GOSSIP AND GORE: A GHOULISH JOURNEY INTO A PHILOSOPHICAL THICKET.

• Author: Williams, Sean Hannon
• Position: Book review

DEFAMING THE DEAD. By Don Herzog. New Haven and London: Yale University Press. 2017. Pp. xii, 266. $40.

Professor Don Herzog (1) engages in two main pursuits with his entertaining book Defaming the Dead. His first pursuit is philosophical. He argues that the dead can be harmed by events that take place after their death. His second pursuit is political in that it argues for tort reform. More specifically, he wants a decedent's estate to be able to sue for defamatory statements made after her death. Herzog links these pursuits together. He wants this bit of tort reform to be structured such that it vindicates the idea that the dead are harmed by posthumous defamation.

The most fascinating parts of the book attempt to draw out our intuitions about posthumous harms by offering vivid accounts of gossip and gore. Would a set of siblings do something wrong if they published an obituary for their mother that said, "[S]he neglected and abused her small children .... Everyone she met, adult or child was tortured by her cruelty...."? (2) Assuming for the moment that these claims were false, did the siblings wrong their mother? An attendant at the local morgue has sex with your daughter's corpse (p. 211). Did the attendant harm the daughter, her father, or both?

As disturbing as these accounts are, Herzog's prose makes the resulting discussions disturbingly captivating. The descriptions are like train wrecks (sometimes literally about train wrecks (pp. 195-97)) in that you will not be able to look away. Herzog uses these accounts, along with a series of dialogues with a skeptical interlocutor, to put pressure on the idea that the dead are beyond all harm. Throughout his book, Herzog uses examples from case law, art, and literature to illustrate his claims. (3) I'll use different cultural sources to illustrate mine, like Game of Thrones, Star Trek, House of Cards, and Soylent Green.

Part I of this Review sets the stage with some background about the relevant philosophical issues. Part II discusses Herzog's attempts to undermine what he calls the oblivion thesis. Under this view, nothing that occurs after our death can affect us (p. 26). Herzog launches two main attacks against this view. I'll call them the descriptive attack and the self-reflective attack. Section II.A discusses the descriptive attack, which claims that "we don't accept the oblivion thesis and neither does the law" (p. 220). But the book doesn't substantiate that bold claim. Luckily, a milder claim is also consistent with Herzog's ultimate goal--namely, that our laws and practices are equivocal about posthumous harms, and so the oblivion thesis should not be a trump card that cuts off debate about creating a cause of action for posthumous defamation. Section II.B discusses the self-reflective attack. These portions of the book tell the lurid stories about horribly personal (and sometimes defamatory) attacks on one's character, and even more horribly disturbing corpse desecrations. Herzog asks his skeptic--who is committed to the oblivion thesis--to explain why the deceased's relatives feel emotional distress when their dearly beloved's body is torn, tattered, and scattered by a train (p. 210). His skeptic is flummoxed. He perhaps thinks to himself, "If the deceased wasn't harmed by the train, then why do the relatives care?" The skeptic's only explanation--according to Herzog--is that the relatives' distress is a "brute psychological fact." (4) Herzog then argues that this is an inadequate explanation and offers a more straightforward one: the relatives think that the dead have been harmed (pp. 84, 210, 213). Herzog offers readers only two options--side with his skeptic and view the decedent's relatives as irrational, or embrace posthumous harms. But Herzog's skeptic at times sounds a bit like Star Trek's Spock, viewing silly humans and only being able to say, "Fascinating!" (5) Perhaps we should consult a second skeptic. I'll call her Arya. She will embrace the oblivion thesis, but she is not blind. She sees the emotional ties that help explain how she could simultaneously reject the possibility of posthumous harms and feel mental distress when her brother's corpse is decapitated. She can use evolutionary theory and bereavement research to explain her reactions in a way that is perhaps far more straightforward than the explanation that Herzog embraces.

Ultimately, I doubt that this book's discussion of the oblivion thesis will fully change anyone's mind. Our views about whether the dead have interests are probably too deeply held to be dislodged by the leverage that Herzog's arguments and intuition pumps provide. To be sure, Herzog generates sufficient leverage to at least move our intuitions somewhat. Those who thought that the oblivion thesis was obviously true may now be more uncertain. But uncertainty is not enough to motivate Herzog's reform proposals.

Part III assumes for the sake of argument that the dead can be posthumously harmed--that is, it assumes that they have interests that survive death and that those interests can be set back. But even with this concession, there is more that needs to be said. This Part argues that there are two much-needed conversations that are absent from the book. First, although Herzog argues that our interest in our reputation can survive our death (pp. 250-51), he does not adequately discuss why and how this interest fades over time. Second, he does not articulate how a tort award would make the dead plaintiff whole; the saying "You can't take it with you" suggests that the dead have no use for money. Without this discussion, it is not clear that his tort reform would be consistent with the private law vision of tort law that he embraces.

1. THE PHILOSOPHICAL THICKET SURROUNDING DEATH

   Death creates a number of puzzles. In the third century BC, Epicurus claimed that death does not harm us because "when we are, death is not come, and, when death is come, we are not." (6) The philosophical debate has raged ever since. (7) In addition to the puzzle of whether (and when) death harms us, there are puzzles about whether (and when) posthumous events can harm us. Here too, centuries of discussion have led to no clear answer-the debate lives on. (8) The book weighs in on several strands of these debates. Herzog disclaims any reliance on an afterlife and rejects ways of conceptualizing posthumous harm that argue that the true harm is to the living person (pp. 8-12, 241-42). So, for example, he does not want to rely on the idea that worrying about whether you will be defamed after your death is a harm to the living--an idea that might otherwise justify a tort reform similar to the one he proposes (pp. 8-11). His goal is to vindicate a particular account of posthumous harms (p. 157). Events that occur after death can harm us, and they harm us when those events occur even if we never worried about them while alive and have no surviving family or friends who might be upset (pp. 8-11).

   Herzog begins by making some standard moves in the debates about posthumous harm. He first sets up a common wedge and taps it lightly. He argues that welfare consists of more than subjective experiences (p. 12). Many would agree. You are perhaps better off if your spouse loves you than if he is merely pretending to love you (pp. 12-13). Nozick offered a related observation, as did the writers of The Matrix. (9) If there were a machine that would give you super happy illusions and you would simply live out your days slumped in a vat of goo, would it be rational to refuse to be hooked up? Many would refuse. People want to accomplish things in the world, not just feel that they have. Now that we have driven a wedge between welfare and subjective experiences, we can hammer the wedge again. If our welfare is affected by facts outside our subjective experiences, perhaps our welfare is also affected by facts that occur after we lose our ability to have subjective experiences--that is, after we die. (10)

   Since the above arguments are well worn, this Review will focus on Herzog's other arguments against the oblivion thesis.

2. AGAINST THE OBLIVION THESIS

   Early on, Herzog introduces us to his skeptic (p. 3). His skeptic embraces the oblivion thesis. In short: when you're dead, you're dead. Gone. Nothing. And that former person's interests are extinguished because interests cannot exist without a person to attach to. (11) So your interests cannot be furthered or set back after you die. Herzog attempts to shake our initial inclination toward the oblivion thesis. The bulk of his argument is dedicated to what I call his descriptive attack and his self-reflective attack. Neither is as strong as it might seem to be, although there is something to each.

   1. The Descriptive Attack

      The descriptive attack claims that our current laws and practices reject the oblivion thesis (pp. 58-67). Herzog's strongest example is testamentary freedom. Who decides what will happen to my money, my car, and my collection of Supreme Court justice bobbleheads? I do. We allow dead-hand control over these matters with only slight oversight. If we fully embraced the oblivion thesis, a court might read the decedent's will and say, "Well that's irrelevant; he's dead. His projects and preferences carry absolutely no weight now." But we say very much the opposite.

      Of course, we could construct a foundation for testamentary freedom that is consistent with the oblivion thesis. Perhaps we respect wills because they give people the proper incentives while alive. But like Herzog, I think this explanation is far-fetched, at least to the extent that it purports to be the sole explanation of our practices. (12)

      At least part of why we respect testamentary freedom is because we think we owe it to the dead to do so (p. 59). Consider a will that fails on some legal technicality. The family ignores the content of the invalid will and in fact seeks to thwart all of the projects that the will...