Academic journal article Michigan Law Review

Gossip and Gore: A Ghoulish Journey into a Philosophical Thicket

Academic journal article Michigan Law Review

Gossip and Gore: A Ghoulish Journey into a Philosophical Thicket

Article excerpt


DEFAMING THE DEAD. By Don Herzog. New Haven and London: Yale University Press. 2017. Pp. xii, 266. $40.

Professor Don Herzog1 engages in two main pursuits with his entertaining book Defaming the Dead. His first pursuit is philosophical. He argues that the dead can be harmed by events that take place after their death. His second pursuit is political in that it argues for tort reform. More specifically, he wants a decedent's estate to be able to sue for defamatory statements made after her death. Herzog links these pursuits together. He wants this bit of tort reform to be structured such that it vindicates the idea that the dead are harmed by posthumous defamation.

The most fascinating parts of the book attempt to draw out our intuitions about posthumous harms by offering vivid accounts of gossip and gore. Would a set of siblings do something wrong if they published an obituary for their mother that said, "[S]he neglected and abused her small children .... Everyone she met, adult or child was tortured by her cruelty . . . ."?2 Assuming for the moment that these claims were false, did the siblings wrong their mother? An attendant at the local morgue has sex with your daughter's corpse (p. 211). Did the attendant harm the daughter, her father, or both?

As disturbing as these accounts are, Herzog's prose makes the resulting discussions disturbingly captivating. The descriptions are like train wrecks (sometimes literally about train wrecks (pp. 195-97)) in that you will not be able to look away. Herzog uses these accounts, along with a series of dialogues with a skeptical interlocutor, to put pressure on the idea that the dead are beyond all harm. Throughout his book, Herzog uses examples from case law, art, and literature to illustrate his claims.3 I'll use different cultural sources to illustrate mine, like Game of Thrones, Star Trek, House of Cards, and Soylent Green.

Part I of this Review sets the stage with some background about the relevant philosophical issues. Part II discusses Herzog's attempts to undermine what he calls the oblivion thesis. Under this view, nothing that occurs after our death can affect us (p. 26). Herzog launches two main attacks against this view. I'll call them the descriptive attack and the self-reflective attack. Section II.A discusses the descriptive attack, which claims that "we don't accept the oblivion thesis and neither does the law" (p. 220). But the book doesn't substantiate that bold claim. Luckily, a milder claim is also consistent with Herzog's ultimate goal-namely, that our laws and practices are equivocal about posthumous harms, and so the oblivion thesis should not be a trump card that cuts off debate about creating a cause of action for posthumous defamation. Section II.B discusses the self-reflective attack. These portions of the book tell the lurid stories about horribly personal (and sometimes defamatory) attacks on one's character, and even more horribly disturbing corpse desecrations. Herzog asks his skeptic-who is committed to the oblivion thesis-to explain why the deceased's relatives feel emotional distress when their dearly beloved's body is torn, tattered, and scattered by a train (p. 210). His skeptic is flummoxed. He perhaps thinks to himself, "If the deceased wasn't harmed by the train, then why do the relatives care?" The skeptic's only explanation-according to Herzog-is that the relatives' distress is a "brute psychological fact."4 Herzog then argues that this is an inadequate explanation and offers a more straightforward one: the relatives think that the dead have been harmed (pp. 84, 210, 213). Herzog offers readers only two options-side with his skeptic and view the decedent's relatives as irrational, or embrace posthumous harms. But Herzog's skeptic at times sounds a bit like Star Trek's Spock, viewing silly humans and only being able to say, "Fascinating!"5 Perhaps we should consult a second skeptic. …

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