Boston College Law Professor Ray Madoff's new book, Immortality and the Law: The Rising Power of the American Dead, is scheduled for release on May 11. (Photo by Lee Pelegrini)
Legal Power from Beyond the Grave
In her new book, BC's Ray Maoff explains how US Law can favor the dead over the living
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Taking secrets to the grave isn't the only way the deceased can exact revenge. One Law School professor argues that the dead in America have far greater powers - largely because the law is on their side.In her new book, Immortality and the Law: The Rising Power of the American Dead, Professor Ray Madoff takes on the subject of how US law has shifted to protect the interests of the dead over the living. An expert on estate law, wills and trusts, Madoff said she set out to write a book on the death tax-and why people are so adverse to it - before the idea snowballed.
"I quickly began to realize that people care so much about controlling property after death because, in some ways, it provides a little bit of immortality. People look at this as a way to survive their death by controlling their property long after they're gone," said Madoff.
The issue starts with the physical: While many individuals have opinions on burial or cremation, some take things a step further, opting instead for a type of immortalization.
"Many people are familiar with the 'Body Worlds' exhibit [www.bodyworlds.com/en.html]. There have been so many people who want to donate their bodies, be part of that exhibit after death, that now you have to apply," said Madoff. "The same is true of top medical schools. It's like this is someone's chance to go to Harvard or another great institution, while lesser known schools are in desperate need for anatomical samples."
While the disposal of remains is one thing, control of property - both personal and intellectual - is where the debate gets interesting. What Madoff has found is that absolute control over property or estates after death has become a distinctly American phenomenon.
Case in point: When Milton S. Hershey, founder of the famous chocolate company, died in 1945, he set aside money in a trust to build and maintain an orphanage for white boys who lost their parents. At the time a noble endeavor, over the years, the trust has been modified - the racial and gender restrictions have been removed and when the orphanages ceased to be, the money began supporting an underprivileged school.
But given the small population of the school - roughly 2,000 - and the size of the trust - roughly $7 billion - questions have arisen and court actions taken to utilize some of that money of other purposes. Because of the language of the trust and the current laws protecting the intent of the donor, many of those actions have been struck down, tying up a fortune to one entity that could never spend the funds.
"There is, of course, a desire to respect the wishes of the dead, to protect noble and sound philanthropic desires," said Madoff, "but the way the law is written, it's gone too far. Donors have no idea what the world will look like 50, 70, 100 years after their death. Many of the laws offer a false promise to donors that people will respect their wishes - and that can come at a significant cost to society."
Reputations have also become big business for corporate America. In Immortality and the Law, Madoff explores the seldom-discussed world of marketing and managing the images, works and names of dead celebrities. One firm, CMG Worldwide, holds the rights to 200 of the most recognizable names, including Marilyn Monroe, James Dean, Babe Ruth, Amelia Earhart, Will Rogers, Billie Holiday, Mark Twain, General George Patton, Rosa Parks and Malcolm X.
"So if you want to have an Elvis look-alike contest, you have to pay a company, and they charge around $5,000. If you use the identity - even of historical figures like Rosa Parks or George Patton - in any context, they will exact a payment," said Madoff. "And they have an army of lawyers that go out and protect these figures that many believe are part of the culture."
The family of Martin Luther King Jr. was paid approximately $800,000 for the use of his words and image in a memorial to be built to the civil rights icon in Washington, DC, said Madoff. They also successfully sued television networks for broadcasting King's historic "I Have a Dream" speech without prior written approval on Martin Luther King Day.
"What this has become is allowing the dead to have a stranglehold on the living," said Madoff.
Taking on topics such as cryogenics, grave robbery, dynasty trusts and establishment of charities for the past four years, Madoff has researched the intersection of death and law. The resulting book is already getting rave reviews.
"I have been told that the book is really timely," she said, "but death is so pervasive it's hard to find the time when that is not the case."
Immortality and the Law is now available on preorder through Amazon.com. The book release is scheduled for May 11.