Ah, a woman after my own heart. Well, not literally.Victoria Sutton is a professor at Texas Tech School of Law, and she writes about law and popular culture. Great! She writes about Halloween! Greater! She writes about Halloween and law. Greatest! Her book, Halloween Law: A Spirited Look at the First Year Curriculum, is available from Vargas Publishing, and on Amazon.
Here's a description of the contents from the publisher's website:
Halloween Law is a spirited guide through law school study starting with that first scary year. Looking at the law through the lens of Halloween proves the old rule that truth is stranger than fiction. Halloween cases that conjure up issues in constitutional law, criminal law, tort law, property law and contract law introduce you to the first year curriculum. If you survive the first year, you can move on to several upper level courses for those who dare --- employment law, oil and gas law and lots of local government law creep into the Halloween Law experience. Halloween Law will leave you ready to deal with any case from the crypt.
Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching.
Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But only to a point. In this Article, I reconsider these concerns about the use of brain science to infer mental functioning. The primary message of this Article is straightforward: “Don’t panic!” Current constitutional protections are sufficiently nimble to allow for protection against involuntary government machine-aided neuroimaging mind reading. The chief challenge emerging from advances in brain science is not the insidious collection of brain data, but how brain data is (mis)used and (mis)interpreted in legal and policy settings by the government and private actors alike.
The Article proceeds in five parts. Part I reviews the use of neuroscientific information in legal settings generally, discussing both the recent rise of neurolaw as well as an often overlooked history of brain science and law that stretches back decades. Part II evaluates concerns about mental privacy and argues for distinguishing between the inferences to be drawn from the data and the methods by which the data is collected. Part III assesses current neuroscience techniques for lie detection and mind reading. Part IV then evaluates the relevant legal protections available in the criminal justice system. I argue that the weight of scholarly opinion is correct: The Fourth Amendment and Fifth Amendment likely both provide protections against involuntary use of machine-aided neuroimaging mind reading evidence. Part V explores other possible machine-aided neuroimaging mind reading contexts where these protections might not apply in the same way. The Article then briefly concludes.
It's a thoughtful explanation of how law and magic, seemingly disconnected are related through the lens of anthropology;,it includes a review of various legal approaches to the treatment of magic and a definition of "magic," (in order to get the discussion moving). The authors also present a straightforward review of the problem facing legislators and judges: how do societies, and their legal regimes, differentiate between genuine belief, which might include practices that look magical, and therefore objectionable, but need protection, and fraudulent behavior and practices, which look awfully similar and also objectionable, and don't need protection?
We all want to ban something. It is a staple of our political culture. All of us are perhaps one moment away from seeking to ban what someone else is saying or doing. The nod-a-long responses of "it shouldn't be allowed" or "there should be a law against it" are the common solutions to many perceived problems.
However, to "ban" something is not actually to eliminate it, whatever "it" is. The "it" is not extinguished; the "it" may just be attended by some different consequences. The legalistic prose in a solemn document is not some magic spell which banishes horrors by invocation. To say there should be a law against a thing is often no more than saying there should be a spell against it.
In fact, "banning" things often creates new problems. In its correct legal form, a prohibition establishes certain legal and coercive consequences should the prohibited act occur: a court order for damages, say, or a prison sentence. Being banned does not thereby stop the thing from happening. It just means that the legal system will be engaged in a way it otherwise would not be.
Now, he's talking about "bans" and not "banns," which are the posting of the announcement of an upcoming marriage. Some people might say that "banns" mean also mean all sort of things are now banned as well, a number of them a lot of fun, but that's a discussion for another day.
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in a different direction, than the realists intended. Classic anthropological studies reveal several telling structural similarities between traditional proximate cause analysis and ritual magic. Moreover, it seems that in diverse cultural contexts, magic not only survives skeptical exposure, it feeds on it. Drawing on the anthropological literature, I propose that exposing doctrinal indeterminacy functions as a kind of ritual unmasking that ultimately increases rather than diminishes the credibility of doctrinal analyses. The Article concludes by considering how unmasking doctrinal indeterminacy works to strengthen faith in doctrine and by raising some questions about the implications for law’s legitimacy. Does unmasking doctrine only further mask judicial power? Or can ritual theory help us see some potential legitimate value in maintaining doctrine as the form of legal decision making, even as we acknowledge doctrine’s inability to determine legal outcomes?
Remember the Teller v. Dogge lawsuit? Magician Teller filed a lawsuit against Gerard Dogge (real name Bakardy) for infringing the copyright of Teller's famous illusion, Shadows. A number of attorneys and magicians have commented on the suit on blogs. Last year, Chris Jones published an discussion of the lawsuit for Esquire.
Now Jennifer J. Hagan and William Samuels are publishing "Teller v. Dogge": When Two Magicians Duel Over the Secret to an Iconic Illusion, They Conjure a Copyright Infringement Lawsuit," in the Spring 2013 issue of "New Matter Magazine," the magazine of the IP Section of the California State Bar Association. It's an interesting piece. Stay tuned.
I've added a link in one of my sidebars to a new website, The Encore Foundation, which assists ill or injured magicians. Arbitrator/lawyer/magician Richard Bloch set up the Foundation several years ago. If you want to help this worthy cause, send contributions to
The Encore Foundation
RICHARD I. BLOCH
4335 CATHEDRAL AVE. N.W.
WASHINGTON, D.C. 20016
If you want to assist a particular performer, write that person's name in the memo line of your check.
Here's another link, through which you can donate online, using your credit card. You can help someone in need, which is always great. And courtesy of the IRS, the magic words of the day are "tax deductible."
CNN's Jeannie Moos reports on the clever criminal justice student who designed an outfit (out of cardboard, apparently) and now proceeds to freak out fast food personnel when he orders tacos, burgers, etc. He's also a magician. Literally. Check out his work at Magic of Rahat (Youtube). He notes that the get-up limits his field of vision somewhat, so maybe it's not the safest thing to be wearing when one is driving. And border patrol probably isn't enamoured of the idea. Still, pretty good.