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.