Individualized Justice in Disputes Over Dead Bodies

Frances H. Foster (Edward T. Foote II Professor of Law) has written a new article entitled Individualized Justice in Disputes Over Dead Bodies, 61 Vand. L. Rev. 1351 (2008).

Here is a summary of the article:

In February 2007, the world had a ringside seat to a truly macabre fight. Under the glare of television cameras, Anna Nicole Smith’s nearest but not dearest battled in a Florida probate court over custody of her body. … Because of their protracted legal wrangling, Anna Nicole went to her grave a decomposed corpse in a closed casket. …Part II demonstrates that the family paradigm distorts dispositions of decedents’ assets and remains. Part III presents a critical analysis of recent reform strategies to address that paradigm. It argues that those strategies offer only limited responses because they remain grounded in the family paradigm. Part IV looks to the past for answers for the future. It shows that rather than basing their decisions on survivors’ family status alone, American courts have a long tradition of individualized justice in resolving disputes over dead bodies. Part V concludes that reformers – including legal scholars, legislators, judges, practitioners, activists, and interest groups – should draw on this historical precedent to develop more flexible, individualized, and family-neutral schemes for dispositions of decedents’ assets and remains.