Anita Allen: "Postmortem Privacy"

Anita Allen, Henry R. Silverman Professor of Law and Professor of Philosophy at the University of Pennsylvania, and H.L.A Hart visiting fellow at University College, presents the sixth paper of Trinity Term: "Postmortem Privacy" (co-authored with Jennifer E. Rothman and forthcoming in the Michigan Law Review)

This seminar takes place in the Law Board Room, in the Faculty of Law, University of Oxford (St Cross Building St.Cross Rd, OX1 3UL) at 5:00pm on Thursday 30 May.
NOTE THE CHANGE OF VENUE FOR THIS AND THE REMAINING SEMINARS OF TRINITY TERM

ABSTRACT:

In Part I of the Article we identify the diverse pockets of law wherein privacy-based interests extend to persons after death (or to survivors on the basis of the dead). In our analysis we consider a wide breadth of laws that touch upon privacy, including tort law, federal constitutional law, data protection law, and intellectual property law. Considering such a wide range of examples is essential to understanding the foundational norms at work and sheds light on the interests and values that could support what we call collectively “postmortem privacy.”

In Part II we detail and evaluate the articulated and unarticulated justifications for extending privacy rights after death or in connection with a decedent. We begin by considering what we designate as the law’s “jurisprudence of exclusion,” which withholds rights to entities that lack traits deemed essential for rights ascription. We then consider why, in spite of the initial impetus to deny rights to the dead, the law appears to increasingly gravitate toward doing so. Given the reality that current law already extends, albeit in an ad hoc and inept manner, rights related to the privacy of the dead, we consider and interrogate specific interests that could justify extending such a right. Ultimately, the best reasons to extend rights to some forms of postmortem privacy are rooted, not in the ongoing interests of the dead, but in the interests of the living. In particular, the living have interests in the treatment of their future deceased selves—what we denominate the interests of the “future-decedents.” The living also have interests arising out of how the treatment of the deceased and their attributes affect those left behind. We designate these interests as those of the “relational-living.” Society, composed of the living, also has a collective interest in treating the dead with respect. The legitimacy of these interests are not without bounds, but only by carefully unpacking each of them can one progress toward a more coherent law of postmortem privacy.

Because we conclude that there are legitimate reasons to recognize postmortem privacy rights, at least to some extent, we consider in Part III some of the possible contours and limitations of such rights. We intend this Part to set forth some initial guiding principles and guard rails for a postmortem privacy right. We begin by addressing how to mediate the possible conflict among the interests identified in Part II. We next consider the challenge of determining who should be able to bring postmortem claims, and how long postmortem privacy rights should last. We also identify important reasons to limit postmortem privacy, including the freedom to collectively and publicly grieve, commemorate, and speak about the deceased. The interests of the dead or of the living in relation to the dead, should not unduly burden or limit the opportunities and speech of the living. Ultimately, there are some convincing reasons to recognize a limited postmortem privacy right or at least a right for the living tied to the dead, both under the common law and by statute. It is essential, however, that we better understand our reasons for doing so, both as a society and as a jurisprudential matter, because the reasons for extending such a right suggest a different vision of postmortem privacy rights than that which exists today. This project is a first step in moving away from the pro forma claim that privacy ends with death. Our analysis shines a light on the current pockets of postmortem privacy and develops a foundation upon which we can hopefully build a more coherent, fair, and predictable postmortem privacy than the one we currently have.

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This event is open to anyone. No registration needed.

Pre-reading is desirable and strongly suggested, but not a requirement to attend.

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