Five Wake Forest Law faculty members were featured speakers at the Carolinas Legal Research & Writing Colloquium held at the University of South Carolina on Friday, May 17.  

The Colloquium is a biennial event, hosted on a rotating basis by the law schools in North Carolina and South Carolina, that provides an opportunity for legal research and legal writing faculty to come together to exchange new ideas on teaching and scholarship.

Professors Sue Grebeldinger and Barbara Lentz presented at the morning session.  Professor Grebeldinger, in her presentation, “Bridging the Gap Between Civil Procedure and LAWR Faculty,” suggested several strategies for incorporating procedural issues into legal writing courses and including short answer and essay writing exercises in civil procedure courses. Professor Lentz’s presentation, “Using Advertising Principles to Teach Legal Writing,” described how professors can use advertisements to help students focus on various aspects of persuasive writing, including audience, purpose, and theme.

Professors Laura Graham, Tracey Banks Coan, and Liz Johnson with Professor Lentz presented at the afternoon session.  Professor Graham addressed “Pre-Writing Techniques,” which is the focus of her new book for students due to be released by Carolina Academic Press in June co-authored with Professor Miki Felsenburg.  Then, in her presentation “Transferring Legal Analysis and Writing and Academic Support Principals to Doctrinal Teaching,” Professor Coan described her very popular and successful Secured Transactions Course, which builds on many of the skills learned in LAWR.  She also shared strategies for weaving those same skills into other doctrinal courses.

Finally, Professors Johnson and Lentz presented on “Improving Course Website Design and Pairing Technology with Writing Assignments in Legal Research & Writing Classes.”  They described several innovative ways to use technology to enhance students’ learning, including e-portfolios, LibGuides, Voicethread, GoogleForms, and Word Press.  Professors Johnson and Lentz use these technologies to great effect in teaching LLMs, in working with students in the Nicaragua program, and in Professor Lentz’s Art Law class.

The officers and trustees of the Pound Civil Justice Institute have asked Professor Carol Anderson of Wake Forest University School of Law to become one of the first Pound Academic Fellows.

This new membership category has been instituted by the Pound Institute Board of Trustees as a way to formalize outreach to the academic community and to make it possible to identify, and consult easily with, academics who have special expertise in areas of interest to the Institute.

The Pound Civil Justice Institute is a national legal “think tank” created by pioneering members of the trial bar and dedicated to ensuring access to justice for ordinary citizens. Through its activities, the Institute works to give lawyers, judges, legal educators and the public a balanced view of the issues affecting the U.S. civil justice system.

For more information about the Institute and its activities, visit http://poundinstitute.org.

Anderson is one of the nation’s leading trial advocacy educators. She has been recognized for teaching excellence by the American Association for Justice (formerly the Association of Trial Lawyers of America), and by the North Carolina Advocates for Justice.  She is also a Fellow of the American Bar Association.  The litigation clinic and trial advocacy program that she leads at WFU has received the $50,000 Gumpert Award for Excellence in Teaching Trial Advocacy from ABA. Professor Anderson is the author of three highly regarded trial advocacy textbooks and is currently working on her fourth and fifth textbooks.

n the 1946 classic It’s a Wonderful Life, James Stewart stars as George Bailey, the director of the Bailey Building and Loan Association in the fictional community of Bedford Falls, N.Y. Bailey faces numerous challenges to keep the Building and Loan afloat in order to continue supporting the people and businesses of his hometown. His chief challenge is Mr. Potter, the wealthy slumlord who repeatedly schemes to force Bailey out of business.

Although It’s a Wonderful Life is fictional, the Building and Loan is a prototype of a real, modern institution, the community bank. And in 2013, community banks are finding themselves under significant threats to their existence. Instead of being Pottered, they’re being Franked. Real towns, like the fictional Bedford Falls, will suffer if a miraculous change in policy doesn’t occur quickly.

The Dodd-Frank Act was intended to fix the perceived inefficiencies and failures in the American banking system that supposedly led to the financial crisis. However, my new research with the American Enterprise Institute suggests that it’s having at least one detrimental effect: The act is placing unwarranted and unsustainable pressure on community banks.

A community bank with $100 million in assets serving families, farmers, and small businesses in a rural area bears little resemblance to a $2.1 trillion global behemoth such as JPMorgan Chase. But rather than creating two or more distinct tiers of regulation, appropriately tied to the size, complexity, and risk posed by these two very different kinds of institution, Dodd-Frank builds on the existing system’s one-size-fits-all approach to regulation.

The Dodd-Frank Act was intended, in part, to eliminate “too big to fail.” Ironically, it may have an almost opposite effect, by making community banks too small to succeed. Almost 2,000 small banks vanished in the past decade, due mostly to mergers with larger banks. The number of banks with assets of less than $100 million decreased by more than 80 percent from 1985 to 2010, while the number of banks with assets greater than $10 billion nearly tripled. With an increased regulatory burden, over the next few years it seems likely that many small community banks will continue to merge into larger banks, or simply go out of business. Like Bedford Falls under the thumb of Mr. Potter, many communities will be the worse for it.

The FDIC has determined that approximately 1 in 12 American households don’t have a checking or savings account, and an additional 20 percent are “underbanked” — that is, despite having an account, they also rely on expensive “alternative” financial products such as payday loans and check-cashing services. Lower-income, rural, and minority Americans are much more likely to be unbanked or underbanked. These problems will only increase if community banks merge or disappear entirely.

The relationship-banking model used by community banks puts them in a position to offer financial services to families and small businesses that don’t neatly fit into the profiles used by large financial institutions. Although community banks cumulatively hold only 14.2 percent of total bank assets, they are responsible for nearly half of small-business loans, more than 40 percent of farmland and farming loans, and over one third of commercial-real-estate loans. In rural areas, community banks hold 70 percent of all deposits.

Dodd-Frank was intended to protect consumers and ensure the stability of the financial system, but if more community banks are forced to merge or go out of business, too-big-to-fail banks will get even bigger. And the small businesses and individuals that don’t fit neatly into standardized financial modeling, or are located outside metropolitan areas served by big banks, will find good loans and basic financial services harder to come by.

Before we lose more community banks, Congress must act.

Meaningful reform that distinguishes small, traditional community banks from sophisticated financial institutions requires a two-tiered regulatory framework. By more precisely addressing the risks posed by both types of institution, Congress could actually reduce systemic risk and protect consumers. Rather than devoting time and resources to addressing regulations that have little to do with their operations, community banks would be freed to serve their customers and invest in their communities. In contrast, the largest financial institutions would be subject to regulations and examinations properly tailored to their size, complexity, and role in the American economy and global financial system.

It’s a Wonderful Life may be an idealistic work, but its portrayal of the importance of the Bailey Building and Loan to Bedford Falls is spot on. Farmers, families, and small businesses, particularly in the most challenged parts of this country, depend on their community banks.

Clarence, George Bailey’s guardian angel, gave us a peek at Mr. Potter’s Bedford Falls, and it wasn’t pretty. With proper reform of Dodd-Frank, we can avoid that fate for America.

Find the link here.

The Worcester (Massachusetts) Police Department reports that Tamerlan Tsarnaev’s body was buried in an undisclosed location in the middle of the night, bringing an end to a sad, unprecedented soap opera. This controversy has been resolved — but what happens next time? The Tsarnaev burial saga highlights a fundamental flaw in the American law regarding the disposition of human remains.

Despite the calls of protestors to “feed [Tsarnaev] to the sharks” or “toss him in the landfill,” it is a basic premise of American law that we treat human remains with respect. In fact, it is a general principal of law that every person who dies in the United States is entitled to the decent treatment and disposition of their remains. “Abuse of a corpse” is a crime in many states. A number of state even have statutes forbidding cursing in the presence of a corpse. But while the law promises that remains will be treated with respect, the government has very little power to enforce that promise.

In the United States, the next of kin of the deceased are tasked with the obligation and financial responsibility to properly dispose of their remains. In most states, the decedent himself has the right to have his remains disposed of in the manner and location that he prefers.

But this system assumes two things. The first assumption is that someone will take responsibility for the remains of every person. Although this assumption is generally correct, sadly, bodies are also found from time to time which cannot be identified. Some people die without family, friends, or funds. In those cases, government often has the authority and responsibility to make burial or cremation arrangements.

The second assumption is that the private parties integral to the process (primarily funeral homes and cemeteries) will cooperate and provide needed services.

Since the government plays little to no role, these private parties are essential. Bodies are normally taken from the place of death, or from the coroner’s office, by a funeral director who voluntarily agrees to take custody of the body. Although funeral directors are licensed by the state, in the United States they are private actors and are not government officials. Funeral directors generally prepare bodies for burial or cremation, and make arrangements for final disposition.

There are a wide variety of cemeteries in the United States. In some states, like Massachusetts, state law requires each town to have a municipal cemetery. But most cemeteries are owned by private parties — religious organizations, nonprofit organizations, families, fraternal organizations, as well as for-profit enterprises. The law recognizes cemeteries as essential public services. They are exempt from property taxes (even if owned by a for-profit company) and generally may not be mortgaged. But with the exception of cemeteries owned by municipalities, cemeteries are not under the management or control of the government.

The assumption that these private parties would play their role every time was so ingrained that no one had cause to question it before the Tsarnaev burial saga began. After all, many people have committed heinous acts in American history, and there was little controversy about the disposition of their remains. But this time, we discovered, the system absolutely breaks down when nearly everyone refuses to provide services.

The assumption that people will cooperate is so essential that the law does not even contemplate what happens if they do not. This incident has highlighted this fundamental flaw in the law. The government has no power to force a funeral director, cemetery, or crematory to accept a body. Tsarnaev’s family was lucky that Peter Stefan agreed to take the case in the first place, although his business has undoubtedly suffered a heavy price for his willingness to do what he considered to be the right thing. “I’m not burying a terrorist, I’m burying a dead body,” Mr. Stefan said at the beginning of the debacle. “We’re trying to exercise some character here.”

People have every right to be angry with Tamerlan Tsarnaev. He took deliberate action to cause death and misery, to terrorize the people of Boston. But Tamerlan Tsarnaev is dead. Protesting the disposition of his remains did nothing but cost the taxpayers of Worcester money and fed several news cycles. Nothing positive resulted.

It is sad that a system that is dependent upon everyone exercising character has shown such a fatal weakness. It is also sad that the only way to ensure that this will not happen in the future is for state legislatures to adopt laws which give the government power to interfere with what has always been the exclusive province of families, religious communities, and other private actors: the treatment and disposition of human remains.

Many small banks will close or be forced to merge as a result of the regulatory costs and burdens of the Dodd-Frank Act, according to a new report.

“If community banks are forced to merge, consolidate, or go out of business as a result of Dodd-Frank, one result will be an even greater concentration of assets on the books of the ‘too-big-to-fail’ banks,” the American Enterprise Institute report stated. “Another result will be that small businesses and individuals who do not fit neatly into standardized financial modeling, or who live outside of metropolitan areas served by larger banks, will find it more difficult to obtain credit.”

St. Louis bankers have been complaining about Dodd-Frank for months.

The authors of the report are Tanya Marsh, an associate professor at Wake Forest School of Law, and Joseph Norman (’12), an attorney in Charlotte, N.C. You can read it here.

Read the full story here.

BOSTON — The body of Tamerlan Tsarnaev, the suspect in the Boston Marathon bombing who died after a shootout with the police last month, has been interred in an undisclosed location, the Worcester Police Department said in a statement on Thursday morning.

“A courageous and compassionate individual came forward to provide the assistance needed to properly bury the deceased,” read a statement published on the department’s Web site and read on Thursday morning in front of the funeral home that handled Mr. Tsarnaev’s body.

An official at the Worcester funeral home that stored Mr. Tsarnaev’s body for most of the past week said the body was moved late Wednesday night and had been interred outside Massachusetts.

The move ends a saga that began when Mr. Tsarnaev, 26, was shot by the police and run over by a car driven by his brother, Dzhokhar, 19, after the two attempted to elude the authorities during a police chase that began on April 18. Mr. Tsarnaev’s body was claimed by an uncle, Ruslan Tsarni, and mistakenly taken to a funeral home in North Attleborough, Mass., before being transported to Graham Putnam and Mahoney Funeral Parlors, in Worcester.

The funeral director at Graham Putnam, Peter A. Stefan, struggled for six days to find a place to inter Mr. Tsarnaev after cemeteries near and far refused to accept the body. The police set up a detail while a handful of protesters admonished the funeral home for accepting the body.

“This is what we do, this is the right thing to do,” Mr. Stefan, who was unbowed by the criticism, said earlier this week. “We’re burying a dead body.”

The body presented something of a legal quandary, as the interment of a terrorism suspect is rare on American soil and unprecedented for Massachusetts. Mr. Stefan considered sending the body to Russia, as Mr. Tsarnaev’s mother had requested, but he could not ensure that the authorities there would accept it.

At one point, Mr. Stefan also weighed burial in the municipal cemetery in Cambridge, where Mr. Tsarnaev had lived — an option that his uncle, Ruslan Tsarni, suggested earlier this week. But the city’s manager, Robert Healy, swiftly urged the family not to make such a request.

“This has never happened before — that a town has just refused to have a person to be buried there,” said Tanya Marsh, an assistant professor of law at the Wake Forest University School of Law. “It’s an interesting mess.”

Read the full story here.

Wake Forest Law Professor Beth Hopkins has written a chapter in a new textbook, “Trauma and Resilience in American Indian and African American Southern History.”

Hopkins’  chapter, “The Making of an African-American Family,” was published on April 30, 2013, in Anthony Parent’s and Ulrike Wiethaus’ new textbook which outlines the historic struggles in the south.

“The chapter chronicles the story of the survival of my mother’s family during the depression, the determination of my grandfather who was the father of eight  children and who walked 20 miles a day to work to keep his family from starving, and the family’s daily struggles which led to a gradual emergence into a successful middle class African-American family,” Hopkins explained.

Hopkins serves as the director of outreach for the law school. Her broad legal experience includes serving as an Assistant United States Attorney in Virginia and Louisiana, an Assistant Attorney General in the Commonwealth of Virginia, an attorney providing legal assistance to various units of Wake Forest University, and an associate in a private law firm.

Hopkins has taught courses for the Wake Forest History Department and the American Ethnic Studies Program as well as a course in Business Drafting for the law school.

The book is now available for purchase on Amazon.

Interring the remains of the infamous has always been controversial. Which is why what remains of the most heinous humans is frequently destroyed. Timothy McVeigh, Columbine shooters Dylan Klebold and Eric Harris, and Newtown killer Adam Lanza, were all cremated.

Martin Luther King’s assassin, James Earl Ray, was cremated and flown out of the country, sprinkled over Ireland. After accused Boston murders Sacco and Vanzetti were executed, their remains were cremated and flown back to their native Italy for disposal as well.

But there are other cases, with more earthly markers: The Boston Strangler is buried in Puritan Lawn Memorial Park cemetery in Peabody. And Charles Stuart, accused of shooting his pregnant wife in 1989, is six feet under Woodlawn Cemetery in Everett.

The legal issues around the burial of human remains is a tricky area of the law, as the case of Tamerlan Tsarnaev, is proving. Part of the reason, is that there simply isn’t much law covering what happens to us after we die.

Guests

Deborah Becker, reporter, WBUR

Tanya Marsh, professor of law at Wake Forest University. You can read her recent piece on thee legal issues involved in the burial of Tamerlan Tsarneav here.

More

Huffington Post “This situation raises several important questions regarding the disposition of human remains. After a person dies, we clearly need to make decisions regarding final disposition, for public health reasons as well as closure for the family and community. But what happens when the remains are those of a person believed to have committed a horrific, recent crime?”

ABC News “While there has been no formal application for a burial permit there, Cambridge City Manager Robert Healey said Tsarnaev wasn’t welcome to be buried in the American city he called home.”

Listen to the interview here.

The Worcester, Massachusetts funeral director with possession of Boston Marathon bombing suspect Tamerlan Tsarnaev has reported that cemeteries in multiple states have refused to permit burial of his body.

This situation raises several important questions regarding the disposition of human remains. After a person dies, we clearly need to make decisions regarding final disposition, for public health reasons as well as closure for the family and community. But what happens when the remains are those of a person believed to have committed a horrific, recent crime?

The answer to the legal questions depends in large part on what state hosts the remains. There is very little federal law on this subject. In this case, Tsarnaev died in Massachusetts and his body is apparently currently located in Massachusetts, so that state’s law is most relevant.

Like most states, Massachusetts law provides that “every dead body of a human being dying within the commonwealth … shall be decently buried, entombed in a mausoleum, vault or tomb or cremated within a reasonable time after death.” (M.G.L.A. 114 § 43M) The person having custody of the remains is charged with carrying out this obligation. In Tsarnaev’s case, his uncle appears to have taken responsibility for his remains after Tsarnaev’s wife refused.

Although the law requires that bodies be decently disposed of within a “reasonable” time after death, it does not provide clear answers about how to accomplish that. For example, no Massachusetts statute requires a cemetery to accept a body for burial. In 2003, in LaCava v. Lucander, the Appeals Court of Massachusetts held that there is no fundamental right to be buried in the cemetery of one’s choosing. In that case, a man who had been convicted of killing his wife asked to be buried in the same Westminster, Massachusetts town cemetery where his wife rested. The cemetery commission denied his request, but offered him a plot in another town cemetery.

Massachusetts law does provide that each town shall provide one or more “suitable places” for people dying within town limits (M.G.L.A. 114 § 10). Although no case interprets this statute to provide that town cemeteries must accept the remains of any person who died within town limits, it is a reasonable interpretation. Tsarnaev’s death certificate indicates that he died at 1:35 a.m. It is unclear whether he died on the street in Watertown, in the ambulance, or at the hospital in Boston. If the funeral director can confirm where he died, his strongest argument is that Massachusetts law requires that town’s cemetery to accept Tsarnaev’s remains. Of course, the communities in Massachusetts least likely to want to bury Tsarnaev are Watertown and Boston. Regardless, he did not die in Worchester, so there appears to be no legal requirement that the town cemetery in Worchester, or certainly any private cemetery in Worchester, accept his burial.

Read the full story here.

The family of the Boston Marathon bombing suspect Tamerlan Tsarnaev killed in a shootout with police can’t find a place to bury him, even as his body is being prepared for just that purpose, The Associated Press and other news organizations are reporting. This raises issues about laws regarding human remains, according to a Wake Forest Law Professor Tanya Marsh.

An uncle of Tsarnaev arrived in Worcester, Mass., on Sunday to “prepare the body” of his nephew for burial and met with the director of the Graham Putnam & Mahoney Funeral Parlors. Funeral director Peter Stefan told the AP that he and the family have been unable to find a cemetery in Massachusetts willing to take the body. Still, though he’s had “no offers” of a cemetery, he expects the suspect will be buried in the state.

“The Tsarnaev burial situation raises some interesting questions about the law of human remains,” Marsh says. “In the United States, unlike many countries, we place the obligation and cost of disposing of a body on the family. Protesters have argued that his body should be ‘sent back to Russia,’ but the reality is that the government has no jurisdiction over the remains of Tsarnaev. It has no power to compel Tsarnaev’s family to do anything except follow their legal obligation to give Tsarnaev a ‘decent burial.’”

Marsh teaches property law and is an expert in the American law regarding the status, treatment, and disposition of human remains.

Of course, that’s the problem, Marsh continues. “The law requires a decent burial, but does not have a mechanism to make sure that happens. Towns in Massachusetts are required to provide suitable places for burial, but no law explicitly compels a cemetery to take a body.”

The one public cemetery in Massachusetts that could potentially be compelled to accept Tsarnaev’s body for burial is the one in Cambridge, since he was a resident in that community. Over the weekend, the city manager issued a statement that he would not sell a burial plot to the Tsarnaev family because it would disturb the peace of the city.

That leaves Tsarnaev’s family and the funeral director caught in a legal Catch-22, according to Marsh.

“They have a moral and legal obligation to give Tsarnaev a decent burial, but no means to ensure that happens. The funeral director has stated that he will ask the government to help him resolve the issue, but there seems to be little that the Commonwealth or the FBI could possibly do besides politely ask cemeteries to take the body. There seem to be two possible outcomes.

The Tsarnaev’s family could ask a court to force the Cambridge cemetery to take his body. That seems unlikely. The most likely outcome is that Tsarnaev’s remains will stay in cold storage until the public furor dies down.”

A small number of demonstrators protested at the funeral home over the weekend, holding signs that read “Do not bury him on U.S. soil” and chanting “USA!” According to The Associated

Press, several people drove by the funeral home Sunday and yelled, including one man who shouted, “Throw him off a boat like Osama bin Laden!”

Marsh added the outcry over what to do with Tsarnaev’s remains is really fascinating because it has attracted far more attention than other recent mass murderers. “For example, there were no protesters outside the funeral home that handled Adam Lanza’s remains,” she said.

Marsh joined the Wake Forest faculty in 2010, following a 10-year career practicing real estate and corporate law in Indianapolis, Indiana, including nearly five years as the Vice President of Legal for Kite Realty Group Trust, a real estate investment trust traded on the NYSE.

Marsh is available for interviews regarding this subject. She can be reached at marshtd@wfu.edu or 317-966-3257.