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Fred O. Smith Jr., On Time, (In)equality, and Death, 120 Mich. L. Rev. 195 (2021).

Fred O. Smith Jr.’s compelling new article, On Time, (In)equality, and Death, is a remarkable inquiry that delves into the posthumous rights of individuals and the risks of subordination that persist even beyond death. Smith identifies “four long-standing ‘rights’ after death” – bodily integrity, dignified interment, protection against undignified disturbance once interred, and control over the disposition of one’s property – and subsequently analyzes the potential that inheres in each category for posthumous subordination. These risks overlap with and undergird each other, discrimination compounding dispossession, but Smith identifies four main mechanisms and details how reliance on these mechanisms increases the likelihood of posthumous subordination.

The first site of subordination is linguistic and discursive. As Smith explains, statutory language used to govern burial practices and acts of desecration rely on terms like “outrage,” “offensiveness,” and “reasonableness.” The problem is that these terms are culturally contingent and “imbued with cultural values and norms.” Bodies have been prepared in different ways, burial has involved many different processes, and mourning practices have ranged from public and vocal, to private and silent. Cultural norms, pinpointed in time, have dictated these practices and the variety of approaches taken to death and care for the dead reminds us that the “outrage” accounted for in statutes is co-extensive with whatever it is that ruling bodies and classes find outrageous at any given moment. It would be interesting to have some examples of what Smith has in mind here as evidence of the cultural contingency of burial practices.

Another mechanism for enabling posthumous subordination is inheritance law’s fixation on the idea of “decedent intent.” This concept, which runs through the domain of death and wealth, is a lodestar for courts and lawmakers. In a leading inheritance case about the Indian Land Consolidation Act and the fractionation of indigenous land, Hodel v. Irving, the Court commented that: “In one form or another, the right to pass on property—to one’s family in particular—has been part of the Anglo-American legal system since feudal times.”1 This statement – filled with tragic irony in its imposition of feudal histories on indigenous testation – belies the fact that freedom of testation (and any concomitant care for decedent intent) was historically the province of white men. The trope of decedent intent, meant to memorialize and actualize posthumous agency can also, then, be used to privilege the wishes of those who were authorized to express them in legal format and disregard the wishes of those who never had the chance to set forth their intentions in a will or other testamentary document. Smith does not dwell on this point but it is worth future explication as contesting and complexifying the concept of freedom of testation gives us a better understanding of the field of wealth transfer, more generally.

Decedent intent also matters, Smith tells us, regarding who will carry out of such intent. Which brings us to the third way in which subordination gets reproduced – through “combined legal and cultural reliance on family members as trustees and stewards of a decedent’s interests and integrity.” Kinship, Smith explains, plays “a paramount role” in the protection of family corpses (just think of Antigone), creates default inheritance rights, and determines supervision of a decedent’s privacy rights. However, families whose legality was historically denied and whose relational ties were violently fractured by law and by custom were and are at a distinct disadvantage, subordinate to those families with legally recognized genealogies and family trees. Smith describes this phenomenon – the “ways that violent, identity-based subordination [have] disrupted some individuals’ relationships with their descendants” – as “lineal alienation.” Because family members are living agents for their dead, Smith points out that lineal alienation not only disturbs inheritance right but also disrupts kinship cycles of care and control that begin at death and ensure proper memorializing.

The last way in which death practices have the potential to recreate oppressive relationships, thereby instantiating posthumous subordination, is through collective memory. Collective memory translates concerns about proper care and respect for the dead from the private, family realm to a squarely public one. Here, Smith taps into current debates about monuments, grave sites, and the built landscape of death and commemoration. Smith claims that “custodians’ treatment of the bodies and images of subjugated, stigmatized deceased persons can render them complicit in additional harm to those victims.” That is to say, those acting in current controversies – such as the treatment of newly discovered slave cemeteries or the display of slave skulls in museum – can posthumously harm communities and populations by “reinforcing their marginal status in our nation’s memory.”

Both historically and currently, America has created and compounded relationships of oppression by “subordinating the memory of the dead on the basis of race, ethnicity, and disability.” Think segregated cemeteries or the mass, unmarked graves of those who died of AIDS-related causes in the 1980s. This posthumous subordination has served to build a selective “memory” of what constitutes our nation and its people and represents the counterpart – silent, unsung, concealed, and subjugated – to memorials and monuments celebrating confederate leaders, eugenicists, and sexual predators. Smith leaves the details of rebuilding our imagined nation to future conversations but states that “[r]efusing to detoxify our collective memory is not only a disservice to ourselves but an encouragement to continued assaults on victims of mass subordination.”

Smith’s article is, then, a launching point for thinking about not only how private processes surrounding death and mourning get coded and codified in our current landscape. This article also prompts consideration about where to begin collective detoxification and how to make symbolic as well as economic reparations. It is an article for the times and an article that can help us better conceptualize and regulate death and the practices around death for the future as well.

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  1. Hodel v. Irving, 481 U.S. 704 (1987).
Cite as: Allison Anna Tait, Unearthing Posthumous Subordination, JOTWELL (March 2, 2022) (reviewing Fred O. Smith Jr., On Time, (In)equality, and Death, 120 Mich. L. Rev. 195 (2021)),