If you step outside this weekend, you're bound to spot a ghost, vampire, skeleton or two. It's the season for the undead. But don't let your guard down throughout the rest of the year. The zombie apocalypse is inevitable and it could come at any time.
When the undead rise, who will protect your legal rights? Or theirs?
An Underdeveloped Body of Law
The CDC's Office of Public Health Preparedness and Response has a comprehensive zombie preparedness plan. (Seriously, they do. They've even written a zombie preparedness novella.) But outside the Centers for Disease Control, a comprehensive federal approach to zombie law has been woefully lacking.
Sure, there are enough references to zombies in federal court opinions to fill a casebook. (Really, it costs just under $40.) But those opinions are too scattered to create any real zombie jurisprudence. Even state attempts to pass zombie apocalypse legislation have stalled. Florida's attempt to amend their state of emergency plans (which removes limits on concealed carry laws in emergencies) to cover zombie invasions doesn't seem to have made it out of the state senate.
Eat or Be Eaten?
Some theorizing is then required. The natural place to start is R. v. Dudley and Stephens. That classic 1L crim case established that necessity is no defense to murder and, well, that eating other humans was generally a no-go. So, zombies could expect criminal prosecution for eating the living, even if they need brains to survive.
But, don't expect an orderly legal system during the zombie apocalypse. The brilliant attorneys behind Law and the Multiverse, a blog devoted to "superheroes, supervillains, and the law," note that Dudley and Stephen's famous shipwreck is analogous to a zombie apocalypse itself. "The legal system is effectively suspended, the chances of survival are remote, and cannibalism may be a literal necessity."
Death and Taxes
Of course, the real question is not whether zombies will get away with murder, but whether they will be forced to pay taxes, like all other law-abiding Americans. What would crawling out of the grave do to estate taxes? Would zombies and their kin be forced to pay twice, should a zombie die again, via a stake to the brain?
Thankfully, Professor Adam Chodorow of ASU's Sandra Day O'Connor College of Law has taken a stab at these questions. (It's a much more interesting read than his recent law review article on the tax consequences of catalyzed fans.) The distinction might hinge on the process of zombification. If one must die before becoming a zombie, than the estate tax is likely to apply, as it does to all decedents. If your transition is more seamless, requiring no death, burial, and demonic resurrection, you may have a better case for avoiding the estate tax until you are later dispatched back to Satan.
Are You Still Married to Your Undead Ex?
Enough about the rights of the undead, you've got living clients to think about. What could happen to their legal rights should the undead return? Imagine, for example, that a client's spouse died years ago and the client has since remarried. Cue zombie apocalypse and your client's ex's Bride of Frankenstein-inspired return. The client is a cross-species bigamist now, right?
The legal geeks over at The Legal Geeks blog handled this question last year. As they note, "the law is not designed for resurrection." That's good news to you if you're not excited about a post-mortem reunification. Marriages end at death and can be expected to stay terminated despite the dead spouse's return.
Can You Kill Them Off?
Assuming zombies are as murdersome as often imagined, would you be able to put a bullet in their brains, legally? Again, we're in a gray zone. Obviously, should a beast burst into your firm and try to eat your brains, self defense would likely justify taking the zombie down.
However, if you strike down zombies that are no threat to you, you may leave yourself open to charges. They won't be homicide charges, though. San Diego criminal lawyer Peter Liss reminds us that homicide requires the taking of a life of a living human being. Assuming that zombies are treated as non-living, a zombie killer shouldn't fear homicide charges. But, she might be liable for desecrating a corpse. Under Utah law, for example, a "dead human body" is any human body in any stage of decomposition -- including, theoretically, reanimation.