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Date: Nov. 2021
From: Michigan Law Review(Vol. 120, Issue 2)
Publisher: Michigan Law Review Association
Document Type: Article
Length: 30,737 words
Lexile Measure: 1770L

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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


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...

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Gale Document Number: GALE|A686821815