Herzog - 2018;2017;

Defaming the Dead

DON HERZOG

Published with assistance from the foundation established in memory of Calvin Chapin of the Class of 1788, Yale College.

Copyright 2017 by Don Herzog.

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Library of Congress Control Number: 2016947904
ISBN: 978-0-300-22154-1 (hardcover : alk. paper)

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The Woody Guthrie lyrics in are from Plane Wreck at Los Gatos (Deportee); words by Woody Guthrie, music by Martin Hoffman; WGP/TRO- Copyright 1961 (renewed), 1963 (renewed), Woody Guthrie Publications, Inc. & Ludlow Music, Inc., New York, NY; administered by Ludlow Music, Inc. Used by Permission.

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For the University of Michigan Law School

The just and proper jealousy with which the law protects the reputation of a living man forms a curious contrast to its impotence when the good name of a dead man is attacked. When a man dies, the law will secure that any reasonable provision which he has made for the disposal of his property is duly carried into effect and that his money shall pass to those whom he has selected as his heirs. He leaves behind him a reputation as well as an estate, but the law, so zealous in its regard for the material things, has no protection to give to that which the dead man regarded as a more precious possession than money or lands.

The dead cannot raise a libel action, and it is possible to bring grave charges against their memory without being called upon to justify these charges in a court of law or to risk penalties for slander and defamation. The possibilities of injustice are obvious.

LIBELLING THE DEAD, GLASGOW HERALD (27 JULY 1926)

Rhode Island has a curious statute. It says that if youre defamed in an obituary within three months of your death, your estate can sue. Why curious? Because as far as I know, its the only such law in the United States. Any journalist will assure you its axiomatic that theres no such thing as defaming the dead. Not that its impossible to publish false statements of fact that damage their reputations: nothing easier. Rather that once youre dead, tort law will not protect your reputation. Except, in this severely limited way, in Rhode Island.

I think thats lamentable. I think we have reputational interests that survive our deaths. And I think tort law ought to protect them.

I have five aims in this book. One: I want to develop the case for tort reform. It might seem quixotic to offer any expansion of tort liability, given laments about the greedy plaintiffs bar, out-of-control damage awards, and the like. But Im serious. I think Rhode Island shouldnt be alone. Indeed I think its statute is too narrow.

Two: I want to deepen and vindicate whats now sometimes dismissed as a quaintly old-fashioned or contemptibly obscure view of tort. I think tort is private law. Not just in the nominal sense that the typical tort suit features one private party suing another. Rather in the richer sense that tort is about private wrongs, not public interests. Tort isnt really about promoting efficiency or making sound social policy or anything like that. It actually is just what it looks like on its face.

Three: in a parallel registerbut Id be reluctant to say one is just the application of the otherI want to rebut the claim that finally all we care about, or should care about, are consequences. Various independent commitments often travel together under that rubric. Ill be terse here and throughout, but there is much more to moral and political theory than finding strategies to maximize good across the population or incentivize more optimal conduct. The best way to undercut the appeal of consequentialism, I suspect, isnt to offer a rival abstract view: much of what we evoke by talking about expressive dimensions or deontological side constraints is unhappily vague. Its to press its deficiencies in a concrete contextand exhibit an alternative as more promising.

Four: I want to offer an account of posthumous interests, which have seemed to some writers hard or impossible to make sense of. I take skepticism here seriously; I do my best to dramatize and support it. But I also try to show its misguided.

Five: I want to show that we can greatly enrich our understanding of theoretical puzzles by immersing ourselves in historical cases, social practice, and legal doctrines. I have nothing against what philosophers call intuition pumps: I begin with one and recur to it repeatedly. But I worry about relying solely on extravagant examples that spin free of the nitty-gritty contours of our social lives. Thats an exercise better suited to displaying the ingenuity of the author than to sharpening our grasp of the world. Then too, the conventional division in political theory between those with normative and those with historical interests is dispiriting. We can appraise historical moves as attempts to solve problemsand we can wonder if theyve outlived their justifications.

These aims are connected. If you like, you can think of them as five aspects of one agenda, and I wont mind if you label that agenda pragmatist. But I waste neither a moment of yours nor a syllable of mine on any metatheoretical defense of my approach.

Im a political theorist, not a lawyer; but Ive been teaching at the University of Michigan Law School for over twenty-five years now. For many years, Ive taught first amendment and torts. In 2009, I taught a seminar on defamation, which got me started thinking seriously about these issues. The law school is a wonderful place: thanks to generations of my students and my colleagues for being so smart and savvy. Ive quipped that I was abandoned as a foundling on the law schools steps and they took me in and raised me. Im delighted to dedicate this book to the institution.

I presented an earlier, abbreviated, and sadly cryptic version of this argument to my colleagues at Michigan, to John Goldberg and Henry Smiths private law workshop at Harvard, and as the 201314 Kadish Lecture at Berkeley. I presented a relatively finished version of at Penn. Thanks to attentive audiences for encouraging me to persevere. Thats how I chose to construe their incredulity, anyway.

Doug Dion, George Fisher, John Goldberg, Scott Hershovitz, Jill Horwitz, Webb Keane, Daryl Levinson, Peggy Mc-Cracken, Nina Mendelson, Bill Miller, Marguerite Moeller,

Julian Davis Mortenson, Sasha Natapoff, Len Niehoff, Adela Pinch, Jane Schacter, Carl Schneider, Andy Stark, and Hannah Swanson commented on earlier drafts of part or all of this work. Warm thanks for their generosity and insight.

Defaming the Dead