ON TIME, (IN)EQUALITY, AND DEATH.

• Author: Smith, Fred O., Jr.

In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common-features of these discoveries, accompanied by cultural debates about what "respect" means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition.

Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of time, systemic dehumanization, and changing egalitarian norms all complicate efforts to apply traditional legal considerations to disputes about victims of subordination. While, for example, courts usually consult decedents' expressed intentions to resolve disputes, how do we divine the wishes of people who died centuries ago, under a legal system designed to negate and dishonor their intentions? How do we honor relationships like kinship for people who were routinely and forcibly separated from their kin? And how do we assess the motives or culpability of institutions that, in prior generations, were complicit in profound horrors, but now pledge honor and respect?

This Article offers a theory of time and equality to help guide cultural and legal debates about the treatment of dead victims of mass horror. On this account, we can become complicit in past, systemic subordination by dishonoring the memories of victims. Systemic neglect and exploitation of a group's bodies and images can diminish the role of that group in shaping our national memory. And if it is wrong to deny a person the ability to leave a legacy on account of race under contemporary egalitarian norms, then we ought not engage in posthumous acts against the enslaved and other systemically debased persons that perpetually rob them of such a legacy.

INTRODUCTION I. THE CULTURAL CONTINGENCY OF POSTHUMOUS INTERESTS A. Culturally Contingent Terms 1. "Outrage" 2. "Offensive" 3. Reasonableness 4. Respect B. Culturally Contingent Balancing II. TRADITIONAL PRINCIPLES OF POSTHUMOUS INTERESTS A. Intention B. Relationship 1. Kinship 2. Control 3. Contract 4. Community C. Motive and Fault 1. Remuneration 2. Deception 3. Mode of Culpability 4. Forfeiture III. THE ROLE OF TIME AND INHUMANITY A. Intention B. Relationship 1. Kinship 2. Control 3. Contract 4. Community C. Motive and Fault IV. THE ROLE OF TIME AND EQUALITY A. Law, Time and Equality 1. Time After Death 2. Toward Equality After Death 3. Memory B. Posthumous Subordination 1. Posthumous Harm 2. A Theory of Collective Posthumous Harm C. Contextualizing Complicity 1. Lineal Alienation 2. Intentional Campaigns V. LEGAL REFORMS A. Expansion of Cognizable Trustees B. Abandonment Revisited C. Historically Informed Balancing D. Investing in Memory CONCLUSION INTRODUCTION

There is no place you or I can go, to think about or not think about, to summon the presences of, or recollect the absences of slaves.... There is no suitable memorial or plaque or wreath or wall or park or skyscraper lobby. There's no 300-foot tower. There's no small bench by the road. Toni Morrison (1) They were mistreated as slaves, and now they are mistreated in death. Fred O. Smith, Sr. (2) For the survivor who chooses to testify, it is clear: his duty is to bear witness for the dead and for the living. He has no right to deprive future generations of a past that belongs to our collective memory. To forget would be not only dangerous but offensive; to forget the dead would be akin to killing them a second time. Elie Wiesel (3) Physical manifestations of horrors perpetrated long ago stalk the present. (4) During the Trump Administration, fierce debates raged in Arizona and Texas about the federal government's plans to destroy burial sites of Native Americans and enslaved persons. (5) Moreover, enslaved persons' bodies have frequently been encountered across the United States in recent decades. (6) These bodies sometimes hide in plain sight, as with the skulls of Cuban slaves that were on display at the University of Pennsylvania until 2020. (7) More often, they are disturbed inadvertently. (8) Pledges of respect are common features of these discoveries, accompanied by cultural debates about what respect means. (9) When a slave cemetery was discovered at the University of Georgia, a prominent Georgia political leader reminded the public: "They were owned in life, but UGA doesn't own them in death." (10)

The topic of posthumous interests is not new. Indeed, it has long pervaded legal doctrine. Over a century ago, Justice Joseph Lumpkin III of the Georgia Supreme Court observed that "the law--that rule of action which touches all human things--must touch also this thing of death." (11) And while the jurist offered that observation in an opinion about whether a railroad company's negligence caused the disfigurement of a corpse, (12) the statement is no less apt with respect to death's less corporeal, more metaphysical dimensions. Even after life's final hour, important legal questions about human dignity, creations, reputation, will, and equality abound. (13) Law confronts these questions by means of torts, (14) contracts, (15) trusts and estates, (16) intellectual property, (17) criminal law, (18) freedom of information, (19) civil procedure, (20) evidentiary rules, (21) constitutional law, (22) and even antidiscrimination law. (23) Law, therefore, regularly depends on an accounting of posthumous interests. (24) Sometimes, courts are asked to decide whether an alleged offense against a deceased person was "outrageous," (25) "[un]reasonable," (26) or "reckless." (27) Other times, courts must balance interests of the living against the dignitary, reputational, or privacy interests of the dead. In these cases, courts ask whether the reason for a disturbance of the decedent's interests are "adequate]" or "compelling." (28) In other instances, it is policymakers who explicitly or implicitly engage in this type of balancing. Policymakers determine which lawsuits survive the death of a party, for example. (29) And more broadly, they create statutory and regulatory mandates that govern the treatment of cemeteries, human remains, images, estates, reputations, and personal information. (30)

Despite the important legal contexts in which these assessments take place, there is limited legal commentary about how to weigh posthumous legal interests as a class. (31) Those who have written about posthumous legal interests have tended to narrow their inquiries to the "'newly-dead' as opposed to the 'long-dead.'" (32) And even less still has been written about the ways that treatment of the dead interacts with identity-based subordination. (33) This Article fills those gaps. Are there common principles, patterns, or trends to help us decide what's "outrageous" and what's "reasonable" treatment of the dead? How does one determine which kinds of treatment deserve approbation or opprobrium? And how should factors like time, historic subordination, and changing egalitarian values inform the answers to these questions?

As an illustration of the complexity of these kinds of questions, one might reflect on the disparate ways that American culture and law treat the publication of gruesome photographs of dead bodies. The proverbial court of history celebrates the moment in which Emmett Till's mother allowed Jet magazine to publish a photograph of Till's horridly maimed corpse during the civil rights era. (34) The graphic photo powerfully revealed the depraved, murderous, and unimaginably brutish nature of apartheid in the United States. Moreover, with some unease, the United States legally permits people to post photographs of their deceased close friends and family on social media. (35) On the other hand, legal mandates often prevent journalists and others from accessing and publishing gruesome photographs of the dead. (36) Indeed, courts have criminally indicted individuals for "abuse of corpse" when soldiers and others have taken or published photographs of the dead. (37) What accounts for the varied cultural and legal treatment of acts that seem so similar? Part I of this Article shows how American law engages in culturally contingent assessments when balancing posthumous legal interests. These questions only become more complex when applied to victims of past mass horrors.

We need frameworks for addressing these complex questions. And because law has dealt with posthumous legal interests for centuries (at least), legal analysis can play a critical role in constructing these frameworks. Part II of this Article demonstrates how law traditionally values the decedent's will, relationships, motives, and culpability. Generally, three principles are of particular salience in assessing posthumous interests. The first is the consent and will of the deceased person. That is, the deceased person's consent plays a paramount role in determining the legally permissible disposition of matters reasonably within her control. Second, American legal norms take seriously the nature of the living person's relationship with the dead person by virtue of factors like kinship, contract, control, and community. Third, the law takes seriously the intentions and motives of the living person who is acting toward (or against) the dead. Remuneration, deception, and harmful intentions are all treated suspiciously when regulating the treatment of dead persons. Part III applies these traditional principles to debates about how to treat violently subordinated mass victims' dead bodies, burial sites, and images.

In Part IV, this Article focuses attention on the role of time and equality in posthumous legal assessments, demonstrating the law's veneration of our preserved collective memory and its embrace of...