The Driving Force Behind Legal Rules Affecting the Dead

Kristen Rabe Smolensky (associate professor of law, University of Arizona) has published her article entitled Rights of the Dead, 37 Hoffstra L. Rev. 763 (2009). 

The following excerpts are taken from the introduction to the article:

This Article argues 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 are cultural norms, including dignity and respect for decedents’ wishes. 

Part II begins by defining “right.” It then examines what it means to have an interest and to be a legal right-holder and spends some time discussing what sort of rights might accurately be characterized as posthumous rights. Part III of the Article proposes that while a desire to control, protect, and punish the living may explain many legal rules, concerns about dignity and autonomy also play a vital role in the creation of posthumous legal rights. In addition to making this claim, this Part also elucidates factors that lawmakers do and should consider when determining whether a posthumous interest should be recognized as a posthumous legal right. A review of several cases and statutes reveals that the following principles limit the creation and strength of posthumous rights: impossibility, the right’s importance, time limits, and conflicts of interest between the living and the dead. Additionally, there may be enforcement problems that further limit the practical value of posthumous rights. Where a decedent’s wishes are not clearly preserved in a written document, the legal system relies on proxies to enforce the decedent’s wishes. Where a proxy is unavailable, courts sometimes employ a best interests test to enforce the legal rights of the dead.  Finally, the Article concludes that the current legal trend is toward giving the dead more rights and suggests that this is acceptable given changing social norms and understandings of death. As more questions about posthumous legal rights arise, this Article provides judges, legislators, and legal scholars a starting point in the consideration of whether a posthumous legal right should be recognized.

 Special thanks to Martin Beglieter (professor of law, Drake University) for bringing this article to my attention.