Legal Dilemmas

The chapter launches with Star Chamber proceedings against Lewis Pickering: in the sixteenth century, defaming the dead could be a crime. And that remains true even in today’s United States. But as the common law sharpened the distinction between tort and crime, it rejected the view that such defamation could be a tort. Tort claims extinguished when either plaintiff or defendant died. And when aggrieved survivors sued, the law held they hadn’t been wronged, even if they had been harmed, so they couldn’t recover, either.

“This Will Always Be There”

The chapter offers a constructive account of posthumous harm by exploring how we can make sense of interests that survive one’s death. The dead can’t appeal to some of the interests protected by the tort of defamation: most obviously, the pain and suffering experienced by the defamed. But they can appeal to others. The chapter closes by examining the Tawana Brawley affair, and New York’s and Rhode Island’s grappling with making it a tort to defame the dead.

Corpse Desecration

An exploration of how we and the law think about corpse desecration. The chapter explores skeptical arguments that it can’t be an injury to the dead person, the history of revulsion against such desecration, and how the law came to see it not just as a crime but also as a tort – against the survivors, not the dead person. It reproduces and analyzes art by Goya and Veber. And it closes by examining a series of recent cases, including autopsies gone awry, and not least that of a mortuary worker who liked to get high and have sex with corpses.

Speak No Evil

The chapter opens with a recent obituary that went viral, in which a daughter bitterly indicted her deceased mother for cruelty and child abuse. It goes on to explore the history of the view that we should speak no ill of the dead, and zeroes in on Julian Hawthorne’s decision to publish pages from his deceased father Nathaniel’s journal cruelly mocking deceased Margaret Fuller. And it notes that that view seems not to depend on whether the claims against the dead are true or false, a distinction central in the law of defamation.

Tort’s Landscape

A sketch of the basic contours of tort law, for those not familiar with it. The chapter defends and starts deepening the traditional case that tort is private law: that what matters in a tort action is simply the claim that one party has wronged another, not making sound social policy or promoting Kaldor-Hicks efficiency or anything like that. It explores settings in which the law does take posthumous interests seriously.

Embezzled, Diddled, and Popped

The chapter opens by inviting the reader to imagine that at her funeral, someone falsely claims she embezzled money, diddled children in the park, and popped kittens in the microwave for fun. It then stages a collision between skeptical views dismissing the thought that that would qualify an injury and arguments that it would. It underwrites the skeptical case by exploring the case that contrary intuitions are an illegitimate hangover of religious beliefs about the afterlife.