The judicial system can grant quasi-property interests but refuses for enslaved ancestors

Evidence

Put plainly, our judicial system—by appealing to “universal feelings” such as fairness and care for the deceased—has justified quasi-property interests for plaintiffs when it has deemed fit. Accordingly, it has the institutional capacity to grant descendant plaintiffs quasi-property interests in photographs of their ancestors that were coercively taken to advance racial eugenics. Granting such interests to descendant plaintiffs will require courts to “treat Black dead bodies” with the same respect as “white bodies,” and “appreciate the unequal dishonor, destruction, and degradation” that the bodies of enslaved Black people “faced for centuries in life and in death.”…While the court made room for descendant plaintiffs in future litigation to plausibly allege emotional distress, its mishandling of the most crucial parts of the plaintiff’s complaint—her property-related claims—emphasizes an uncomfortable reality: until courts are willing to champion nuanced remedial approaches on behalf of descendant plaintiffs, they will be incapable of correcting injustices stemming from American chattel slavery. — Tamara Lanier, From These Roots, 1345

Categorization

• DEEPTHINKING: The claim that courts already wield the tools of quasi-property interests and only fail to apply them to Black bodies is a genuinely rich reframe of property law as the afterlife of slavery.