This is the first book that I have ever read on tort reform. That it will probably be the last is a reflection on Defaming the Dead only insofar as I suspect that it is unrepresentative of the genre. Highly creative and thoughtful, Don Herzog brings his considerable erudition, breadth of knowledge, and eye for the compelling detail to bear on the subject of defamation law. While most public discussion of tort reform focuses on the suggestion that both the ability of victims to bring tort litigation—civil law concerned with private prosecution for inflicted injuries—and the dollar amount of awards for such injuries ought to be reined in, Herzog relentlessly argues for the expansion of the law to protect the reputations of a class of hitherto largely excluded litigants: the dead. As he points out, the possibility that the dead might be defamed seems to be ruled out in the United States, and in other common-law nations, by the doctrine of actio personalis moritur cum personalis: the principle that such personal actions die with the individual who pursues them. As such, he notes at the outset that his might seem like a quixotic exercise, not least, perhaps, because he further complicates his task by refusing to predicate his argument on any form of consequentialism.

Herzog’s rejection of consequentialism is connected to—though not entirely based upon—his attempt to recover that which, he says, is “now sometimes dismissed as a quaintly old-fashioned or contemptibly obscure view of the tort” as private law unconcerned with the public interest (pp. ix–x). Thus, his argument about defaming the dead cannot be justified by appeals to the public good. Oddly, however, given his rejection of consequentialism, Herzog suggests that he “won’t mind if you label that agenda pragmatist,” continuing, “I waste neither a moment of yours nor a syllable of mine on any meta-theoretical defense of my approach” (p. xi). In this, perhaps, one is reminded of the opening of the Republic, in which Socrates’ interlocutors, having asked him to define justice, attach further conditions to his task that seem to make producing such a definition all but impossible. Alternatively, we might think of Herzog as akin to a great escapologist, explaining the many ways in which he or she is constrained before being lowered—straitjacketed and hooded—headfirst into a tank of water. What is remarkable about this book is that the author—as Socratic-Houdini—pulls off this trick by reconceptualizing the book’s central question about defamation and the dead.

Having eschewed the meta-theoretical at the outset, Herzog’s approach does not seek to justify his claim by identifying reasons that support his contention, but rather by seeking to show that this contention is already embedded in common and statutory law concerning both defamation and the dead. His strategy is to demonstrate that the widely held beliefs that the dead cannot be defamed, and that defamation law does not apply to the dead, are misplaced. There is, he suggests, often a contradiction between how we speak, think about, and act toward the dead and how they are treated by the law. It is a contradiction which when resolved, he argues, shows that we should bring the two into alignment, employing our intuitions, understandings, and social practices about, of, and toward, the dead to read and apply laws in ways that ease this tension. Herzog thus demonstrates that America’s legal understandings—both historical and contemporary—already include protection for the posthumous reputations of the dead.

The author’s method is multifaceted. At times, his approach is that of the later Wittgenstein, looking to see how we speak about and act toward the dead as a way of identifying the common commitments underlying our social and legal practices. He notes, for example, that the doctrine of de mortus nil nisi bonum—or speak no ill of the dead—is widely shared and employed in multiple contexts. At others, he is a genealogist, digging into the roots of various concepts in English common law, and then showing how they might have persisted or mutated over time to produce the current understandings. In other instances, Herzog embraces the role of logician, identifying inconsistencies not only in laws and arguments but also between such laws and arguments and the social practices from which they spring. He also plays the role of the skeptic, repeatedly setting out counterarguments to his own position in ways that not only keep his argument honest but that also frequently anticipate the reader’s possible objections. Most obviously, the author repeatedly shows how what he calls the “oblivion thesis” (that death is the end of the person and, thus, the end of his or her welfare concerns) and the “hangover thesis” (that any intuitions we have about the welfare concerns of the dead are merely a hangover from a time when we believed in an afterlife) are views that, while popular, are directly contradicted by our thoughts and actions. Herzog demonstrates this with discussions of burial practices, evidence that interests do indeed extend beyond life, concerns about corpse desecration, and our revulsion for cannibalism. Defaming the Dead, then, is an unexpected and engaging book that delves deeply into a subject that might, to many, seem somewhat arcane. As with any book, there are, of course, some issues of concern.

In the first instance, I found myself wondering what is at stake here. Academic scholarship is, no doubt, frequently driven by private obsessions, but the significance of this particular fixation eluded me. This is not an existential question, but rather a comparative one: Why should I care about the defamation of the dead as opposed to the multiplicity of legal anomalies and injustices in our society? I do not mean to suggest that the author should have written a different book about a comparatively greater injustice but, rather, to ask the hopefully less asinine question of how he thinks the problem he identifies, and to which he presents a correction, plays out in the world. It might be that Herzog’s rejection of consequentialism precludes an answer to this question lest he appear to be slipping in such a justification via the back door. Likewise, the question of what is at stake may itself be a manifestation of the oblivion and hangover theses in my own thinking. It seems, nevertheless, that the author could say something about the significance of the issue while making clear that his broader argument does not turn on this account. In the absence of such an explanation, legal scholars and political theorists (Herzog being equally adept in both fields) can derive much from the book, not least among which is its engagement with history, law, and social practice as a way of approaching theoretical puzzles. There are, however, some theorists for whom this approach is a given. They could surely benefit from Herzog’s reflections on how his understanding of his argument might affect American law, politics, and society.

Secondly, Herzog spends considerable time demonstrating the origins and usage of the maxim to not speak ill of the dead. Nevertheless, too little attention is, perhaps, given to considering whether the contemporary usage of this maxim is a form of apophasis. To say that one does not wish to speak ill of the dead is, perhaps, to speak ill of the dead by allusion, the silence standing in for some negative view of the deceased to which the maxim draws attention. As such, it is possible that the phrase remains in current usage in a way that poses a problem, albeit a somewhat minor one, for the author’s larger thesis.

My final concern relates not to Herzog’s arguments but, rather to his repeated use of examples—both real and imagined—predicated upon sexual violence against women. While his discussion of the Tawana Brawley case flows organically from, and is illustrative of, his broader argument (p. 254), other examples appear gratuitous in ways that it is hard to document without recreating what seems most troubling about them. “Rape” has, for example, the same number of index entries as two legal concepts—actio personalis moritur cum persona and scandalum magnatum—that are central to the book’s argument (pp. 269, 267, 270), and then, only because one of the author’s most brutal accounts of hypothetical sexual assault is simply omitted from the reference (p. 153). When, furthermore, Herzog asks the reader to imagine the desecration of a corpse—“You may be as detailed and as gruesome about that as you like”—he makes the body female in a way that seems unnecessary for his argument (p. 210). Similarly, in the real-life case of a woman whose body had been posed for “artistic” post mortem photographs, the author adds a hypothetical sexual assault to her posthumous indignities (p. 212). Given that Herzog is an author of such creativity and inventiveness, I wonder whether his repeated invocation of sexual violence against women might serve some larger theoretical point that this reviewer has simply missed. If so, perhaps Herzog might make this clear, for in the absence of any analytical purchase specific to these types of examples, his surprisingly frequent use of such examples seems unthinking at best.