Reacting to the Supreme Court's 6-3 ruling in King v. Burwell, Senator Ted Cruz proclaimed,
Today, these robed Houdinis have transmogrified a federal exchange into an exchange, quote, 'established by the State...This is lawless. As Justice [Antonin] Scalia rightfully put it, without objection, words no longer have meaning.
Since Justice Scalia has referred to the statute as "SCOTUScare" (or SCOTU-scare, depending on how you want to read it), scare-y, magic, Hallowe'en-y language seems to be the order of the day. Carre-y on.
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?
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?
Tintin au Congo was the second album written by Hergé in the series that has been hailed to have given birth to the graphic novel genre. It tells the story of the encounter between a young white European reporter and Africa, as imagined by a Belgian author living in Brussels in 1930. Likewise, the judgments of the Sierra Leone Special Court constitute the narrative of an encounter, this time between the international legal community and the grim realities of the civil war that ravaged that African country more than a decade ago. Both encounters can be described as intercultural collisions: much of the original appeal of Tintin au Congo rested in its caricature of African society as backward and in every respect inferior to European civilisation; in the decisions of the Sierra Leone Special Court, there is a similar stark contrast between the culture of international criminal law as the embodiment of justice and humanity on the one hand, and the irrational descent into anarchy and senseless violence on the other. These narratives stand apart in their origins, their style, their aspirations, and yet converge in their intersection of modernity and barbarity. A study of the original Tintin au Congo as published serially in a Brussels newspaper in 1930 and of the transcriptions of the hearings of the Civil Defence Forces Trial in Sierra Leone reveals that, for each, magic is taken as a key to decipher afromodernity and make it comprehensible for the imagined, civilised, western reader. In doing so, each narrator constructs its own identity, in one case European and civilised Belgium, and in the other the universal and rational international criminal law regime.
In an objective cyberspace that relies on a virtual map featuring dynamically coded focal points functioning as markers and spoilers, addresses, magnets, roadblocks or detours, there is an opportunity to describe norms, to distinguish forms of offensive conduct in respect of new technological uses beyond trademark, and to prescribe effective, modest, and technologically reasonable remedies. I propose that conduct which: (a) alters the virtual map, (b) plants deceptive focal points, (c) ambushes a user of focal points with uninvited, invasive, or false invitations, or (d) expropriates, blocks, or spoils focal points otherwise available should be an actionable focal point offense.
I also propose a modified set of trademark likelihood-of-confusion factors for "invisible and attenuated" new technological uses in cyberspace and I explicitly link the trademark-style and focal-point style offenses into one unified theory. My proposal relies on modest remedies--reasonable technological accommodations--that use countervailing code to remediate the problems caused by offending code, and it limits the extent of secondary liability. I thereeby preserve a robust and freely navigable cyberspace with minimal regulatory interference and with maximum freedom to use search terms and other focal point landmarks as legitimate aids to navigation.
Incidentally, I define an objective code world having a number of discrete places, and I propose a technique for desiging transformed laws appropriate for it. To help explain and illustrate the power of coded exceptionalism in a coded world, I use Professor Lessig's well-known example of poisoned flowers in cyberspace, to which I add the problem of "finding superman" in cyberspace. I likewise use Judge Easterbrook's observations about the law of the horse, to which I add the special problems of coded horses (or, as it were, "magic horses") in a coded world.I am proposing specific steps to align laws, code, norms, prices, and architecture in an objective code world. I import some concepts from game theory to do so.
Referring to Judge Easterbrook's famous article about cyberspace and the law of the horse (which questions whether cyberlaw exists, or should), Professor Folsom writes in part:
These coded horses, created by will and words, reproduced and multiplied at almost no cost, distributed essentially for free, and adapted or modified as we please, have no real likeness to any similar things or to any similar powers affecting them in ordinary space. This is exactly what we would call "magic" words and magic horses if any such thing existed in the ordinary world. But it is merely what we call "code" in the code world. And it is as common there as it is utterly unprecedented in the ordinary world. Because these magic horses are themselves (still, at least for the most part) coded, and may be decoded or recoded by someone else (a person who is acting deliberately, directly or indirectly), they are precisely what we would call "the magician’s horse."
Such constructs as these, common to the code world but without any strong analog to the ordinary word, at least occasionally create a set of objective problems with real consequences and real relationships that ordinary law is systemically unsuited to handle in the code world. It is for this set of cases that there is a need to consider a new sort of law sitting for the new technology; a law for the magician's horse, reasonably specified to constrain predatory or piratical actors without destroying the power of code for the common good. It is for this reason that that I am not only proposing a unified general theory of design to deliberately specify law for the code world, but am actually working out a particular solution to a particular problem that I claim is principled, practical, and predictable. (footnotes omitted)
Professor Folsom cites to Professor Allen's Magical Realism essay in Law and Magic (Carolina Academic Press, 2010) at 195, noting that he is looking for "'real' magic in terms of objectively operative utterances, repeatable and reproducible on demand in ordinary space to parallel the objective power of code in the code world." He seems to think that the way that the legal realists thought about law as magic might, might qualify, but doesn't think that "legal formulae, robes, or other trappings and shows of conventional semiotics" do. Hmmm. He and I obviously disagree. A ruling from a judge can change a document that purports to be a Last Will and Testament into a piece of paper suitable only as a placemat at a family dinner. If you're looking for transformation, that's pretty transformative, and it happens because of the black robe (both the apparent and the real authority). Is that so different from code, which changes the genuine into the false, or the false into the genuine? I think I understand his argument, but I'm not so sure that I would discount the ritual and the language as well as the philosophy that accompanies them. One can make distinctions among the three, but I think they hang together pretty well.
On the Franklin & Bash episode aired June 23 ("Bro-Bono"), the prosecutor makes a Penn & Teller reference, and in my opinion, not an apt one. ADA Janie Ross, Peter Bash's former girlfriend, who is often assigned to prosecute his cases (are there no other ADAs in that office? how odd) objects to one of the pair's shenanigans in court. As Mr. Franklin flips opens a beer and proceeds to imbibe (in open court), working on a theory of their case in order to try to acquit their client, the judge senses that his courtroom is rapidly becoming a circus.
Mr. Bash: "We're arguing that it takes time for alcohol to be absorbed into the body. Mr. Franklin is demonstrating that to the jury." The judge: What's going on here? Ms. Ross: "Your Honor, may we approach the bench with Penn and Teller?"
First, nothing about Franklin & Bash's inappropriate demonstration is remotely magical. Why Janie Ross uses any magician's name in referring to them is beyond me. They aren't using any sort of misdirection, for example. Everyone can see Franklin opening the beer and drinking it; the question is why? Even after his partner explains the reason, the question is still why? If you want to explain to the jury that alcohol takes time to be absorbed into the bloodstream, call an expert witness. Don't drink the alcohol and then ask the police officer to test your partner's responses with a breathalyzer, which is what these two clowns do. (I said they turned the courtroom into a circus).
Second, judges frown on lawyers (particularly prosecutors) who make the "magician" argument. Comparing opposing counsel to a magician is bad form. In extreme cases, it might be grounds for reversal. As I discuss in a recent article, U.S. appellate courts in general disapprove of lawyers who use magical terms or refer to opposing counsel as magicians. For one example of how appellate courts treat the magician argument, see State v. Nasi, 2005 Wash. App. LEXIS 831 (excerpt below).
Because calling counsel a magician has negative connotations, we do not encourage the use of this metaphor. To protect the integrity of the adversarial system, prosecutors should be exceedingly careful, when commenting on defense counsel's strategy, not to improperly disparage defense counsel or defense counsel's role.
Third, Penn & Teller have said and written repeatedly that they don't drink alcohol. See Penn & Teller, How To Play In Traffic (1997), and numerous interviews, and I would think that most people who have heard of the pair know that. So, I wouldn't compare a beer-drinking lawyer in a courtroom (even one doing so to make a point for his client) to P&T. Even a fictional one. Even on TV. It just doesn't make sense.
Finally, the only reason that I can think of for using a magical analogy is to sway the jury. If a lawyer is going to use a magical analogy, she had better be sure it's a good one. Janie Ross's P&T analogy isn't a good one. As I noted before, Franklin & Bash aren't performing any kind of magic here. Franklin is drinking beer and then plans on a breathlyzer test. Neither Franklin nor Bash leads up to nor continues with any kind of "magical" reference. I think Ms. Ross is just trying to use the P&T name for reasons of her own, reasons which I, at least, don't understand. The reference may in fact, help her opponents, since the jury may identify them with the popular magicians. So, what exactly did the writers have in mind?
In a new article published in the Cornell Law Review, scholar Yishai Blank examines the "reenchantment of law": the reworking, remaking, or recreating of bases of law so that it can provide what seem to be more substantial ideals about morality and justice.
Here is the abstract.
The religious revival observed throughout the world since the 1980s is making its mark on legal theory, threatening to shift the jurisprudential battleground from debates over law’s indeterminacy and power to conflicts over law’s grounds, meaning, unity, coherence, and metaphysical underpinnings. Following the immense impact of the legal-realist movement on American jurisprudence, the major jurisprudential conflicts in the United States throughout the twentieth century revolved around the themes of the indeterminacy and power inherent in adjudication (and the resulting delegitimization of it), pitting theories that emphasized these critical themes against schools of thought that tried to reconstruct and reconstitute the determinacy and legitimacy of adjudication. Over the past couple of decades, however, a new jurisprudential dividing line has emerged without attracting much notice or attention. This new divide, which I draw in this Essay, is between thinkers who adhere to a disenchanted, instrumentalist, and secularized view of the law and theoreticians who try to reenchant it by reintroducing a degree of magic, sacredness, and mystery into the law; by reconnecting it to a transcendental or even divine sphere; by finding unity and coherence in the entirety of the legal field; and by bringing metaphysics “back” into the study of law.
Thus a new stage in the evolution of modern legal theory is emerging in which formal legal rationality is no longer the high point of legal disenchantment (as Max Weber saw it) but a model for law’s reenchantment as against the almost universally accepted disenchanting legal theories. And although the question of legal interpretation - and the possibility of objective and legitimate adjudication - is still motivating some of these theories, the reenchanting theories aim to shift the jurisprudential debates from questions of the consequences of legal principles and rules to fundamental questions concerning the grounds of law. This ground shifting might invoke new jurisprudential conflicts between secularism and religiosity, between pragmatism and metaphysics, and between critical and magical thinking. In order to evaluate and demonstrate my claim I analyze four exemplary (though not exhaustive) modes of legal reenchantment that have emerged over the last thirty years: the reenchantment of legal formalism, the reenchantment of virtue, the reenchantment of law as art, and the reenchantment of legal authorities.
In a new article, Meredith R. Miller argues that the New York Court of Appeals (the state's highest court) has become too comfortable in rejecting those cases that come before it on appeal "as of right" because it uses a "substantiality" requirement: it mandates that those cases present some "substantial" constitutional issue that the appellate court should hear. As a result, every year numerous litigants find themselves without a remedy that, she says, may actually exist.
The Court's magic wand thus waves away not simply those cases that might indeed might simply frivolous, but also those that present genuine issues needing to be decided.
The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion it did not have on an appeal as of right.
The Court’s civil jurisdiction generally covers two types of cases: (1) those the Court hears “as of right” pursuant to Civil Practice Law Rules (“CPLR”) 5601 and (2) those for which the Court has granted permission to appeal pursuant to CPLR 5602. In Kachalsky, Judge Smith opined that the definition of “substantiality” had become “so flexible” that it, in effect, conferred on the Court “discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602.”
In Kachalsky, Judge Smith pointed to a problematic policy. The Court’s practice of requiring that an appeal as of right pursuant to CPLR 5601(b) raise a “substantial” constitutional question is not loyal to the explicit text of the CPLR or the New York State Constitution. Indeed, to the extent that the requirement invokes discretion for the Court to determine which appeals on constitutional grounds to retain, it subverts the basic structure of both the CPLR and the State Constitution, which contemplate appeals as of right as distinct from appeals that necessitate permission from the Court.
The justification for the requirement of “substantiality” is to prevent the creativity of counsel in contriving constitutional questions to gain the right to appeal. However, based upon review of nearly 200 decisions appealed from and dismissed sua sponte on the ground that “no substantial question was directly involved,” this Article argues that the concern about frivolous constitutional claims is overstated. Moreover, existing limitations on appealability and reviewability serve to hinder counsel from inventing frivolous constitutional questions for the sake of an appeal. Thus, this Article proposes the elimination of the “substantiality” requirement, which renders illusory the “right” to appeal on constitutional grounds.
Gerald Uelmen of Santa Clara University Law School writes here about the importance of exhausting federal due process claims at trial by intoning "magic words." He says, "I frequently compare trial lawyers to wizards who must recite precise magical incantations before they wave their magic wands and attempt to make evidence disappear."
Of course, he is talking here about wizards like Merlin and Harry Potter, and I must point out that as far as I know, there are no such beings in the real world. What's also interesting is the assumption, common in popular culture, that these wizards must 1) pronounce magic words and 2) wave magic wands in order to obtain a particular result. I'd be interested to know what might happen if they left out one or the other. In law, we know. Generally speaking, the lawyer must 1) speak the words and 2) perform the act (for example, speak the words in the correct order or at the correct time or in the correct place). See also my prior post on getting exhibits admitted.
Secular magicians, by contrast, make objects disappear, but not permanently. When a lawyer "attempts to make evidence disappear," as in Professor Uelmen's examples, she wants it to disappear completely. If she gets the outcome she wants, it will no longer have any effect (or should have no effect) on the outcome of the trial. Lawyers and judges actually do have great powers, by their agreement, by our agreement, and through use of these magical words.