<continued...>

[FN105]. This is obviously a necessary feature of property rights in a society in which more than one person is capable of having property rights.

[FN106]. While the right to possess for the purposes of burial is well recognized at common law, see supra notes 66-71 and accompanying text, courts have had considerable difficulty in characterizing the right as property. Although the concept of quasi-property is now widely accepted, a long line of English and American cases previously held there to be no property rights in a dead body. E.g., Williams v. Williams, 20 Ch. D. 659, 665 (1881) ("no property in a dead body"); Gray v. Southern Pac. Co., 21 Cal.App. 2d 240, 246, 68 P.2d 1011, 1015 (Dist.Ct.App. 1937) ("the law recognizes no right of property as such in the dead body").
The earlier English cases suffered from the historical anomaly that all matters concerning dead bodies were under the purview of the ecclesiastical courts and hence were never available for common-law analysis. See In re Estate of Moyer, 577 P.2d 108, 110 n.5 (Utah 1978); Note, supra note 16, at 226. As the ecclesiastical courts waned, the English common-law courts nonetheless continued to apply the old principles, thereby finding no property right to exist. When one examines the early precedents more closely, they turn out to be highly questionable endeavors and their conclusion that no property right can exist is seen to be not based on adequate precedent or reasoning. See Matthews, supra note 5, at 208-14 (criticizing early English authorities for the no-property rule); Note, Sale of Human Body Parts, supra note 29, at 1241- 45 (noting heavy criticism of early English authorities).
Some early American cases merely imported the teachings of the English cases and held that there was no property right in a dead body. See, e.g., Enos v. Synder, 131 Cal. 68, 69, 63 P. 170, 171 (1900). This assertion was not credible in the face of the well-established rights of the next of kin, and many courts held that there was at least a quasi-property right in the body. See, e.g., Reniham v. Wright, 125 Ind. 536, 25 N.E. 822 (1890); Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904).
The appellation "quasi-property" adds little to any thoughtful analysis of rights in the body and merely illustrates the difficulties courts have in adapting to new circumstances. Even if this right alone were not sufficient to constitute property, when combined with the various other rights discussed relative to the body, the entire bundle certainly seems adequate. In addition, it is not the common-law answer to particular questions that necessarily interests us here, but rather the common-law method that may well yield a different answer when applied to a redefined group of rights relative to the body.

[FN107]. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) ("The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights."); Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979) ("'right to exclude,' so universally held to be a fundamental element of the property right").

[FN108]. At least one court has recognized that rights in the body are sufficient to implicate the due process clause. See Arnaud v. Odom, 870 F.2d 304 (5th Cir.1989) (section 1983 suit involving wrongful autopsy).
One must be careful to avoid the logical fallacy inherent in the argument that "property implies a right to exclude; you have a right to exclude from your body; therefore your body is property." If property could be independently defined, the preceding argument would be a fallacy. In this case, however, the right to exclude is a property right, almost definitionally. Further, there are no independent means of defining property unless we limit ourselves to those things that were property at the time the Constitution was ratified. This method is inadequate, however, since it does not allow for any change.

[FN109]. See, e.g., Silver, supra note 2, at 715.

[FN110]. 444 U.S. 51 (1979).

[FN111]. Id. at 65-66.

[FN112]. See, e.g., In re Marriage of McManama, 272 Ind. 483, 488, 399 N.E.2d 371, 374 (1980) (Hunter, J., dissenting) ("It is true that a professional degree lacks many of the attributes of tangible property. . . . However, many courts have found that intangible and nontransferable items should be treated as property for some purposes."); cf. Inman v. Inman, 578 S.W.2d 266, 269 (Ky.Ct.App. 1979) (dental license is marital property).

[FN113]. A prescription drug is a good example. A person in possession of properly prescribed pain killers could rightly claim the drugs to be their property. Yet this property may not be sold or given away, its use is most likely limited, and it probably could not be passed on through inheritance. Cf. 21 U.S.C. §§ 822(a), 841(a) (1988) (unauthorized manufacture, distribution, dispensation or possession with intent to do the previous, of controlled substances unlawful). If the police confiscated the drugs, however, there is little doubt that they would be considered property, notwithstanding the very limited rights of the owner.

[FN114]. See Restatement (Second) of Property (Landlord and Tenant) § 15.2(2) (1976) ("A restraint on alienation without the consent of the landlord of the tenant's interest in the leased property is valid . . . ."). The Restatement qualifies the ability to restrain alienation slightly but ultimately permits even absolute restraints if freely negotiated as part of the lease. Id. Some states have taken a modified position from that of the Restatement. See, e.g., N.Y. Real Prop. Law § 226-b (McKinney 1989) (consent by landlord for sublet or assignment may not be "unreasonably withheld").

[FN115]. See supra notes 92-93 and accompanying text.

[FN116]. To the extent that one is concerned with a common-person's perception of property a tangible item will be more easily accepted as property.

[FN117]. Perry v. Sindermann, 408 U.S. 593, 597-98 (1972).

[FN118]. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985).

[FN119]. See supra note 94.

[FN120]. 407 U.S. 67 (1972).

[FN121]. Id. at 86. The goods included such things as a stove, a stereo, a bed and a kitchen table that had been purchased under conditional sales contracts. Id. at 70-71. Appellants were entitled to possess the goods, but did not acquire full title until they had paid the last installment of the purchase.

[FN122]. Id. at 86 (citations omitted).

[FN123]. See generally A Modern Introduction to Philosophy 172-286 (P. Edwards & A. Pap 3d ed. 1983) (collecting essays debating the relationship between mind and body).

[FN124]. See Uniform Determination of Death Act, 12 U.L.A. 310 (Supp. 1989) (table of adopting jurisdictions); see also Cal. Health & Safety Code § 7180 (West Supp.1990) (updated table of adopting jurisdictions). Many states that have not adopted the Uniform Act have adopted analogous statutes or reached the same result through judicial decision. See Smith, Legal Recognition of Neocortical Death, 71 Cornell L.Rev. 850, 853-55 (surveying the 40 states that have adopted a whole brain definition of death--33 by statute, 7 by judicial opinion).

[FN125]. Some commentators might consider this statement overbroad, arguing instead that it is the capacity to maintain integrated biological functioning, not the capacity for mentation, that is the line dividing life and death. See, e.g., Capron, Anencephalic Donors: Separating the Dead From the Dying, Hastings Center Rep., Feb. 1987, at 5, 7 (death is the "absence of the integrated functioning of heart, lungs, and brain," whether determined by whole brain death standards or by traditional cardiopulmonary standards). According to this view, individuals in an irreversible coma, or anencephalic infants who lack the upper brain hemispheres entirely, are not considered dead since the brain stem can maintain integrated biological functioning notwithstanding the lack of any capacity for mentation. Id. at 7-8.
Other commentators have defended the capacity for mentation as the appropriate line for defining life and death. See, e.g., Friedman, Taking the Camel by the Nose: The Anencephalic Infant as a Source for Pediatric Organ Transplants, 90 Colum.L.Rev. (forthcoming May 1990) (personhood defined by the capacity for mentation); Smith, supra note 124, at 875 (advancing a model statute for neocortical death based upon "irreversible loss of consciousness and cognitive functions"). The increased willingness of society and the medical profession to passively terminate the lives of permanently comatose patients by withdrawing nutrition and other life support is taken as evidence of de facto support for the view that such patients are dead.
While the latter view appears to be the more persuasive approach, it need not be accepted for the purposes of this Note. Even the whole brain death approach accepts the distinction between a live "person" and a biologically active body that lacks brain function and is therefore dead. Once personhood is thus separated from biological existence the arguments distinguishing liberty from property can still be made, albeit with some minor adjustments to emphasize integrative capacity in addition to mentation.

[FN126]. Restatement (Second) of Torts § 18 comment c, at 31 (1964) ( "anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability . . . such as clothing or a cane or, indeed, anything directly grasped by the hand").
Notice that we could follow this reasoning one step backward and discover that the only reason that the body is protected from nonharmful, but offensive, touching is that it is thought to be so closely connected with the "person" it houses that an offensive contact would be an affront to dignity quite independent of physical harm.

[FN127]. See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967) (battery is "the unpermitted and intentional invasion of the plaintiff's person and not the actual harm done to the plaintiff's body"); Restatement (Second) of Torts § 18 comment c, at 31 (1964) (the "grievance [battery] consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body" (emphasis added)).

[FN128]. A simple example will illustrate the importance of context. Suppose William had recently had his tonsils removed, and as a keepsake chose to have them placed in a jar and displayed prominently on his mantlepiece. Should Sandra one day take a hammer and smash the jar, and William's tonsils, to pieces, it seems plain that no battery has occurred. While William may have a variety of legal remedies for such behavior, battery is the least likely of the bunch. Had Sandra made a similar attack on William's tonsils prior to their removal, though perhaps smashing them somewhat less effectively, battery would be a natural and correct description of her actions.

[FN129]. See Labaton, supra note 14, at D2, col. 1 (Moore cell line valued at approximately $3 billion); see also Andrews, supra note 29, at 31 ("Many markets have developed for seemingly worthless by-products such as sawdust.").

[FN130]. Property rights are often seen as a tool for allocating scarce resources. See R. Posner, Economic Analysis of the Law 10 (1973) ("[L]egal protection of property rights has an important economic function: to create incentives to use resources efficiently."); Demsetz, Toward a Theory of Property Rights, 57 Am.Econ.Rev. Papers & Proc. 347 (1967) ("If the main allocative function of property rights is the internalization of beneficial and harmful effects, then the emergence of property rights can be understood best by their association with the emergence of new or different beneficial and harmful effects."). As the body becomes subject to competing demands for its use, the rules that allocate control over its disposition play the traditional role of property.

[FN131]. Reich, The New Property, 73 Yale L.J. 733 (1964) (statutory entitlements a property interest protected by due process clause).

[FN132]. Property protected by the takings clause includes land, chattels and certain intangibles such as trade secrets. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (public access easement to land); Hudson v. Palmer, 468 U.S. 517 (1984) (personal property); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04 (1984) (Interest "cognizable as a trade-secret property right under [state] law . . . is protected by the [takings clause].").

[FN133]. Flemming v. Nestor, 363 U.S. 603, 611 (1960) (eliminating rights to social security benefits to persons deported for past Communist Party membership does not violate fifth amendment).

[FN134]. Hodel v. Irving, 481 U.S. 704, 716 (1987) ("Even the United States concedes that total abrogation of the right to pass property is unprecedented and likely unconstitutional.").

[FN135]. See supra note 90 and accompanying text.

[FN136]. Cf. Tribe, supra note 88, § 10-9, at 686 ("For the first time, the Court [in Goldberg v. Kelly], recognized as entitlements interests founded neither on constitutional nor on common-law claims of right but only on a state-fostered (and hence justifiable) expectation . . . ." (footnotes omitted)).
Part of the difference may also relate to the magnitude of the change. Perhaps it is an important yet infrequently noted purpose of the takings clause to force change to be either incremental or compensated since change over time is less likely to be systematically biased against one particular group in society. Cf. Clark, Contracts, Elites, and Traditions in the Making of Corporate Law, 89 Colum.L.Rev. 1703, 1732 (1989) ("The traditional rules are more likely to reflect an averaging process than are rules adopted from scratch by today's elite: . . . [they are] less likely to be especially harmful to [a particular] subject.").

[FN137]. Procedural modifications of the underlying right would not yield the same result. If such were possible, the protections of the due process clause would be effectively vitiated. This would return us to the no longer accepted position of Justice Rehnquist in Arnett v. Kennedy, 416 U.S. 134, 154 (1974) (recipients of statutory entitlements must take the "bitter"-- modification of procedural rights--with the "sweet"). See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540-41 (1985). Substantive alterations are different, since it is the right itself, not merely how it is enforced, that is being changed. While this line may be difficult to draw at times, it is an unavoidable task given the notion of procedure as distinct from the underlying right that is implicit in the Constitution.

[FN138]. Cf. Hudson v. Palmer, 468 U.S. 517, 539 (1984) (O'Connor, J., concurring) ("The Constitution requires the government, if it deprives people of their property, to provide due process of law and to make just compensation for any takings.").

[FN139]. Where the deprivation results from a change in the underlying law, proper legislative enactment may be all the process that is due. Cf. Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 285 (1984) ("[N]othing in the Constitution suggests . . . that government must provide for such [public] participation."); Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (When the state raises taxes, "no one would suggest that the Fourteenth Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it . . . .").

[FN140]. In contrast, because the organic law defining certain property is at least partly composed of a sort of overriding common law, a statutory alteration would not be a change in the organic law, but a change acting against a pre-existing and independent organic law, thus requiring compensation.

[FN141]. These cases are difficult to find because whenever the government seeks to withdraw some form of statutory right it generally does so as to a whole class of persons and its action can therefore be conceptualized as eliminating a right rather than as taking an otherwise recognized right. The two instances where the government does act as against rights tend to be covered by the constitutional limitations on ex post facto laws and bills of attainder. In the first instance the government acts against a right that is viewed as having already accrued. In the second case the government singles out an individual for treatment different from those similarly situated. Due process limitations on retroactive legislation would also cover this type of situation, at least in extreme cases. The analysis in this Note of the taking- deprivation distinction suggests that either of those cases could just as easily be conceptualized as a taking of the statutory entitlement in question and remedied through direct compensation. But cf. Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-28 (1986) (statute imposing additional financial liability for past actions not a taking, only a regulation adjusting benefits and burdens of economic life).

[FN142]. An interesting question now arises with the advent of the temporary takings doctrine of Fist English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), as to whether the government will be constitutionally required to reimburse plaintiffs for the time they were denied benefits for reasons subsequently determined to be incorrect. For example, where a state worker is suspended without pay during the investigation of potential wrongdoing, should the worker be reimbursed for the pay suspended if the worker is eventually cleared of everything? Cf. Michelman, Takings, 1987, 88 Colum.L.Rev. 1600, 1621 (1988) (suggesting interpretation of First English that would require compensation only for restrictive regulations intended to be indefinite but subsequently removed; expressly temporary restrictions are predicted to raise a "new and unresolved question").

[FN143]. History and tradition may play a more important role in determining the substance of a right than in determining its nametag. In the case of cadavers, new circumstances do not undermine the substantive expectations, they in fact may provide new reasons for having such expectations. Changed circumstances, and in particular new technology, have provided reasons for altering our categorization of rights in the body, however, since the myriad of new uses for the body has enhanced its similarity to more traditional forms of property.

[FN144]. 481 U.S. 704 (1987).

[FN145]. The reconstruction of Hodel as involving a taking of an entire "piece" of property illustrates the use of conceptual severance. See supra notes 102-04 and accompanying text. The difficulties underlying this approach may be avoided, however, by the Supreme Court's focus on certain twigs with sufficient historical importance to be considered property in their own right. So far, the right to exclude, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), and the right to pass property through descent or devise, Hodel, have achieved this status.

[FN146]. See supra note 38. One commentator, in the course of proposing a mandatory organ draft, has considered the takings question. See Silver, supra note 2, at 712-15. He concludes that the rights in a dead body are not property, and therefore the fifth amendment is not applicable. This conclusion is based on the premises that the quasi-property right of the next of kin is not property; that the power to make a will is not constitutionally protected property; and that the lack of an exchange value removes the body from the category of property. As to the first premise, Professor Silver ignores his own earlier recognition that state law is not exclusively controlling on the definition of property. With regard to the right to devise property, he is less than current in his research, apparently unaware of the decision in Hodel v. Irving, 481 U.S. 704 (1987). Finally, with regard to the importance of exchange value, Professor Silver is again out of date, citing only one case, Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), which was decided before Andrus v. Allard, 444 U.S. 51 (1979). Most unfortunate of all is Professor Silver's failure to deal with the issues raised by categorical abolition of common-law rights, an issue he raises but then leaves unresolved. Silver, supra note 2, at 714.

[FN147]. Laws of this type would not face due process problems because the right to respond would be pointless if the objection had no potential weight. Whether such laws resulted in takings would be more difficult to evaluate. Because the law itself would eliminate part of the statutory basis for property rights, a taking would have to be based upon the pre-existing common-law rights in the body. Arguments based upon statutory rights as against third parties could also be used to establish the existence of a property right to be taken. But cf. supra note 39 (Arkansas and California reasonable efforts laws permit removals by any hospital, not just coroners).

[FN148]. Van Alstyne, Cracks in "The New Property": Adjudicative Due Process in the Administrative State, 62 Cornell L.Rev. 445, 483 (1977). Professor Van Alstyne gives as an example "one's own pair of shoes, to do with as one damned well likes . . . and to know fully the freedom that goes with the feeling that 'these things, at least, are truly mine."' Id. at 483-84. It is hard to imagine an object that more easily fits this mold than one's own body. As the one physical object having the longest and most intimate relationship to any other person that is possible, it should carry the presumption of being yours more than any other item.

[FN149]. Professor Radin, using a similar approach keyed to the normative importance of the property in question, comes to a somewhat different conclusion. Radin, supra note 100, at 1687-96. Finding certain items to be so indispensably tied to a person's sense of self and well-being, she would provide even greater protection for those items than exists under current jurisprudence. Thus, for example, a person's home would fall into a category of "personal property" that could not be taken by eminent domain for merely instrumental purposes. Id. at 1690-91. This is in contrast to fungible property such as a building procured strictly for investment purposes which would be subject to the currently accepted (and perhaps more lenient) principles of eminent domain. Id. at 1689. This position goes much further than the one suggested in this Note, but is by no means inconsistent with the basic claim that the body should get at least the protection afforded to property.

[FN150]. P. Collins, Don't Let Him Steal Your Heart Away (1982).

[FN151]. Nonintegrated refers to the condition where body parts are no longer so inextricably intertwined with a "person," see supra notes 126-28 and accompanying text, as to directly implicate the values of liberty and privacy. Cadaveric organs necessarily fall into this category, at least until they are transplanted into a live host.

[FN152]. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring).

[FN153]. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

[FN154]. The issue of whether the requirements of procedural due process under the fourteenth amendment are equivalent to the requirements under the fifth amendment will not be addressed by this Note. It will be assumed that they are identical, and the various arguments about the impact of federalism concerns will be left for another day.

[FN155]. Grad v. Kaasa, 68 N.C.App. 128, 131, 314 S.E.2d 755, 758 ("It is clear that a medical examiner is a public official . . . ."), rev'd on other grounds, 312 N.C. 310, 321 S.E.2d 888 (1984); cf. State v. Powell, 497 So. 2d 1188 (Fla. 1986) (assuming the issue of state action but finding statute authorizing corneal tissue removal to be constitutional), cert. denied, 481 U.S. 1059 (1987); Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985), cert. denied, 475 U.S. 1084 (1986) (same).

[FN156]. The presumed consent laws require that the body be under the coroner's jurisdiction for the purposes of performing an autopsy before the nonconsensual removal of organs may be authorized. See supra notes 34-35 and accompanying text.

[FN157]. Lawyer v. Kernodle, 721 F.2d 632, 635 (8th Cir.1983) (employee of company hired by coroner to conduct autopsy "was performing those duties under color of state law").

[FN158]. 42 U.S.C. § 1983 (1982).

[FN159]. Cf. L. Tribe, supra note 88, at 664-65 (discussing recent cases holding that negligent action by state agents does not constitute a deprivation).

[FN160]. Mathews v. Eldridge, 424 U.S. 319, 339-40 (1976) (temporary lack of disability benefits between the time of termination and the post-termination hearing); North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606 (1975) (temporary freeze on bank account between garnishment and the posting of a bond); Fuentes v. Shevin, 407 U.S. 67, 84-85 (1972) (time between replevin of property and post-replevin hearing).

[FN161]. Cf. In re Johnson, 94 N.M. 491, 494, 612 P.2d 1302, 1305 (1980) ("Because . . . there is a quasi-property right in a dead body . . . under some circumstances due process may require that the interested relative be given notice of an intended autopsy or disinterment."). The court did not need to decide the issue since the relative of the deceased had received a full hearing.

[FN162]. 424 U.S. 319 (1976).

[FN163]. Mathews involved the issue of "whether the Due Process Clause of the Fifth Amendment requires that prior to the termination of Social Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing." Id. at 323.

[FN164]. Id. at 335; see Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987) (utilizing Mathews balancing test).

[FN165]. See supra notes 34-37 and accompanying text.

[FN166]. See supra notes 39-41 and accompanying text.

[FN167]. See supra notes 27-28 and accompanying text.
The question could be raised as to whether the existence of the statute authorizing the coroner's action is in itself notice. See Fuller v. Marx, 724 F.2d 717, 719 (8th Cir.1984) (coroner's failure to return internal organs of prisoner to next of kin did not violate due process since statute established mechanism to request such return). This would be analogous to criminal statutes that are presumed to serve as notice to all potential violators. Cf. Model Penal Code § 2.04(3)(a) (1962) (ignorance of the law is a defense where statute or enactment "has not been published or otherwise reasonably made available prior to the conduct alleged"). While the criminal field may find it necessary to rely on such a fiction, it is somewhat more reasonable in that context since allowing such an "ignorance" defense would substantially undermine the criminal law. But cf. Lambert v. California, 355 U.S. 225, 229-30 (1957) ("Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.").
Additionally, in criminal cases it is the individual who is acting and the state has no way of predicting that behavior and giving actual notice of the law in a more timely fashion. In the organ donor case it is the state that is acting against the individual and obviously has an opportunity to at least attempt timely notice. Finally, one could make the argument that criminal acts are often mala in se and hence the person should have notice of the wrongness of her behavior due to societal norms that exist.

[FN168]. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436-37 (1982); see also Hudson v. Palmer, 468 U.S. 517, 532 (1984) ("[P]ostdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.").

[FN169]. There are some cases where even a deprivation pursuant to authorized procedures did not necessitate predeprivation procedures due to the emergency nature of the action that made such procedures impossible. See North Am. Cold Storage Co. v. Chicago, 211 U.S. 306, 315-16 (1908) (ex parte seizure and destruction of contaminated poultry); L. Tribe, supra note 88, at 721-22 (examples of emergency situations).
Even in many of these cases, the issue in reality concerned the necessity of a predeprivation evidentiary hearing. Almost all the plaintiffs had been given at least notice and a minimal opportunity to respond prior to the deprivation involved. See Barry v. Barchi, 443 U.S. 55, 64 (1979); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond.").

[FN170]. The possibility of treating this as a liberty interest was averred to at supra notes 63-64 and accompanying text.

[FN171]. See Note, Sale of Human Body Parts, supra note 29, at 1222 (some religious groups, such as Orthodox Jews, might have strong objections to organ removal).

[FN172]. See, e.g., J. Marshaw & R. Merrill, Administrative Law 193 (2d ed. 1985) (for termination of AFDC benefits, hearings are requested in "only two or three percent of the potentially appealable determinations." Of these, the appellant is successful in "about twenty percent of the reported appeals."). Assuming that all government terminations of benefits are contrary to the desires of the beneficiaries, this yields an overall success rate of only 0.6%. By contrast, 100% of individuals given the opportunity to object, and in fact objecting, would be successful in preventing the coroner from removing organs for transplantation under presumed consent or reasonable efforts laws.
While the likelihood of success has been disavowed as a factor to be considered, this seems inaccurate. The strength of the property interest and the likelihood that alternative procedures will be useful in correcting mistakes are both related to the likelihood of success. For instance, if unemployment benefits are payable only for a six month period at which point they terminate, there is little persuasive force in requiring a hearing before termination since there is no chance of a different outcome. In the government benefit termination cases there is likewise little doubt that were the government's claims correct the individuals would have no further entitlement to benefits, yet the uncertainty concerning the facts, and therefore the possibility that the plaintiffs might have a further claim to benefits, was enough of a property interest to require some form of process.

[FN173]. While a person who is just above the cutoff for welfare benefits may still have a very strong interest in receiving those benefits, the state has chosen to give that interest no legal value since such a person has no claim to welfare under state law. If we want to look at it from the side of a deserving recipient who might be wrongly deprived of her benefits, then perhaps the social value test is helpful. Nonetheless, such a test unavoidably results in the injection of the judge's personal value system with no external means of ordering the values of different property interests created by the state.

[FN174]. See supra notes 35, 39 and accompanying text.

[FN175]. See Mathews v. Eldridge, 424 U.S. 319, 341 (1976) (limited time of deprivation because of post-deprivation hearing).

[FN176]. Assume the state takes an individual's car without notice or opportunity to respond. The fact that the individual would have donated the car to the state if asked does not make the original deprivation any less erroneous, though it may well decrease the likelihood that the individual will sue.

[FN177]. The exclusion from the balance of the value of actively choosing to donate tissue, see Murray, supra note 29, at 35, something very difficult to assign a weight to, serves to eliminate one possible element of uncertainty. Since this Note concludes that plaintiffs are due more process than currently provided, the exclusion of this factor does not affect the outcome. Were a court to find that the balance was close but ultimately hold in favor of the current laws, the consideration of this additional element of private interest might be of importance.

[FN178]. See UAGA(1987) prefatory note, 8A U.L.A. 2 (Supp.1989) (citing 1985 Gallup Poll indicating 75% approve of donation but only 27% very likely to donate own organs and only 17% actually completed donor cards); N.Y. Times, Jan. 17, 1968, at 18, col. 3 (70% willing to donate according to a Gallup poll taken shortly after first successful heart transplant).

[FN179]. See Note, supra note 31, at 367 (70% general willingness to donate "drops to 56% when a specific organ is mentioned").

[FN180]. Id. (less than 10% in most states).

[FN181]. See, e.g., id. ("36% would give permission to remove the kidneys of a dead relative").

[FN182]. See Fusari v. Steinberg, 419 U.S. 379, 383 (1975) (noting in dicta that "the reversal rate of appealed denials of [unemployment] benefits was significant, ranging from 19.4% to 26.1% during the periods surveyed").

[FN183]. Note the alternative where the tissue is used for research and the deprivation could thus be only temporary. Even such a temporary loss of control, however, is a deprivation. For practical purposes, however, no such return is likely. Cf. Gray v. Southern Pac. Co., 21 Cal.App.2d 240, 247, 68 P.2d 1011, 1015 (Dist.Ct.App. 1937) ("[T]he return of the removed organs . . . to the plaintiff (if such were possible) . . . could have caused her only embarassment, and, perhaps, horror . . . .").

[FN184]. See supra note 39.

[FN185]. If the earlier assumption that any deprivation is wrongful is correct, then every person contacted, even those who consent, would eliminate an erroneous deprivation of the right to make the choice at all.

[FN186]. In the example of welfare benefits, while the government may have an interest in denying benefits to one who does not deserve them, the government can hardly have an interest in erroneously denying benefits to one who does deserve them. This is so even though the provision of benefits costs the government more money. The imposition on the government of a cost that it has determined it is willing to pay in order to protect a right can hardly be weighed in on the other side of the scale when assessing the governmental interest at stake.

[FN187]. The list of authorized donors is part of state law, hence there should be no confusion as to whom to ask in what order. If none of them are available after reasonable efforts, the coroner would be permitted to proceed with removal.

[FN188]. E. John & B. Taupin, Don't Go Breaking My Heart (1976).

[FN189]. U.S. Const. amend. V, cl. 4.

[FN190]. See Chicago B. & Q.R.R. v. Chicago, 166 U.S. 226, 234-35 (1897).

[FN191]. See Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987); Hodel v. Irving, 481 U.S. 704 (1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987).

[FN192]. See e.g., First English, 482 U.S. at 318-19 ("It is axiomatic that the Fifth Amendment's just compensation provision is 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."' (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960))).

[FN193]. See G. Stone, L. Seidman, C. Sunstein & M. Tushnet, Constitutional Law 1461 (1986) ("[T]he central problem in Mahon and Miller remains: how to distinguish between a taking' and regulation.' Almost all government action . . . diminishes the value of some people's property and increases the value of the property of other people.").

[FN194]. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

[FN195]. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982); see also Seawall Assoc. v. City of New York, 74 N.Y.2d 92, 103, 542 N.E.2d 1059, 1063, 544 N.Y.S.2d 542, 546 (1989) (forcing property owners to rent rooms held a physical invasion). This category of per se takings apparently continues to reach the support of the Supreme Court. See Michelman, supra note 142, at 1608 ("The [Nollan] decision seems most satisfactorily understood as a further manifestation . . . of the talismanic force of 'permanent physical occupation' in takings adjudication.").

[FN196]. See First English, 482 U.S. at 329 (Stevens, J., dissenting) ("even minimal physical occupations constitute takings").

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