Taboo Trades
Taboo Trades
Bodies of Former Slaves with Fred Smith
Fred and I discuss what society owes to the bodies and memories of former slaves with our co-host, UVA Law 3L Tom DelRegno
Fred Smith Jr., a Professor of Law at Emory University. He is a scholar of the federal judiciary, constitutional law, and local government. In 2019, he was named the law school’s Outstanding Professor of the Year.
Additional Reading:
Smith Jr, Fred O. "On time,(in) equality, and death." Mich. L. Rev. 120 (2021): 195.
Smith, Fred O. "The Constitution After Death." Columbia Law Review 120.6 (2020): 1471-1548.
Holy crap, I have a con law person on here because I don't do the Constitution. Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick. My guest today is Fred Smith, Jr., a professor of law at Emory University. He is a scholar of the federal judiciary, constitutional law, and local government. In 2019, he was named the law school's Outstanding Professor of the Year, and after you listen to this episode, you'll know why. He's with us today to discuss some of his work, including On Time, Inequality, and Death, and The Constitution After Death. I enjoyed recording this episode so much, not only because I learned a lot about a fascinating topic, but because Fred's paper prompted a lot of personal recollections from the group, including from Fred himself, who at the end of the podcast does us the great honor of showing photos of his great, great grandparents who were born enslaved. I'm so pleased to welcome him to today's episode. Welcome, Fred. Thank you so much for being here with us to talk about your work today. And the piece that we read for today, as you know, I am a big fan of it. I saw you present it here at the University of Virginia, and I thought it was one of the most exciting workshops that we had, honestly. It's such an interesting topic. And you did such a good job with it as well. And so I'm really happy that you agreed to come on here. Now, this piece is in the Michigan Law Review. It's On Time, Inequality, and Death. But correct me if I'm wrong, this is part of a series or planned series of papers. Is that right?
SPEAKER_10:That's right. So the first paper in the series is the Constitution After Death, which looks at the rejection of rights after death under Section 1983 constitutional suits. and interrogates that. But even that paper is just sort of trying to also offer a window into what does it mean for someone to continue to have any legal interests after death? How do we even think about that? And then this paper takes the goes back much, much further, right? When statute of limitations isn't really in the picture and all of that. And when someone's not really trying to necessarily file a torch lawsuit to think more broadly about the interests of the long dead and to think about the role of inequality. And it's a paper about how to not be complicit in past horrors. And what I also wanna do some thinking about is how do you create kind of more of an affirmative program that tries to restore honor and where there's been dishonor and dignity, where there's been great indignities. I also want to think about how do you hold people accountable after they pass away? And so there's a paper, and actually it'll probably be the very next paper in the series, focuses just on that. So this paper is about rights and interests But one question that I think is really important that we get a lot is, well, what does it mean to hold somebody accountable? Can you do that? If people continue to have any kinds of interests when it comes to their memory and their will. So I guess that's the overall project. I suspect that at the end of the day, it will be a book and the concept that I sometimes describe this as spiritual reparations. And so I haven't, built that idea fully out. So I'm building each piece and trying to do a deep dive into each piece of the picture. And my hope is that when all of that is complete, that the building blocks for a concept of spiritual reparations will be something I'll be able to move forward with.
SPEAKER_01:Great. So, you know, it's funny, you mentioned your first piece in the Constitution. And as I was looking at your bio, I was like, holy crap, I have a con law person on here because I don't do the Constitution, Fred. You may be, you're going to be the only constitutional person who comes on this show. The students make fun of me all the time because I'm like, I don't, is this in the Constitution? I don't know. So it's a testament to how interesting you are, that I'm willing to potentially engage the Constitution, if required, in order to talk to you.
SPEAKER_10:In the first paper, I wanted to write a paper about the interests of the dead, and because I'm a constitutional law scholar, it was the easiest entry point for me. The paper isn't just about the Constitution, but the Constitution kind of offered an interesting window. Because there are so many cases where the Supreme Court has affirmatively said over the last—well, not the Supreme Court, excuse me—where lower courts have said so affirmatively in the Ninth Circuit, the Fifth Circuit, the Eleventh Circuit— that people don't have rights after death. So that created something of a foil to contend with and wrestle with.
SPEAKER_01:Right. Okay. So I thought it might be helpful to listeners to start with an illustration of the types of issues that you raise in this paper. And one of the cases, one of the examples that you use throughout the paper is an incident that happened at the University of Georgia. It illustrates a number of points that you make in the paper, I thought quite well. And you have a personal connection to that story through your father. And as we're going to hear from Jackson later in the podcast, He also has a personal connection to it. He was an undergraduate at the time. Could you tell us a little bit about that and sort of how it illustrates some of the themes that you're interested in in this paper?
SPEAKER_10:Sure. So the University of Georgia was expanding a building, Baldwin Hall, in the middle of campus. And during the course of that expansion, encountered human remains. And they put out a statement. on their web page, press release of sorts, that said that the human remains belong to Europeans. So that was like in one of the last couple of sentences in the press release. And it's almost like that meme, like nobody, right? University of Georgia, the remains belong to Europeans. And presumably part of what was happening was that they were making clear that they were not Native American remains. Because if there were Native American remains and there's specific federal protections, that would have kicked in. My father was, in a former life, was a journalist. And he went to journalism school at the University of Georgia. And he had reason to believe, based on some things that he had encountered in the 1970s, that this was actually a burial site for people who were enslaved. and really pushed the university to actually test those remains. And they did. And it was determined that they were almost entirely full of demonstrative people of African descent. And what was striking to me I'm sort of an insider because it's my dad, but also, I mean, I don't live in Athens. At the time, some of this, as it was happening, I was actually in Berlin, and I was thinking a lot about the rights and interests of the dead there for reasons, and I hadn't even actually made the connection to the work my father was doing, I'm embarrassed to say. But it was really striking how different the mood, and maybe Jackson can talk more about this than me because he was there, but how different the mood seemed when it was discovered that they were enslaved persons. There were symposia. There were different departments, including the history department, that launched conversations and research projects to learn more about the individuals who literally built the University of Georgia through exploitation and force. And that kind of created something of a puzzle for me, which is it seemed just commonly accepted. that there was something special and different the moment that it was discovered that they were enslaved persons. But why, right? Why is that different? And that's the question, in some ways, the research question at the heart of this particular paper. And it makes the case that there are reasons rooted in philosophy and history for why that intuition is one that has value.
SPEAKER_01:Great. Thank you. That's a really helpful starting point. I'm going to let Tom introduce himself, and then I'm going to ask a couple of questions, and I'm going to turn it over to Tom after that.
SPEAKER_00:Hi, Freda. I'm Tom DelRegno. I'm a 3.0, and thank you for taking the time. It's a pleasure. It's a pleasure to
SPEAKER_01:be here. One of the things that we found very interesting is the discussion of outrage and offensiveness. This is something that comes up in in our class a lot with a lot of the types of transactions that we're interested in. And one of our conversations is sort of always how difficult a concept it is to get at in any consistent manner, especially as Caitlin, one of the other students in the class is gonna raise later given changing times and customs, which are of course very relevant to your work. But even in a case that's just involving you know, a current case. we find it difficult. And so one of the cases that we talked about, I keep saying case, but what I really mean is example, was the example of the autopsy that was performed in Portland in front of a paying audience. And I don't know whether you followed that discussion in the news at all, but we thought it implicated a lot of the issues that you raise in the paper, and in some ways without the complication of the passage of time and changing cultural values. And it's still really difficult, a lot of the issues that you raise. And so I'll give a brief synopsis of what happened for listeners who might not know. And Fred, if there's anything that I leave out that you think is relevant, you just add it in. But essentially, there was an autopsy that was performed in a hotel in Portland in front of a paying audience. There's, I think, some dispute about what the motives of the audience were, but there's no question that it didn't take place in a medical school or in a formal educational environment. And I think there's likewise no question that the people that were there paid a fee for that specific event. And I think there's also no question that the widow who donated her deceased husband's body felt that she had been misled and potentially even lied to about the use to which it would be put. Although, like so many of these things, it's a bit vague. I think she was probably told it would be used for research or autopsy. And then the question is just, you know, is this what is contemplated when you say something like that? And to most people, it's not. But so one of the things we just wanted to sort of get your take on is how, if at all, this sort of brings up some of the issues that you bring up in the paper. So a couple of the ones that I thought about were the lack of or defective consent and possibly even deception, which you mention a lot in the paper. And that's an issue here with the widow. The issue of remuneration, which you bring up in the paper. The question of outrage and offensiveness is front and center here, Although for some of us in the class, and we were divided on this as we are on lots of things, for a lot of us, it's hard to know what's really offensive about this, right? Is it the fact that it's not in a hospital? Is it the fact that it's not in a medical school? The payment itself was clearly offensive to a number of people. Many find the motive of the participants offensive, although I feel like we don't know what that motive is. So anyway, we just wanted to get your sort of take on some of these issues and how they relate to your work in this area?
SPEAKER_10:Yeah, absolutely. So part of what that part of the paper where I kind of look at outrage and look at offense and try to tease out what are the different things that lead to people concluding that something is outrageous and offensive, which I know is something you all think a lot about in this particular class. It's really, it's more, in some ways, it's more descriptive than normative. It's trying to actually get a handle on what are the principles and characteristics that we often see or most often see when we call something offensive or outrageous. And you put your finger on a number of them, right? So to the extent that the family, like if the family and, you know, or even better, before the person passed away, they said, I want my body to be able to be used before a live audience, then that's different than when that's not the case. Or, you know, to the extent the family gave some consent, if there in fact is deception, right? Deception is something you see show up a lot in these cases. And so if a court is persuaded that in fact there was deception, that's going to weigh in favor of outrage. And if there wasn't such deception, that's been away the other way. And remuneration was one where I went and going into this, I didn't expect to kind of to bump into it, but I'm glad I did because I probably wouldn't be here if there wasn't a part of the paper about remuneration. But it seems like when someone is getting paid and for something related to the interest of someone who has passed away, especially when there's no consent, then people are more likely to find it outrageous than when there's not a payment. And so all of those factors seem present, so it's not surprising to me that it's a case that is causing those sorts of controversies for all of those reasons. I think, again, if you put your finger on exactly the variable that makes a controversial case.
SPEAKER_01:Interesting. So this is a good segue into one of the parts of the paper that I found particularly interesting is the interaction of consent and remuneration. And it's one of the things that I had asked you about when you were here. And I wanted to get you to discuss it a little bit more, if you can. And it may just be speculation, right? Because as you and I sort of discussed when you were here, I don't know what to make of the cases in the remuneration section. Precisely because almost all of those cases had problematic consent issues, either no dissent or defective consent. And so I don't disagree with you that remuneration is relevant. I mean, that's basically what this class is about, is the way in which payment turns otherwise unproblematic activities into something that we find troubling. So I don't disagree with that, but it's hard for me to tell how large a role it really plays in these body desecration cases. if the profit motive had been present, but consent was also robust, you know, how then, how would we balance those considerations? And so did, did your research into this give you any insight into that issue or is it just an open question? So
SPEAKER_10:there is a, at one point there was a line in this paper that says something like in that order where I was, where I was, Building on my instinct that actually I do think consent is the most important variable in these cases. The reason the line dropped from the paper was that I think it's more of a hypothesis than a thesis. I didn't feel like I had sufficient support for that argument. here, some readers may disagree, and I hope they do, because I do actually think that consent is the most significant variable. As
SPEAKER_01:you know, I agree with you, and I feel like, you know, to the extent you're right about that, it really strengthens your case, you know, or the case for the types of examples that you're talking about being very special in a variety of different ways, right? That's true. Apologies. Did I interrupt your train of thought there? No,
SPEAKER_10:not at all. No, I mean, I think that really... I do think consent is the most important. It's why I lead with it. Perhaps when I'm more comfortable with the support, I may lean a little bit more into affirmatively saying, this is the order of importance. When I went into this, I almost imagined having a pyramid of sorts with consent being the most important and stable. That may not be the right analogy, but that's the That's what I hope to build out of this project.
SPEAKER_01:Well, and I think it, you know, I think you're correct to identify it as difficult as being, as knowing how to tease out these various factors. Because would something be as outrageous if there had been consent? Maybe, maybe not. You know, often what the court says it's doing in these cases is not at all what the court is actually motivated by in these cases. And so, you know, I think you're correct to be cautious. Don't get me wrong. But To me, I am sort of in your camp with the consent as both a descriptive and a normative matter. I'm gonna turn this over to Tom who wanted to talk to you a little bit more about some of the tests that you discuss in the paper. So Tom, let me give it to you.
SPEAKER_00:Yeah, I did have kind of two general questions, but one touched on the balancing test that you mentioned and sort of how information on availability factors into that process. And so it seems a theme in your article is that sort of a lack of knowledge about the dead can foster increased potential for posthumous harm. For instance, a lack of knowledge about family history can result in a smaller number of known descendants to protect posthumous interests, particularly in decisions of how to treat the dead. And then, of course, the article also touched on how in certain jurisdictions a balancing test governs the decisions that are made. And it seems a potential concern here might be that because so often identifying information about the dead and their lineage was intentionally obscured, that a balancing test might be, in a sense, skewed from the outset to the extent that the perspectives of the descendants as a factor would very often be absent. And so on that point, you know, where known descendants are few due to what you term a lineal alienation, in the case of subordinated groups, should we be wary of using balancing tests as a general matter or rather kind of focus on implementing principles to ensure that such tests are applied fairly?
SPEAKER_10:Sure. So is it kind of a rules versus standard kind of a...
SPEAKER_00:Yeah, in a sense, absolutely.
SPEAKER_10:Yeah. You know, part of what I'm getting at here, I think, is that as the... I'm trying to get a handle on right now, how do we understand outrage? How do we understand offense? What goes into that? And then think through what makes it so difficult, A, when you're talking about the long dead, and B, what's special when it's dealing with circumstances of inequality. And what I want the main contribution to be is, on that score, is that we can become complicit in past inequality, in part because of things like lineal alienation. And so just to build that concept out, so lineal alienation here, it's an amendment to or in dialogue with Orlando Patterson's concept of natal alienation, which was the view that that one harm that people can experience and that enslaved persons experienced was a disconnect from their history, their heritage, their past, the language of their birth and their ancestors. And the focus in that is very much on, I'm going to call it social death, but it's very much on the person who we would understand as a living being. And the concept of lineal alienation says, well, that's true, and also it works in the other direction, too, that there are individuals in the past who have fewer people to care for their legacies and their memories. And in part because people don't know who their ancestors are, right? And so the descendant experiences some harm in that story, but also the ancestor experiences harm in that story as well. Now, you said, and part of what I hear in your question is, so what does one do about that from a legal perspective? And It turns out that when bodies or human remains are encountered, when people are able to make the case that they shouldn't be disturbed, a number of states, including Georgia, do have a balancing test of sorts. I think it's hard to entirely get out of balancing here for lots of reasons, but one reason is that the interests of the living are still very much present. And I think there has to be some degree of balancing on that front. I mean, it can't be the case. I don't think it's the case that the living should always win. Obviously, I wouldn't have written this paper. But at the same time, it can't be the case also that the interests of those who passed away always prevail. But when we're weighing the interests of those who've passed away, that inequality, that lineal alienation, should be a part of what we take into account. Because the risk that we're going to be complicit in unimaginable horror if we don't is so high. So that should be a part of, I think, what we take into account. So I think I would continue to endorse some balancing here. But as we're doing it, weighing that past inequality, that past inhumanity, and the possibility of becoming complicit should be a part of what we're thinking about.
SPEAKER_00:Yeah, and on that note, it also seems we've encountered laws that aren't necessarily conscious of this in the instance of, say, where it's easier to move remains that are discovered unintentionally as opposed to when prior knowledge of their existence is had. And in a way, that seems to incentivize the loss of information or not investigating information And so I imagine perhaps you might suggest that laws be more conscious of how any lineal alienation plays into this and how we should make restructure incentives in that area.
SPEAKER_10:That's exactly right. The fact that the University of Georgia had fewer legal responsibilities because it forgot where its slaves were buried you know, as my professor Pam Carlin used to say, cannot be the law, right? Or, you know, or in this instance should not be the law. And so when there should be some degree of an investigation into those human remains, and we have a model for that in NAGPRA, which is about Native American graves and protects Native American grave sites. And so that might give us something of a passport for what to do when we encounter the bodies of former slaves, which happens, as I write in the paper, it feels like with increased frequency. I mean, at the University of Georgia, it happened here, but I know that y'all are aware that it also happened at the University of Virginia. And it's happened near a number of college campuses, in particular, the University of West Georgia. I have a list and a footnote, I think, pretty early in the paper about lots of places where this has happened, mostly in the American South, but not exclusively even. And New York City, actually, is an example from the early 1990s. And so, yeah, I think we need a stronger model for how to deal with these moments.
SPEAKER_01:Courtney had a follow-up on that exact topic. So, Courtney... Do you want to?
SPEAKER_07:Yeah. Hi, I'm Courtney Inman. I'm a 3L at UVA Law. And thank you so much for talking with us today. Excited to get to hear more about this topic. On the note of like the Georgia law of like the treatment of burial grounds that are discovered and the fact that you can't like the undercurrent law. You mentioned how the Georgia law doesn't go far enough to protect bodies discovered inadvertently. So one of the things that I was wondering when I was reading through this is like, how does Georgia even go about monitoring whether a discovery is made inadvertently? like what if somebody was informed of the possibility of graves on their property, but then they could just go and privately search and dispose of the site to avoid any kind of obligation to preserve it? And kind of like, is being informed of the possibility the same as being made aware of the presence of human remains?
SPEAKER_10:Sure. So there is a department, and I wish I could remember the exact name of it, but there is a department where this is one of their responsibilities. So when someone encounters these human remains, then they are supposed to kind of make sure that they are in compliance before they engage in any sort of removal. So there is some consultation. Now, in this case, right, it's the University of Georgia, so it's the state consulting with the state. But there is a mechanism in place. And so they got the go-ahead here. before they moved forward.
SPEAKER_01:Interesting. Fred, so related to that, you mentioned how many cases there have been at American universities, and part of that is no doubt just because of the complicated, to put it charitably, relationship that many American universities have with slavery. Is there more to it than that? I mean, going to these sort of incentive issues that both Tom and Courtney have raised, I mean, Is there any possibility that we know more about the university experience because universities have in some ways been done a better job of sort of addressing this possibility or no?
SPEAKER_10:Yeah, I mean, I think it's more because of the complicated relationship and the fact that for some Southern universities, enslaved people literally built campuses, worked on the campuses. there's this language that you see sometimes in cases from the 1800s where they'll say they hired, or really the right word would be, this is a horrible word to use, but it's more accurate, rented. And so even when they didn't themselves own slaves, they were paying slave owners for the use of labor. And so it strikes me that that's Probably more likely. Why? Because, you know, in the University of Georgia story, again, this wasn't an instance where they, because of their great knowledge and wisdom and the fact that they're such a great research institution, that therefore they knew. I mean, they said they didn't know. They used to know.
SPEAKER_01:They quote, forgot. I like that line in the paper, by the way. Yeah.
SPEAKER_10:Thank you. Yeah, that one came from the ancestors. Sometimes, like, I'm just typing. I'm like, oh, whoa, okay, where did that come from?
SPEAKER_05:Okay, so Neva. Hi, I'm Neva Jones. I am also a 3L, and I think my question builds off of what Courtney was saying a little bit. Is your article, is this an ask to be treated equitably in death like every other set of remains, you know, requiring the same process, but perhaps with a little more flexibility regarding standing in order to account for that lineal alienation that you talked about? Or does the fact that these are the remains of enslaved persons drive a different, a more different consideration in depth? So you mentioned
SPEAKER_02:NAFTA
SPEAKER_05:as a model. Are you saying that because these are the remains of enslaved persons that each grave should be held sacred or... or are you just advocating for additional process?
SPEAKER_10:Yeah, great, great question.
SPEAKER_01:She has a knack for going straight to the heart of every paper, just let me tell you.
SPEAKER_10:Yeah, that definitely does. I mean, I actually got a really similar question when it was still in pretty early draft form at the University of Chicago. And it kind of made me think, well, what exactly, especially in that last part, How far am I going? And in this paper, it's only about complicity and it is about at a minimum trying to reach some level of equality, right? And that the failure to reach that level of equality is complicity. I want to save, which is why there's no part of this paper about an equivalent for NAGPRA for African-American burial sites. I want to save that bigger question about what's owed for another project, because I think if we do a deeper, if we do deeper thinking into what's owed, it's not going to probably end at bodies. The fact that there are interests that matter here and there's inequality when it comes to the way that we think about dignity and the way that their humanity has been treated, that their memory has been treated, that their will has been treated, I think is a potential invitation for us to ask broader questions about, well, how else was their will disrespected? How else has their memory been disrespected? What other lies are there in the great American story? And to what extent do those lies not only deserve us, but deserve them? And those are some of the... The human remains... I think I'd say that at the end of the paper, they're almost like witnesses. This is a moment for us to ask broader questions. a broader set of questions, which I intend to answer, but haven't so much in this
SPEAKER_01:paper. Great. So I was going to, Jackson had raised a similar question to Navaz, but I also did want to just turn to him because he was also there for this event. And so Jackson, can you, I mean, it was interesting to me to hear about it from the perspective of, you know, a white undergrad to be perfectly blunt about it at the time. So Jackson, can you weigh in here?
SPEAKER_03:Hi, yeah, I'm Jackson Bailey. I'm also a 3L at UVA and I graduated from Georgia in 2019. So, and I was also an international affairs major, which is what Baldwin Hall was built for. So I think that was particularly pertinent. And when the bodies were actually found, I was only a freshman. So I think my experience of it was very limited in that I'd only been on campus for, I guess they're found, I think in November, so three or four months. And so from what I remember is a lot of emails specifically from different departments, as you mentioned, the history department and others started taking a real interest in a stand against what the university was doing with these bodies or lack thereof. And so I remember just, if you hadn't checked your email, maybe, you could just go about your day without ever realizing what was occurring on campus. And especially Georgia is a pretty large campus and many people don't even go where this building was. And so some of the protests and gatherings were happening on the side of the building. So if you weren't in that area of campus, you would have no idea. And so I guess from my, and when Professor Kravik was saying, we're gonna talk about this discussion, it sort of brought up that memory that I honestly had forgotten about. And so I went back and read more about what had happened. And then after reading your paper, it sort of filled in the gaps from my personal experience. But I mean, she's completely right in saying as a white undergrad, especially as a freshman who's not as plugged into campus, it felt very brushed to the side by the university. And I'm sure if I asked some of my friends from undergrad, they might not even have any recollection of what happened. So I thought reading your paper was very important and enlightening for me as someone who was literally there while this was occurring.
SPEAKER_01:One of the unexpected benefits of Fred's visit is the way it brought out personal recollections from a number of the students, including Jackson. I'm so thankful to him for his willingness to share his recollections. And there's really no higher compliment to a scholar than to be told that your work caused someone to revisit and rethink parts of their past.
SPEAKER_10:Yeah, I find that really, thank you for that. And I find it interesting on a number of levels, right? So one is, this is a place I'm sure where um where my my proximity to to the event uh you know makes me more aware of the publicity right so my um my dad was on the front page of the atlanta journal constitution there's a there's a documentary uh about about baldwin hall um that you know that but but right i mean to your point um you know it's not like everyone saw that documentary and So that is the first point. And when I actually, I'll say this too, I went to the University of Georgia around the time and saw and went to a community town hall and it felt large, but, right, it is over 30,000 people who attend the University of Georgia and there weren't 30,000 people there, right? So for some segment of the population, and it wasn't all Black folks, right? Part of what I think struck me was how much it affected a lot of white individuals and how it kind of brought them into conversation and into deep thinking about what was owed in a way where maybe they hadn't thought as much about that before. But yes, but certainly it wouldn't have been most people perhaps. And then your other point is, the way that the university handled it. They handled it in a way where it might have facilitated conversations that were siloed. They certainly didn't handle it the way that UVA did. Is there a memorial of some kind at Baldwin Hall today? Yes, there is a small memorial. Is it anything like what's present at UVA? Absolutely not. There's a big gap And I'm pleased to say, because I'm speaking to a UVA audience, that I think the way that the University of Virginia handled it was much better. And I think sometimes in these moments, I suppose administrations, you can lean all the way in or you can get really scared and just try to barely touch it. And I think the University of Georgia was closer to the pole of being scared at least at the highest level, at the president level, et cetera. And then, you know, I think University of Virginia really sort of kind of leaned into the invitation to ask more questions and to talk about it. And that's just, that's my perspective. Like I'm not, I'm not at UVA. I haven't spoken to people in Charlottesville. It may be the year that I would learn more. But I was really struck by the memorial when I got to visit the University of Virginia. It was one of the things. I felt like I was like, OK, I can't come to the University of Virginia campus and not go to that site, especially when I was presenting this paper. And I thought that that memorial is very memorable and very moving, and it's something that I think a lot of visitors to the University of Virginia will experience, students in the years ahead will experience. And it really tries to do a job, a good job of telling both the individual story of the people who were exploited while contextualizing it within identity-based exploitation. that was shared when it came to people of African heritage at that time. So I thought that was very beautiful. And I think more institutions should lean in that way.
SPEAKER_01:That's really interesting, Fred. And so the combination of Jackson's sort of perspective and yours seems like, I mean, it of the many things that universities might do better about these things is to remember that students are a big population at a lot of these schools and won't necessarily be keyed in to the fact that this discussion is taking place. And so perhaps more affirmative, outreach needs to happen. And as you mentioned, the memorial, memories are short. And so, to the extent we want something more of a recollection and reckoning from people beyond just those who were there at the time to have the discussion, then that's worth remembering too. And as you said, the, the memorial that, that UVA did is one way of doing that. And I'm sure there are others, but is perhaps something that universities particularly could, could, can focus on as they grapple with these questions. A group of students, Caitlin Madison and Caitlin, there are two Caitlin's here, all ask a version of a question that I think is, you know, as I said, Neva's question, I thought goes, really to the heart of the paper. I thought this one did too. And it was one that I thought came up at our UVA faculty workshop also. And it's sort of broadly stated and they all have different sort of perspectives on this broadly stated question. But, you know, there are sort of versions of whether we really care about the rights of the dead or whether we're really concerned about the rights of the living and are sort of saying it's about the dead or the quote rights of the dead as reflected through the preferences of the living or whatever. And then sort of assuming that the dead you know, do have some independent rights or should have some independent rights, then sort of how would we balance these? And you do have a long, just to alert readers, listeners, you do have a discussion of this in the paper, referencing Martha Nussbaum and Herzog and Feinberg. But so these are just sort of follow-up questions to the discussion that you have. And I'm going to start with Caitlin Stallings and then turn it over to Caitlin O'Malley and then Madison That's my plan. But if you guys want to do something different, or if you feel that your question has been answered, just tell me, it's fine. So let's start with Caitlin Stallings.
SPEAKER_09:Hi, Fred. My name is Caitlin Stallings. I am one of the Caitlins. And I am also a 3L here at UVA. My question is sort of kind of the most basic version, I think, of the three of ours about this topic. My question was, Really, I have two. How can we ensure that we're assessing the interests of the dead as opposed to the living and not substituting our own interests or the interests of descendants? And also, how can we be sure that we get those right, especially with respect to the long dead, and even more especially with respect to the long dead enslaved who were not able to leave any sort of written wills or testaments?
SPEAKER_10:Yeah. Okay. So yeah, so I agree that this is one of the, this does also go to the heart of the matter. And when I was presenting an earlier version of the first paper at the University of Chicago, by the way, the two workshops that I have found to be kind of like the most hot seat workshops and the most useful in terms of my thinking on topics has been the University of Chicago, where I visit from time to time, and the University of Virginia. The University of Virginia, they did it with more of smile, but the questions for everybody to talk.
SPEAKER_01:I'm going to copy this portion of the podcast and send it around to the whole faculty. No.
SPEAKER_10:But in terms of this question, how do we figure out which is which? So first, I'll just resort actually to the first paper, which I know you haven't had a chance to look at, but there's a 1926 opinion by Judge Cardozo that helps us in thinking through this. And this was a family was attempting to disinter their family member's body and move it somewhere else. And there was reason to believe that that would have violated the person who is buried's religious beliefs. And Judge Cardozo said, only some rare emergency could move a court of equity to take a body from its grave and consecrated ground and put it in ground unhallowed if there is good reason to suppose for the conscience of the deceased, were he alive, would be outraged by the change, right? And so I think thinking about moments in which the interests of the person who passed away and a family sometimes might be the best way for us to understand it. That is one of the things that the law is trying to take into account. It's not the only thing the law is trying to take into account, but it is one of the things that the law is trying to take into account. Another example would be if there were a law, and there were such laws, that said things like, this is how we treat Black dead bodies, and this is how we treat white dead bodies, including people who may not have had families at all. And so in those instances, I think we today would say, no, but that's still wrong. The fact that someone didn't have a family shouldn't be a sufficient reason. So if a state passed a law that said, we're going to treat Black dead bodies of people who don't have families this way, and we're going to treat white dead bodies of people who don't have families this other way, that would set off alarm bells um that really are both about equality and also about the interest of the people who passed away now what i also hear you asking though and this is a really important question is uh well then isn't but isn't it really difficult to make sure that we have the right trustees and the answer is yes uh and i try not to shy away from that too much in this paper, the fact that that is difficult, I think I'd kind of give you an hypothetical, like the black preacher says this and the NAACP president says this other thing, or even like this probable family member says this and this probable family member says that. And I think it is really difficult to resolve those questions. But in the paper, what I argue though is that from a procedural standpoint, that still the procedural protection should kick in such that there is some sort of a hearing where we even ask these questions or even invite the various potential trustees into the conversation, into the story, and we hear them, right? So, or in the context of standing, if a person who believes that their ancestors were buried there and has a relationship with a burial site outstanding, that doesn't mean they win, right? It just means then that we get to enter into these really difficult and messy conversations. And so then one might ask, well, if it's difficult and messy at that stage, why ask it? And I think there's lots of reasons, but some of them sound in questions of procedural justice. There is value in in actually taking the time to apply procedure, to apply the norms of justice that we believe ourselves to be able to at least try to uphold in the law, as opposed to taking ourselves out of the conversations altogether. And the examples that I have in the last section of the paper are examples of, or at least some of the examples, are examples of courts taking themselves out of the legal equation entirely. And we don't even get to the thorny and messy questions that I acknowledge are inherently thorny and messy. And they're messy in the NAGPRA context too, Native American scholars have told me.
SPEAKER_01:So Fred, just to follow up on that and to go back to your example of the Cardozo case. And one of the things, the Cardozo opinion, And I wonder how much of that is about sort of thinking about– and these two may be the same in many instances, but it strikes me that in the case of former slaves, it's not likely to be the same. So the question is– How much of this is about the consent or preferences of the deceased and how much of it is just a blanket presumption that we don't disinter bodies? And those two, in most cases, might go together, right? That it's fair to presume. I'm not sure that it is, but I can imagine it being a rule that it's fair to presume that the deceased person wanted to lie where they are now. But in the case of the bodies of former slaves, that seems like a stretch, right? And so I wonder whether that entire line of thinking is just sort of inappropriate or unsuited to the types of cases that you're interested in. Yeah.
SPEAKER_10:I mean, I think I'm comfortable with the presumption against disinterment. That said, I have heard of stories where not just– possible family members, but demonstrable family members, have been in favor of disinterments and where that has taken place. So there's, I don't know if this is in the paper, because I may have learned it after I wrote this paper, but in middle Georgia, there was a burial site of a former slave that was encountered as a highway was being constructed. And there's a pastor who lives here in Atlanta, I think Skip Mason, who is very much a historian and in his own family, a family historian, and knew that he had ancestors buried in that very site. And he was in favor of disinterment and and learning as much as we could about their stories, about their individual stories, based on what might have been buried with them, et cetera. And I told my dad that, who had this very strong reaction against disinterment at University of Georgia. And he said, but at least they asked. What was different is, at least they took the time to try and to ask. And so I think in terms of trying to get this right and trying to avoid complicity, it may not look the same in every example. But in terms of if the motive is to try, that matters.
SPEAKER_08:So I'm going to turn to Caitlin O'Malley, the other Caitlin. Hi, Fred. Thanks so much for taking the time to talk to us. I'm Caitlin O'Malley. And there was a quote in your piece that really stuck out to me, specifically, identity-based maltreatment of the dead can stigmatize, terrorize, and civically deflate living individuals who share that identity. And the question that I had that is kind of born out of that, and I think underlies this discussion in a lot of ways, is whether the dead themselves have inherent interests given their presumed and ability to experience anything? Or are all the legal interests that are protecting the dead traceable to the living somehow? So maybe the family's interest in preserving the individual's memory and dignity or some sort of a societal interest in preserving a collective memory?
SPEAKER_10:Yeah, so I do think it's both. And in that quote, I am getting at some of the things that are about the living, right? And in the constitution after death, in a part of why, in that paper, I do talk a little bit more about the living in part because one of the arguments that courts had made or something that was in the, I try not to say arguments about when it comes to courts, but some of the reasoning that was in judicial opinions there was that there were no policy reasons to recognize the interest of the dead. And so I was countering that. And in doing so, I did talk in part about some of the interests of the living, including the terror that living people have sometimes experienced. And I won't go into details, but in that first paper, some events after lynchings and so forth that really were both about the dead and about the living. But how do we know that it's in part about the dead too in those stories? Well, some of it is that the way that living people, where they were attempting to terrorize living people was through dehumanization, right? They're attempting to... So it's a way of saying this person, like you, you're not human. You're living people who share this identity and you, this person who passed away. And the language of rights when it comes to law is uniquely situated to... to recognize the humanity, right? So you almost have to recognize the humanity of the person who passed away in order to deal with the fact that dehumanization was the mode of terror and stigmatization of the living, right? So that's one point there. So that's on the dignity piece. In this paper, I also lean more into the philosophical arguments about how When someone passes away, it's possible to harm them by dishonoring their will from when they were alive. So people have human pursuits when they, in fact, are alive. And one way that one can harm someone is to interrupt or dishonor those interests. And so the example that appears sometimes in philosophical literature is someone on their death that says, son, will you please take this$10,000 and give it to, and all of you can think about your favorite charity. When the son says, yes, dad, absolutely. Then the dad passes away and the son gives it to, now think about your least favorite charity or your least favorite way for$10,000 he spent. And it gets spent that way. And in that moment, what has happened is that the son has done harm to their father's interest from when they were alive, right? And the intervention that I make in the paper philosophically is to say, well, if that's true, then it's also true that one could dishonor a group of people in the same sort of way that one could... And that's sometimes in orders of magnitude worse than that one example. And in the context of formerly enslaved people, that's precisely what has happened.
SPEAKER_01:I have a couple of questions from Neva and Caitlin O'Malley about sort of who has the right to represent the dead. And so, Neva, let's start with you and then go to Caitlin after that.
SPEAKER_05:I actually think my question may have already been answered. I'll reiterate it just to make sure I didn't misunderstand. stand you, however. So my question was based on one of the cases that you raised in your article, El Amin versus the Virginia Commonwealth University about the parking lot. So my question was kind of a hypothetical as to if you have an individual who believes that individuals underneath the parking lot, those breaks should be disinterred and you'd have let's say Black faculty or Black students at Virginia Commonwealth University who also have plausible ties to the graves that are there who think just the opposite, you know, Who gets the final say? And I believe you addressed this earlier when you were talking about how much of a mess it is trying to determine exactly what that balance is between the rights of the living versus the rights of the dead, the rights of descendants versus the rights of individuals in that same community and how you specifically did not address that in depth in your article. But I leave it to you if I missed a piece.
SPEAKER_10:No, that's exactly right. So I acknowledge the messiness of it, but I think we should at least ask the questions. And so part of the problem with the El-Amin example is that there's no judicial hearing where we even get to the point of asking the question in the first place. And that's from a procedural justice standpoint, that's a harm.
SPEAKER_01:Caitlin, you had a question about sort of how we balance in particular sort of different types of interests. And this is more about the interests themselves, I think, as opposed to the different interest groups that might have them.
SPEAKER_08:Definitely. Yeah. So I think the general question that I had was how we balance these posthumous metaphysical interests like dignity with present tangible interests, such as medical advances or historical and anthropological understandings, and whether the amount of time that has passed since the death affects how we weigh those two considerations against one another. Yeah,
SPEAKER_10:absolutely. So on that, I do think that over time, any specific individual's interest, for the most part, does diminish. And the interest of people who are living in relation to those interests is going to weigh stronger and stronger over time. So when it comes to someone's interests right after they pass away, That's different than when it's five years, and that's different from when it's 50, and that's different from when it's 100. But I also note, though, that when it comes to our collective memory, we tend to treat that differently. So when it comes to things like historic preservation, we treat that differently. And so here, there's this part of the harm is harm to our collective memory, that there are so many kind of there's an inequality in our memory about what took place in the past. And the burial sites are really just, they're the tip of the iceberg. It's a terrible analogy, but they're just one piece of this broader set of ways in which there's this inequality in our collective memory. And so here, I think this doesn't, fall into the general rule that I do acknowledge in the paper, that over time, our individual interests diminish. Also, more broadly, I mean, so, you know, on questions of how do we balance the interests of the living and the interests of the dead overall, but kind of even when you take the time piece out of it, you know, I don't... There's a lot of people who do a lot of thinking about that in a lot of different contexts, including things like, can you use someone's biology after they pass away in order to... for them to become a parent when they didn't intend to be or didn't expect to be, when they become a parent after they pass away, et cetera. And there's a lot, there's lots and lots of hard questions that bioethicists are asking around those sorts of questions. And I'll leave it, there are people better qualified to answer some of those sorts of cases than me, but what I want my intervention to be in here, part of it is, whatever the answer is, there shouldn't be race, race and equality in it, right? So like, if, So whatever the right balance is, race-based inequality is something that we should avoid. And race-based, and in complicity in the past, race-based inequality and identity-based subordination is something that we should avoid.
SPEAKER_01:Great. So next I have Alex.
SPEAKER_04:Hi, Fred. Thanks for joining us. My name is Alex. I'm a 3L here at UVA. And my question was more specifically about standing. And as you mentioned, it's hard. It's hard to tell who should have the ability to even bring a case on the behalf of the dead, especially the long dead. And one of the theories that you talk about in the paper is Professor Ray's theory of relative standing. And some of us are in Professor Ray's fed courts class right now. So we've talked about this a little bit. But if we adopt that, then the idea is that there's always going to be somebody who's the right plaintiff to bring a suit. And I guess when we're talking about the rights or the interests of the dead, whenever we try to decide who's the best plaintiff to bring a suit, we run into the same issues we were talking about before, about who has kinship interests and who has relationship interests or whatever. But on the other hand, if we say like some of the laws that you talked about in the paper, that this is about you know, sort of collective dignity of society, then nobody really has standing because then it's a political issue. So I guess, what do you think? Is there a correct plaintiff or is there at some point where this becomes a political question?
SPEAKER_10:No, I think that there will often be a correct plaintiff. And, you know, I don't ask for major modifications of standing law. I analogize it to someone who, in the context of historic preservation, more broadly, because I have a connection with that particular site and I want to fight to preserve it. I also give examples of someone who was trying to protect an endangered species, et cetera, and had some specific kind of connection to an animal, et cetera. And in those instances, let's stick with historic preservation in particular because I think it might even be the better of the analogies. We're prepared to recognize that someone might have a deep enough connection to a site in order to kind of to try to be the one to try to protect their interests, or it could be an organization, et cetera. And I'm arguing for the same thing here, that kinship shouldn't be the end of the story, that we should ask the same sorts of questions that we ask when it comes to other dimensions of standing law. So I think in some ways it's a modest intervention, just treating it again the same way that we treat, say, historic preservation. And then that doesn't end the whole story. Then there has to actually be a cause of action. There have to be the factors that have to be balanced there. You know, you're going to be sometimes inviting a community into the conversation and different people are going to have different points of view. But I do think it's important to get to that.
SPEAKER_01:Turn now to, to Madison, who has a question about abandonment more generally. And one of the things I liked about your presentation, paper, Fred, and our discussion of it is that it brought out personal stories for a lot of us, including this one from Madison that I thought was really nice.
SPEAKER_06:Hi, I'm Madison. I'm also a 3L at UVA. And reading this paper brought out questions for me just about what happens when we abandon grave sites more generally. So a few years ago, my grandma and I, I have to make sure to call her grandma because the other one's grandmother and they don't like Likely the best thing. But my grandma and I went on a sort of heritage trip, just the two of us, to learn a little bit more about the family history and learn where she grew up and see the church where her and my grandfather were married and stuff like that. And in that trip, we ended up going to the gravesite of my great-great-grandparents. And my family no longer lives in the same area where my great-great-grandparents were buried. We have a couple of people who are still there, but generally the family is no longer in that area. And so reading this paper kind of brought up questions for me about what are the societal obligations, if any, to designated grave sites, especially once they've sort of been abandoned or as families move away. Is there any sort of active duty to take care of grave sites once the people who are personally invested have moved away? Is there a passive duty just to sort of not make it worse? Or is there no duty at all on society to handle those burial sites?
SPEAKER_10:Yeah, I mean, I think that sometimes there are going to be abandoned burial sites, especially ones that may have been around for a long time and people have moved away, et cetera. And I think it's inevitable. I think over the centuries, it's almost necessary. But what I want to make clear in the paper, though, is that that abandonment has historically not happened equally. for all the reasons described, including, not limited to, but including because of lineal alienation.
SPEAKER_01:We'll put abandonment in quotes, right? I mean, I'm not even sure that's, yeah.
SPEAKER_10:Yeah, so you're right. I mean, I'm using the word abandonment because it's the legal term that you see in the statutes, but yes, right? So there's, over the centuries, in order for society to continue, this is going to sometimes happen. But we need to be really careful about making sure that we're not in the process perpetuating past deep inequalities, which is part of what I wanted to draw out. And because you mentioned your great-great-grandparents, and mine are staring at me,
SPEAKER_02:I'm going to show them to
SPEAKER_10:you. So I know this doesn't really work for podcasts, but... It works for the class, at
SPEAKER_02:least.
SPEAKER_10:Although
SPEAKER_01:listeners at home won't be able to see it, Madison's story prompted Fred to bring out photos of his great-great-grandparents, officially making this my favorite podcast episode in the history of the world.
SPEAKER_10:These are mine. This is Anthony Elder and Laura Elder, who were both born enslaved. And They, you know, I'm so grateful to have these images and the pictures were taken when they were free. And, you know, I'm in my office right now, in my home office, and they keep me on. But I wanted to share that since you mentioned you're a great, great friend. So thank you for that.
SPEAKER_01:And thank you for sharing that. Actually, this is a good segue into some of Courtney's questions. She had a couple of questions, but some of them I think actually do relate to images. And she brought up how common it is to the depictions of the treatment of bodies in popular culture. And then also some of the same privacy issues, especially associated with images that you sort of mentioned at a couple of points in the paper. So Courtney, let me turn it over to you.
SPEAKER_07:Yeah. So when I was reading through the paper, I was kind of being reminded about a lot of like pop culture references that we see in movies. So one of the examples that came to mind when reading about the looting of Native American graves was like Indiana Jones or like treasure hunting movies or specifically the second national treasure when they're like going under the Mount Rushmore to essentially find the Native American city of gold. And then second, when there was the story about the caregiver being convicted of indecent handling of a dead body for posing it, I thought about Weekend at Bernie's. And then later also, when reading about the... posthumous defamation laws, I was thinking about like the true crime genre and how I am pretty sure in most cases they don't get consent of the family members to discuss it. So just kind of thinking about like, it's very different how the law treats it from what we kind of see represented in movies or like what gets to be so famous and popularized. And the way we glamor.
SPEAKER_01:And I think part of Courtney's point that when we discussed it was the glamorization in some of these cases of what here, you know, what are clearly very serious subjects.
SPEAKER_10:Yeah.
UNKNOWN:Yeah.
SPEAKER_10:And there's cases, including torts cases, where you get the strong sense, actually, especially from just a few decades ago and certainly before NAGPRA, where part of why NAGPRA was needed, among others, is that courts weren't always taken seriously when someone would encounter a Native American skull and keep it. And I've been thinking about one case in particular where a student at the University of Miami had and was keeping a Native American skull and was showing it to people, et cetera. And that incident actually wasn't a tort suit. I think they were charged. And the appellate court said, I'm paraphrasing sharply. And in one of the cases I've discussed, I think in the first paper, This is a good kid. He didn't know. And I think what makes me think about this is a context in which the student is watching movies like that, et cetera, and maybe that's a stretch. But I'll just say that there's a paper by Angela Riley and Kristen Carpenter, Owning Red, A Theory of Indian Cultural Appropriation, which draws some of these longer and deeper connections in terms of how Native American culture is treated and almost treated as something that people can own and claim for themselves in our culture in ways that are disturbing and that sometimes make their ways into the law. And as I said, it's a great paper in the Texas Law Review from 2016.
SPEAKER_01:Great. Thank you for that reference. Courtney also had some questions slash thoughts about analogizing this type of preservation to say environmental preservation or historical preservation, which you already discussed. But Courtney, do you want to turn to that?
SPEAKER_07:Sure. Yeah. So I was particularly interested. I know your paper discusses a lot of examples about like the commercial context, but I was thinking about kind of like the private property context as well. And And kind of like the incentives to give like a private property owner to discover and that way we can preserve more kind of burial sites. And like what sort of reform we could make to the law to incentivize people. So I was thinking on the one hand, like conservation easements, like in the environmental context were super important. Adding in a tax break for this was super beneficial in the late 1900s to get a bunch of people to enter a bunch of land under conservation easements and kind of doing a similar thing, how that could help to discover more burial sites that may have been abandoned or lost. And then on the other hand, how we kind of mentioned like when you add money into the equation that can make it more likely for people, I think you had said they'll find it more outrageous or can like add a certain repugnance to it. But I was a little concerned when thinking like, okay, what if somebody, the landowner was like a white landowner who had property passed down from generations who ancestors were slave holders or slave owners and how that is like a really tricky situation where Well, on the one hand, you want to incentivize people to kind of discover, like, Ben, who is the person that is ultimately benefiting from it from, like, a monetary perspective.
SPEAKER_10:Oh, yeah, that's so, so interesting. I mean, yeah, I mean, you're right. So I work, I'm on a part of Atlanta's Economic and Community Development Agency's board. And, yeah, incentives and grants to preserve historic buildings and so forth is a big part of how preservation works. And so when you first put that out there from an incentive standpoint, it sounded plausible to me. But then you also definitely touched on the major complication when you're talking about human bodies and how someone might have become custodians for those bodies. and uh and how and how history makes that you know it's more complicated than owning a building um and so for that reason i mean i'll just say you you've already identified both you know why incentives in this context will be interesting and also why there's something we should be thoughtful about including the the remuneration piece um so i'll just say for that on that one i'll just say thank you uh and it's something i want to uh something i want to think more I hadn't thought about tax breaks and incentives in this context. And I don't want to pick a strong view on that right now. I want to think more about it. But thank you for raising it.
SPEAKER_01:Yeah, we like incentives in this class. And it does relate back to the initial sort of Georgia statute story where it seems to potentially create a disincentive to sort of, or an incentive to forget, right? Which we presumably don't want. Fred, thank you so very much for coming here and for challenging me by forcing me to think about things like constitutional law, standing and easements, three things I never think about. And with that, hopefully you won't say, okay, what exactly is it that you do at UVA? Since those are pretty broad categories of things you told me you don't know about.
SPEAKER_10:Thank you. There's a whole lot I don't know about. This paper is taking me, I mean, I never thought about torts. I barely think about criminal law, and I've never really thought much about property law. So, you know, this is taking me into places I didn't necessarily expect to be either. And thank you so much to you and to this class for this deep engagement with this paper. You've given me a lot to think about, and I'm very appreciate
SPEAKER_01:it. We really enjoyed it. Thank you so much for coming. And it was good to see you again. Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick.
