The Social Afterlife

58 Pages Posted: 14 Sep 2019 Last revised: 18 Jun 2020

See all articles by Andrew Gilden

Andrew Gilden

Willamette University - College of Law

Date Written: September 5, 2019

Abstract

Death is not what it used to be. With the rise of social media and advances in digital technology, postmortem decision-making increasingly involves difficult questions about the ongoing social presence of the deceased. Should a Twitter account keep tweeting? Should a YouTube singer keep singing? Should Tinder photos be swiped left for the very last time? The traditional touchstones of effective estate planning — reducing transaction costs and maximizing estate value — do little to guide this new social afterlife. Managing a person’s legacy has shifted away from questions of financial investment and asset management to questions of emotional and cultural stewardship. This Article brings together the diverse areas of law that shape a person’s legacy and develops a new framework for addressing the evolving challenges of legacy stewardship

This Article makes two main contributions. First, it identifies and critically examines the four models of stewardship that currently structure the laws of legacy: (1) the “freedom of disposition” model dominant in the laws of wills and trusts, (2) the “family inheritance” model dominant in copyright law, (3) the “public domain” model dominant in many states’ publicity rights laws, and (4) the “consumer contract” model dominant in over forty states’ new digital assets laws. Second, this Article develops a new stewardship model, which it calls the “decentered decedent.” The decentered decedent model recognizes that individuals occupy heterogenous social contexts, and it channels postmortem decision-making into each of those contexts. Unlike existing stewardship models, this new model does not try to centralize stewardship decisions in any one stakeholder — the family, the public, the market, or even the decedent themselves. Instead, the decentered decedent model distributes stewardship across the diverse, dispersed communities that we all leave behind.

Keywords: trusts & estates, internet law, copyright, rights of publicity, intellectual property, digital assets

Suggested Citation

Gilden, Andrew, The Social Afterlife (September 5, 2019). Harvard Journal of Law & Technology, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3448790

Andrew Gilden (Contact Author)

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States

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