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This presents an issue as to whether the state law authorizing the next of kin to make such decisions prior to probate of the will itself constitutes a taking. Cf. Quay, supra note 40, at 892, 923 (arguing that placing the burden on an individual to notify her next of kin about her objection to organ donation impermissibly burdens her right to control the disposition of her body). In fact, if we assume that the property remains vested in the estate, such laws have virtually the same characteristics as the presumed consent laws covering coroners. The short answer is that it is reasonable to assume that the next of kin has the interests of the deceased in mind, especially where no contrary evidence exists and that it would be impractical to probate a will in the timeframe with which we are concerned.
A strong argument could be made, however, that reasonable efforts to determine the decedent's wishes be made before turning to the next of kin. This would at least involve checking for a donor card or the person's medical records if available.
[FN198]. The action does not, in fact, eliminate these strands in the bundle. Instead it merely alters the procedures through which they can be exercised. This brings us back to the due process issues discussed earlier. Given that the rights to descent and devise still exist, the government's action cannot be viewed as a denial that a property right continues, but must be viewed as acting in disregard of that right by physically appropriating the tissue. As such, it would still be within the per se rule for physical occupations.
[FN199]. 481 U.S. 704 (1987).
[FN200]. 25 U.S.C. §§ 2201-2211 (1982 & Supp. V 1987).
[FN201]. 481 U.S. at 709. 25 U.S.C. § 2206 has since been modified.
[FN202]. By aggregating the total set of interests lost to each estate (interests in different pieces of land), Justice O'Connor seems to be adopting a "full net property" approach in evaluating the action. Having done this, Justice O'Connor fails to carry it through by not looking to see how much of the decedent's land interests remained unaffected.
The other aspect of this step is that while conceding that the income to be derived from these interests was de minimis, she uses the total value of the land as the measure of its worth. The fact that this land was not alienable, and hence its only value was the income it could produce, makes this step questionable.
[FN203]. 481 U.S. at 715 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
[FN204]. Id. at 716.
[FN205]. Id. at 704.
[FN206]. Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984).
[FN207]. In actuality, a close look at the Court's opinions would seem to indicate that the public use limit has merely taken on another role. What one now finds is that uses which substantially benefit the public (i.e., what would have previously been public use) are no longer even considered a taking. Uses which benefit the public only indirectly (what might have been thought of as nonpublic uses) are now considered public uses but require compensation. Cf. Michelman, supra note 142, at 1611-13 & n.60 (discussing the introduction of a means/ends analysis into the takings jurisprudence by Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), whereby a regulation which substantially furthers a government interest will survive a takings challenge. Regulations insubstantially advancing such purposes remain valid but require compensation.). What one really is witnessing is a "ratcheting down" of the protection of the clause as a whole.
[FN208]. See supra notes, 29, 73-75 and accompanying text.
[FN209]. For example, sales for non-transplant purposes. Id.
[FN210]. Id.
[FN211]. As alternative uses for human tissue expand, and presuming that it remains legal to sell body parts for those uses, markets may develop and the values reflected therein may begin to reflect more accurately the value of the organs.
[FN212]. Note, Compulsory Removal, supra note 2, at 700.
[FN213]. Id.
[FN214]. Family heirlooms, personal letters or diaries, one-of-a-kind family photographs, are just a few examples of items whose value is not reflected in the market. Nonetheless, these can be the subject of conversion and result in more than nominal damages. See Standard Oil Co. of N.J. v. Southern Pac. Co., 268 U.S. 146, 155-56 (1925) ("Where there is no market value . . . [the value may be taken to be] the sum that in all probability would result from fair negotiations between an owner willing to sell and a purchaser desiring to buy."); Rhoades, Inc. v. United Air Lines, Inc., 224 F.Supp. 341, 344 (W.D.Pa. 1963) ("Where there is the destruction of personal property without a market value . . . damages [are] based upon its special value to the plaintiff"), aff'd, 340 F.2d 481 (3d Cir.1965); Szekely v. Eagle Lion Films, Inc., 140 F.Supp. 843, 849 (S.D.N.Y. 1956) ("Even if there were no other market . . . [plaintiff] is entitled to damages 'based upon its special value to him."'), aff'd, 242 F.2d 266 (2d Cir.), cert. denied, 354 U.S. 922 (1957).
[FN215]. See Kirby Forest Indus. v. United States, 467 U.S. 1, 10 n.14 (1984) ("Other measures of 'just compensation' are employed only 'when market value [is] too difficult to find, or when its application would result in manifest injustice to owner or public . . . .' United States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950).").
[FN216]. See supra note 30.
[FN217]. Id.
[FN218]. See Michelman, supra note 142, at 1603 (describing "nuisance exception doctrine" under takings jurisprudence).
[FN219]. Mugler v. Kansas, 123 U.S. 623, 665 (1887) ("[A]ll property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.").
[FN220]. Cf. Quay, supra note 40, at 915 (state's use of cadaver for transplant concerns a "particular private good obtainable through use of a corpse when that utilization averts no public evil that the corpse could inflict on others"); id. at 925 ("A power conceded for the avoidance of public harm [the turning over of bodies in certain situations to coroners or medical examiners] has now been quietly usurped for private purposes.").
[FN221]. Cf. Chip Steak, Inc. v. Hardin, 353 F.Supp. 438, 444-45 (N.D.Cal. 1973) (Agricultural Department may take meat samples, without compensation, in course of inspection), aff'd, 502 F.2d 764 (9th Cir.1974), cert. denied, 420 U.S. 926 (1975).
[FN222]. See supra notes 66-67.
[FN223]. See In re Johnson, 94 N.M. 491, 494, 612 P.2d 1302, 1305 (1980) ("[U]nder some circumstances due process may require that the interested relative be given notice of an intended autopsy or disinterment.").
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