Viewpoints [1]
Review of Reviews: “In Denial: The Role of Law in Preparing for Death,” 21 Elder L. J. 1 (2013)

Review of Reviews: “In Denial: The Role of Law in Preparing for Death,” 21 Elder L. J. 1 (2013)

Barbara A. Noah, professor, Western New England University School of Law, Springfield, Mass

“I am not afraid of death,” said Woody Allen, “I just don’t want to be there when it happens.”


Professor Barbara A. Noah must have had Allen in mind when writing her not-run-of-the-mill law review article. Actually, it’s a psychological, sociological and philosophical essay.

You’ll want, of course, to read what’s on top, where she quotes philosopher Ernst Becker, but also be sure to mine the footnotes quoting Joan Didion, Kierkegaard and a medieval poem featuring the phrase, “Timor mortis conturbat me” (The fear of death distresses me).


Role of Law

To be or not to be, is not the author’s question. Rather, what is the role of law in preparing for not being?

Right off the bat, Prof. Noah tells us that only 20 percent of Americans have done any end-of-life planning. She discusses the utility (often futility) of existing law in preventing and resolving end-of-life disputes and avoiding overuse of life-prolonging technology. She bemoans the law’s failure to address quality-of-life issues and the inadequate communication by physicians about the inevitable appearance of the Grim Reaper.

Prof. Noah quotes Ernst Becker: “Man is literally split in two; He has an awareness of his own splendid uniqueness in that he sticks out of nature with a towering majesty, and yet he goes back in the ground a few feet in order blindly and dumbly to rot and disappear forever.” (Is this fun reading or what?) 

Becker says that this:


. . . existential dualism makes an impossible situation, an excruciating dilemma. Thus, man resorts to a form of blind obliviousness with social games, psychological tricks, personal preoccupations so far removed from the reality of his situation that they are forms of madness.1 



Prof. Noah observes that Kierkegaard’s concept of busyness seems to explain much of what we do to avoid thinking about difficult truths. This observation is in a footnote, so get ye down there.

“Denial is not a river in Egypt,” said Stuart Smalley (played by comedian and now U.S. Senator Al Franken) in a “Saturday Night Live” skit. This remark has also been attributed to many others, including Mark Twain. I throw it in here to give you a short break from this more-fun-than-a-barrel-of-monkeys stuff.

Another reason for death’s denial, says Prof. Noah: 


As the average life span lengthens, we hear phrases like ‘fifty is the new thirty’ and advertisements for ‘adult communities’ (no longer ‘retirement communities’ or ‘elder housing’) [that] depict smiling, vigorous, nimble people playing golf and tennis. As a society, we also deny the reality of aging and death by celebrating youth and physical perfection and by seeking it for ourselves. We cut, plump, inject with muscle-paralyzing toxins and much more in the pursuit of physical perfection and perpetual youth. As one commentator wryly observes, ‘[o]nce regarded as an unyielding, utterly unforgiving, brute feature of existence, death is increasingly portrayed as a bad lifestyle option.’


Advance Directives

Prof. Noah acknowledges the commentators who maintain that advance directives rarely resolve end-of-life disputes and that they suggest abandoning efforts to encourage the utilization of those directives. Au contraire, says Prof. Noah:


There is a compelling argument in favor of continuing and expanding the practice—namely, the inherent and immediate benefit to the individual of carefully and systematically thinking about and executing an advance directive or, at least, discussing preferences with a health care proxy. Laws encouraging advance directives provide a structural context in which individuals can acknowledge their mortality and make the effort to consider and articulate to themselves and others their values and preferences, resulting in much potential benefit to themselves, their families and their health care providers, not only at the end of life but throughout life.


A Better Way?

So what’s the way to have a better rendezvous with the Angel of Death? Some commentators, says Prof. Noah, have urged developing a simple and effective form that will comply with the legal requirements of all states. Most who favor reform, Prof. Noah adds, agree that legislatures should design laws that make the execution of advance directives simple and affordable for their citizens without the assistance of an attorney.

The Uniform Health Care Decisions Act, Prof. Noah says, provides a template for state laws on advance directives and durable powers of attorney for health care decisions. Comment: As with hoped-for enactment of other “uniform” laws in all the states, we should live so long. 


My Take

I discussed Prof. Noah’s article at a recent meeting of estate planners and raised the question, when does life end? The unanimous answer: “Life ends nine months before the due date for filing Form 706, the Estate Tax Return.” I got to thinking—if the estate tax is repealed, then we’ll all be immortal. But you can’t count on that. 

So, keep in mind the words of Oliver Wendell Holmes, Jr., responding to a tribute on his 90th birthday: “And so I end with a line from a Latin poet who uttered the message more than 1500 years ago: ‘Death plucks my ear and says, Live—I am coming.’”          



1. In Woody Allen’s film, “Annie Hall,” Alvy Singer, obsessed with death, buys Ernst Becker’s book for Annie.