Category Archives: constitutional law

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 and

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.

Y: The Last Man

Y: The Last Man is the 2002-08 DC series written by Brian K. Vaughan, who also wrote Marvel’s Runaways, which we’ll be coming to presently. The premise is that, in the first issue, something happens (Vaughan is cagey about exactly what) which kills everything with a Y chromosome except the main character Yorick Brown and his pet monkey, Ampersand. Needless to say, this causes society to basically collapse right away. Horrendous traffic accidents (including planes and trains), utility failures, etc. Society is never going to be the same. This is bad for this blog, because we try to limit our analysis to stories that are easily analyzed under the current legal system, and it’s pretty clear from the first few issues that laws are going to change, and even if the legal system is restored there’s going to be a significant period of discontinuity.

But those first few issues do contain some really great constitutional drama about elected officials who die while in office. The first ten issues are in hardcover, but most of what we’ll be talking about is in the first trade. Continue reading

Silence & Co.: Money Is Power

Earlier this month, I was fortunate enough to receive an advance copy of Silence & Co.: Money Is Power from its author, Gur Benschemesh. This is his first graphic novel, but the artist (Ron Randall) and letterer (John Workman) both have a long list of titles to their name, many with DC and Marvel. Silence is the story of Alexander Maranzano, the illegitimate but acknowledged youngest son of a major New York crime boss. After getting out of the Marines (for reasons which turn out to be important), he starts working as a hit man for the family. It’s a complete work in three acts, it avoids many of the common pitfalls in crime graphic novels, and it’s got one of the most realistic takes on the process of surveillance I’ve seen so far. Silence is scheduled to hit stores this May, but we’re taking an advance look at its handling of legal issues now. Continue reading

Powers: “Role-Play”

The second chapter of Powers is called “Ride-Along,” and comprises just one issue. It involves a fictional Warren Ellis, the author of an in-universe comic book called Powers, essentially a meta-version of the real Powers book, going along with Walker for a ride-along. Which is interesting enough, particularly for the meta-textual entertainment value, but neither that nor anything else that happens in that issue is of any particular legal interest.

So we’ll move straight into chapter three, “Role-Play”. We’ll be talking about two more legal issues this time: the expanding discussion of the state of superhero regulation and the interesting possibility of being a conspirator in one’s own homicide. As always, spoilers within. Continue reading

Little Brother, Part 2

In the first part of our review of Cory Doctorow’s Little Brother we focused on the federal government’s legal response to a second 9/11-scale terrorist attack on the United States.  In this post, we continue that analysis and conclude by considering “the response to the response.”

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.  The sequel, Homeland, is also now available.

Continue reading

Castle: “Swan Song”

Swan Song” is the episode of Castle that aired on Nov. 12, 2012. It features two groups to which the First Amendment potentially applies: a religious cult, and a film-maker. The episode touches on or directly addresses several First Amendment issues, though it doesn’t actually name-check any of them. Spoilers inside. Continue reading

Little Brother, Part 1

Cory Doctorow’s novel Little Brother is a 2007 young adult bestseller that speculates about the effects of a second 9/11-scale terrorist attack on the United States, particularly with regard to civil liberties.  Told from the perspective of teenage hacker Marcus Yallow, the story suggests that the government response would be to combine new technologies with new laws to frightening yet fruitless effect—at least when it comes to combating terrorism.  The sequel to Little BrotherHomeland, comes out on February 5th, so we thought we’d talk a bit about the first book and then take a look at the sequel once people have had a chance to read it themselves.

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.

Continue reading

The Atrocity Archives

The Atrocity Archives is the first volume in Charles Stross’s Laundry Files series. It consists of the novella “The Atrocity Archive” and the short story “The Concrete Jungle.” The premise is that not only are Lovecraftian horrors and other things that go bump in the night real, but they live way down at the bottom of the Mandelbrot set and may be communicated with and/or invoked by computation. The main character is an operative in the British agency known as “The Laundry,” and was drafted in to the agency when he inadvertently discovered the means of invoking an Egyptian god as part of his dissertation research. Many people wind up in the agency in a similar means. Whenever someone stumbles on this sort of knowledge, the appropriate agencies make an offer: work for us, or never publish anything ever again. The name of one course offered to employees of the Laundry is “Computational Demonology.”

You get the idea.

The stories raise several issues for our consideration. First, whether it is illegal to invoke the Elder Gods or other eldritch abominations. And second, whether it is legal for there to be secret laws. Continue reading


Lincoln is the 2012 Steven Spielburg biopic starring Daniel Day-Lewis, who bears an uncanny resemblance to the titular President. The film is excellent, but as always, we’re not really reviewing it on its merits, but on its handling of the legal issues it touches. The movie is a dramatization of the 2006 book Team of Rivals: The Political Genius of Abraham Lincoln by Doris Kearns Goodwin, which centers at least as much on Lincoln’s Cabinet, especially William H. Seward, Salmon P. Chase, and Edward Bates, all of whom were candidates for the Presidency in 1860, all of whom were recruited by Lincoln to serve in his administration. The movie focuses mostly on William H. Seward (David Strathairn, apparently on break from Alphas).

Here, we’re going to look at three particular issues. First, the procedural requirements for the passage of a constitutional amendment. Second, the procedure regarding contested congressional elections. And third, the use of patronage to accomplish Lincoln’s political goals. Continue reading

The Sons of Liberty

The Sons of Liberty, Book I is the first installment in Alexander and Joseph Lagos’ 2010 graphic novel series of the same name. Book II came out last year, but I haven’t gotten to that one yet. The premise is that two slave boys in colonial America acquire superpowers via experiments into electricity performed on them after they escape from their master, a Virginia tobacco farmer. The boys are Graham and Brody, and they come under the tutelage of fictionalized Benjamins Lay and Franklin in 1760.

The book is unusual for several reasons. There aren’t a ton of graphic novels set in the Revolutionary period, nor does Random House put out all that many graphic novels, for that matter. But it provides a great opportunity to take a quick look at a rather unpleasant chapter in American legal history: laws having to do with slavery. Continue reading