Law and Magic Blog

Ivory Tower Magicians, Ivory Tower Academics?

In a recent column, Jose Alvarez, President of the American Society of International Law, wonders whether Susanna Clarke's ivory tower magicians are at all comparable to legal academics, at least those engaged in international law. On the whole, he thinks not. "Our Society and our members, however “learned,” are inextricably engaged with the real world.  Perhaps because international lawyers are still wrestling with an Austinian complex that demands constant affirmations of relevance, much of what we do as scholars tries to “engage” and virtually all that we do as a “learned” society aspires to connect to real lawyers and policy-makers." In his column, he goes on to discuss the work of his association's members, and concludes, "As Clarke’s novel itself suggests, there are risks when academics engage in the messy worlds of politics and policy.  After all, her magicians’ services to politicians encompass acts that many would regard as highly questionable under modern international humanitarian law standards. And being a “pure” academic has its temptations (especially, but not only, if one’s expertise lies with the unreal, such as performing magic).  But I am doubtful that is even possible, much less desirable, for international lawyers to remove themselves entirely from the real world.  Disengagement is, I suspect, not an option for us. We will, I am sure, explore that issue at next year’s 102nd annual meeting, devoted to “The Politics of International Law.”  For now, given the problems to which we can fruitfully apply our expertise, I am glad that most (if not all) of us regularly practice, and do not merely study, our “magic.” Read more here.

Magic in Roman Law II

Another article for the law and magic bibliography. James B. Rives of York University published "Magic in Roman Law: The Reconstruction of a Crime," in 22 Classical Antiquity 313-339 (October 2003). Here is the abstract.

In this paper I reconsider the Roman law on magic through an examination of three key "moments": the Lex Cornelia de sicariis et veneficiis; the trial of Apuleius as known from his Apology; and a passage from The Opinions of Paulus. I argue that the Roman law on magic grounded in the Lex Cornelia gradually shifted from a focus on harmful and uncanny actions to a concern with religious deviance. This shift was already underway at the time of Apuleius' trial, if only on an ad hoc basis, and was firmly established in the formal discourse of Roman law by ca. 300 CE, the date of The Opinions of Paulus. I argue for the importance of retaining "magic" as a heuristic category, since it is the only term fluid enough to function as an inclusive rubric for this shifting set of concerns.

Here's a link to purchase the article. Otherwise, try your local academic library for the print version.

She's Resurfaced

Gordon Holmes, an amateur photographer, says he has captured footage of Nessie, the Loch Ness creature reputed to be living in Scotland's most famous body of water. A local marine biologist, Adrian Shine, said it's "some of the best footage" he has seen, according to an AP report. Here's more from a local television station.

Harry Potter Theme Park Planned

Warner Brothers Entertainment and Universal Orlando are planning "the world's first immersive Harry Potter themed environment," in the shape of a Harry Potter theme park, for Orlando, Florida, which is scheduled to open in 2009. Read more here in a CNN article. And Britain is issuing stamps in honor of the fictional character and his friends. Meanwhile, author J. K. Rowlings is asking readers not to reveal the fate of the characters in the last Harry Potter novel, Harry Potter and the Deathly Hallows. Rather like the request to viewers of the film based on Agatha Christie's Witness for the Prosecution.

Magic in Roman Law I

Clyde Pharr, The Interdiction of Magic in Roman Law, 63 Transactions and Proceedings of the American Philological Association 269-295 (1932). Here is an excerpt from the abstract.

The antisocial use of magic was universally condemned and it was legally prohibited in the various ancient peoples,--Egyptians, Babylonians, Hebrews, Greeks, and Romans....In Roman law the antisocial use of magic was prohibited, with increasing strictness, but with indifferent success, from the time of the Twelve Tables; and magic of all kinds was under continual suspicion....Finally under Christianity all magic was prohibited by both secular and canon law.

Matthew Dickie, Magic and Magicians in the Greco-Roman World (London: NY: Routledge, 2003).

Includes chapters on The formation and nature of the Greek concept of magic -- Sorcerers in the fifth and fourth centuries BC -- Sorceresses in the Athens of the fifth and fourth centuries BC -- Sorcerers in the Greek world of the Hellenistic period (300-1 BC) -- Magic as a distinctive category in Roman thought -- Constraints on magicians in the Late Roman Republic and under the Empire -- Sorcerers and sorceresses in Rome in the Middle and Late Republic and under the Early Empire -- Witches and magicians in the provinces of the Roman Empire until the time of Constantine -- Constraints on magicians under a Christian empire -- Sorcerers and sorceresses from Constantine to the end of the seventh century AD.

Regulating Witchcraft

Nelson Tebbe, St. John's School of Law, has published "Witchcraft and the Polis," as St. John's Legal Studies Research Paper 06-0042. It is forthcoming in the Journal of Religion. Here is the abstract.

Witchcraft beliefs and practices are widespread in contemporary Africa. In this short essay, which is forthcoming in the University of Chicago's Journal of Religion, I review an important new ethnography concerning occult beliefs in Soweto, a large urban township on the outskirts of Johannesburg. Although witch hunts themselves are relatively rare, fear of the occult pervades everyday life. Citizens' complaints of injustice at the hands of witches have implications for democratic governance. How ought a constitutional democracy respond to their demands for protection? After describing two ideal-typical responses, I argue that the government has recently moved in the direction of an approach that calls for regulating witchcraft itself - a policy that addresses certain problems but also carries significant danger for the new democracy.

Download the entire Article from SSRN here.

Harry Potter and Agency Law

Daniel S. Kleinberger, William Mitchell College of Law, has published "Agent of the Good, Servants of Evil: Harry Potter and the Law of Agency," as William Mitchell Legal Studies Research Paper No. 67. Here is the abstract.

Agency relations are ubiquitous in the Harry Potter novels, and the study of Agency Law is almost as interesting and important as the study of Potions. This essay considers eight topics that arise from the overlap of Harry Potter and the law of agency:

• The Essence of Agency: Interfacing for the Principal
• Why the Labels Matter – Categories and Consequences
• Formation of an Agency Relationship – The Consent Requirement, House-Elves, and the Imperious Curse
• Ending the Agency Relationship – Potter-esque Variations on the Notion of Termination by Express Will
• The Agent's Duties to the Principal – Loyalty, Obedience, Good Conduct, House-Elves and Snape
• An Agent's Good Faith Struggles with the Duty of Loyalty
• Dumbledore – Agent or Principal and, if Agent, Agent for Whom?
• Servants of Evil?

The Potter novels are, among other things, a saga of the (so far) never-ending battle between the minions of Voldemort and the adherents of Dumbledore. Every Death Eater acts on behalf and under the control of Voldemort, and the Order of the Phoenix appears to act under Dumbledore's commands. Even Harry Potter is “Dumbledore's man through and through.”

The Potter novels are thus replete with examples of agency “relationships in which one person, to one degree or another or respect or another, acts as a representative of or otherwise acts on behalf of another person.” Restatement (Third) of Agency, § 1.01, comment c (2006) (describing the agency relationship). As a result, concepts from the law of agency can help explicate these novels, and the novels can in turn furnish appealing illustrations of agency law concepts.

Download the entire paper from SSRN here.

Harry Potter in Court

A woman who attempted to get a court to ban Harry Potter from public school libraries has lost her latest round, and says she may make a federal case out of things next. Laura Mallory says she won't give up the fight to take J. K. Rowling's novels out of her local public schools, even though Judge Ronnie Batchelor found in favor of the Gwinnett County School District's right to make decisions about what books to put in school libraries.

Law and Proof of Life After Death

Now, this I find pretty interesting. On his website, Victor Zammit says he has evidence of several visits from Harry Houdini. He provides transcripts and links to MP3 recordings. In at least one, the voice alleged to be Houdini's sounds Southern--it says Louis Armstrong was helping it with its communications. The seances took place on March 30th, April 8th and April 29th of this year.

I read the transcripts and listened to the files, and I found them disappointing. Then I found a clip of Harry Houdini's voice and compared it to the files available on Mr. Zammit's site. Although I'm not an expert, I can hear few similarities. Here's a link to clips of recordings of Houdini's voice.

Apart from the fact that I discerned no knowledge supplied by the speaker in these materials that was so particular to Houdini that they alone would persuade me that he was one of the participants in these conversations, I also heard some statements that struck me as very odd. With reference to the comments about Houdini's southern accent, in a later seance the speaker says, "And am I speaking to you in a South American accent?" To someone brought up in the United States, there's a huge difference between a Southern accent and a South American (or a Latin American) accent. One is generally considered to be a kind of drawl, a softened pattern of speech, and the other might be the accent of someone who is a native speaker of Latin American Spanish, but not a drawl. I don't understand why someone raised in the US from a young age, as Houdini was, would use the terms interchangeably.

Here's another example. The speaker refers to bringing forth some future proof of his existence in the afterlife--for example, an "apport", which he then says the sitters can take to the Magic Circle for authentication. There's a follow-up question to find out where the "Magic Circle" is--"This is in New York, isn't it?" and the speaker responds, "Yes." I didn't find any record of a magicians' Magic Circle in New York. But The Magic Circle, one of the most prestigious magicians' organizations in the world, is located in London, where it was founded in 1905. Houdini would have known that when he was alive (he died in 1926). I don't understand why he would have forgotten it once he was dead, and the presumption, after all, is that this speaker is Houdini, who discusses other issues from from his life (Margery the Medium, for example), though not in any great detail.

Frankly, I don't understand why the sitters weren't more engaged in the discussions. Why not ask the speaker what the outcome of the Houdini exhumation and investigation will be--with specifics? Did someone poison Houdini, and if so, exactly how? What a tremendous opportunity to obtain some terrific information from one of the leading skeptics and most observant individuals of the twentieth century! If I attended a seance and a spirit came through claiming to be Harry Houdini...let's get going. Swear in the witness, lay that foundation, and get on with the questioning. Under US rules, there should be evidence which would be sufficient to permit one to identify the speaker as Houdini. I would have a lot of very particular lines of inquiry, and if my favorite magician hadn't accompanied me on this outing, I would certainly get on my cell phone for some expert "Let's play Identity" assistance in the matter. (I know it's irregular, but Houdini wasn't on the witness list, after all. I was expecting to contact a relative).

Here's more commentary on the tapes and transcripts from Jon Dennis at BadPsychics.com. Oh, and Harry! If you do know Louis Armstrong, since he is from New Orleans, ask him for directions. Then stop by. Thanks.

The Too Perfect Theory and Tax Law

Christopher H. Hanna, Southern Methodist University School of Law, published "From Gregory to Enron: The Too Perfect Theory and Tax Law," at 24 Virginia Tax Review 737 (2005). Here is the introduction.

In the last few years, we have seen a number of financial stories discussing corporate America's trickery, many using magic terms such as "sleight of hand," "hocus-pocus," and "trickery."  In one news story published in the New York Times, the author writes that "even David Copperfield could learn a trick or two from some of the true masters of illusion: the financial wizards on Wall Street and in corporate America." Numerous books and financial articles have discussed the trickery at corporate giants, such as Enron, WorldCom, and Global Crossing. For example, in one financial story, the author writes that "[t]he true extent of this dodge [tax avoidance] has not been disclosed, except for sleight of hand like this: Using deductions for stock options, the company [Enron] turned a $112-million tax liability into a $278-million refund."

Although financial writers have been using magic terms in describing tax law (and accounting reporting), do such terms and theories really have a place in the law? This Article will show that there is a connection between magic and tax law.  A theory in magic known as the Too Perfect Theory, which has been present in magic circles for many years and has recently had a resurgence in popularity, is applicable to tax law.

The Too Perfect Theory has been interpreted to mean that a magic trick may be too perfect, in that not only does it not fool the audience, but the effect itself may lead the audience to discover how the trick is performed.  A number of prominent magicians have written about and debated the Too Perfect Theory, with most agreeing with the theory and a small minority disagreeing with it for various reasons. What is interesting about the Too Perfect Theory is that it seems to be applicable to the law, particularly the practice of transactional law, such as tax law. In other words, is it possible for a transaction to be structured in which the results are too perfect under the tax law? Most judges, law academics, lawyers, and law students would immediately respond, "Absolutely not." They would claim that transactional lawyers strive for perfection and anything less may lead to malpractice claims. But, as this Article will show, a transaction may have results that are too perfect under the tax law, and, as a result, the transaction may be subject to recharacterization by the government and the courts.

The first part of this Article will describe in detail the Too Perfect Theory in the area in which it originated: the field of magic or conjuring. The second part of this Article will apply the theory to an area of transactional law in which perfection has always been seen as the goal of the lawyer: tax law. In the field of tax law, any mistake in structuring a transaction can lead to disastrous tax consequences. This is probably most prevalent in the area of international tax law, in which no less an authority than Professor James Eustice has written, "[T]o be wrong here [international tax] is to court tax disasters on a scale rarely encountered on the home front."  In this Article, the conventional wisdom of perfection in structuring transactions for tax purposes will be questioned, with examples from both domestic and international tax law. In the final parts of the Article, the Too Perfect Theory will be analyzed in the context of common transactions. An analysis of current practice will reveal that, while almost all tax advisors are intuitively aware of the Too Perfect Theory, many of them have violated it.

It may seem odd for a law professor to be interested in magic. However, the legal profession's fascination with conjuring goes back hundreds of years, and it appears to be more prevalent today than ever, with such noted judges as Alex Kozinski and Stephen Trott of the United States Court of Appeals for the Ninth Circuit being avid magic enthusiasts.  Conjurors are also fascinated by the law; for example, one of the best conjurors in the world, England's Guy Hollingworth, has given up the profession of conjuring to pursue a law degree and become a barrister. [footnotes omitted]