Law and Magic Blog

A Journal On Secularism and Nonreligion

Trinity College has announced the launch of the first journal "dedicated to the exploration of secularism and nonreligion," which begins publication next January. Its title, logically enough, is Secularism and Nonreligion. Cuts down on the confusion. More here from CNN.

UK ASA Rules Against Homeopathic Pharmacy For Leaflet Claims

The UK Advertising Standards Authority (ASA) has upheld 7 of the 8 complaints against the Ainsworth Homeopathic Pharmacy over a leaflet for holiday goers (since withdrawn from circulation) in which the Pharmacy presented a certain number of claims concerning the efficacy of homeoprophylaxis (homeopathic disease prevention). The ASA warned the Pharmacy not to advertise unlicensed homeopathic products in future and to make certain claims for licensed homeopathic products did not exceed those claims allowed by law.

Below are excerpts from the ASA's findings and ruling. Read the entire ruling here.

The ASA understood that the leaflet was intended to be supplemental to travel advice given in person by Ainsworths staff. We considered, however, that the oral information was unlikely to contradict the claims made for homeoprophylaxis in the leaflet and we noted that the leaflet could be retained by individuals and the travel kit could then be bought on the company’s website at a later date. We acknowledged that Ainsworths staff was trained to advise customers to first pursue conventional options available from their physician. We noted that the leaflet had been withdrawn. 

...

We understood that adverse reactions to conventional vaccines could occur in some individuals and we noted the terms of the BMJ article and the other resources that Ainsworths referred to. We understood that homeopathic products were generally designed to be ingested, rather than delivered directly into the bloodstream, and that they had been shown to have no side-effects. We considered, however, that readers would infer from the leaflet as a whole that homeopathic products were viable alternatives to conventional holiday vaccines and that they were in fact preferable because they were safer and less invasive. We noted that the leaflet did not state that customers should follow conventional vaccination opportunities first unless there was specific reason not to do so. We therefore considered that the leaflet was irresponsible, because it was likely to discourage readers from seeking medical advice regarding conventional vaccination against serious infectious diseases.

On this point the leaflet breached CAP Code (Edition 12) rules 1.3 (Social responsibility), 3.1 (Misleading advertising), 3.7 (Substantiation) and 12.1, 12.2 and 12.6 (Medicinal claims).

...

We considered that, by making reference to serious infectious diseases such as typhoid, tetanus, polio, meningitis, Japanese encephalitis and malaria, the leaflet implied homeopathic products were effective in treating those conditions. We considered that Ainsworths had not provided sufficiently robust scientific evidence to support the implied claim and we concluded that the leaflet was therefore misleading and irresponsible, because it could discourage readers from seeking medical advice regarding conventional vaccination against serious infectious diseases.

On this point the leaflet breached CAP Code (Edition 12) rules 1.3 (Social responsibility), 3.1 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration) and 12.1, 12.2 and 12.6 (Medicinal claims).

...

We noted that the disclaimer “Since these products have not been tested in clinical trials we are unable to make claims for the effectiveness of this method of disease prevention” was immediately qualified by the statement that Ainsworths relied instead on the testimony of those that had used the products “successfully throughout the world”. We considered that the statement contradicted the disclaimer and implied a widespread acceptance of the effectiveness of the products in non-clinical conditions. We had not seen evidence to suggest that such broad acceptance of the effectiveness of these products existed. In the context of a leaflet that referred to serious infectious diseases, we considered that the disclaimer, which was immediately qualified, was insufficient to make readers suitably aware of the limitations of the advertised products. We concluded that the leaflet was misleading and irresponsible, because it could discourage readers from seeking medical advice regarding conventional vaccination against serious infectious diseases.

On this point the leaflet breached CAP Code (Edition 12) rules 1.3 (Social responsibility), 3.1 (Misleading advertising), 3.7 (Substantiation), 3.9 (Qualification) and 12.1, 12.2 and 12.6 (Medicinal claims).

...

We accepted that some homeopathic products were licensed by the MHRA and that homeopathy was an established part of the NHS. We therefore considered that it was appropriate to use terms such as “dose”, “tablet”, “exposure” and “active cases” in relation to homeopathic products.

On this point we investigated the leaflet under CAP Code (Edition 12) rules 3.1 and 3.6 (Misleading advertising), 3.7 (Substantiation) and 12.1, 12.2 and 12.6 (Medicinal claims) but did not find it to be in breach.

...

We considered that the claims made in relation to Chelidonium 6X, Ceanothus 6X and the “Anti-Bite Tincture” implied that those three remedies had a physiological effect on the body and were effective for the medicinal uses stated in the leaflet. We understood that these were natural substances that would be made into a finished product at a customer’s request but we did not consider that this effected Ainsworths obligation to provide scientific evidence to substantiate the claimed medicinal uses; and they had not provided scientific evidence to support the claims made. Furthermore, we had not seen evidence from Ainsworths that they held an MHRA marketing authorisation for Chelidonium 6X, Ceanothus 6X or the “Anti-Bite Tincture”. We therefore considered that the leaflet had made unsubstantiated medicinal claims for unlicensed products, which was a breach of the code, and that it was misleading.

On these points the leaflet breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration), 12.1, 12.2 and 12.6 (Medicinal claims) and 12.20 (Homeopathic medicinal products).

...

We noted that the MHRA had issued a marketing authorisation for Apis 30C but that there were no approved indications for the product. We considered that the product information given in the leaflet should therefore have been confined to what appeared on the product label. We had not seen evidence from Ainsworths that they held a marketing authorisation for Histamine 200x. We concluded that the leaflet made unauthorised medicinal claims in respect of both products, which was a breach of the Code, and that it was misleading.

On this point the leaflet breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration), 12.1, 12.2 and 12.6 (Medicinal claims) and 12.20 (Homeopathic medicinal products).

...

We noted that the travel kit contained remedies for minor ailments only, but we considered that the leaflet implied the travel kit contained the homeoprophylaxis remedies that had been mentioned and that it had recommended those products as an alternative to conventional vaccinations for the purpose of protecting customers against serious infectious diseases. In that context, we considered that reference to the products as “indispensible” and “important” reinforced the impression that the remedies mentioned were effective in preventing those diseases. We also considered that it implied the products were an essential purchase for those travelling abroad, which we concluded was irresponsible, because it could discourage readers from seeking medical advice regarding conventional vaccination against serious infectious diseases.

On this point the leaflet breached CAP Code (Edition 12) rules 1.3 (Social responsibility), 3.1 and 3.6 (Misleading advertising), 3.11 (Exaggeration), 12.2 and 12.6 (Medicinal claims) and 12.20 (Homeopathic medicinal products).

...

We understood that the leaflet had already been withdrawn. We told Ainsworths to ensure in future that no marketing communications referred to serious medical conditions. We told them no medicinal claims should be made for unlicensed homeopathic products and that medicinal claims for licensed homeopathic products should not include indications other than those allowed by the MHRA marketing authorisation.

Note that in the United States, the federal government regulates homeopathic medicines in the same manner as OTC (over the counter) medicines. See here for more information.

Judge Dismisses Lawsuit Against Stanford Over Nature of Light

Via the Chronicle of Higher Education: a district judge has tossed Ben Ito's lawsuit against Stanford University for “[s]cheming to justify the wave theory of light, using wave theory to represent matter.” The judge reached his decision on procedural grounds, thus avoiding the merits of the case (whether the Michelson/Morley experiments were right about the nature of light, for example). For more about Mr. Ito's opinions on the nature of light, see here. 

 

Nature and Nature's laws lay hid in night:
God said, "Let Newton be!" and all was light.

-- Alexander Pope (1688-1744)

-- Epitaph intended for Sir Isaac Newton

It did not last; the devil howling
"Ho! Let Einstein be!" restored the status quo.

-- Sir John Collins Squire

Robert L. Weber, A Random Walk in Science (E. Mendoza, ed., Taylor & Francis, 2000). 

 

A Mention From the Blue Devils

A passing mention of Law and Magic: A Collection of Essays on the Duke Law Library's blog, as

[a]imed more at the Muggle crowd, but offers 24 chapters on the intersection between magic (both modern & historical) and the law, including: how intellectual property can (or cannot) protect magicians’ stage tricks, an animal rights perspective on pulling rabbits from hats, and a comparative perspective on historic witchcraft trials.

At the MUGGLE CROWD? Hey! (I'll be fair; they're contrasting Law and Magic with CAP's book on Harry Potter and the Law. But still).

But then the post goes on...

If this title particularly appeals to you, keep up with the latest developments on the topic at the Law & Magic Blog.

Well, all right, then.

Remember the Book!

Very nice review of Law and Magic: A Collection of Essays at the Law and Politics Book Review and a comment, also nice, on the book at the blog The Rhetorican. And before you ask, the explanation is that no, there is no such thing as a "rhetorican". He actually provides a justification for coining the word. But I say that's not necessary. His blog, his rules.

A Pasta Strainer On His Noodle

Austrian Niko Alm has finally won the right to wear a pasta strainer not just where-ever, but while the cops take his photo for his driver's license. After three years of fighting the good fight, he has won the battle. As the BBC reports, Mr. Alm is a Pastafarian--a member of the Church of the Flying Spaghetti Monster, and alleges that the strainer is part of his religious attire.

Mr. Alm isn't stopping here. He's driving on--to obtain recognition of the Church as an approved faith in Austria.

A link to Mr. Alm's blog (auf Deutsch).

Pagan Priestess Says Local Laws Don't Apply; Judge Disagrees

Via the wonderful and wacky blog Lowering the Bar, a story that Eilish De'Avalon, a "pagan priestess" who says she isn't subject to "earthly" laws has received a two month stint in jail for dragging a Geelong, Victoria traffic cop by his arm for 200 meters along a road. He apparently ordered her to stop but--see previous sentence. As she was being led away (maybe by her arm?) to the pokey she told Judge Geoff Chettle that she "declined his offer" and he told her "I'm afraid it's not negotiable." But she's a witch! Isn't he worried? After all, when the cop tried to stop her,

[s]he behaved in a bizarre fashion, telling the officer she was from another world and did not need a licence and that she had a spiritual and universal name that was not recognised here. "Your laws and penalties don't apply to me. I'm not accepting them, I'm sorry, I must go, thank you,'' she told the officer. Judge Chettle said she then drove off with Sen-Constable Logan's arm trapped in the driver's side window and it was only when she slowed down to turn a corner that he was able to reach in and grab her keys.

Ms. De'Avalon (so that's where she's from) is a "a marriage celebrant, self-styled witch and alternative therapies practitioner." To show there are no hard feelings, or maybe to facilitate good relations among the planets, she offered the officer "spiritual healing and a massage," but he turned her down. Well, gee.

Walking the Stage

Wonderful post over at Grasping For the Wind that features lawyers who have become fantasy and sf writers. While one of the questions seems to be "Should law students run---RUN---from law school or a legal career NOW?!" I cannot help thinking that law school and legal practice helped these lawyers become better writers, and/or that their creativity also makes/made them better lawyers. Consider about Scott Turow, who started as a writer who went to law school, and has continued to craft wonderful novels and David E. Kelley, who was an attorney who left practice to create iconic tv shows and characters.

I believe that everything in life becomes grist for your mill. Luck favors the prepared mind. You never know what of you learn might help you in future. Really. Clichéd as these statements seem, I don't think life is a lab experiment. You cannot run two or three of your lives at the same time (although THAT idea might make a great SF novel) and see what happens. I really do believe that people who don't get as much education as they can regret it later. Unless the idea of finishing law school once you have started it (or finishing anything once you've started it) makes you emotionally and/or physically ill, finish it. Walking across that stage (and passing the bar) shows that you can accomplish a goal, that you have transferable skills and training and that you can earn a living while you are planning your career at something else--say, writing that novel or setting up that mushroom museum. Or becoming a Great Magician.

The Lawyer As Deceiver With License

Another take on the lawyer as deceiver with license to steal (or authorized trickster, if you will). 

Lawrence M. Solan, Brooklyn Law School, has published Lawyers as Insincere (But Truthful) Actors as Brooklyn Law School Legal Studies Paper No. 238. Here is the abstract.

Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. Lawyers, however, are given license to be insincere. They are trained to be simultaneously truthful and insincere. On the one hand, they are required to tell the truth in the context of legal proceedings. On the other, they are insincere in that they routinely structure their speech to lead others into drawing inferences that will serve the lawyer’s goals, whether or not those inferences reflect a fair assessment of facts or law. This paper looks at the distinction between lying and deception, and finds some moral distinction, but not enough to justify the conduct acceptable by the legal profession on moral grounds. The paper discusses aspects of our psychology that make us vulnerable to the kind of deception practiced by lawyers, and concludes by criticizing American legal education for not imbuing a sense of responsibility in young lawyers that should accompany the license to be insincere. While the article focuses on lawyers working in the American adversarial system, many of the observations and issues apply to lawyers working in other legal systems, as well.

Professor Solan says in part:

Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. The assumption of sincerity is generally suspended when we know that a person is speaking on behalf of someone else and taking an assigned position, making lawyers‘ insincere speech a special case of a more general phenomenon. Just as debaters and actors can and should put their own beliefs aside, lawyerly conduct can, in broad terms, be justified by the attorney‘s obligations in the adversarial system, which is often discussed under the rubric of role morality. After all, how can a lawyer represent a party in litigation without advocating for that party‘s position, whatever the lawyer believes?

Not all forms of insincerity are acceptable, however. Lawyers are trained to be simultaneously truthful and insincere. While they may structure their speech to lead others into drawing inferences that will serve the lawyer‘s goals, whether or not those inferences reflect a fair assessment of facts or law, they must not lie. It is acceptable to use cross-examination to direct a jury toward a theory that the evidence supports but which the lawyer does not believe to be true. It is not acceptable, however, for the lawyer to misstate the evidence in a closing argument.

This distinction – between lying and deception by misdirection – is accepted as a skill at which lawyers should become facile. Yet it rests on a shaky moral foundation. People typically have strong intuitions that lying is bad per se, and that that it is better to frame something deceptively than to lie about it. But many moral philosophers do not give much credit to this intuition. A person who is the victim of a deceptive practice generally feels no less violated just because the deception was not accomplished through a bald-faced lie. This essay explores this distinction, on which so much of lawyerly practice is based.

Moreover, the best lawyers are so convincing that they are able to cause their audience to let down their guard and to forget that they are dealing with an advocate. The essay also explores some of the psychology that leads to this sometimes unwise placement of trust. Thus, lawyers can be truthful, insincere, and effective all at the same time. In fact, they must be both truthful and insincere to be effective advocates, because zealous advocacy requires some degree of insincerity, and lawyers are not permitted to lie. This, in turn, explains why it is easy to distrust lawyers while, at the same time, admiring them. As Robert Post observed, lawyers ―are simultaneously praised and blamed for the very same actions.

Hmmm. Sort of like magicians (but less fun, and more expensive)? Download the essay from SSRN at the link, and pay no attention to the person behind the curtain.