Rogers on the Origins of Quasi-Property

Alix Rogers, a fellow at Stanford Law’s Center for Law and Biosciences and the Stanford Program in Neuroscience and Society, as well as a PhD candidate at Cambridge University and a Yale Law JD,  has posted Unearthing the Origins of Quasi-Property Status, a paper she presented at the ASLH in 2018.  It is forthcoming in the Hastings Law Journal in 2020:

Under contemporary American law human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property, but does not formally qualify as property. It is a uniquely American, idiosyncratic and misunderstood legal category. Quasi-property status is most typically associated with intellectual property given the Supreme Court decision of International News Services v. Associated Press. That human remains and bodily materials are classified as quasi-property is less well known. The confusion surrounding the quasi-property status of the dead has negative implications for current and future research, medicine and broader society. Litigation surrounding the treatment and status of those who died in the 9/11 World Trade Center attack hinged on quasi-property. Clearly resolving the quasi-property status of the dead is becoming increasingly important in the wake of biotechnological advances. In March 2018 a Y Combinator start-up, Nectome, promised to preserve, digitize and reanimate brains. The project is concerning for many reasons, but one major concern is the ambiguous status of the dead that the company will experiment upon and, ultimately, offer services to.

This paper explores the origins of quasi-property and investigates why American judges ascribed quasi-property status to human remains. The adoption of quasi-property status is notable because judges broke with hundreds of years of inherited common law, and forsook a legal tenant prescribed by Blackstone and Coke. Understanding its origins, therefore, has broader implications for our understanding of the development of American law. I show that the academic literature and case law have mistaken both the origin of, and reasoning behind quasi-property status. Scholars and judges cite a 1872 Rhode Island Supreme Court decision as the foundational case on quasi-property status of the dead. My research shows that, in fact, the first case occurred instead in Cleveland, Ohio a year earlier. Further, my analysis of this initial case, and surrounding socio-cultural context, reframes our understanding of the forces behind quasi-property status. The traditional account in the literature and case law of the emergence of quasi-property status points to America's lack of ecclesiastical courts, which historically had jurisdiction over cemeteries and burial in England. I argue that the existing explanation does not sufficiently account for the initial application, the dominance, or the persistence of the unique status of quasi-property by American courts. This paper advances a novel argument that socio-cultural changes forged in the maelstrom of the Civil War precipitated the initial use and later systematic adoption by American courts of quasi-property status for human remains. My discovery and re-examination of the subsequent rise of quasi-property at the turn of the nineteenth century has important implications for how contemporary courts should conceive of this deeply contested legal category.

--Dan Ernst