Bottleneckers. William Mellor
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of their lives equipping themselves with knowledge and training that is not directly relevant to selling caskets.”130 Nevertheless, he placed deference to the bottlenecker-controlled legislature above the right to earn an honest living, writing,
The Legislature may determine . . . that protection of the consumer lies in creation of a cartel-like scheme for protection of an industry. . . . The choice of whether to be paternalistic, and, given that choice, as to how best to be paternalistic, was one for the Oklahoma Legislature to make.131
Kim and Dennis appealed the case to the Tenth US Circuit Court of Appeals, but the appellate court upheld the lower-court ruling on August 23, 2004. Like Friot, the appellate court was fully aware of both the inefficacy of the law and the private interests it served. One tenth-circuit judge even noted that the law’s “limitations on the free market of casket sales have outlived whatever usefulness they may have had.”132 The court also acknowledged that by the time it ruled, three attempts to change the law had failed, and in a now-(in)famous quote, it cast its judicial eye on the reason for those failures: “While baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.”133 Nevertheless, the appellate court, too, deferred to the legislature.
But Kim remained undeterred. Upon the release of the court’s decision, she noted, “This is wrong. All we want to do is give consumers a choice to buy their caskets at reasonable prices and where they won’t be exploited or subjected to high-pressure sales practices that are often found in funeral homes.”134 On November 22, 2004, Kim and Dennis appealed their case to the US Supreme Court, but on March 21, 2005, almost four years to the day after they had filed their first lawsuit, the high court declined to review the appellate decision. In so doing, it let stand the demonstrably unrealistic ruling that Kim and Dennis should seek relief through the legislature.
When the 10th Circuit pointed to the legislature, Kim was exasperated. “We’ve tried through the Legislature,” she said. “The Legislature has chosen not to cooperate, and the consumer loses.”135 Upon the Supreme Court’s 2005 decision, the citizens of Oklahoma lost even more as Kim and Dennis moved Memorial Concepts Online to Tennessee, where they eventually, and given Kim’s background not surprisingly, expanded their operations to work with thirty-two funeral homes and cemeteries in nine states, eventually employing more than 130 people.136
As Kim departed Oklahoma, the illusory nature of the legislative remedy recommended by the courts was further illustrated when an attempt to change the state’s law was once again turned back by the bottleneckers. After Representative Coleman left the legislature, Representative Paul Wesselhoft picked up the flag in 2005, introducing a bill to free casket sales from the monopoly held by the state’s funeral directors.137
As before, the powerful funeral-home cartel was instrumental in killing his bill. “My colleagues were receiving phone calls from their funeral homes in their district. They were all against this law,” Wesselhoft recalled, and went on to say,
The funeral industry has a cartel on caskets being purchased in the state of Oklahoma, and that’s unfortunate. . . . [T]hey will definitely contact their representatives if they see a bill that threatens their dominance, and that happened during that time that I ran that bill, and so my bill died.138
In a sort of postscript to the years-long battle, in 2010 Wesselhoft proposed to introduce competition in the state’s casket market by allowing sales by Native American tribes in addition to funeral directors.139
To date, Oklahoma’s bottlenecker status quo remains.
Jestina Clayton nervously approached the armed guard standing outside the US Embassy in Conakry, Guinea. The soldier’s hard gaze and automatic rifle were having their intended effect. Desperate for a visa to escape her war-ravaged home country of Sierra Leone, she, along with many others, had been sitting outside the embassy for three days. Absent the visa, she would be forced to return to a home devastated by civil war and, perhaps, to a terrible fate she had seen befall family members and friends. “Young girls, young women my age were being taken,” Jestina recalled.1 As a child, she narrowly escaped the same happening to her. “We were hiding in a building. My mother dressed me like an old person and then stood in front of me to hide me while the rebels took my best friend.”2
At the age when girls in the United States are just beginning fourth grade, Jestina was worried about whether she would live to see the next day: “I was nine when the civil war started, and for a long time it was just survival, making sure that . . . I’m alive the next day, that my family is alive, and that my friends are.”3 Jestina’s life of survival lasted for nine of the eleven years of Sierra Leone’s civil war.
The war in Sierra Leone began in 1991, forming the bloody climax of a postcolonial history marked by frequent coups, juntas, contested elections, and rampant corruption.4 By the time Jestina was born in 1982, the country had already suffered decades of political upheaval, economic turmoil, social distress, and the pauperization of its people.5 As she grew, her mother provided her as stable a life as possible and passed on elements of a cultural heritage she had learned as a girl, one of which was hair braiding. She learned to braid hair at the age of five, first braiding her mother’s hair and then spending her youth braiding for other girls and women.6 As a young girl and then as a teenager, braiding was more than a way to style hair for Jestina; it was also part of her identity. Little did she know what role it would play in her life in the years to come.
When the civil war erupted in Sierra Leone, her family spent the next nine years struggling to survive in and out of displacement camps, fleeing in the face of rebel soldiers. Constantly aware of the fate of other young girls, her mother insisted that Jestina find a way to escape. Reluctantly, Jestina tracked down the phone number of an aunt living in the United States and used funds her aunt provided her to travel to Conakry in neighboring Guinea—a trip of more than 160 miles—to secure a visa to escape to the United States.
And so it came to pass that this young woman of eighteen approached a US soldier at the embassy in Guinea, not as a naïve teenager seeking a cosmopolitan life in the United States but as a war-weary survivor leaving her family to avoid what had befallen so many females of her age. Through a stroke of luck, Jestina’s request to the embassy guard resulted in an interview, then a visa, and then, in relatively short order, a trip to the United States. On August 10, 2000, Jestina arrived in New York, where she lived with family for three years. She quickly set about seeking to provide for herself. She completed her GED in 2001 and began taking a course in computer literacy. All the while, she applied the knowledge she had gained through her cultural roots by braiding the hair of members of her family.
In 2003, Jestina got married and shortly thereafter moved to Utah, where her husband’s family lived. A year later, she enrolled at Weber State University to earn a degree in political science. Her husband, Paul, was also in college, and they began a family. Paying tuition for two, regular bills, and the expenses that go with having children added up quickly. Jestina and Paul were getting by, but just barely.
Paul worked at the local hospital, and Jestina tutored on her college campus and worked at the student newspaper. She secured scholarships for her studies, and members of her family helped when they could, but the couple had no money for even the simplest of luxuries such as eating at a restaurant. They considered applying for government support but ultimately rejected it. “It’s my responsibility,” Jestina explained, adding:
When you think about how I was raised, we did not get anything from the government. I felt like I needed to handle my own affairs. It was important that we do our best to take care of ourselves. We did not even take financial aid, no student loans. This was about ourselves, not getting handouts. There were times we wanted to give up. It was hard, and after we had our second child, it was