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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 complex and ambitious article On Time, (In)Equality, and Death wakes us up to what we owe the dead, especially the dead who have suffered mass, systemic horrors such as slavery. The article dexterously ties a relatively niche doctrinal area — legal rights and duties regarding dead bodies — to the monumental and pressing question of what we who live owe to the dead and their descendants. His core contention is that the living act as trustees for the dead, not just as individual embodiments of their lineal relations. Moreover, we violate our duty as trustees when we fail to hold and curate society’s collective memory to also honor evolving norms of equality and anti-subordination.

Bottom line: Our generation is complicit in harms of past generations unless we recognize and remedy mass horrors. While he discusses harms caused by both slavery and the colonization of Indigenous peoples, this Jotwell piece focuses on slavery.

Smith’s wide reach across doctrines and theory make this article just as suitable for a Jotwell piece on Estates & Trusts. I write about it here because any reparations argument presupposes a debt.1 Society owes a debt to those it has harmed and their descendants, who inherited those and related harms such as racial wealth disparities. Reparation claims implicate contract theory and doctrine because systemic injustices such as discriminatory credit laws and contracting practices flowed from slavery and Jim Crow to produce and maintain economic harms to African-Americans today. Law as well as public and private actors thus breached the social contract that is supposed to provide equal justice for everyone.2 On Time, (In)Equality, and Death could help legal theory and doctrine overcome specious arguments that passage of time since slavery and Jim Crow currently allows those whom White supremacy has unjustly enriched continue to weasel out of paying their debts.

  1. Doctrine of Unequal Treatment Among the Dead

The first part of On Time, (In)equality, and Death identifies and categorizes the many factual and legal instances in which supposedly dead hands get legal work done. Smith catalogs a wide range of cases in which criminal, tort, and contract law police against desecrating graveyards, wrongfully disinterring buried bodies, and disfiguring or otherwise abusing dead bodies. He distills principles that guide posthumous interests, including the decedent’s intention, the claimant’s relationship to the dead person, and any motive or fault of the people involved. Contracts come into play in the form of estate planning tools such as wills and health care directives, in which living people express binding instructions regarding the disposition of their property, and, in the context of burial, of their funeral and interment. In addition, mortuaries and crematoria conduct their business via contracts.  Breach of a contract to properly embalm a corpse is among the few instances in which contract law has awarded punitive damages.3 And cemeteries long imposed apartheid beyond the grave via restrictive covenants. (P. 238.)

These legal doctrines reflect our biased past. Smith uses recent, compelling cases to show how legal rules that are supposed to honor the dead get applied in ways that re-enact historic subordination of enslaved people and their descendants.

Smith weaves two cases regarding African-America graveyards throughout the article. One involved a slave graveyard lying under a parking lot at Virginia Commonwealth University, and the other case arose out of the University of Georgia disturbing a graveyard during construction. In both cases descendants — including Smith’s own father in the Georgia case — sought the legal protections that law affords to the dead. (Indeed, Smith’s own family story of cemetery desecration is consistent with the article’s core message: Smith honors his own ancestors by writing the article.) In the Virginia Commonwealth University case, a claimant who was likely descended from those buried under the cars essentially demanded that the University “get your asphalt off of our ancestors!” (P. 228.) But he lost the case for lack of standing because he could not prove biological kinship with the people buried there. Both the desecration and the lack of a remedy for it stem from slavery. Slavery excluded those enslaved from the human community in which the dead merit burial rituals and markers, thus leaving the land vulnerable to predation, and slavery also legally erased and broke the very bonds of kinship that would have provided that proof to remedy the desecration. Smith punctuates this Catch-22 story ensnaring the descendants of enslaved people with a procedural tidbit: Virginia law on standing requires only a “identifiable trifle” of a legal interest. (P. 253.) The court’s unwillingness to recognize the harms suffered by descendants of enslaved ancestors — likely his kin — as even a “trifle” shows a willful blindness.

The article also describes how a Massachusetts court likewise refused to honor the claims of descendants who sought to stop Harvard University’s continued use of a eugenicist’s photographs of two enslaved people — Renty and Delia — which he used to support pseudo-scientific claims of white supremacy. (P. 259.) Yet Smith provides one story of an institution that did the right thing by ceasing — in 2020 — to display enslaved people’s body parts when it withdrew from its museum collection a set of skulls of people enslaved in Cuba. (P. 233.) Whether the University also scrubbed the images from the Museum’s digital footprint, and stopped using data collected from these desecrated corpses is another question. (Pp. 226-227.)

These stories and others in On Time, (In)equality, and Death show both how and why more institutions should stop acting like they still own the bodies that their predecessors enslaved.

  1. Theory & Doctrinal Fixes to Right the Wrongs to Posthumous Interests

Smith presents what he calls “fragments of a theory” of “posthumous harm.” (P. 246.) It turns on our collective responsibility to curate collective memory in light of evolving understandings of the wrongs of slavery and subordination more generally. By “collective memory” Smith means French sociologist Maurice Halbwachs’ notion of a reconstruction of the past via, for example, legal narratives, trials, and doctrines, that “adapt[s] the image of ancient facts to the beliefs and spiritual needs of the present.” (P. 241.) Historic preservation laws honor this truth, and Smith’s theory justifies continued replacement of monuments glorifying the Confederacy with those honoring the memory of those dead whom the Confederacy sought to deprive of their very humanity.

Smith then applies his theory of collective memory to propose fixes in the graveyard desecration cases as well as the one involving the body parts and images of deceased slaves. These concrete reforms would have law:

  • Stop requiring proof of biological kinship to those who would prevent desecration of the dead in slave cemeteries;
  • Require more process including notice and opportunities for a hearing before disturbing ancient burial grounds;
  • Acknowledge histories of “violent subordination” and systemic destruction of kinship ties among subordinated people in doctrines policing harms against the dead; and
  • Increase investments in monuments, museums, historical preservation, and other efforts to “counter the corrupted memories about America’s past.” (P. 252.)

These proposals, if adopted, would help American law and society to take the key first step of acknowledging its debts to the dead whom it systematically and violently subordinated, as well as their descendants. Only then can we fashion and award remedies.

  1. Applicability to Other Reparations Contexts

An extraordinarily important implication of Smith’s article is its potential to contribute to a theory of reparations in other contexts. Much opposition stems from the delusion that White people today do not benefit from the White supremacist laws and practices of the past. Recent books such as Dorothy Brown’s The Whiteness of Wealth (2021) and William Darity & A. Kirstin Mullins’ From Here to Equality (2020) systemically dismantle that big lie.

If law does a better job of honoring the dead who suffered America’s brutal subordination and erasure, it may well come to recognize the debt for losses that flow to the descendants of those long-suffering souls. For example, the case In re African-American Slave Descendants Litigation could and should have held accountable businesses and institutions that profited from slavery. But it was dismissed for lack of standing and statute of limitations issues.4 The doctrinal and theoretical lessons of On Time, (In)equality, and Death may provide future claimants with a foundation for overcoming hurdles of standing and statutes of limitation in reparations cases. Along the same lines, the Biden Administration is litigating the validity of a 2021 U.S. Dept. of Agriculture plan to spend $4 billion to help Black and Latinx farmers and ranchers pay off government loans as reparation for decades of systemic governmental race discrimination in the form of lower approval rates, inferior loan terms, inferior loan servicing, and concerted efforts to ignore complaints about that discrimination.5 White farmers successfully claimed that this reparative remedy constituted unlawful race discrimination, so the agency must now re-write the regulation to provide a remedy on other grounds.

Honoring the memories, bodies, and systemically limited life chances of the deceased who suffered White supremacist subordination may chart a course for courts to finally honor the past-due debt owed to the descendants of enslaved Americans for the many ways that government and private actors have short-changed them. To get there, we must first acknowledge the racial harms of the past and their continued economic and cultural consequences today. The theory and doctrine in Smith’s article could inject that needed life into long-overdue claims for both cultural and economic reparations.

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  1. See, e.g., Randall Robinson, The Debt: What America Owes to Blacks (2001).
  2. Martha M. Ertman, Reparations for Wealth Disparity as Remedy for Social Contract Breach, __ L. Contemp. Prob. __ (forthcoming 2022), available at SSRN.
  3. See, e.g., Flores v. Baca, 871 P.2d 962 (NM 1994)
  4. 471 F.3d 754 (7th Cir. 2006).
  5. See Wynn v. Vilsack, 545 F. Supp. 3d 1271 (M.D. Fla. 2021).
Cite as: Martha Ertman, Debt(s) We Owe the Dead as Reparations, JOTWELL (April 22, 2022) (reviewing Fred O. Smith, Jr, On Time, (In)equality, and Death, 120 Mich. L. Rev. 195 (2021)),