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Boisi Center for Religion and American Public Life

The Rising Power of the American Dead

Event Recap

What do the living owe to the dead? Why should a person’s legal will be considered sacrosanct? And how do American views on death and taxes differ from those around the world? These are just a few of the questions Boston College Law Professor Ray Madoff takes up in her fascinating new book Immortality and the Law: The Rising Power of the American Dead (Yale, 2010), which she discussed at a lunch colloquium on October 5.

Madoff argued that there has been a dramatic rise in the powers granted to the deceased under U.S. law, and although the trend taps into American values of individualism and liberty, it is primarily driven by corporate interests. She focused on four legal contexts.  First, whereas control of property at death used to be limited to under a hundred years, today the deceased can determine ownership and use of property for a thousand years—and in perpetuity under some state laws. Second, charitable giving has changed dramatically: nineteenth-century tax laws allowed charitable gifts only to existing charitable organizations, but today one can create one’s own perpetual trust to fund, tax-free, any charitable purpose, forever.

Third, Madoff argues, American copyright law has expanded from protecting creative works for fourteen years—with an additional fourteen years if the creator was still living—to protecting them for 70 years after the creator’s death. This means, for example, that the work of young musician or novelist may not be available for public use until well into the twenty-second century. Fourth and finally, the right of publicity—the ability to control (and therefore sell) one’s likeness for commercial purposes—has sprung from zero to more than a hundred years after one’s death. Marketing control of personalities and image of such luminaries as Elvis Presley and Rosa Parks are now big business.

These increases in the rights of the dead have occurred quietly and incrementally, often on a state-by-state basis. But because the history of the United States is relatively short, Americans have little experience of the costs of such rights. Madoff warned that corporations are the most obvious beneficiary of expanded rights of the dead, and as these changes impose real costs, our “true legacy” will depend on the extent to which we favor the rights of the dead over those of the living.