Looking for the perfect gift for that tort lover in your
family? The perfect read for the beach
this summer? Look no farther. Pick up Don Herzog’s Defaming the Dead (Yale University Press 2017).
Herzog, a law professor at the University of Michigan, published
this odd delight. He makes a cogent
argument against the common law rule prohibiting defamation actions predicated
on injury to the reputation of the dead.
I was skeptical: a whole book about this little common law trivium? Turns out, the history of defamation and the
dead is compelling: at times bizarre, thought-provoking, and often funny,
especially in Herzog’s capable conversational style.
Do you care what people say about you after you die? It’s human nature to put a lot of thought
into the future beyond your lifespan. But
it doesn’t really matter. You won’t be
here to be injured by defamation, nor gratified by its omission. And if you’ve moved on to a heavenly
(or other) afterlife, why would you care what mortals are saying back on earth? Sometimes we imagine that we care about the
future because we want happiness for our survivors. But we won’t be here to know whether they
have it, so is the interest really ours, or theirs? Should the law protect either? These problems, which Herzog posits in the
beginning of the book, force some deep thought about what we want to accomplish with
tort law—e.g., compensation,
deterrence, anti-vigilantism—and accordingly, how we think about tort’s elements—duty,
breach, causation, and injury—in the context of dignitary harms.
To oversimplify, Herzog pits what he calls “the oblivion
thesis”—you can’t assert legal rights from beyond—against the Latin maxim and social
norm, de mortuis nil nisi bonum,
loosely meaning, “speak no ill of the dead.”
Common law defamation observes the first proposition, while as to the
second, Herzog cautions: “No reason to think that just because it’s stated in
Latin and has an imposing history, it makes any sense.”
Yet as Herzog then well demonstrates, we observe the Latin
maxim in American (and British) common law in all kinds of ways. The law’s purported disinterest in protecting
reputations of the dead never became a rule in criminal libel. And 19th century precedents that excluded post mortem defamation recovery seem to
have been motivated by the same illogic that survival statutes were meant to
redress.
Meanwhile we recognize a range of legal interests that
appear to reject the oblivion thesis: We
honor the intentions of the dead in trusts and estates. Attorney and medical privileges can survive
death, even as against the interests of the living. In intellectual property, copyright and
publicity rights survive death, and trademark discourages disparagement of the
dead. Privacy in the federal Freedom of
Information Act protects survivors by way of the decedent’s personal
rights. And Herzog devotes an entire riveting
chapter to legal prohibitions on—and compensations for—corpse desecration.
Whether or not you’re convinced in the end that the common
law rule on defaming the dead should yield, Herzog’s tour of the field is a worthwhile
interrogation of much more than defamation, and much more than tort law. His thesis unpacks the fundamental question
of who we think we are, if we are so much more than the sum of our carbon compounds;
and how that understanding of our personhood is effected and perpetuated by our
most curious construct: the rule of law.
