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August 2015

Just Published: Cemetery Law: The Common Law of Burying Grounds in the United States

From Wake Forest University School of Law:

Most recent graduates take a breather after they finish the bar exam. Daniel Gibson (JD ’15) went to work finishing up a book instead. “Cemetery Law: The Common Law of Burying Grounds in the United States” was published on Monday, Aug. 24, 2015.

Gibson worked with Marsh during law school as her research assistant for more than two years, helping her conceptualize and organize the materials for her first “Funeral and Cemetery Law” course in Spring 2014 and her treatise “The Law of Human Remains”  published in early August.

For “Cemetery Law,” Marsh and Gibson teamed up to collect, annotate, organize and explain materials about the history and structure of the law of cemeteries in the United States.“Daniel and I had collected an enormous amount of materials that had yet to be curated or analyzed,” Marsh explained, “and one day we just thought—why not publish them?”

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Blogging Funeral and Cemetery Law: Historical Background

The second installment of Funeral and Cemetery Law, the blog version.  You can find the Introduction here.

Class Two: A Short History of Funeral and Cemetery Law

There are two phases in the historical development of U.S. funeral and cemetery law. From the Revolution to the the turn of the 20th century, the law was almost exclusively, common law. Since the early 1900s, the law has become increasingly statutory, and the framework of those statutes is the occupational licensing of funeral homes, funeral directors, and embalmers, and the licensure of for-profit cemeteries.

Later this semester we will examine the statutory regimes that regulation funeral service and cemeteries. But today's class addresses the first phase of historical development—the common law. As a general matter, U.S. common law is derived from English common law.  For example, Article I, Section 14 of the Constitution of the State of New York provides:

Such parts of the common law … as … did form the law … on the nineteenth day  of  April,  one  thousand  seven  hundred seventy-five… shall be and continue the  law  of  this state … [b]ut all such parts of  the  common  law … as are repugnant to this constitution, are hereby abrogated.

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A Grave Injustice to Religious and Economic Liberty in New Jersey

Since the Third Century, Christians have primarily buried their dead in churchyards and cemeteries owned by the parish or church that they attended. The Roman Catholic Church has therefore been in the “cemetery business” for over 1700 years. In England, the legal system from which our own was derived, the Church of England had exclusive “ecclesiastical cognizance” over the dead. That means that the Church had the legal authority to determine who was eligible to be buried in consecrated ground owned by the Church and to make rules regarding interments and memorialization.  The Church had such wide latitude over the dead for an important theological reason—the Church acted as the guardians of human remains until the resurrection. Belief in the resurrection of the dead is a key Christian doctrine. In 1 Corinthians 15 it says:

13 If there is no resurrection of the dead, then is Christ not risen.

14 And if Christ be not risen, then is our preaching in vain, and your faith is also in vain.

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Blogging Funeral and Cemetery Law: Introduction

The first installment of Funeral and Cemetery Law, the blog version:

Class One: Introduction

There is a lot of administrative stuff to do on the first day of any class—go over the syllabus, etc. But it is also the time to set up the subject matter and the pedagogical approach, i.e. what we're going to learn, how we're going to learn it, and why.  (And I say "we" because teachers almost always learn something new when students dig into and challenge the material of the class.)

Legal Skills

The first thing that I tell students they will learn in Funeral and Cemetery Law is a skill that is essential to being a good lawyer—solving problems in the absence of clear rules. There are many doctrines in F&CL, including statutes and common law rules, and some are clear, but many (most) are not.

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Home Funerals a Viable Option

In search of more affordable and authentic end of life arrangements, a growing number of families are shunning traditional funeral  services, and taking matters into their own hands by organizing home funerals. And for good reason. Home funerals provide loved ones with an opportunity to offer intimate goodbyes to the deceased and personalized attention to each other.  They’re informal, comfortable, and full of emotion. And don’t forget the price considerations. With the cost of traditional funerals ranging from $6,000—$8,000, home funerals represent a far more affordable option for price conscious families.  

Forty four (44) states, including the District of Colombia, permit families to care for the body of a deceased loved one in lieu of funeral home participation. The requirements for families to do so are not overly burdensome: families must secure the death certificate and burial transit permit—a certificate authorizing the transport of the body to a cemetery, crematory or a medical facility—before final disposition.  Contrary to common belief, absent special circumstances, no state requires the body be embalmed.  

While the precise steps families must take vary from state to state, typically, after a person is pronounced dead, the state’s Bureau of Vital Statistics (or equivalent agency) must be informed. From there, the family will be prompted to contact the local register (or similar local official) who will issue the death and burial transit certificate(s). Families interested in a home burial should consult applicable state law. Local zoning laws will determine whether families are permitted to bury the deceased on their own property, or whether the remains may only be interred in a cemetery. State law will also dictate the range of options regarding the disposition of cremains.

Home funerals allow loved ones a chance to connect with the deceased in ways that traditional funeral services can’t match. As long as families are cognizant of local regulations and procedures, they can typically proceed without the involvement of a funeral director.

Further reading:

Calvin Johnson

Blogging my Funeral and Cemetery Law class

Today is the first day of the Fall semester at Wake Forest University School of Law. Tomorrow I will begin teaching Funeral and Cemetery Law, a three credit course, for the third time. The course description from the syllabus is as follows:

This course will examine the laws governing the status, treatment, and disposition of human remains in the United States.  These laws fall into eight categories:  (1) the legal status of human remains; (2) the rights of the decedent; (3) the right and/or duty to possess human remains before initial disposition; (4) the regulation of funeral directors and funeral homes; (5) methods of disposition; (6) disinterment; (7) right and/or duty to possess human remains after initial disposition; and (8) cemeteries.

This is not a new area of the law – rules regarding the treatment and disposition of human remains date to prehistory – but it is an area of the law that has not been comprehensively studied.  By engaging in this course, you will contribute to two efforts:  to describe the law of human remains, and to identify normative goals that this body of law should attempt to achieve. 

Our efforts in this course will integrate many other substantive areas of law:  Property, Constitutional Law, Contracts, Torts, Criminal Law, Regulatory Law, Environmental Law, and Legal History, among others.

Each time that I have taught Funeral and Cemetery Law has been different from the previous semesters. This year, I am partnering with Katrina Spade and the Urban Death Project so that my students have the opportunity to research and apply the law to a real problem - the feasibility of the Urban Death Project in various states. Students will be assigned a state and, as we discuss different legal doctrines, students will research the statutory and common law applicable in their state to the feasibility of the Urban Death Project. In particular, we will discuss effectuating decedent intent, definitions of funeral homes, cemeteries, and crematories, licensure requirements, body handling requirements, and prohibition on the mistreatment of human remains.

I've recently received a few e-mails from people interested in taking this class on-line. That isn't an option (yet), but I've decided to try to blog the class instead. After each class session, I will post a blog entry that summarizes the material presented. I will also post upcoming assigned reading so blog readers can follow along with the class.  All assigned reading will be in The Law of Human Remains or Cemetery Law: The Common Law of Burying Grounds in the United States. Any reading outside of those books will be posted or linked.  Please feel free to ask questions via the comment feature!

Tanya Marsh

Just Published: The Law of Human Remains

“Death is sometimes tragic, sometimes a blessing—always inevitable. Death transforms a living human being, a person with rights and autonomy, into … something else. Tissue and bone, once animated by life, converted into an object of fear, a focus for grief, and a medical and scientific resource.”

“The Law of Human Remains”

A human cadaver is no longer a person, but neither is it an object to be easily discarded. As a result of this tenuous legal status, human remains occupy an uneasy position in U.S. law. Perhaps because of what anthropologist Ernest Becker called our “universal fear of death,” the law of human remains occupies a remarkably unexamined niche of U.S. law.

In her new book, “The Law of Human Remains,” Professor Tanya D. Marsh undertakes the ambitious task of collecting, organizing and stating the legal rules and principles regarding the status, treatment and disposition of human remains in the United States.  The most recent comprehensive overview of the law was published in 1950. The Law of Human Remains builds on that work by creating detailed summaries of each individual state’s laws and regulations. This unprecedented resource allows readers to quickly identify the often fascinating differences that exist between states.

“Over the course of two years, this project required me to literally read every statute and regulation regarding the law of human remains in the United States,” Marsh said.

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