Negligent Corpse Mishandling

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Tom S. says:

    As a side point — West devotes an entire keynote number to “Dead Bodies” (116) which raises interesting questions about the taxonomy of law. For instance, does the law of “dead bodies” constitute a unique subset of law with its own basic principles? And if so, how?

    Also, the cases make for some grim reading with a window onto life’s stranger cul-de-sacs. The practice of propping a corpse on the porch so the mailman keeps delivering the social security check is disturbingly common…

  2. I think one should read these torts in light of the extensive story of graverobbing for anatomical cadavers in the U.S. On this point, I suspect there is a fascinating legal history that remains to be told.

  3. Michael H Schneider says:

    I vaguely recollect a case out of New Mexico affirming a criminal conviction for a common law crime something like wrongful treatment of a corpse. It involved a religious group in Lordsburg NM (!). One of the members died and the leader, believing that the corpse would be resurrected in the flesh fairly promptly, put it into a plastic bag and tucked it into the closet. So there’s at least some authority for the proposition that the obligation to be respectful to dead bodies arises independently of any effect on relatives.

    And yes, the law of dead bodies is a thing apart. A few decades ago I looked into it, and as best as I recall Blackstone treated dead bodies as a special sort of non-property. It was like heirlooms and church plaques, in that there were rights to tend and maintain the grave. These were heritable rights (but passed apart from testamentary disposition), but unlike ordinary property the rights were not alienable and bodies could not be possessed or themselves alienated. Or something like that.

    There was a case from New York, 1850s I think, called In The Matter Of The Widening of Beeker Street. Or maybe it was Beekman Street. The church cemetary was affected, and burials needed to be moved. Who had the say over reburial, church or relatives? The court decided that the relatives had this power. This was a very limited right, extending only to determining the proper place and manner of reburial. Nothing but reburial could be done with the burials.

    It’s also, of course, arisen in the context of Native American skeletal remains. The federal Native American Graves Protection and Repatriation Act has answered some of the questions, but (IIRC) it doesn’t apply outside federal or indian lands, or to lands where there’s no requirement for a federal permit for whatever activity is threatening ancient graves. The whole question of graves on private lands, and presumed prescriptive easements for burials or cemetaries arising from visible grave sites (but possibly not applying to lost or obliterated graves) gets very muddled (at least in my recollection)

    All this is based on recollections from research two or three decades ago, and may be totally superceded.

  4. Mike Rich says:

    As I peruse my massive Torts outline, I believe that Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d 1282 addresses the issue of handling dead bodies explicitly as an emotional distress issue. While the severed leg delivered to the deceased’s family instead of his personal effects ended up not being the deceased’s, the court’s analysis relied in part on the plaintiff’s reasonable belief that the leg was his father’s.

    I’m sure this is remedial, but hey, it’s nice for a 1L at this time of year to say “Hey, I know something!”