Home > Journals > Michigan Law Review > MLR > Volume 123 > Issue 2 (2024)
Abstract
Since their inception in the late nineteenth century, privacy rights have been widely understood to terminate with a person’s death. The “no-privacy-rights-for- the-dead” doctrine has been repeated for nearly 130 years. As demonstrated in this Article, the reality on the ground deviated from this common pronouncement even early on. The divergence is so great today that sustained consideration of postmortem privacy is essential. This is especially so given urgent calls to protect the digital assets of the dead and evolving technology that allows for the reanimation of deceased performers and loved ones. This Article provides a theoretical foundation for determining whether, when, and how the law should extend privacy rights after death.
We begin by mapping what we call “postmortem privacy,” revealing both the surprisingly wide extension of privacy protections after a person’s death, and the haphazard, inconsistent, and at times incoherent state of the law. We then interrogate the array of interests that could justify postmortem privacy rights. We first situate this analysis in the law’s “jurisprudence of exclusion,” which withholds rights from entities that lack traits deemed essential for rights ascription. We then consider why, despite the initial impetus to deny rights to the dead, the law increasingly gravitates toward doing so. The best reasons to extend postmortem privacy are rooted not in the ongoing interests of the dead, but instead in the interests of the living and society. In particular, living individuals have interests in the treatment of their future deceased selves that we denominate the interests of the “future-decedents.” The living also have interests tied to their deceased relatives and loved ones that we designate the interests of the “relational-living.” Finally, society has a collective interest in treating the dead with respect.
Postmortem privacy, however, must be bounded both to accommodate competing interests and also to ensure that it appropriately furthers its objectives. Accordingly, in its final part, this Article explores important limits on the scope of postmortem rights, including boundaries of eligibility, standing, temporal duration, and the competing interests of the living, including the freedom of speech. Ultimately, we conclude that there are convincing reasons to recognize postmortem privacy rights. However, the current law, by focusing on commercial value after death as the prime basis to extend rights, is off kilter. Postmortem privacy should be for everyone, not just the famous, and should empower survivors and future-decedents to limit the commercialization of the dead. Instead, the current system incentivizes unrelated companies to exploit and profit from the dead without meaningfully protecting postmortem privacy. Our analysis frames a markedly different normative and practical vision than the one we have today and provides a foundation on which to build a more coherent, fair, and predictable postmortem privacy.
Recommended Citation
Anita L. Allen & Jennifer E. Rothman,
Postmortem Privacy,
123
Mich. L. Rev.
285
(2024).
Available at:
https://repository.law.umich.edu/mlr/vol123/iss2/4
