“Casket Cartel” Takes Monks To Court

Louisiana regulators have decided to appeal a ruling in favor of casket-making monks that found a state law unconstitutional in giving funeral directors exclusive rights to sell caskets. The law has been criticized as a case of a powerful lobby getting politicians to snuff out their competition. Louisiana legislators caved into demands for the protective measures, but Judge Stanwood R. Duval, of the U.S. District Court in New Orleans found that the legislation did not even satisfy the low rational basis test. The regulators are now appealing to the Fifth Circuit.


The monks of the St. Joseph Abbey of Covington have made simple wood caskets to the chagrin of the funeral home lobby. For full disclosure, we buried my father in a casket made by monks on the East Coast. As a lifetime and accomplished wood worker, the simple but elegant casket was much preferred over the garish and gaudy things sold by funeral directors. It was a beautifully hand-made wooden coffin.

Duval saw the law as little more than a monopoly secured from politicians yielding to a well-heeled lobby. He found that “there is no rational basis for the State of Louisiana to require persons who seek to enter into the retailing of caskets to undergo the training and expense necessary to comply with these rules.”

In St. Joseph Abbey v. Castille, Duval noted

With the advent of the internet, consumers can now buy caskets from retailers across the country including Wal-Mart and online retailers such as Amazon.com. (T.T. at 67). This fact is salient in that Louisianians can indeed purchase from these out of state retailers who are not subject to the Act. Indeed, with the exception of an April 13, 2009 Cease and Desist Order issued to National Memorial Planning, the EFD Board has not issued any other Cease and Desist orders to out-of state casket retailers in the last ten years. (Doc. 73, Pretrial Order, Uncontested Material Fact M, at 12). Thus, it is clear that Louisiana consumers are able to buy caskets from anyone out of state—from individuals that are not licensed funeral directors and companies that are not state-licensed funeral establishments. Equally clear is that they do not enjoy this right with respect to in-state retailers. In addition, the cost of these out of state caskets can be substantially less than most caskets offered by licensed funeral directors.

Now, the Louisiana Board of Embalmers and Funeral Directors, indicated that his clients will appeal. Of course, any physical requirements for caskets are spelled out by regulation and can be further articulated in code. However, the regulators insist that you need professionals in dealing with people who are grieving. Yet in his stinging decision, Judge Duval noted that “the only persons being protected are the funeral directors of Louisiana and their coffers.”

Source: NOLA

Jonathan Turley

98 thoughts on ““Casket Cartel” Takes Monks To Court”

  1. “For the funeral industry this was a lucrative payoff, but nowhere near as good as the hundreds of billions that are paid out to public sector employees who represent the biggest lobby force of all.”

    My, my, my. Second comment in and this thread gets hijacked by someone with an agenda. Puzzling, this topic had nothing to do with unions. Even if your allegations about Unions are correct, this was still an off topic comment. That is unless you believe the proper form of discussion is of the:
    Nyanh! Nyanh! Nyanh!, he did it first of children on the schoolyard.

    Are you so protective of business interests that you must find an excuse for anything a business does wrong? You apparently are uninterested in the restraint of trade and harm to a free market done by this regulation. Do you need to rush into each discussion with your political pre-judgments blazing?

    “This is an example merely of another way wealth influences government in the service of the wealthy.”

    In my one comment this was the only arguably political statement I made. I say arguably because do you really doubt its truth Puzzling? Whether there are other elements of undue government influence, perhaps labor, does not excuse the simple fact I stated. As a matter of fact SCOTUS ruling that money is free speech legitimizes it. Forgetting other “evil” influences, do you think that wealth influencing government is good? That is the real underlying topic here, but micro-cosmically pointed at the LA funeral industry. I know you represent a different viewpoint here Puzzling, but it really would be interesting and nice, if in representing that viewpoint you made some effort to stick to the topic.

    I also give assists here to some Turley stalwarts who were drawn into this distraction. What was an interesting, specific topic went way off the rails.

    “Now you can be sure that the Funeral Director’s lobby lobbied hard to get these laws passed. But, who is it that actually passes these laws? Anyone?”

    Well done kderosa. Stick with the disingenuous by restating the obvious and making it appear to be a valid point. This relieves you of having to argue the innocence of the LA Funeral Directors. We ALL know who passes these laws, but the issue is who influences their passage.

    “puzzling:
    I dont think its unions on this one. This is a restraint in free trade. Nothing wrong with unions, people have a right to organize and to collective bargaining in a private company.”

    Roco,

    Well said and to the point. We can agree on some things.

    “Don’t feed the trolls, esp. when they hijack in the manner favored by wingnuts everywhere”

    Pete,

    Thank you for trying to put perspective back into this thread.

  2. KD,

    Your argument, comment and the LR speaks for itself does it not….

    So, if you attack a person for stating that it is a bias article….and I am not going to give it credit as a real LR publication as I most certainly think its a bought and paid for political agenda. Cite me one from Harvard, Princeton, Texas or say even Michigan…..that adopt the policy of advancing private political interests through the LR….Not the opinions of what the law should be….anyways…they are almost secondary authority….they were used to shape a decision or opinions directions and to affirm what people wanted to hear as well as a direction for other cases on point….(or not)….Since the computerization age..they are more and more irrelevant…I bet they are going to go the way of the “advertisement on a side of a bus”…if you paid attention that was a case in Constitutional Law….

    Judges’ Opinion: Law Reviews Are Irrelevant

    According to this New York Times Sidebar column by Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, as evidenced by the declining number of citation to law review articles in judicial opinions. Though some might attribute the decline of law reviews to the increased popularity of blogs (which courts continue to cite with growing frequency), there are other factors at play, such as the larger issue of whether legal scholarship has grown out of touch with the realities of law practice. From Liptak’s article:

    Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them. The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.

    Indeed, it’s the apparent obscurity of law reviews that may have contributed to the rise of popularity of blogs. As the article explains:

    The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles. “If the academy does want to change the world,” Judge Reena Raggi said, “it does need to be part of the world.” To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs. Law reviews, by contrast, feel as ancient as telegrams, but slower.

    http://legalblogwatch.typepad.com/legal_blog_watch/2007/03/judges_opinion_.html

  3. @AY

    “So what is the purpose of the CATO Institute writing a LR article…..of course to give the point that they are trying to make more credibility….in of its own…and all by itself, it has no relevance other than the opinion of its authors…Or least that is the way I am looking at it….So sir, you are suggesting that they are starting the ad hominem exchange?”

    I am not. Their argument speaks for itself, it is as simple as that. The authors and the institute may indeed be biased (all sources are), but that does not mean that their argument is any less valid.

    @LK

    “If every exchange is going to include “you’re making and ad hominem attack” and then an argument over that, them get it right. So booooooooooooring.”

    If less ad hominem arguments were made in this this forum, there’d be less need for pointing out all the logical fallacies.

    As the link points out, while most charges of ad hominem are faulty, some are not. This one is not and I’ve explained why not. Here’s the form AY’s argument takes:

    A: “All rodents are mammals, but a weasel isn’t a rodent, so it can’t be a mammal.”
    B: “I’m sorry, but I’d prefer to trust the opinion of a trained zoologist on this one.”

    B’s argument is ad hominem: he is attempting to counter A not by addressing his argument, but by casting doubt on A’s credentials. Note that B is polite and not at all insulting.

    Now that we know the difference, perhaps we can start making less ad hominem arguments of this form and I won’t have to point this act out so much, boring LK.

  4. pete,

    Real soon would be my guess. What I want to know is why someone hasn’t opened a discount cremation service. Flat fee. Cremation only. Limited choice of urns. Any service you want to have, you arrange yourself. To me, that seems like it would be a booming business.

  5. OS, thanks for the original posting, After reading that I have on occasion when reading the allegation here:

  6. OS,

    I thought your statement was originally directed at me…LOL….

    LK,

    Thanks for the straightener that out…thanks for the refresher…

  7. lottakatz, I think it was me that posted that link back in one of the pie fights. That is one of my favorite pages on what is, arguably, the most misunderstood of all the logical fallacies.

  8. If every exchange is going to include “you’re making and ad hominem attack” and then an argument over that, them get it right. So booooooooooooring.

    Someone else posted this but I saved it, and studied it. Thanks to the original poster, sorry I didn’t keep the attribution.

    http://plover.net/~bonds/adhominem.html

  9. Guess what KD….I have the ability to think for myself and I do not usually pick one piece over another to try and make my points…I however, usually think that law review article are biased and based upon some preconceived ideal…that expounds on what students are given to write…You cited John Marshall Law School….The authors are:

    Ilya Shapiro
    SSRN Author Rank: 7,462 by Downloads
    Senior Fellow in Constitutional Studies
    Cato Institute

    Caitlyn W. McCarthy
    Legal Associate
    Cato Institute

    So what is the purpose of the CATO Institute writing a LR article…..of course to give the point that they are trying to make more credibility….in of its own…and all by itself, it has no relevance other than the opinion of its authors…Or least that is the way I am looking at it….So sir, you are suggesting that they are starting the ad hominem exchange?

  10. I am puzzling over how we got from funeral directors in LA trying to prevent grieving families from furnishing their own caskets, in contravention to FTC regulations, to the arguments just above. If there is any justice, the funeral lobby will lose on appeal, but one never knows what the Fifth Circuit will do when business interests are at stake.

    Now I have stuff to do and people to see.

  11. @AY, noting the potential bias of a source and then discrediting the source’s argument based on the noted potential bias is an ad hominem. You know that.

    Please, half the posts by the guest bloggers on this site are ripped off from biased sources, such as the Huffington Post, Think Progress, and Daily Kos. Should I merely note the biased source in the future and save us all the time of arguing the merits of teh argument?

    If the law review article is so off-based in its bias, you should have no problem regaling us with an exposition of its flawed arguments. Do your worst.

  12. Sir,

    What is ad hominem about my response…It is my opinion based upon what I read…I think Wilson tried it for the benefit of the corporatism…and it did not work because England was pissed at the US for selling arms to both sides of the aisle…

    If you think of it in terms of a Drug deal….You have some one grow them…make them….then sell them…then turn around and arrest the person that bough them for either possessing or using them….and then get pissed off when somebody steals the drugs from you before you have the change to sell them….That is capitalism in its purest form…

  13. AY,

    Why do you think I don’t take certain people seriously? The CATO Institute is a corporatist joke. Next thing you know, somebody will be telling us they aren’t subject to the rule of law and the jurisdiction of the United States because they never expressly consented.

  14. @AY, I thought you gave up your ad hominem ways. The law review article refers to case law and other sources. Like most law review articles it contains advocacy and opinion, but that’s not all it contains.

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