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. 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, one that has traditionally respected cultural and religious diversity. 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.
But a deeper critique reveals that the law actually embraces and promotes certain norms that (1) have broad social, economic, and environmental impacts and (2) undermine the independent preferences of a growing number of Americans. This Essay deals with one important norm—the unstated preference of the law for the for-profit funeral services provider at the expense of those who historically handled funeral services: families, religious communities, and nonprofit organizations. The dominance of the funeral service industry is reflected in a variety of legal rules that limit choice and thus undermine our core values.
In this Essay, I first describe the historical forces that shaped the modern law of the dead. Second, I argue that these laws support for-profit funeral-service providers, who in turn prefer resource-intensive, profitable death rituals and methods of disposition. Third, I present evidence that a growing number of Americans prefer less costly and resource-intensive alternatives. Finally, I outline principles upon which the American law of the dead could be reconstructed.
