Prior to the pandemic, there were approximately 2.8 million deaths per year in the United States.[1] Each one of those deaths left a body, and those bodies did not magically evaporate. The law of final disposition—primarily burial and cremation—dictated how survivors managed those remains. Americans have become culturally distanced from the process of preparation and disposition, and they regularly employ professionals to manage this undertaking.[2] However, to call the business of funeral homes and crematoria deathcare is synecdoche. There was a time before deathcare was an industry.[3] There is far more to the process of disposition, from last breath to final rest, than the embalmer’s business.
Despite the universality of death, the final disposition of human remains is regulated piecemeal,[4] prioritizing the interests of embalmers over the families of the deceased.[5] This hinders families’ abilities to provide respectful, meaningful disposition of the deceased, a crucial aspect of socially contextualizing death in their lives.[6] The FTC promulgated the Funeral Rule in 1982 in an effort to protect funeral consumers, but it is simply not enough.[7] Just as advancing technology and increasing population dramatically changed the nature and scale of food manufacture, precipitating the development of the FDA,[8] the modern structure of deathcare demands a more unified and comprehensive approach to regulation.
To unify the regulation of deathcare for the purposes of protecting the rights of survivors, ensuring quality and accessibility of care, and balancing the interests of the many parties that participate in the process of final disposition, Congress should establish a federal agency dedicated to the regulation of the disposition of human remains. Part I provides an overview of the modern structure and relevant history of American deathcare. Part II begins the analysis by explaining the common law right of sepulcher. The argument transitions into consideration and critique of the FTC Funeral Rule,[9] identifying weaknesses in the current federal regulatory scheme in Part III and describing how state law is currently insufficient to fill the gaps in Part IV. This discussion culminates in Part V, examining how embalming is understood by the public and presented by embalmers—specifically critiquing how the professional characterization of embalming is a misrepresentation of what is merely a useful technique for preservation and aesthetics, based in outdated notions of ptomainic miasmas.[10] Finally, this Note delves into the scope and structure of the proposed federal agency. Part VI outlines the agency’s basic functions: addressing the purpose of the Funeral Rule and expanding its reach to crematoria and cemeteries, including functioning enforcement mechanisms in this amended Funeral Rule, and outlining state licensing and inspection requirements.
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[1] Kenneth D. Kochanek et al., Deaths: Final Data for 2017, 68 Nat’l Vital Stat. Rep. no. 9, at 1 (2019); Sherry L. Murphy et al., Deaths: Final Data for 2018, 69 Nat’l Vital Stat. Rep. no. 13, at 1 (2021); Jiaquan Xu et al., Deaths: Final Data for 2019, 70 Nat’l Vital Stat. Rep. no. 8, at 1 (2021).
[2] Maggie Jones, The Movement to Bring Death Closer, N.Y. Times Mag. (Dec. 21, 2020), https://www.nytimes.com/2019/12/19/magazine/home-funeral.html (“In the United States, we have come to see death as an emergency. We call the doctors, the nurses, the police, the emergency workers, the funeral staff to take over for us . . . . If death practices reveal a culture’s values, we choose convenience, outsourcing, an aversion to knowing and seeing too much.”).
[3] Jessica Mitford, The American Way of Death Revisited 14–17 (1998); see also Robert G. Mayer, Embalming: History, Theory, and Practice 5–6 (5th ed. 2012).
[4]See generally Joshua Slocum & Lisa Carlson, Final Rights: Reclaiming the American Way of Death 159–498 (2011).
[5]See Tanya Marsh, Regulated to Death: Occupational Licensing and the Demise of the U.S. Funeral Services Industry, 8 Wake Forest J.L. & Pol’y 5, 7 (2018); see generally Tanya Marsh, Rethinking the Law of the Dead, 48 Wake Forest L. Rev. 1327 (2013).
[6]See generally Ernest Becker, The Denial of Death 9–47 (1973); Stu Farber, Thomas Egnew & Annalu Farber, What is a Respectful Death?, in Living with Dying 102, 103–04 (Joan Berzoff & Phyllis R. Silverman eds., 2004).
[7] Joshua L. Slocum, The Funeral Rule: Where It Came from, Why It Matters, and How to Bring It into the 21st Century, 8 Wake Forest J.L. & Pol’y 89, 99–102 (2018); Keith E. Horton, Who’s Watching the Cryptkeeper: The Need for Regulation and Oversight in the Crematory Industry, 11 Elder L.J. 425, 433–38 (2003).
[8] Stephen Daily, A Brief History of the FDA, Cataract & Refractive Surgery Today (Oct. 2011), https://crstoday.com/articles/2011-oct/a-brief-history-of-the-fda/.
[9] FTC Funeral Rule, 16 C.F.R § 453 (2021); see also Bureau of Consumer Prot., Funeral Industry Practices: Report to the Federal Trade Commission and Proposed Trade Regulation Rule (1978) (investigating the industry and identifying the need for consumer protection regulations).
[10] Lydia Kang & Nate Pederson, Quackery: A Brief History of the Worst Ways to Cure Everything 165–67 (2017).
Luis González (Luis’s full Note was published in the University of La Verne Law Review)
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“It is our hope that the lessons learned in the communities we profile, and the analysis offered here, can be translated into, and replicated within, other struggles for justice.”[1]
Rolling green hills aside peaceful and pristine blue rivers and streams, colorful red and pink flowers sprinkling the lush countryside, and picturesque medieval-era castles—this is Riverside, California. Or so a recent satirical trend on TikTok would lead you to believe.[2] Those who live in Riverside know a different reality: streets with food deserts, heavily segregated school districts, and air thick with the dry rugged scent of gasoline and exhaust emissions.[3] And yet, this place is home for so many people: it is where people go to school, where people’s families are, where people’s minds go when they are asked the question: “where is your hometown?” This Note dares to imagine Riverside County as a place that serves the community through strong and equitable environmental justice policies. This critique comes from a place of love and the belief that one should expect more from local governments. To quote the revolutionary Black and Queer American Author, James Baldwin, “I love America more than any other country in the world, and, exactly for this reason, I insist on the right to criticize her perpetually,”[4] This Note now applies this mindset to Riverside.
The fate of honey bees is currently at risk of pesticide annihilation.[1] Humans have kept bees for millennia,[2] however, only recently have honey bees come under attack. The Egyptians were the first civilization to practice beekeeping over 4,000 years ago.[3] Honey bees were a sacred, cultural pillar to the Egyptians.[4] Today, the honey bee is much less revered. Humans have transitioned from worshipping the hive to poisoning it.
Modern honey bees are in a chemical war with pesticides. Specifically, neonicotinoids—a type of pesticide—present an urgent threat to the survival of honey bees.[5] The Saving America’s Pollinators Act of 2021 (Pollinators Act) is a bill that attempts to protect honey bees from lethal neonicotinoids.[6] On its face, the bill lays out some great ways to protect honey bees.[7] Namely, it calls for a complete ban on neonicotinoids.[8] From an environmental perspective, this is great news for honey bees. However, from a political perspective, this bill will realistically never pass as written because the pesticide industry has made it very difficult to regulate neonicotinoids.[9] Proof lies in the fact that the Pollinators Act has been introduced six times since 2013 and failed to pass every time.[10]
Starting the day with doggie yoga, constructing a DIY catio, or enjoying leisurely afternoon walks—these are just a few examples of the furry silver lining hidden amidst the misery of the Coronavirus pandemic.[1] Brought on by an unexpected pet adoption boom, pet ownership in 2020 reached an “all-time high of 70 percent [of households].”[2] The “opportunity” to stay home through the onset of the Covid-19 pandemic allowed pet parents to spend more time with their furry family members than ever before.[3] While some pets found less enjoyment in this quality time than others, many first-time and long-time pet owners alike enjoyed expanded companionship through a very stressful time.[4]
Unfortunately, the increase in pet ownership resulted in an increase in animal cruelty and violence over the same period.[5] Because violence against animals is both a tort and a crime, owner-victims have two paths to justice: through either the civil or criminal court system. Each system presents its own challenges and considerations, but sometimes owner-victims have no choice in path at all; there are still barriers to access to the courts, particularly for indigent people, so a criminal restitution award may be the only compensation a victim receives.[6]
“This place is not a place of honor . . . no highly esteemed dead is commemorated here . . . nothing valued is here.”[1] One hundred thousand years from now,[2] this is the quote one could see engraved on a non-descript plaque with bins of aging nuclear waste stored below.[3] But first, the United States (U.S.) needs to create a long-term geologic disposal site[4] for all of its high-level nuclear waste.[5] The U.S. is one of the top producers of nuclear energy, accounting for roughly 31% of global nuclear electricity generation.[6] Estimates show that the U.S. generates roughly 2,000 metric tons of used nuclear fuel annually,[7] and with no way of disposing of this waste it poses environmental, social justice, economic, and health effects.[8]
In the roughly seventy years since the U.S. began using nuclear energy as a civilian power source, and despite several attempts, there is still no high-level nuclear waste repository. There are several key differences between nuclear waste management in the U.S. versus the EU that help explain why the U.S. has a severe lack of progress in the creation of a high-level civilian waste disposal site.[10] In the U.S., the Nuclear Waste Policy Act (NWPA) gives the Department of Energy (DOE) the burden to develop a repository for high-level nuclear waste, the Nuclear Regulatory Commission bears the burden of its licensing, and the producers bear the financial burden of interim storage and disposal.[11] In the EU, the Waste Directive created by the European Atomic Energy Community (EURATOM) makes the producer financially responsible for disposing of its nuclear waste in the member state where it was produced.[13]
Clelia Casciola (Clelia’s full Note was published in Vermont Law Review, Volume 47 and can be found here!)
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In 2015, British theoretical physicist Stephen Hawking commented “Computers will overtake humans with AI . . . within the next 100 years. When that happens, we need to make sure the computers have goals aligned with ours.”[1] Stephen Hawking’s words suggest a science-fiction reality and a world in which robots possessing human-like features, such as the ability to think, would live alongside humans and even overtake them. Hawking’s words highlight the relevance that computers play and will continue to play in our society. These words also raise significant questions on Artificial Intelligence (AI) and new technologies in general. To what extent do we want to allow technological development? And should we control and regulate this technological advancement to ensure that it aligns with human goals?
In recent years, legislators and policy-makers around the world have struggled with these questions. On the one hand, they recognize the positive effects AI can have on the economy; on the other hand, they recognize the negative effects that AI can have on humans if left unchecked.[2] For years, the European Union (EU) has been a strong advocate of AI development in respect of the legal and societal values it upholds.[3] The recent proposal on AI, the Artificial Intelligence Act,[4] is an attempt of the European Union and its members to deal with AI related issues while ensuring research and development of such technologies.[5] The proposal tries to prevent algorithm bias and discrimination that AI systems can produce.[6]
Similarly, the United States has attempted to pass legislation at the federal level to ensure that AI systems work in ways that do not harm nor discriminate against consumers.[7] For instance, the Algorithmic Accountability Act of 2019 specifically tackles the issue of algorithmic bias and discrimination.[8] Algorithmic bias and discrimination can occur in different AI systems used in a variety of industries.[9] The health care industry is one. Studies have shown that in the health care industry, certain AI systems used in management programs can have discriminatory effects on patients.[10] However, as of today, Congress has not passed any legislation on this issue.
Madison Gaffney (Madison’s full Note was published in the Vermont Journal of Environmental Law, Volume 24 and can be found here!)
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Air pollutants know no borders. They can traverse any geopolitical or internationally recognized boundary without consequence. The physical environment, atmosphere, human health, and relationships between nations face detrimental ramifications. International customary law is the vessel for assigning the responsibility of damage one country causes to the other regarding transboundary pollution. For example, black carbon (in the form of smoke from wildfires) is crossing between the U.S. and Canada’s border, causing environmental damage in the other’s jurisdiction. Wildfires may not be a new emission source, but recently they are a rising concern because they are starting at an “unprecedented” rate.[1] Hundreds of thousands of acres of land have burned in both the United States and Canada, costing both countries billions of dollars annually in damages.[2] Wildfires are damaging the physical land, air quality, and human health. Additionally, latent environmental damage occurs when wildfires release black carbon into the atmosphere, which can travel at high speeds for long distances into another country.
The United States and Canada have historically been able to amicably create solutions to dividing the responsibility of air and water resources and the responsibility of damage caused to those resources.[3] For example, U.S. and Canadian citizens advocated for their governments to address acid rain.[4] Both nations entered into the U.S. and Canada Air Quality Agreement (AQA) to address the issue of transboundary acid rain pollution. Pollutants are released at one location and travel long distances, affecting air quality many miles away from the original source.[5] The President of the Canadian Association of Fire Chiefs (CAFC) stated that back in July, Canada surpassed “what we would have the whole wildfire season, so it’s quite daunting right now.”[6] On the other side of the border, the United States is dealing with the same problem. The Canadian Government investigated the impacts of climate change-driven wildfires, which revealed that people across the country are “breathing in more harmful smoke than before” and significantly increasing the number of days people are exposed to wildfire smoke.[7] The dangerous black carbon from these fires can travel and affect people more than 3,000 miles away.[8] Yet, the real issue is more profound than just wildfires. The AQA must be a vessel to extinguish the cause of wildfires—poor land use planning and forest management.
In the wild west only one thing remains wild and that is the scarcity of water. Mark Twain said it best when he wrote, “in the west, whiskey is for drinking and water is for fighting.”[1] The lifeline of the West is the Colorado River.[2] The Colorado River has been relied on by the people of the west since people came to that land. Currently over 40 million people rely on its waters, stretching across seven states (Arizona, Colorado, New Mexico, California, Nevada, Utah, and Wyoming).[3] The drought and growing population in the west has caused a shortage of water in the Colorado River.[4] The growing demand and less water has caused fights over the water, which has resulted in cases, compacts, and treaties.[5] With fights for water there is always a loser.
The loser of our modern age are the people of the Navajo Nation. Even though they have relied on and used the water longer than any other group of people, they are often forgotten in the modern talk of the Colorado River. This is due to the Navajo being left out of the compacts and agreements which have shaped the law of the Colorado River.[6] Additionally, a lack of resources puts the Navajo in a tough position to try and have their rights recognized in court.[7] However, the Supreme Court case Winters v. United States creates an avenue the Navajo could take to get their reserved water rights (established by the 1868 Navajo Treaty) recognized.[8]
As the world espouses the clean energy transition—within the U.S.—offshore wind is verging on being left behind. The danger of leaving a renewable source behind is not only a detriment to that industry, but to the clean energy transition as a whole. The culprit of offshore wind’s downfall is the current U.S. regulatory structure for connecting an offshore facility to the grid onshore.
Traditionally, the grid and project development regulatory framework supports a project-by-project approach, because every project has the responsibility to connect themselves to the grid onshore.[1] The resulting reality for offshore wind is that every project has an individual transmission line come ashore and cross a beach.[2] This exact regulatory result endangers the industry.
One of the biggest challenges facing offshore wind transmission is finding environmentally and economically viable locations where the transmission cable can make landfall to connect to the grid. This occurs for two reasons. First, geographic locations for sitting must comply with state and federal permit requirements and be viable for the cables.[3] Second, community resistance can delay project permit acquisition.[4] Both challenges can create too high an economic cost that burdens and kills the project.
Emily Davis (Emily’s full Note was published in Vermont Law Review, Volume 47 and can be found here!)
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Remnant pieces of a former nuclear power plant linger along the Connecticut River in the small town of Vernon, Vermont.[1] Industrial machinery dismantles the once-controversial Vermont Yankee Nuclear Power Plant that produced about one-third of the state’s electricity for 40 years.[2] Railroad tracks from the plant meander around dairy farms and maple trees,[3] and shipments containing old reactor parts, office building interiors, and massive turbines roll south to an industrial disposal facility in west Texas.[4] Since its beginning in 2016, the decommissioning process is largely going as planned.[5] However, an important detail remains: Where does the radioactive spent nuclear fuel go?
Spent nuclear fuel—the leftover fuel from nuclear power reactors after producing electricity—has no permanent home in the country.[6] But this is not for a lack of trying. Enacted in 1982, the Nuclear Waste Policy Act obligated the federal government to locate a storage site for nuclear waste.[7] But for many decades, the federal government never identified a disposal site.[8] Many factors contributed to this failure, but one major cause stands out: from the very beginning, the American public was never given the opportunity to meaningfully participate in shaping nuclear waste policy.[9]
After nearly 70 years without an effective waste disposal solution, at least 86,000 metric tons of radioactive spent fuel temporarily reside at 75 separate sites in 33 states.[10] To resolve this problem, the Department of Energy announced that it will pursue a “consent-based siting process” to identify nuclear waste storage sites on December 1, 2021.[11] With this new effort, the Department will ask potential host communities to step forward and work with the federal government to site nuclear waste facilities. But given decades of brooding mistrust and federal mismanagement, this is an audacious prospect. How can the federal government build public trust and develop a truly consent-based process?
Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
