situations conventionally analysed as agency, nomineeship or, under civil law systems, mandate. A further advantage is that “settlor title retention trusts” may help introduce the trust mechanism to potential settlors unaccustomed to it, who may be deterred by the prospect of giving away title in their property.
As ever more private resources are held in foundations and nonprofit organizations’ endowment funds, more scholars and practitioners are demanding that these assets be put to good use immediately. Those favoring the preservation of capital—primarily representing private foundations—sound unnecessarily cautious. This article examines endowment conservation from a variety of critical angles, finding strong rationales for both conserving and liquidating endowments. Policy responses to the buildup of endowment assets include requiring a faster payout or regulating the amount and type of administrative expenses included in annual payout. This article reviews the relationship of the business cycle and wealth distribution to annual giving. The most prudent course, in view of the cyclical nature of giving as well as the substantial generational wealth currently held by elders, appears to be to conserve significant assets now in order to establish a stable flow of future social benefits.
Legal protection against unauthorized commercial uses of an individual's identity has grown significantly over the last fifty years as it has relentlessly pursued economic value. It was forced to focus on value because a false distinction between the harms suffered by private citizens and celebrities seemingly left celebrities without a privacy claim for commercial use of their identities. But the normative case for awarding individuals the economic value of their identity is weak, since celebrities do not need additional incentive to invest in either their native skill or in developing a persona. Still, while the prevailing justification is inadequate, as are other theories offered by supporters, courts and commentators have long ignored an important interest implicated by commercial use of identity that is applicable to both celebrities and non-celebrities. An individual's choices with regard to the companies and products with which she associates reflect her values, and unauthorized use of one's identity may interfere with her ability to express her values to the world. There are costs attendant to that loss of control, and those costs are borne uniquely by the individual to whom the identity refers. Thus, every individual has an interest in preventing uses of her identity that strip her of control over the meaning of her identity. It is that interest, and only that interest, that the law should protect. This paper sketches the outline of a claim based on an individual's interest in autonomous self-definition.
Japan has been holding a nationwide debate over the nature of death for nearly twenty years. That debate led eventually to a law that gives citizens the opportunity to choose which of two views of death will apply to their own death. That law is now up for revision, and the debate is reving up.
Pregnancy is a biological process that usually takes forty weeks. The more advanced pregnancy is in terms of gestational age, the higher the chances that the fetus would survive in case of a premature and unnatural delivery. Hence, when a pregnant woman is struck by brain death, the fetus’ chances of survival are seriously and immediately threatened. Until recently, there were two choices in such a situation: letting the mother (and the fetus) naturally die without further intervention or delivering the fetus through a cesarean section when the death of the fetus was a tragic but likely result.
Recent advances in medical technology, however, have provided physicians with an ability to control over the time and manner of death in ways that were never previously considered by their patients.
Congress passed the Visual Artists Rights Act (VARA) in 1990 with hopes that a national system of moral rights would serve the purposes of (1) complying with the Berne Convention; (2) providing a uniform system of moral rights protections; (3) guaranteeing personal moral rights; and (4) encouraging art preservation. However, because VARA does not continue to provide consistent nationwide moral rights after the death of the artist, the scope of postmortem moral rights varies from state to state and from artist to artist. In this Comment, the author argues that this variation in moral rights protection is inequitable and is also unjustified in light of the purposes of moral rights in general and VARA in particular. Extending VARA to include postmortem moral rights is probably the best solution to this problem and would be a valuable step towards a truly coherent tradition of moral rights in the United States.
The "right of publicity" gives famous people an assignable and descendible right in the commercial value of their names, likenesses, and other identifying characteristics. In this Article, Professor Madow challenges the standard arguments that are made in favor of this right, and suggests some significant disadvantages of existing legal doctrine. Writing from a "Cultural Studies" perspective, Professor Madow argues that private, centralized ownership and control of celebrity images poses a more serious threat to cultural pluralism and self-determination than is sometimes realized. The author traces the origins and development of the right of publicity, suggesting that its emergence reflects a fundamental change in the way fame is understood and valued in our society. Finally, Professor Madow criticizes the moral, economic, and consumer protection arguments commonly made in support of the right of publicity, and raises the possibility that the right creates socially undesirable incentives and promotes, rather than prevents, unjust enrichment. While the Article finds the existing case for the right of publicity unconvincing, it does not call for immediate abolition. Instead, it offers a theoretical and evaluative framework for future research and discussion.
Contemporary developments in reproductive technology hold great promise for those who have difficulty conceiving naturally. However, they have generated extensive debate among lawyers, ethicists, legislators, the media, and the public. Concern has intensified recently in light of claimed attempts to clone human beings. One implication of the new reproductive technologies upon which few commentators have focused is their effect on inheritance rights and on the notorious Rule Against Perpetuities. For example, what impact should the possible existence of frozen sperm or frozen embryos have upon the execution of wills and implementation of the Rule? If one leaves property to one’s children but has frozen sperm or embryos that might produce children the Rule? If one leaves property to one’s children but has frozen sperm or embryos that might produce children decades after one’s death, what should be done about the distribution of the estate? These difficult questions can no longer be ignored.
According to the U.S. Supreme Court, copyright law's fair use and idea/expression doctrines are "built-in free speech safeguards" that establish a "definitional balance" between copyright and the First Amendment. Yet these "built-in free speech safeguards" are among the most uncertain and ill-defined doctrines in all of copyright law. If we accept the Supreme Court's statement that these doctrines play a critical role as First Amendment safety valves, it follows that the chilling effect of uncertainty in these doctrines has a constitutional dimension. Current copyright law doctrine, however, fails to take into account the potential chilling effect of copyright liability. This is in sharp contrast to other areas of law, such as defamation, in which the U.S. Supreme Court has expressly accounted for the chilling effect of potential liability by making substantive and procedural alterations to the law in these areas. In this Article, I argue that a similar approach is warranted in copyright law. To the extent copyright's internal safety valves are necessary to prevent a conflict with free speech interests, courts should expressly take into account the need for breathing space, as they do in other areas.
Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position - we refer to them as the IP Restrictors - represent a remarkable array of constitutional and intellectual property scholars. In this terms's Eldred v. Aschroft, leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors' view of the Copyright Clause was the correct one. By a vote of 7-2, the Supreme Court rejected Eldred's claim and upheld the statute. But while the Court rejected the IP Restrictors' vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny without explaining why this was the appropriate standard. This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property. In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies.
This article proposes that, as a copyright work ages, the scope of fair use, at least as to derivative works and uses, should expand. This is because the market for a copyrighted work has a temporal dimension; the copyrighted work has a market of a fixed number of years. For example, in considering the fourth element of section 107 fair use, courts have discussed two kinds of situations in which the market for the plaintiff's work can be adversely affected: (a) situations where this particular defendant's action adversely affected the plaintiff's market, and (b) situations where the defendant's action, if it became widespread, would adversely affect the plaintiff's market. But in the second situation, when the alleged infringement occurs becomes important. The later the alleged infringement occurs in the copyright term, the less widespread the practice could become - when the market for the work is understood as a market across time. Further supports for the idea that fair use should become broader in the last period of the copyright term comes from the basic investment structure of copyrighted works.
This piece was inspired by the increasing tendency of State attorneys general - backed up by courts and legislatures - to effectively confiscate the assets of wealthy nonprofits through overreaching enforcement actions. The article develops a legal framework for ascertaining the proper State role. It reviews many case studies including, most notoriously, the thwarted diversification of the Milton Hershey School Trust out of Hershey Foods Corporation (an investment worth over $5 billion) - thereby preserving the local operations of a publicly traded company. While few state attorneys general have the funding and inclination to engage in aggressive charity enforcement, the very lack of state involvement with the organization and operation of nonprofit entities might explain how legislatures, attorneys general, and even courts can misconstrue their proper roles in the regulation of charities and other nonprofits. Assets of nonprofit organizations are not governmental assets. Rather, a given nonprofit serves the indefinite class of beneficiaries chosen by its creators, funders, governing board, and, in some cases, members - but not by the local community, the state, or any other public that constitutes the constituents of an attorney general, a legislature, or a judge. Inevitably, if the proper legal bounds of legitimate enforcement do not become clearer, the role of charities in society could suffer. Charities facing state attorney general inquiry worry about loss of donations, loss of contracts and patronage, and retention of staff and volunteers. If, though, charities too quickly accede to state demands over matters of discretionary governance, the sector as a whole can see a degradation in charities' willingness to take risks, and in volunteer board members' willingness to serve.
This Article presents the first empirical study of the domestic jurisdictional competition for trust funds. To allow donors to exploit a loophole in the federal estate tax, since 1986 a host of states have abolished the Rule Against Perpetuities as applied to interests in trust. To allow individuals to shield assets from creditors, since 1997 a handful of states have validated self-settled asset protection trusts. Based on reports to federal banking authorities, we find that, on average, through 2003 a state's abolition of the Rule increased its reported trust assets by 200,000. By contrast, our examination of validating self-settled asset protection trusts yielded indeterminate results. Our perpetuities findings imply that roughly $100 billion in trust funds have moved to take advantage of the abolition of the Rule. Interestingly, states that levied an income tax on trust funds attracted from out of state experienced no observable increase in trust business after abolishing the Rule. Because this finding implies that abolishing the Rule does not directly increase a state's tax revenue, it bears on the study of jurisdictional competition. In spite of the lack of direct tax revenue from attracting trust business, the jurisdictional competition for trust funds is patently real and intense. Our findings also speak to unresolved issues of policy concerning state property law and federal tax law.
From Introduction: "Once upon a time, in a happy land, courts decided which usage constituted fair use in copyright cases, and justice prevailed throughout the realm. Then the Royal Council ('Congress') imported something from beyond the sea called 'codification.' Henceforward, the Council proclaimed, the law-books would spell out if usage were fair or unfair in four pellucid factors. The Wisest Men of the Kingdom ('Supreme Court') declared that the result in any given case would depend on all four of the factors. The Copyright Specialists ('Second Circuit') added, '[b]ecause this is not a mechanical determination, a party need not 'shut-out' her opponent on the four factor tally to prevail,' to which Soothsayers embroidered that if nonetheless 'she does so, victory on the fair use playing field is assured.' But these are only fairy tales."
The doctrine of fair use was originally intended to facilitate those so-cially optimal uses of copyrighted material that would otherwise consti-tute infringement. Yet the application of the law has become so unpre-dictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution to the uncertainty and unpredictability that plague the doctrine: nonexclusive safe harbors that define minimum levels of copying as per se fair uses. These bright-line rules would provide the clarity needed to facilitate countless productive uses that are currently being chilled. Furthermore, by providing an ex ante test for identifying uses as fair, these safe har-bors provide a framework for salvaging fair use in the digital age.
The importance of establishing rights in a dead body has been, and will continue to be, magnified by scientific advancements. The recent explosion of research and information concerning biotechnology has created a market place in which human tissues are routinely sold to and by scientists, physicians and others. The human body is a valuable resource.
The body of the nineteenth century philosopher Jeremy Bentham is on display in a glass cage at University College, London. Bentham applied his utilitarian perspectives to the body by suggesting that corpses, including his own, would be of greater use to society stuffed and displayed as an “auto-icon” rather than simply buried away. Preserved, exhibited and studied, the corpse, he said, could serve “moral, political, honorific, dehonorific, money-saving, money getting, commemorative, genealogical, architectural, theatrical, and phrenological” ends.
It is possible to retrieve viable sperm from a dying man or from a recently dead body. This sperm can be frozen for later use by his wife or partner to produce his genetic offspring. But the technical feasibility alone does not morally justify such an endeavour. Posthumous semen retrieval raises questions about consent, the respectful treatment of the dead body, and the welfare of the child to be.
We present two cases, discuss these three issues, and conclude that such requests should generally not be honoured unless there is convincing evidence that the dead man would want his widow to carry and bear his child. Even with consent, the welfare of the potential child must be considered.
Racial differences in the receipt of financial inheritances help to explain why the average difference in wealth between black and white households is larger than the average difference in income. Using data from a panel of prime-aged males and from a representative survey of the U.S. population, the authors document the greater likelihood of white households receiving an inheritance than black households. Controlling for other factors which contribute to racial differences in wealth, the authors estimate that financial inheritances may account for between 10 percent and 20 percent of the average difference in black-white household wealth. Copyright 1997 by Oxford University Press.