Legally Speaking: Halloween -- lawyer style

By John G. Browning | Oct 23, 2012

It’s that time of year again, when our thoughts turn to ghosts, goblins and things that go bump in the night.

Halloween is right around the corner, and with it come the creatures of the night that haunt our collective unconsciousness: vampires, werewolves, witches, zombies and the like.

But Halloween also figures prominently on the mind of the scariest creature of them all—the lawyer.

If you think I’m about to regale you with a tale of ghosts inhabiting haunted courthouses, well that’s for another time.  Instead, allow me to first send shivers up your spine with stories about something that first year law students find more terrifying than bloodsucking fiends or reanimated corpses—lawbooks.

Courtesy of Texas Tech University law professor Victoria Sutton, law students and lawyers alike can now learn all about the spookier side of the law in Halloween Law: A Spirited Look at the Law School Curriculum. Using Halloween as the unifying theme, Sutton examines the scarier side of first year law school subjects like torts, property and criminal law.

“I thought I might do something on vampires and the law,” says Sutton, “[b]ut there wasn’t enough variety.  But in my research I noticed a great number of cases revolving around Halloween, and it occurred to me the subject areas fell into the same categories we teach in the first year of law school.”

As a result, Sutton’s work looks at such topics as the liability issues surrounding people hurt at “haunted houses” put on for profit or charity (a subject, by the way, that “Legally Speaking” has also covered).

Sutton points out that while normally there may be a duty not to frighten someone into hurting themselves, “at Halloween, the courts have said that duty is modified.  You are paying to get scared when you walk into a haunted house.”

As a result, she says, “courts have generally held that haunted house operators are not liable if a person injures themselves reacting to a scare.”

In the book’s section on criminal law, Sutton looks at whether the atmosphere of Halloween hijinks excuses vandalism to some degree (it doesn’t).

She also gives a nod to constitutional law, noting that U.S. Supreme Court Justice Antonin Scalia is the only member of the nation’s highest court to reference Halloween (when a light bulb went out with a loud “pop” during oral argument on Oct. 31, 2005, Justice Scalia said “Happy Halloween”).

And in keeping with the spirit of the holiday, Sutton skips the unlucky Chapter 13.

Although the book features a quiz at the end of each chapter, this is certainly not your typical law book.  Sutton, a biodefense and biosecurity scholar who served in the administration of the first President Bush, wrote the book to appeal to lawyers and non-lawyers alike.

“I hope that non-lawyers will read the book and get a sense of what we learn and how we learn it in law school,” she says.

Not to be outdone, New York lawyer and entrepreneur Joshua Warren hopes that soon you’ll see a lawbook about zombies on the shelves.  Warren, who describes himself as “obsessed with zombie rhetoric,” has raised $5,000 in crowdfunding on to help him compile a casebook on zombie law in the federal courts.

Warren points out that more than 300 federal court case opinions have made zombie references.  A typical one is a 2007 opinion by U.S. District Judge Neal Wake, who termed a doctrine that had been overruled “a zombie precedent” that, though extinguished by a statutory amendment, “continues to prowl, repeatedly re-animated by mistaken citation and dicta.”

Warren says that the book, once completed, will make “a good gift for any lawyer or law student but also any intellectual zombie fan as well as anyone interested in American law . . . . The book is full of real life ‘zombie’ tales packed with legal terminology and federal procedure.”

Re-animated corpses that stagger about, starving for human brains?  While that image may bring to mind some of our oldest federal judges still clinging to their lifetime tenure, Joshua Warren insists that it’s a great subject for a law book.

As for me, I’ll stick with “The Walking Dead.”

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