The Rising Power of the American Dead
Abstract
What does the American legal system have to say about the rights of the dead? Surprisingly, quite a bit. These rules tell a hidden story about what we really value for both the dead and, more importantly, the living. Ray Madoff will discuss her new book,聽Immortality and the Law: The Rising Power of the American Dead聽(Yale 2010) which examines the distinctly American approach taken to the law of the dead. Americans have virtually no protections for the interests we hold most dear鈥攐ur bodies and reputation鈥攂ut when it comes to property interests, the American dead have greater control than anywhere else in the world. Moreover, these rights are growing鈥攂ut not for the reasons you might think. Corporations are using the dead as a decoy to expand their own resources.
Speaker Bio
Ray Madoff聽is a聽Professor at Boston College Law School聽where she teaches trusts and estates, estate and gift, tax, estate planning, and a seminar on immortality and the law. She is the author of聽Immortality and the Law: The Rising Power of the American Dead聽(Yale 2010),聽which looks at how American law treats the interests of the dead and what this tells us about our values for the living. She is also the lead author of Practical Guide to Estate Planning (CCH), and has written in a wide variety of areas involving property and death. She is a frequent commentator on all matters involving property, taxes and death and has published several op-eds in the聽New York Times, as well as the聽LA Times聽and the聽Boston Globe. Professor Madoff has appeared on All Things Considered, Marketplace and the Leonard Lopate Show. Professor Madoff is a member of the American Law Institute, an Academic Fellow of the American College of Trusts and Estates Counsel and past chair of the Trusts and Estates Section of the American Association of Law Schools. She also serves on the Board of Directors of the ACTEC Foundation.
Event Photos
Ray Madoff, October 5th, 2010 at the Boisi Center
Photos by Christopher Soldt, MTS Photography
Event Recap
What do the living owe to the dead? Why should a person鈥檚 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.聽 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鈥攁nd 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鈥檚 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鈥攚ith an additional fourteen years if the creator was still living鈥攖o protecting them for 70 years after the creator鈥檚 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鈥攖he ability to control (and therefore sell) one鈥檚 likeness for commercial purposes鈥攈as sprung from zero to more than a hundred years after one鈥檚 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 鈥渢rue legacy鈥� will depend on the extent to which we favor the rights of the dead over those of the living.
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Further Reading
"" by Ray Madoff, published in the聽Boston College Chronicle聽on April 29th, 2010.
An article from the Boston College Chronicle on Madoff's new book,聽Immortality聽and the Law.聽 The article features a look at the book, as well as some interview questions with the author regarding how to law has fallen on the side of the dead.
"."New York Times,聽July 12, 2010.
An op-ed addressing the undermining of the historical American preference for "meritocracy over aristocracy," brought about by the increasing use of perpetual "dynasty trusts" which have facilitated an American aristocracy that can retain its wealth forever.
"."听New York Times,聽聽November 21 2009.
An op-ed looking at "sensible reform of the federal estate tax."听 Based on the American principle that "hard work should be rewarded and power should not be conferred by birth," Madoff proposes a compromise that would allow family farmers and small businesses to bequeath their wealth, while imposing appropriate taxes on the wealthy heirs of America.
"."听Los Angeles Times, July 16th 2010.
An op-ed on the estate tax, arguing that its repeal "imposes significant costs on the taxpaying public and promotes concentrations of wealth that harm our democracy." Without the estate tax, beneficiaries receive large sums, free from both estate and income tax.
Radio Interviews, Programs, and Podcasts
"" An interview with Ray Madoff. (Marketplace)
An interview in which Madoff warns of the social costs of the Rising Power of the American Dead.聽 Our current approach to the rights of the dead, including "dynasty trusts," neglect our progeny and the future of our country. Because America has a relatively short history, we don't understand the effects of perpetual trusts. We have afforded such rights to the deceased that "if you have enough money, dead doesn't really mean dead anymore."
"聽An interview with Ray Madoff. (AARP Radio: Prime Time Focus)
An interview in which Madoff points out that an American death is no death at all, because an estate can live forever.聽 In a distinctly American way, we have chosen to value property above all else. She explores how America is different than other countries in this way, and looks into American history at issues such as anatomical study in medical schools and the "grave robbing" industry it helped generate.
Ray Madoff recently appeared on聽聽in America.
An interview with various commentators, featuring Madoff beginning at the 30:00 point. The whole program addresses issues related to her book, and Madoff comments on the "new gilded age" of the super rich alongside the other participants. She speaks on the "dreaded inheritance tax" and recent trends in the disparity of wealth in America.
In the News
by聽Ray D. Madoff,听7.10.2010
The New York Times听翱辫-贰诲
Madoff discusses the problem of dynasty trusts and Congress' inactivity toward the zero tax on inherited wealth.