WonderCon Follow-Up Questions

After our WonderCon panel discussion and mock trial we had the obligatory Q&A session.  Unfortunately we ran out of time.  I wanted to take this opportunity to address one question we didn’t have time for and a question that we later received via email.  If you were at the panel and had a question for us, please email us at james@lawandthemultiverse.com and ryan@lawandthemultiverse.com.

I. The First Thing We Do, Let’s Eat All the Lawyers

The last question we got from the audience was, in essence, “If all the lawyers die in the zombie apocalypse and then humans regain control, how can the courts function?”

This is a fair question, but the courts aren’t—strictly speaking—as dependent on lawyers as it might seem at first glance.  In the federal system, for example, there’s no requirement that judges be lawyers or have any legal education.  Historically federal judges have all been lawyers or at least been legally trained, but it’s not technically a requirement of the job.  So vacant judgeships could be filled from the ranks of non-attorneys.

That’s the judges out of the way.  What about the parties and their attorneys?

In a civil case the parties can represent themselves, if they are competent individuals.  Since there is no right to an attorney in a civil case, however, the incompetent, corporations, and governments are out of luck.  But there may be a solution, as we shall see in a moment.

In a criminal case there is a right to an attorney, and although that right is not absolute (e.g. the state can require proof of indigence), it does exist.  And of course the state itself must be represented by an attorney.  So something has to give.  And the answer is that the states would simply repeal, modify, or ignore their unauthorized practice of law statutes until new lawyers could be trained.  At the very least the prosecutor isn’t going to prosecute himself or herself for unauthorized practice of law, and presumably he or she would extend the same courtesy to the public defender’s office.

Without the institutional knowledge of a professional class of attorneys, the post-apocalyptic legal system would probably be pretty rough around the edges, but it would be functional.  Goodness knows enough books have been written about the law to reconstitute the U.S. legal system a hundred times over, and as any third year law student will tell you, it really only takes two years (i.e. 8-10 classes) to get the basic idea.

II. Zombie Hunting Preserves

During the panel we noted that even if zombies were considered legally dead, it might not always be legal to kill them.  For example, gratuitous mutilation of a zombie might fall under abuse of a corpse, depending on state law.  And shooting an unthreatening zombie might run afoul of laws against hunting out of season or unlawful discharge of a firearm.  We mentioned, however, that these last two might not apply if zombies had been declared a pest species.  That led to this question that we received by email from Lance after the panel:

You mentioned in the panel discussion that the state could deem zombies as pests. If so would there be ramifications to an individual for “hoarding” them for sport to let hunters hunt them on a private reserve granted that they signed a waiver of liability?

This is a good question with some hidden complexities.  Ordinarily, designating an animal a pest species would only be an exception to laws prohibiting hunting out of season, hunting in city limits, etc.  It wouldn’t typically affect abuse of a corpse, which would be the major issue with rounding up (admittedly reanimated) dead bodies and shooting them for sport.  But on the other hand, states make abuse of corpse laws and so they could, theoretically, pass exceptions creating permits for zombie hunting preserves.

But would that be enough?  The next of kin have what is often described as a “quasi-property” right in the dead body, in order to see to its proper disposition.  It is an interesting question whether that interest is a constitutional right (at some level) or whether it is an interest created by the state.  If it is an interest created by the state, then the state can take it away.  But if it is a constitutional right, then it is an inherent right.

It turns out that there are conflicting cases on this question.  In Whaley v. County of Tuscola, the Sixth Circuit held that “the next of kin may bring a constitutional claim under the Due Process Clause” of the Fourteenth Amendment because the County had removed the eyeballs of the deceased without permission of the next of kin.  58 F.3d 1111 (6th Cir. 1995).  But the court’s holding that there was a constitutionally protected right to possess and prevent the mutilation of the deceased’s body rested on the fact that the state had created a property right in the body.  Presumably without that underlying right there would be no constitutional cause of action.

Other courts have rejected any constitutional dimension to the issue at all.  For example, in Dampier v. Wayne County, the Michigan Court of Appeals held that “the common-law right of burial of a deceased person without mutilation, discussed earlier, is not of constitutional dimension.” 233 Mich. App. 714 (1999).

So in theory it might be possible for the government to strip away any right for the next of kin to take possession of an unmutilated body and see to its disposition. A challenge to this might be made on First Amendment grounds, since so many religions have burial or funeral requirements, but unlike the Establishment Clause, it is difficult to strike down a law under the Free Exercise Clause: “[a] law that is [religiously] neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice”. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).  A law stripping away any rights that the next of kin have in dead bodies as a way of dealing with the spread of a zombie plague would probably be religiously neutral and of general applicability.

So, what started out as a question about declaring zombies a pest ended up at the First Amendment and religious freedom. The short version is: just calling zombies a pest species probably wouldn’t be enough, but a state could probably theoretically legalize zombie hunting preserves if a) zombies were considered legally dead b) the state was willing to rewrite a lot of laws in the process.

24 responses to “WonderCon Follow-Up Questions

  1. James Pollock

    Once upon a time, one didn’t need to have any specific educational background to request entry to the bar. There’s no reason that entry to the bar post-zombie-apocalypse need be anything like the present system.

    Pretty much everyone involved in the legal education system admits that a good bar prep course can provide almost anyone the factual knowledge necessary to pass a state bar exam.

    Heck, I think we’d be fine, if the zombies left us some paralegals and the staff at WestLaw.

  2. At the very least the prosecutor isn’t going to prosecute himself or herself for unauthorized practice of law

    If Star Trek had gone on long enough, there would eventually have been an episode in which Captain Kirk was prosecuted by a computer. He would have resolved the situation by pointing out to the computer that it wasn’t authorized to practice law, causing it to prosecute itself for unauthorized practice of law, causing it to prosecute itself for prosecuting itself for unauthorized practice of law, causing it to…

  3. Martin Phipps

    What if zombies aren’t dead? Can they still be considered pests and legally shot? Or does the defendant charged with killing people while they are zombified have to establish self-defense? Given the nature of the justice system after the apocalypse would it simplify things to argue that zombies always pose a threat even if they aren’t coming directly at you and that, therefore, self defense is a given?

    • If zombies aren’t dead then they are alive, just sick. They would have all the same legal rights that any other living person does, and many of those rights can’t be stripped away because they are inherent in the Constitution.

      It may help to rephrase your question this way: “would it simplify things to argue that [sick people] always pose a threat even if they aren’t coming directly at you and that, therefore, self defense is a given?”

      • It may be morally wrong to kill somebody if they aren’t already dead and just sick and are not posing an immediate threat but there may be defenses depending on the situation. For example, if you are locked in a bunker with other survivors and one of the survivors becomes a zombie it may be necessary to kill them before they become a threat, especially if they are one of the fast moving zombies from 28 Days Later.

        Anyway, we can’t consider the broader question of our responsibility, if any, to care for people ho can’t care for themselves because that would be a real world question.

      • James Pollock

        “They would have all the same legal rights that any other living person does, and many of those rights can’t be stripped away because they are inherent in the Constitution.”

        Is that true? Doesn’t necessity + public health = different rules for zombies in a zombie apocalypse scenario? People who are in a position to spread contagion have had limits placed on their rights in the past (quarantine, for example, or the limitations placed on Typhoid Mary’s choice of employment.) If, for example, zombification were always like late-stage rabies, I could see the law fairly quickly recognizing their status as something neither the same as a live human being nor like a dead one. I mean, if zombification is hard to spread (say, like in “Ugly Americans”) then the change is going to be minor, along the lines of the changes the public health system put in place to deal with HIV or Hep-C, but if we’re talking full on raging zombie apocalypse, there’s no way the normal humans are going to respect anything like full Constitutional rights for zombies.

      • @JamesPollock

        You are probably right that in a zombie apocalypse the legislature (if not eaten or in hiding) would likely quickly update the law to deal with them, but until that update a zombie that was still technically living would have all the rights of a human.

        Now, you do point out there are ways to confine someone (e.g. Typhoid Mary) for public health reasons, but there are procedures for that and people authorized and people not authorized to make those determinations, and they are open to legal challenges. Also, I’m not aware of any precedent in the US for actually killing someone in that situation, just quaantining them.

        Of course, the most direct way to deal with it is to declare that Zombies had ceased to be human. As far as I know, a species changing event is unprecedented both legally and scientifically, but it just might apply to Zombies and maybe courts just might be willing to make that finding without legislative action. But that is a big “maybe”, especially if there is any hope at all of a cure and if the Zombie Apocalypse. If there is real hope of a cure, a court could easily find even legislative action to try to treat them as non-human to be in violation of their civil rights. (Assuming courts were still functioning and hadn’t all been eaten yet.)

    • Most pest species are alive. The question would be whether zombies are still human. Of course, we have no real world precedent for an individual who was human ceasing to be human, so that’s going to be a whole -mess- for a good while until we get a Supreme Court ruling and/or a constitutional ammendment on a legal definition of human. Assuming government still essentially functions in the post-zombie world.

      Asidely, I wonder how someone would do with a defense that it’s a war with an invading force, and that all zombies are enemy combatants.

      • Ken Arromdee

        A person in a permanent coma is human, at least until you get a court order to disconnect the feeding tube. And even then, you can’t get a court order allowing you to actively kill the person in the coma; you can only prevent them from getting food and make them starve to death. A zombie is basically a person in a permanent coma who’s walking around and endangering others. So would the only permissible way to kill a zombie be to lock it in a cage and let it starve to death, and then only if you’re a relative and/or mentioned in a living will?

      • @Ken Arromdee

        If the zombie was not threatening anything at the moment, then very possibly yes. However, it would be pretty easy to establish a self defense claim against your average zombie if you were physically near it.

        What probably would not be legal against a living zombie, at least without modification of the law, is deliberately hunting them, especially if in doing so you killed zombies that could not conceivably be a threat. For instance, picking them off with a sniper rifle for a mile away while on a roof they can’t reach is probbly out, and so is shelling a zombie infested area with mortar rounds from a kilometer away.

        Going out for groceries and killing any zombie that started approaching you hungrily is probably just fine.

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  5. Let’s take that thought one step further Martin. If zombies are always dangerous (even if they aren’t currently attacking you), could you be charged with negligent homicide, reckless endangerment or something of that variety if you have the opportunity to kill a zombie and don’t and it goes and attacks/kills someone. Carl not killing the zombie that ultimately kills Dale in The Walking Dead show comes to mind. Would this create a duty to kill any zombie you come across?

    • I’d be surprised at the idea of a general duty to risk your life. If a zombie is always considered a danger, then it would be a reasonable follow up to consider any attempt to kill a zombie a risk. Often it is portrayed as the better option to sneak past even a “low risk” kill, as the noise/activity of killing the zombie may draw further, much more dangerous attacks (zombie horde aggro!). Also, in any situation where the required materials to kill zombies effectively are limited (bullets, fuel, etc.), the duty to “take a shot” may well be counterproductive to continued survival.

      • Aside from issues of zombie life, if society hasn’t totally collapsed (as it seems to generally do whenever zombies show up) then the law would probably prefer that you focus on running away from them somehow.

      • Many states impose a duty to report found corpses, so there could be an obligation to report the zombie’s (last known) location to the authorities.

    • I doubt it. Generally, there is no duty to rescue and generally there would be no duty to remove a threat you didn’t create. A few states have attempted to create a duty to rescue by statute, but those generally don’t require you to put yourself in risk to do so and are hardly ever enforced even when there would be no risk.

      Now, things get a bit trickier if the attack happens on your land since you often have some level of duty to make your own land reasonably safe even for trespassers. But even there, you would have to be actually negligent in not killing that particular zombie.

      That is certainly possible, but it seems unlikely even if you took no particular action to deter the zombies and even less likely if you did take some actions to keep them off.

  6. Actually, the zombie apocalypse would solve one major problem in the legal field. Right now the expansion of law schools means that there are more law school graduates than there are available jobs in the legal field. This leaves a lot of students with an expensive education and few options to pay it off. When tracing the origin of the virus, I’d take a second look at the unemployed law school graduates.

    • James Pollock

      We’re pretty desperate, but I’d be surprised if we turned out to be the origin of the virus. I’d be more inclined to suspect a large-firm environment, where someone heard that zombies don’t sleep and no longer care about their families. 8760 billables per year, or you’re out.

      • Philo Pharynx

        Depends on the firm – some would expect more than that. 🙂

      • James Pollock

        Well, technically there’s a little over 8765 hours in a year, so maybe. But they’ll need some time to do CLE.

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  8. I do not think a corpse will be defined as “still moving.”

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