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Thomas E. Simmons
66 Mercer Law Review 729 (2015)
Excerpt: Introduction and pp 744-753
[Footnotes omitted. They can be found in the original via the link above]
The recent spike in tales about zombies has generated inspired responses from legal scholars. Films, such as World War Z (based on a fan-favorite novel), and television series, such as The Walking Dead (based on a comic book that routinely flies off the shelves), have captured the imaginations of viewers. These and other zombie stories make for productive legal critiques.
Zombies offer some of the same possibilities for exploring the application of legal principles as caped superheroes or Frankenstein’s monster. While zombies are horrifying, infectious, flesh-eating ghouls, zombies as a construct are one-dimensional relative to the complex dualism of a werewolf or the variegated sexuality of a vampire. A world where humans face a zombie apocalypse, however, presents a rich tableau for exploring fundamental principles of legal organization, structure, and procedure. This Article teases out some of that potential, suggesting teaching techniques and methodologies that demonstrate the possibilities of the judicious and meaningful inclusion of references and texts, such as The Walking Dead television and comic book series, in a law school curriculum.
As an assistant professor at a law school, I occasionally sprinkle references to zombie narratives in place of the standard players: “A”, “B”, and “C.” For example, to illustrate the present-interest concept for annual exclusion gifts in trust, I display comic book representations of key characters, provide their names and relationships to one another, then outline a scenario from The Walking Dead where Rick Grimes makes a gift in trust to Shane Walsh as trustee to pay to Rick’s wife, Lori, for life, remainder to son, Carl. The point here is that the remainder gift to Carl, while a completed gift and a vested interest, would not qualify as a present interest for annual exclusion purposes. I point out that this is true even though we all know that Lori’s term of enjoyment from the trust is going to be abbreviated, given that she dies in episode four of season three. I have only had one complaint from students related to this particular hypothetical. A student raised his hand, and frowning, said, “I haven’t seen that episode yet.” Spoiler alerts may therefore be in order.
Educational benefits are achieved from employing references to popular-culture plots or characters with which students have familiarity and share with other students, even students with diverse cultural, social, and geographical backgrounds. The visual cues that accompany a hypothetical that utilizes actual imagery of those characters enhances learning for many students. The technique of mapping fictional realities as frameworks for exploring new legal concepts forges connections with students, while allowing the exploration of the new and novel against a background of the familiar. It grabs the attention of students. It grounds new concepts in recognizable contexts. It cultivates a shared narrative as common ground for students of various worldviews and experiences.
In addition to utilizing popular narratives in illustrative hypotheticals as an educationally sound technique for introducing legal concepts, “what if” scenarios from popular texts can be framed as a way of testing the limits of a doctrine once it has been effectively mapped out for students. This Article’s various suggestions may be employed by law school professors by incorporating lessons from the exploration of the zombie mythos within an existing, recognized hornbook course-specifically, by referencing zombies or particular zombie texts to further illustrate various points. While teaching public health law, for example, a professor may incorporate discussions about how existing policy and governmental infrastructure may respond to a zombie outbreak. In a contracts course, students may puzzle over whether a zombie attack could constitute a force majeure. In an estate tax course, the impact of the undead on a transfer tax system, which relies on decedents, could be explored. These examples of uses of zombie texts suggest possibilities within the established curriculum, distilling lessons and discussion points relative to doctrines and procedures from a popular literary narrative.
The productive use of zombies in a law school curriculum is not limited to hypothetical scenarios and posing “what if” questions. The content of an interdisciplinary law and literature course could be expanded to include consideration of texts that reference zombies. While serious, canonical works such as Dickens’s Bleak House, Otto Preminger’s Anatomy of a Murder, and Kafka’s The Trial constitute examples of literature and film that merit serious study in a course in law and literature, I will assert that lesser texts should also be included, both as a way to highlight why Martin Scorsese outshines George Romero (even if one prefers repeat viewings of Romero) and to permit students to engage with less challenging works that still contain significant “teaching moments” about the law. The willingness to include lesser works of popular culture in a law and literature course alongside the greats, like Dickens and Kafka, underscores the fact that the primary thrust of a law and literature course taught to law students should be the law. Texts should be selected by law professors not for aesthetic achievements or historical importance, but for a text’s suitability in positing the study of law within a fictional narrative. Law should not be incidental to the study of literature; literature should serve the study of law. Recent scholarship under the rubrics of “law and popular culture” or “law and culture” supports this assertion. In some ways, the law and culture movement is an outgrowth of law and literature; in others, law and culture is its antithesis. First, however, to lay the groundwork for illustrations of a law and literature approach to zombie texts, an outline of the zombie mythos (for those unfamiliar with the great films of George Romero) and a brief summary of law and literature methodologies is in order.
C. Zombies and the Law: Two Pedagogical Alternatives
Two primary approaches can be utilized in applying a law and literature analysis to zombie texts. The first starts with the essential premise of a typical zombie narrative and extracts likely legalistic responses based upon existing doctrine and institutions. For example, we can consider how quarantine regulations would be utilized; the circumstances under which habeas corpus might be suspended; or the manner in which trans-national institutions, such as the United Nations, would react to a zombie apocalypse. These are “what if” questions which can be posed against the backdrop of a generalized zombie outbreak without dissecting any particular text.
In the discussion that follows, I will utilize this approach to consider the legal consequences of categorizing zombies, that is, whether as persons, as human remains, as animals, or as non-animals. This approach will employ a relatively static use of individual zombie narratives and pose questions in the abstract, questions which may be purely academic in an actual zombie outbreak. After all, most zombie stories demonstrate that central governments and institutional frameworks are completely displaced when significant numbers of the dead rise and attempt to eat us, and that the state of legal frameworks will be one of anarchy.
In a state of anarchy, there will be no courts, no administrative agencies, few advocates, and no formal enforcement mechanisms or sanctions. There will be only lawless pockets of survivors admidst millions of zombies. It is therefore pointless to ask whether hunting regulations would likely be modified to allow “open season” on zombies in a world without functioning state game, fish, and parks departments. For our purposes, however, I will speculate presuming an idealized general form of a zombie apocalypse populated with typical, animated, and hungry corpses at a point in time perhaps three months after the collapse of organized human resistance.
In addition to these “what if’ questions posed against a hypothetical zombie outbreak, we can examine the decisions and responses of the survivors situated within a particular narrative, considering themes and character choices with reference to the rule of law, justice, and procedure. We can ask what a specific zombie story tells us about the most fundamental legal values that survive the apocalypse and what the legal environment of the zombie apocalypse looks like.
This approach requires an analysis of particular settings, plots, characters, and their motivations in a given text as opposed to asking in the abstract how the law might treat the challenges inherent in a zombie apocalypse. The Walking Dead will serve our purposes for this particularized analysis, and we will consider what the television show and comic book series tell us about the retention of basic legal frameworks in a setting of destruction, anarchy, and the imminent possibility of human extinction. We will consider whether the survivors simply jettison legal structures as unnecessary and superfluous or whether they actively attempt to maintain some semblance of legal institutions. We will ask whether these portrayals ring true and whether we agree with the text’s assertions about the true value of law in an extreme environment. First, however, zombie categorization in the abstract should be considered.
1. Classification of Zombies. There is something to be gained from exploring the way that the law would likely respond to zombies themselves. Although zombie texts seldom take the time to pose fundamental questions, these are questions that we should ask and be prepared to answer as lawyers and teachers of the law. Thus, what rights (if any) would zombies be entitled to under existing legal doctrines? In answering this question, we would first ask how the law would classify zombies. What are zombies, legally speaking?
In my view, zombies would be properly categorized as non-human (or perhaps more precisely, as non-persons). A weak argument could be advanced that zombies are akin to profoundly impaired humans with ataxia instilled with an unexplained craving for human tissue. This argument should be rejected on the basis that the person whose corpse the zombie inhabits has died and that their corpse, although animated, is still properly classified as deceased. Someone who is deceased is no longer a person, legally speaking.
Perhaps zombies could be categorized as animals. Under the mythology of World War Z, the animating principle behind the undead is a virus. Essentially, it appears that zombies are animated only by the functioning of a virus. A virus cannot be said to be an animal. But in many zombie films, zombies, although slow-witted and clumsy, are capable of learning and reasoning on the level of perhaps a dog or possibly a chimpanzee. The initial scene in the zombie film that all others are measured against, Night of the Living Dead, opens with a zombie using a rock to smash a car window. The law would likely struggle with the question of whether to treat zombies as animals (entitled to some legal protections from wanton cruelty) or as something more akin to bacteria or slime molds (entitled to
no legal protections).
This is what the law does: insofar as possible, it categorizes the new and novel within its existing structures. This exercise reflects the limited role of the courts in interpreting the law as compared to the expansive powers of the legislature in declaring the law. Prior to a legislative pronouncement, courts are faced with referring to existing law when facing a novel issue, even one not initially contemplated by the legislature. Thus, when faced with categorizing zombies, courts would turn to existing legal frameworks and determine whether zombies should be properly categorized as animals. Ultimately, a state legislature or Congress would likely enact comprehensive zombie regulations. Until then, the courts’ categorization of zombies would constitute the binding legal framework. Even in the
absence of functioning courts or legislatures, some survivors, infused with respect for the rule of law, may undertake similar categorization exercises among themselves, considering competing policy arguments and the implications of those assertions.
The arguments for and against categorizing zombies as animals may unfold as follows:
Zombies respond to stimulus, they experience hunger, they are capable of some basic emotional responses: rage, surprise, and boredom. Zombies are capable of perception. Zombies are capable of learning on some level-at least on the level of a mouse in a maze. Zombies can distinguish between zombies and living people and do not eat other zombies. Zombies utilize their vocal chords, if not to speak, then at least to grunt, growl, and employ some means of primitive expression. They are not human; they are animalistic, noxious beasts, but as such they deserve to be treated as animals under our laws in the same manner as grizzly bears or Tasmanian devils.
Zombies are much more like smallpox than puppies. No one in their right mind resists the complete eradication of smallpox, and neither should we resist the wholesale elimination of the threat posed by the undead. All of us have lost loved ones in the zombie outbreak, and one of the hardest things about the state of the world today is seeing our loved ones, glassy-eyed and shuffling about, trying to eat us. But they are not our loved ones; they are zombies. Our loved ones have died and their corpses have been reanimated by unthinking machines that do not even respond to pain, do not even protect themselves from blows, and do not even seek to avoid annihilation. Even a mouse runs from a tormenter; the zombies lack even this basic instinct of self-preservation. They are not animals. They are germs.
Pro-Zombie Rebuttal Argument:
Given the unfortunate catastrophe of the zombie apocalypse, our doctors and our laboratories are unable to offer us any scientific analysis as to the level of consciousness to which zombies are capable. In these circumstances, we should err on the side of assuming at least the most primitive level of consciousness. Moreover, the oldest zombie is perhaps four to five months old. A four-to-five-month-old human infant would have only the most basic gross motor skills, verbal abilities, or powers to distinguish or empathize; a human infant focuses only on its basic needs. Perhaps with time, zombies will develop higher levels of consciousness just as humans and other animals do. We don’t know. Zombies should qualify as animals, at least for the time being, until we know more about them.
Anti-Zombie Rebuttal Argument:
Zombies lack any kind of free agency or even the basic instinct of self-preservation, and the danger they pose to the human race-what’s left of it-cannot be overstated. The pro-zombie argument actually uses the fact that zombies are selective in eating us rather than other zombies to argue for rights for the undead. It’s ludicrous. We must act in our own best interests, not the best interests of the zombies. Zombies are not baby seals; they are not bald eagles; they are not animals. They are, in fact, the greatest danger the human race has ever faced. And make no mistake, categorizing zombies as animals will come at a cost, a cost of life, possibly at the cost of humanity itself.
Balancing both sides, the pro-zombie argument would be more likely to prevail, at least in the short run. However, the legal realists’ school would correctly point out the enormous prejudices zombies would likely encounter in the courtroom, as they are responsible for the destruction of most of the world’s population and intent on biting, eating, and infecting the few survivors who remain. If zombies typically operate on the level of a mammal, laws concerning animals should be applicable to the undead. Legislative action may ultimately intervene to specifically delineate the legal character of the undead, but until that occurred, courts would attempt to shoehorn zombies into an existing legal category. Consequences would flow from the categorization of zombies as animals.
Most states’ animal cruelty laws could apply to zombies, making it a crime to commit wanton cruelty upon a zombie, except as necessary in the defense of life or property. If it could be successfully demonstrated that zombies do not experience distress or pain, then a strong argument could be made that they should be exempt from this particular law governing animals, since animal cruelty laws appear targeted towards protecting animals from pain. Laws that prohibit people from forcing animals to fight one another may apply to zombies as well, assuming that zombies could be encouraged or enticed to fight one another.
If zombies are animals, legally speaking, zombies would clearly be considered dangerous animals. Therefore, applicable hunting and trapping regulations would treat zombies in the same way that an escaped killer lion or a rabid dog might be treated. Some laws target the neglect or hoarding of animals. If zombies are animals, the hoarding prohibitions may apply to any survivors who kept unacceptable numbers of zombies in an enclosed space. Those who did contain or collect zombies (as Hershel does inside his barn in The Walking Dead) could also face strict liability for any resulting injuries.
Non-profit organizations dedicated to the prevention of cruelty to animals would reconsider their internal policies as well, perhaps amending their bylaws and organizational documents to exempt zombies from the class of animals for which they advocate. It seems unlikely that People for the Ethical Treatment of Animals (PETA) or the America Society for the Prevention of Cruelty to Animals (ASPCA) would undertake to advocate for zombies in the absence of widespread membership support. Organizations like PETA would be free to fight against cruelty to zombies if they chose to and still maintain their tax-exempt status, as Congress allows the Internal Revenue Service (IRS) to grant tax-exempt status to organizations that are organized to prevent cruelty to animals. PETA could also
elect to define a narrower class of animals and exclude zombies from its advocacy efforts.
At first blush, it therefore stands to reason that the undead would also be treated as chattels, such as horses, dogs, and toasters, which can be bought, sold, transferred, and encumbered as personal property. Two facts concerning zombies contradict the simplicity of this conclusion. First, zombies are much more akin to wild animals than domesticated pets. Wild animals are deemed the property of the sovereign and not the chattel of the landowner on whose property the wild animal might be found, at least until the quarry is captured or taken.
Second, zombies are simultaneously both low-functioning, animal-like creatures and decaying human remains. Zombies are animated human remains, but they are human remains all the same, reverting to mere human remains only upon having been effectively neutralized (typically by traumatic brain injury). The law closely regulates the burial, disposal, delivery, transportation, destruction, dissection, donation, disturbance, and trafficking of human remains. Many of the laws governing human remains would be deemed to apply to zombies both before and after the dispatch of a particular zombie.
The comprehensive regulations governing human remains have two primary impetuses. Human remains constitute a public health risk if not properly and promptly handled; disease and sickness can easily result from human remains that are mistreated or left untreated. Accordingly, laws regulate the disposition, transportation, and internment of bodies. In addition, human remains invoke deep emotional attachments and responses. There is something intensely personal and intimate about a deceased person’s remains, something that deserves respect and deference. Thus, laws require human remains to be reposed with dignity and recognize the enforcement of a decedent’s wishes regarding their funeral arrangements, burial instructions, and organ donation. Because we have concluded that zombies would be properly categorized as both dangerous wild animals and, at the same time, animated human remains, the law would likely seek to apply the rules and regulations concerning both quite different matters in a single hybridized set of doctrines and reject the simple categorization of zombies as mere chattels. From this synthesis, we would derive “zombie law.” In time, zombie law would become a recognized course in law school, possibly even as part of a first year law student’s course load in view of the overriding importance of zombie law in the zombie apocalypse. New professors would be recruited, and symposia and specialty law journals on zombie law would proliferate.
Essentially, zombie law would comprise an offshoot of personal property law, like both animal law and the law of human remains. Given the extreme hazards that the animated undead would represent to individuals and society, the values inherent in ensuring dignity and respect to human remains would often give way to preserving public safety from the risks that zombies represent. The law would favor zombie eradication over sensitivity to the emotional impact of corpses.