Rights of the Dead

Kirsten Rabe Smolensky (Arizona) has posted Rights of the Dead on SSRN. Here's the abstract:

This working paper examines how the dead are treated across a variety of legal disciplines and grapples with the question of why the law gives the dead certain legal rights but not others. For example, survival statutes allow certain tort claims to survive death, most contracts (except those personal in nature) survive death, and at least one court has suggested that the dead have a nascent constitutional right to reproductive liberty. In contrast, testamentary directions concerning the disposal of property are sometimes ignored and some states disallow posthumous right of publicity or defamation claims. While many legal rules favoring the dead might be explained in practical terms as simply an attempt to control, incentivize, punish and empower the actions of the living, such an explanation is incomplete because it ignores cultural norms and an innate desire among the living to honor the wishes of the dead even when those wishes contradict their best interests. Furthermore, consistent use of rights language by legislatures and judges suggest that a series of social and cultural norms guide judges and legislatures to honor and respect the dead, particularly where the concomitant harms to the living are minimal.

This article, therefore, proposes the Dignity Theory of posthumous rights, which recognizes that while legal rules affecting the dead often have a practical aspect, one of the primary, and yet unrecognized, forces driving the creation of these legal rules is the desire to honor the wishes of the dead. In building a case for the Dignity Theory of posthumous rights, the article relies heavily on both Hohfeldian notions of legal rights and the extensive philosophical literature exploring what traits are necessary for someone to be recognized as a potential legal rights-holder. While the paper is still in its early stages, I hope to develop a first cut at a series of principles that will help us think about the way that the rights of the dead are treated. I also hope to explore questions about what it means to be a legal rights holder, how the existing rights of the dead can be enforced, and some of the agency problems created when an estate is acting on a decedent's behalf.

Hat tip to Wills, Trusts & Estates Prof Blog. [JH]