ARGH! Pre-empted! (but only a little): Sutherland and Swan on Zombie Law
Ok so I started this blog back in February and I was working on zombies in the law even before that, but today I discovered that another professor has already published something similar.
Sharon Sutherland is Assistant Professor at University of British Columbia (of course she’s Canadian! I wonder if the connection of zombies to Canada is partly a French language connection to Haiti, although that wouldn’t really explain their predominance in British Columbia).
Sutherland is interested in mediation and theatre and is also a vampire law scholar. In 2005 she published about portrayals of the legal profession in the television show “Angel” (related to “Buffy the Vampire Slayer”): If a Vampire Bites a Lawyer, is it Cannibalism? The Demonization of Lawyers in ‘Angel’
In 2009, ABA announced that her article on zombies would be published and sure enough it was, in an edited book of scholarly essays entitled “Zombies Are Us: Essays on the Humanity of the Walking Dead” By Christopher M. Moreman, Cory James.
Sutherland’s article (co-authored with Sarah Swan) is entitled: “‘Corporate Zombies’ and the Perils of ‘Zombie Litigation’ The Walking Dead in American Judicial Writing” (pg 76-86)
The article is a good summary of some major zombie in Federal Court opinions and is a very readable introduction to the idea that the zombie metaphor is strongly present in the federal courts. She approaches it from a law and literature style (as opposed to my quantitative social science content analysis style) and though I would question her emphasis on Romero zombies, she hits squarely the Scholes “evil zombie” corporations and quotes the GM/GMAC zombie/vampire case (of course this case since Sutherland is a vampire scholar).
However, the authors make a considerable mistake in neglecting the pre-1956 references to the zombie metaphor – See ZombieLaw post on the “impotent zombi” cases. Presumably, Sutherland and Swan simply neglected to consider the alternative spelling without the “e” (except if so, it is highly ironic that they repeatedly refer to zombies as “colorful” when that is the exact adjective used in 1979 by the Judge Fletcher to describe the Judge Frank’s originating phrase 1949 “impotent zombi”).
The omitted early “zombi” cases link the zombie metaphor to challenges for free agency in major league baseball. And for my research, this is an important reframing of the metaphor. From this very first 1949 usage, zombies are about the possibility of choice (free will vs determinism) and about labor rights. Zombies are an expression of the mind-body problem and highly related to Marxist notions of Capital. Note again, a French connection (See generally, Cusset’s book “French Theory in America: How Foucault, Derrida, Deleuze, & Co. Transformed the Intellectual Life of the United States”).
Sutherland and Swan’s analysis is directly on point and I can only hope to write something equally readable, but their analysis was superficial. Also since their writing, the word only continues to increasingly appear in Federal Court opinions. Sutherland and Swan consider it only in relation to popular culture and assume it is mere vivid imagery drawn for a variety of purposes. I argue that despite a variety of purposes, it is serving a primary function as an important placeholder for a very specific and growing cultural uncertainty about personal responsibility and self-control. These uncertainties are increasing as we experience revolutionary changes in technology and the means of production (Recall Bloomberg’s graduation speech and Steve Jobs Zombies) and are manifest most particularly in issues of corporations, medications and criminals).
While Sutherland and Swan conclude that zombies may be a way for the Court to indicate that it considers a claim frivolous, they contradict themselves with the seriousness with which “lobotomized juror” is chastised. The Court and the law take philosophy of mind very seriously. The law is set up on a system of dualist constructions.
Daniel Dennet in “My Brain Made me Do it” (2010) has written that the concerns about implications in popular cognitive-neuroscience (that we are all zombies) are mere overblown fears from closet Cartesians. But he also says neuroscience will add new loopholes to moral responsibility and the related laws.
And so from the perspective of lawyers and judges and other traditional institutions (zombie education) framed on dualist misconceptions, these are precisely the closet Cartesians that fear the changes in the way we understand and produce what it means to be human. And so like good Hegelian logicians, if they are to preserve humanity, they must instantiate an opposite – arise the zombie in Federal Courts – a paired opposite for creativity – placeholders for the ambiguities of the transcendental within the reductionist language of secular materialism.