Ela A. Leshem | 77 Vand. L. Rev. 999

This Article argues that American law treats dead bodies as quasi- persons: entities with a moral status between things and persons. The concept of quasi-personhood builds on dead bodies’ familiar classification as quasi- property. Just as quasi-property implicates only a subset of the rights usually associated with property, quasi-personhood implicates only a subset of the moral interests often associated with moral personhood. Drawing on a broad historical analysis of state, territory, and federal law, I show that U.S. law conceives of dead bodies as holders of dignity interests, which it protects in a variety of ways. The law, for example, protects dead bodies against denigration to the status of property, waste, or nonhuman animals and ensures that dead bodies be treated as individuals with names. The law also protects dead bodies against visual, physical, and sexual abuse. I analyze how these dignity protections operate across disparate areas of law, including criminal statutes, tort law, licensing regimes, and zoning ordinances. Using unclaimed bodies as a case study, I then argue that my account of dead bodies as quasi-persons casts a critical light on the mistreatment that some dead bodies—especially those of Black Americans, Native Americans, and the poor—regularly suffer. The account also illuminates the law’s implicit views of personhood, property, human nature, and mortality. And it points the way for future research on the law’s treatment of other arguably liminal entities, such as animals, fetuses, plants, and AI models.

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