Law & Death

BurtLaw's Law and Death
BurtLaw.Com	- LawAndEverythingElse.Com - Copyright (c) 2006 Burton Randall Hanson

DMCA Digital Millennium Copyright Act Claim Notification Info pursuant to Subsection 512(c)

Dead bodies and the law. a) Museum's Egyptian mummy to go home (Atlanta Journal-Constitution 07.09.2002). Egyptian authorities increasingly are seeking return of mummies and other items from ancient Egyptian tombs that are found in art museums in America and elsewhere; they argue that many of the mummies and artifacts were stolen and thus that the museums never got good title. This article puts a good face on Atlanta's Michael C. Carlos Museum's announcement that it will return "one of its prized mummies to Egypt." b) Court may settle dispute over Williams' body (USA Today 07.10.2002). One of Ted Williams' daughters, Barbara Joyce Williams Ferrell, is seeking return of his body from the cryogenics place in Arizona where her half-brother reportedly shipped it. She will ask a judge to honor a reported request by Williams in his will that his remains be cremated. c) Widow Battles Family Over Doctor's Burial (All Africa 07.05.2002). Meanwhile, in Africa the widow of a prominent doctor who died in May and who wants his body to be buried on their farm, has gone to court also. Her late husband's father and her stepsons oppose her plan. They called an elder from the deceased's home village, who testified that "the spirits of dead people lingered in the ancestral land and would haunt the community if people were buried elsewhere." He testified, "The dead have to be buried near our ancestors so that they can easily talk to one another." He added that "it was 'poison' to even allow a woman to collect the body of a man and that women were not allowed to bury men." d) For Relatives of Sept. 11 Victims, the WTC Site is Sacred Ground (VOA News 07.02.2002). The WTC site "is both a crime scene and a cemetery" and developers eyeing the site are vying with relatives of the victims and others who want it to remain undeveloped. Those opposing development appear to be gaining support from prominent politicians. Governor promises no commercial buildings at towers' footprints (Boston Globe 07.01.2002).

Robert Frost on the Ted Williams case. In his brief in Muller v. Oregon, 208 U.S. 412 (1908), defending against constitutional attack an Oregon law limiting the workday for women in laundries and factories, Attorney (later Justice) Louis D. Brandeis filed what came to be known as a "Brandeis brief," in which he "covered the traditional legal precedents in just two pages, and then filled over 100 pages with sociological, economic and physiological data on the effect of long working hours on the health of women." The unorthodox strategy worked: the Court acknowledged the brief and relied upon it in distinguishing an earlier case, Lochner v. New York 198 U.S. 45 (1905), in which the Court had ruled unconstitutional a New York law limiting bakery workers to a ten-hour day. "The most important result of the Brandeis brief and of the decision in this case is that it set the model for all future reformers attempting to use the law to affect social and political conditions. Muller democratized the law, in that it made it more open to the everyday facts of life; it called upon justices to take into account the effect of their decisions on the real world and on the lives of real people." More (Basic Readings in U.S. Democracy). If poetry can teach us truths that normally are not perceived by the unimaginative legal mind, perhaps the judge considering the Ted Williams case might conceivably benefit from reading Robert Frost's well-known poem, "Fire and Ice," first published in Harper’s Magazine, in December of 1920 and therefore now in the public domain:

Fire and Ice

Some say the world will end in fire,

Some say in ice.

From what I’ve tasted of desire

I hold with those who favor fire.

But if it had to perish twice,

I think I know enough of hate

To know that for destruction ice

Is also great

And would suffice.

Since lawyers and judges usually need Cliff's Notes to understand any work of literature, here's a link to a page of brief critical commentary by a number of well-known critics on the meaning of the poem [from Modern American Poetry, an Online Journal and Multimedia Companion to Anthology of Modern American Poetry (Oxford University Press, 2000)].

Whose body, whose death, whose decisions? As Mark Lawson notes in Our Bodies, Our Deaths, Our Decisions, an essay in the UK Guardian (03.23.2002), "[R]ecently, both law and art have forced us to question our attitudes towards death and corpses." Lawson refers to a number of relevant controversies in the news in the UK, including controversy relating to: 1) judicial decisions dealing with a) a request by a quadriplegic patient to disconnect a ventilator keeping her alive and b) a request by a woman to end her husband's life without facing prosecution for killing him, 2) "the lurid German exhibition Körperwelten (Body Worlds), which features the creations of a Heidelberg professor of anatomy, Gunther von Hagens [who]...preserves and dissects corpses left to him by citizens of the fatherland who crave immortality as an art work," and 3) the decision by some parents of young people who died as a result of using illegal drugs to allow photos of their children's corpses to be used in public-service advertisements warning of the dangers of drugs. Lawson ties these four controversies together, saying that they "all raise in different ways that ancient legal phrase 'habeas corpus': they are arguments over who may have the body." He argues: "At least some of the cultural repugnance at the idea of euthanasia may be an unexamined residue of the belief that God decides the hour and manner of our death. Once we refused to bury suicides on consecrated land, and we now feel easier if even those in terrible, terminal pain finally expire through so-called 'natural causes.'" For Lawson:

A more respectable objection is the possibility of a mercy-killing option facilitating murder. The risk of children or spouses seeking to inherit early the estate of a very rich and very sick family member is a real one. It is for this reason that there should be no early-exit legislation, but each individual case should be subjected to lengthy judicial anguish. The intelligent sensitivity of Dame Elizabeth Butler-Sloss's judgment [grantinging the quadripleg woman's request] is the kind of thing which risks giving the law a good name, but this does not mean it could be generally applied.

Lawson seems to conclude that we are "freeholders" of our own bodies and that it follows that:

we are at liberty to have our corpses dissected and entered for the Turner prize, however unpleasant and unartistic this might be for gallery-goers. It also means that, as breath is squeezed from our bodies by an irreversible condition, we have the right to decide when we close our eyes, unless our death will have gruesome emotional or legal consequences for someone else. And another upshot of being flesh-freeholders, I feel, is that our parents do not have the right to use images of us in death in advertising campaigns.

More on that "lurid German exhibition." The "art" exhibition referred to by Mr. Lawson "features," if that is the right word, "175 body parts and 25 corpses," dissected and preserved using a process called "plastination." Millions of art lovers have flocked to the show. Is it legal? After British politicians declared their disgust -- for once the politicians seem to have settled on the right emotion -- "the Government" checked to see if the exhibition complied with "the law." After doing so, it declared it did. Corpse Show Not Illegal (BBC 03.20.2002). I don't doubt that if the show comes to America, as I'm sure it will, hundreds of thousands, perhaps millions, of suckers will stand in line and pay good money to view it. As H. L. Mencken (the guy who defined "Judge" as "A law student who grades his own paper") said, "No one ever went broke underestimating the taste of the American public." Update. My prediction, as most of my predictions do, turned out to be right on the money.

Teaching surgery and breaking the law. From an article by Andrew Chamberlain in British Archaeology titled Teaching Surgery and Breaking the Law, Issue no 48, October 1999:

It was not until 1832 that doctors were permitted to dissect, for the sake of medical research, donated and unclaimed bodies - such as those of paupers who died in hospitals and workhouses. Before the Anatomy Act of that year, practical research and instruction in human anatomy in Britain had depended on judicial executions as the sole legitimate source of corpses. Such was the law. The reality, of course, was different. The legal provision ofcadaverswas always insufficient to meet the demands of medical science, and with an increasing interest in human anatomy and physiology during the 17th and 18th centuries, an illicit trade in corpses developed. The activities of the so-called "bodysnatchers," who dug up freshly-buried bodies, and sold them to anatomists for the advancement of science, have been documented in great detail by historians.

Further reading: a) Links to news accounts in the UK Guardian regarding a scandal ("the Alder Hey organs scandal") in the UK following disclusure that a children's hospital was retaining organs, etc., of dead children for the purposes of medical research and teaching but without consent of the children's parents. b) An opinion piece on the scandal, Who really owns our bodies? by a woman with the interesting name of Jane Wildgoose, who is described as "visiting lecturer at Winchester School of Art" and "an artist [who] also writes on the status of the body in historical and contemporary art." c) Dorothy Nelkin and Lori Andrews, Do the Dead Have Interests? Policy Issues for Research After Life American Journal of Law & Medicine, 24, nos. 2&3 (1998): 261-91. d) A story from CNN about the so-called Tennessee Body Farm, where students of the science of human decomposition (a/k/a forensic scientists) study decomposing bodies (bodies that have been deliberately and lawfully "stuffed into car trunks, left lying in the sun or shade, buried in shallow graves, covered with brush or submerged in ponds").

The cemetery as the first suburb. In Exquisite Corpses - The Practice of Everyday Death in Seattle (The Stranger 10.26.2000), Diana George, who worked for a time as a night "receptionist" in a funeral home in Seattle, argues that Seattle's 1908 "death zoning law," which prohibited the establishment of new cemeteries within the city, led to the establishment of the extra-urban cemetery, "an artificially landscaped paradise in easy commuting distance from the city, ideal for the edification of its visitors and the eternal peace of its inhabitants."

That the cemetery functioned as a park is a truism of American landscape history; Frederick Law Olmsted himself noted the similarity. But look closer -- in a peaceful place outside the city, each body in its own little box, each box in its own tiny plat of greensward... the cemetery was the first suburb. Thus long before Levittown (or Bellevue) came into existence, all the techniques, architecture, and ideology of the suburbs were in place in the cemetery. If you don't believe that the cemetery is the origin of the suburb, you have only to look at the suburbanite. The technologically perfected body, the glassy stare, the inner rot--who can doubt that the suburbanite is modeled after the embalmed corpse? As Edna St. Vincent Millay wrote, "Not only underground are the brains of men/Eaten by maggots."

About those "little boxes" & the people within them. Malvina Reynolds' Little Boxes is a well-known song about the suburbs referred to by Ms. George and the people within them, including "doctors and...lawyers and business executives,"

who, like the boxes, are "all made out of ticky-tacky...." W. H. Auden's poem, The Unknown Citizen, speaks to the same subject. While there is truth in both the song and the poem, there is also another side. No one has ever expressed that other side better than the great William James in his essay What Makes a Life Significant. As James would say, for all the accurate social commentary that is in the caricatures in the song and the poem and in similar critiques, "They miss the joys and sorrows" of the people they describe, "they fail to feel [their] moral virtue, and they do not guess the presence of the intellectual ideals":

We are suffering to-day in America from what is called the labor-question... I use the brief term labor-question to cover all sorts of anarchistic discontents and socialistic projects, and the conservative resistances which they provoke. So far as this conflict is unhealthy and regrettable, -- and I think it is so only to a limited extent, -- the unhealthiness consists solely in the fact that one-half of our fellow countrymen remain entirely blind to the internal significance of the lives of the other half. They miss the joys and sorrows, they fail to feel the moral virtue, and they do not guess the presence of the intellectual ideals. They are at cross-purposes all along the line, regarding each other as they might regard a set of dangerously gesticulating automata, or, if they seek to get at the inner motivation, making the most horrible mistakes. Often all that the poor man can think of in the rich man is a cowardly greediness for safety, luxury, and effeminacy, and a boundless affectation. What he is, is not a human being, but a pocket-book, a bank-account. And a similar greediness, turned by disappointment into envy, is all that many rich men can see in the state of mind of the dissatisfied poor. And, if the rich man begins to do the sentimental act over the poor man, what senseless blunders does he make, pitying him for just those very duties and those very immunities which, rightly taken, are the condition of his most abiding and characteristic joys! Each, in short, ignores the fact that happiness and unhappiness and significance are a vital mystery; each pins them absolutely on some ridiculous feature of the external situation; and everybody remains outside of everybody else's sight. Society has, with all this, undoubtedly got to pass toward some newer and better equilibrium, and the distribution of wealth has doubtless slowly got to change: such changes have always happened, and will happen to the end of time. But if, after all that I have said, any of you expect that they will make any genuine vital difference on a large scale, to the lives of our descendants, you will have missed the significance of my entire lecture. The solid meaning of life is always the same eternal thing, -- the marriage, namely, of some unhabitual ideal, however special, with some fidelity, courage, and endurance; with some man's or woman 's pains. -- And, whatever or wherever life may be, there will always be the chance for that marriage to take place.

Things in threes. There was a popular saying in my hometown (and possibly all over the world) when I was a kid: "Good things, bad things and celebrity deaths come in threes." Sayings like that have a force. Years later you find yourself thinking, after two celebrities have died, "I wonder who the third one will be." And so I found myself a) saddened by the death the other day of one of my childhood heroes, Ted Williams (see below), b) saddened again by the subsequent death of Rosemary Clooney (I remember attending a movie in the '50's in which she was featured wearing a tight sweater that didn't emphasize her voice), then c) wondering who was the third celebrity on whom the Sword of Damocles would fall. I believe it has fallen. A case can be made that the death on Friday of actress Katy Jurado (Gary Cooper's mistress in High Noon), qualifies as "the third," but, frankly, I'm not sure her celebrity star was quite as bright as that of Ted or Rosey. However, I'm pretty sure that the death of John Frankenheimer, the film director, does qualify and that those of us who put credence in the "rule of three" can therefore relax -- at least until another celebrity dies and starts the whole damn cycle all over again. I don't mean to suggest that this sort of thing bothers me quite as much now as it did when I was a kid, when I guess I worried occasionally, when two local folks had died, that I might be the next. A "poem" an older cousin recited about the time of my maternal grandmother's death, when I was nine, was never far from my thoughts on such occasions. It began, "Have you ever watched the hearse go by/ and thought that you might be the next to die?" I find, on "doing a Google," that this too, like the "rule of three," was not just popular in my hometown. One site, which collects a number of the versions (click here), states that the poem's "origins go back to the 19th century, at least, when it was documented among British soldiers serving in the Crimean campaign." I think the third of the eight versions, although it seems incomplete, is closest to the one popular in my venue:

Did you ever think when a hearse goes by

that you might be the next to die?

They wrap you up in a dirty sheet

and bury you down about six feet deep.

The worms crawl in and the worms crawl out

the ants play pinochle in your snout.

Then you turn a mushy green and pus squirts out

like whipping cream.

-- And I without my spoon but with a straw!

As a parent, what do you say when you realize your kid is worrying about such things? Click here and here to read what the wise Anne LaMott said when her nine-year-old boy came home, obviously troubled, after attending a camp at which some wise guys had scared him by reciting a version of "the poem." (07.07.2002) (And see BurtLaw's Fathers & Kids, Law & Kids, and Secular Sermons.)

April storms - present and past. In Snow, the poet Louis MacNeice writes that "World is suddener than we fancy it" and "crazier and more of it than we think." Perhaps it is because we expect April to be benign that we are so surprised by its storms. On both Monday (April's Fools Day) and Tuesday of this week we've been surprised by significant snowfalls here in the Twin Cities of Minnesota.

If one is swimming in the ocean and is caught in a powerful undertow, one has a better chance of surviving if one doesn't fight it. Many a person who has done that has drowned. One survives such an undertow, as one survives sudden grief, which is an undertow of sorts, by temporarily yielding to it, until it releases you to swim away without great effort.

If one can, that is how one should respond to a sudden snowfall in April. If one does so, if one gives it its due and temporarily yields to it, one usually will be okay. In fact, one may find, as I found on one of my outings this week, when the snow was falling quite heavily, that the birds -- the robins and the cardinals -- were still singing the same spring songs they were singing days earlier, when it was sunny and the temperature in the 50's.

But there are storms and there are storms. The worst April snow storm in Twin Cities history -- one remembered in part because it caused the Hubert H. Humphrey Metrodome's huge roof to collapse -- occurred on April 14, 1983, when, quite suddenly and unexpectedly, 13.6 inches of snow descended upon us, changing forever the lives of some of us.

At the time, I was working at the capitol in St. Paul. My 19-mile drive to work at 6:00 a.m. was uneventful. But then the storm picked up and the condition of the roads worsened. I got a call from my wife saying that school for our kids, ages eight and six, had been cancelled. She had to drive to work for a 9:00 meeting, which meant I had to drive home to care for the kids. I left the capitol at 9:15, taking work with me. It turned out to be the hardest trip home ever. When I got onto Highway 62 west from I-35W south of Minneapolis, there were times when I couldn't see anything and feared I would run into some stalled or stopped car. But I had no choice but to keep ploughing ahead, because I couldn't pull over (there are no real shoulders on Highway 62 at that point) and if I had stopped I would have risked being hit by someone who could not see me. Undoubtedly, the robins and cardinals were singing, but I couldn't hear them. All I could do was keep driving through the mesmerizing white cloud, concentrating on getting home.

Back at work others soon decided they should go home. Might it have made more sense, at least for those who didn't have to go home, to give the storm its due and temporarily stay put? Yes. But home has a pull on us when storms befall us. From 12:00 until 2:00 a co-worker helped give people the pushes they needed to get their cars out of one of the lots. At 2:00, two people helped him out. In doing so, they pushed him right into a parked car, damaging that car's fender. My co-worker, who now had an insurance issue to deal with, said to me, "That's what you get for being a good Samaritan." I don't know if he heard the birds singing during the two hours he was being a good Samaritan. I like to think he did.

The next day I learned that the brother of a young woman I'd known for a couple years had taken a gun and walked outside into the heart of the mesmerizing storm and, surrounded by white, shot himself, ending his life and changing the lives of others.

When something like that happens, people search for reasons. Some will say, "It was my fault" or "It was because he suffered from manic-depression" or "It was because his girl friend left him" or "It's a fact that in the United States more people commit suicide in April than in any other month." I've wondered since then if "it" in part was "because of" or had something to do with "the storm," in the same or similar sense that a fatal traffic accident that day might have been "because of" or had something to do with "the storm." That is, I've wondered if things might have been different, for him and for others, if the sudden perfect mesmerizing white storm -- which was surely as seductive as the "lovely, dark and deep" woods were that snowy evening in Robert Frost's great poem about contemplating suicide -- had not descended upon us.

Several days later, a sunny day with much melting and promise, I attended his memorial service. About all I remember of that service was that I put my arms around his sister and gave her a comforting hug, wishing I could do more.

Robert Bly, Minnesota's de facto poet laureate, has written:

A man often follows or flies on an ascending arc, headed toward brilliance, inner power, authority, leadership in community, and that arc is very beautiful. But many ancient stories declare that in the midst of a man's beautiful ascending arc, the time will come naturally when he will find himself falling; he will find himself on the road of ashes, and discover at night that he is holding the ashy hand of the Lord of Death or the Lord of Divorce....

R. Bly, J. Hillman, M. Meade, The Rag and Bone Shop of the Heart 95 (1992) (an anthology of poetry for men that every man and every parent of a boy should own).

In the late winter and early spring of 1995 a student at a college out east -- who appeared "headed toward brilliance, inner power, authority, leadership in the community" -- found himself for a time on the "road of ashes." Contemporaneously, his father found himself "holding the ashy hand of the Lord of Divorce." The father's most helpful friend at the time, it turned out, was the woman who lost her brother on that road of white in 1983. One day she (or perhaps her brother speaking through her) told the boy's dad she thought he should go out east to help his son.

There was such force behind her soft, kind words that he was on a plane the next day, making the first of several trips to help his boy -- the last, it turned out, to help him return home when it became apparent he simply could not continue. He put his son on a plane home on April 14, 1995, which was Good Friday. (He only recently realized, in reading through some old papers, that, coincidentally or not, that was 12 years to the day after the big mesmerizing April storm that changed so many lives.)

He thought at the time that it was possibly the darkest day of his life, as he stayed behind and cleaned out his son's dorm room. But now he says as he looks back upon it, that he finds himself believing that was one of his finer days, that, with a gentle prod from a friend, he maybe helped save his son from the awful white storm surrounding him, not by trying to flee it, but by giving it its due, by temporarily yielding to it, by taking his son's hand and letting him know he'd walk through it with him. As he believes he has done, as he has been privileged to do.... (04.03.2002)

Front page

Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.