Law and Magic Blog

Law, Medicine, and Alternative Therapies

Here's an interesting piece, "Bitter Herbs: Mainstream, Magic, and Menace," by Thomas L. Delbanco on why physicians should take patients' interest in alternative medicine seriously. He says in part:

In today's frantic and increasingly impersonal world, replete with fax machines, voice mail, the tortuous information highway, and the bewildering technologies of medicine, people find hope in recreating the past. The "original instrument" movement in music, the renaissance of the portrait painter, the fascination with Wharton's Age of Innocence, and the urban dweller's flight to the country represent point-counterpoints to the suffocation that comes from today's headlong rush. And the countervailing simplicity, clarity, and directness that patients seek may be represented by a tablet or potion derived from an exotic "natural" herb. 

At the same time, clinical trials investigate scientific medicine with increasingly sophisticated techniques that proliferate, confuse, and too often disappoint an avid audience. Methodologists who develop and critique their design and findings wield more and more complex tools. How many approaches to multiple regression now exist? Which statistical inference is right for the latest set of data? In 1994, is butter or margarine safer? When do you remove, radiate, or watch prostate cancer? Is lumpectomy for breast cancer really as safe as more mutilating surgery? What's best for back pain? So, even at a time of rich scientific endeavor and discovery, patients turn to plants or homeopathic distillates and announce, "I would rather swallow this! It's pure, it's safe, it's magic, and it will help me face the world" 

But now their purity, safety, or magic also comes into question. The contents inside the Jin Bu Huan box, for example, are not Jin Bu Huan; the manufacturers either used the wrong plant or got it wrong on the label. Moreover, the safety is suspect; its effect is not magic alone. The ingredients have a pharmacologic effect that may help or hurt the patient, depending on the total dose and individual susceptibility. 

How should the benefit that may come from alternative therapies, whether through the placebo effect or beyond, be maximized? And how should the dangers of these therapies be minimized? With respect to the benefits, the multibillion dollar industry that produces and promotes many of the therapies is not shy about extolling their putative virtues. As has been true in the United States since its founding, proponents of alternative therapies find it easy to attract the public's attention. The popularity may grow through future clinical trials that show efficacy, and interest in such trials is increasing. Small-scale experiments are sponsored by the highly visible, albeit modestly funded, Office of Alternative Medicine (OAM), established at the National Institutes of Health (NIH) "to encourage the investigation of alternative medical practices, with the ultimate goal of integrating validated alternative medical practices with current conventional medical procedures". Larger trials are funded with less fanfare through other branches of the NIH. Private philanthropies, led by the Fetzer Institute in Kalamazoo, Michigan, are investing aggressively in this area. All this activity likely represents a response to public demand and a carefully orchestrated effort to engender interest.

This piece foreshadows much of the argument in R. Barker Bausell's Snake Oil Science: The Truth About Complementary and Alternative Medicine (Oxford University Press, 2007), but it's obviously more succinct. It appeared in the Annals of Internal Medicine in 1994. Here's a link to the full article. Dr. Delbanco is also the author of "Leeches, Spiders, and Astrology: Predilections and Predictions," 280 Journal of the American Medical Association 1560-1562 (1998).

Judge Orders Indian Gods To Appear In Court To Clear Up Title Problem

Ok, getting these parties to appear in court might be kind of a problem. An Indian judge ordered the Hindu gods Ram and Hanuman to court to help resolve a twenty year old land dispute. Funnily enough, the pair haven't responded to the summonses that have been served on them. Those were returned when the addresses supplied were found to be "incomplete." Why are the gods involved? The defense in the case claims that the land was donated to them some time ago; ergo, they are the owners. Well, if they don't show, it does seem as though some kind of default judgment might be entered, doesn't it? Here's more from the Daily Telegraph.

When Monkeys Marry

Two monkeys got married in an elaborate ceremony in Ghanteswara, Orissa, India, last week. The event was planned for them by their owners, who then set them free. Apparently monkeys are revered as representations of the monkey God, Hanuman Ji. This time, however, the motivation seems to have been strictly secular.

New Pew Survey on Faith in American Life

The Pew Forum on Religion and Public Life has released a new survey of "The Religious Landscape of the United States." It surveys more than 35,000 U. S. residents, aged 18 and older, about their religious faith. Here are the results. They certainly suggest a population in flux. Here's an article from MSNBC.com about the survey. Here's something from the New York Times.

ASA Vanishes Ad For Magic Pendant

The Advertising Standards Authority, the entity that regulates advertising in the UK, has found that an ad on MATV Punjabi which promised purchasers of a "Ganesh rudraksh pendant " that they would have good health and avoid bad luck is exploitative and breaches the advertising standards code. It also found that the manufacturer lacked scientific evidence to back up claims made in the ad.

The ASA ruled that

[T]he research "Beyond Entertainment" conducted by the Broadcasting Standards Commission (BSC) and the Independent Television Commission (ITC) into The Acceptability Of Alternative Beliefs, Psychic And Occult Phenomena On Television in 2001 stated "Occult - Finally black magic, Ouija, Satanism, spells and voodoo were clearly classified as Occult by both participants and Experts.  White magic spells were borderline.  Most felt they were harmless and not to be taken seriously, but there was some recognition that they were about influence and, therefore, edging into dubious territory.  The key issues associated with occult were negativity, dark forces, influence and control."    The CAP (Broadcast) TV Advertising Standards Code prohibits advertising for products or services within the recognized character of the occult.  We considered that the ad promoted a good luck charm; we concluded that the ad was for an unacceptable category.

The ad breached CAP (Broadcast) TV Advertising Standards Code rule 3.1 (i) (the occult) and 10. 3 (The occult, psychic practices and exorcism).

...

We considered that the claim anybody who wears Ganesh Rudraksh on their body, cannot be affected by bad Omen" exploited the superstitious.  We concluded that the unsubstantiated claims and testimonies exploited vulnerable viewers. 

The ad breached CAP (Broadcast) TV Advertising Standards Code rules 10.4 (Superstition) and 10.13 (Vulnerable viewers).

...

We considered that the website pages were inadequate to substantiate the claims and the testimonials.  In the absence of clinically controlled trials prove the efficacy of the product we considered that the claims were misleading.

The ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading), 5.2.1 (Evidence), 5.4.4 (Testimonials) <

Read the entire ruling here.

[Cross posted to Media Law Prof Blog].

The Afterlife On Trial

Here's a video that I found on YouTube featuring Victor Zammit, in which he puts the evidence for the afterlife "on trial". He repeatedly describes the opposing counsel as a "closed minded sceptic" and suggests that the issue to be decided is whether the afterlife exists (He also mentions "a professor" and "a magician" as possible opposition expert witnesses. I wonder if he has anyone in particular in mind.) At least in the United States, whether or not the afterlife exists, like other matters of faith, is not an issue for the court. To my mind, to suggest such a courtroom scenario to a layperson is profoundly disturbing. Such an issue is not capable of legal proof, is a matter for the individual conscience, and is exactly the reason for which the U.S., Australia, and many other countries provide for freedom of religion in their constitutions, founding documents, and international agreements.

Why Do We Believe?

The Times of London notes that University of Oxford researchers are embarking on a nearly two million pound (four million dollar) research project to determine why people believe in God. Is it nature or nurture? Several books have come out on this subject in the past few years, including Dean H. Hamer's The God Gene (2005), Robert Buckman's Can We Be Good Without God? (2002), Andrew Neuberg's Why God Won't Go Away (2002), and Pascal Boyer's Religion Explained: The Evolutionary Origins of Religious Thought (2002). Still, I suppose there's nothing like empirical research to study WHY we believe, even though we can't study whether WHAT we believe is so.

In U.S. v. Ballard (322 U.S. 78 (1944)), also referred to as the "I Am" case, Guy Ballard and his followers were "indicted and convicted for using, and conspiring to use, the mails to defraud." The federal government had alleged that the group solicited contributions for its religious movement based on claims that it did not truly hold, thus the claims of fraud. The Supreme Court held that inquiry into the underlying truth of one's beliefs is improper, although inquiry into whether one sincerely holds those beliefs may be proper.

The United States contends that the District Court withdrew from the jury's consideration only the truth or falsity of those representations which related to religious concepts or beliefs and that there were representations charged in the indictment which fell within a different category. The argument is that this latter group of representations was submitted to the jury, that they were adequate to constitute an offense under the Act, and that they were supported by the requisite evidence. It is thus sought to bring the case within the rule of Hall v. United States... which held that where an indictment contained 'all the necessary averments to constitute an offense created by the statute', a conviction would not be set aside because a 'totally immaterial fact' was averred but not proved. We do not stop to ascertain the relevancy of that rule to this case, for we are of the view that all of the representations charged in the indictment which related at least in part to the religious doctrines or beliefs of respondents were withheld from the jury. The trial judge did not differentiate them. He referred in the charge to the 'religious beliefs' and 'doctrines taught by the defendants' as matters withheld from the jury. And in stating that the issue of good faith was the 'cardinal question' in the case he charged, as already noted, that 'The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the representations which are set forth in the indictment.' Nowhere in the charge were any of the separate representations submitted to the jury. A careful reading of the whole charge leads us to agree with the Circuit Court of Appeals on this phase of the case that the only issue submitted to the jury was the question as stated by the District Court, of respondents' 'belief in their representations and promises.'

The United States contends that respondents acquiesced in the withdrawal from the jury of the truth of their religious doctrines or beliefs and that their consent bars them from insisting on a different course once that one turned out to be unsuccessful. Reliance for that position is sought in Johnson v. United States.... That case stands for the proposition that, apart from situations involving an unfair trial, an appellate court will not grant a new trial to a defendant on the ground of improper introduction of evidence or improper comment by the prosecutor, where the defendant acquiesced in that course and made no objection to it. In fairness to respondents that principle cannot be applied here. The real objection of respondents is not that the truth of their religious doctrines or beliefs should have been submitted to the jury. Their demurrer and motion to quash made clear their position that that issue should be withheld from the jury on the basis of the First Amendment. Moreover, their position at all times was and still is that the court should have gone the whole way and withheld from the jury both that issue and the issue of their good faith. Their demurrer and motion to quash asked for dismissal of the entire indictment. Their argument that the truth of their religious doctrines or beliefs should have gone to the jury when the question of their good faith was submitted was and is merely an alternative argument. They never forsook their position that the indictment should have been dismissed and that none of it was good. Moreover, respondents' motion for new trial challenged the propriety of the action of the District Court in withdrawing from the jury the issue of the truth of their religious doctrines or beliefs without also withdrawing the question of their good faith. So we conclude that the rule of Johnson v. United States, supra, does not prevent respondents from reasserting now that no part of the indictment should have been submitted to the jury.

As we have noted, the Circuit Court of Appeals held that the question of the truth of the representations concerning respondent's religious doctrines or beliefs should have been submitted to the jury. And it remanded the case for a new trial. It may be that the Circuit Court of Appeals took that action because it did not think that the indictment could be properly construed as charging a scheme to defraud by means other than misrepresentations of respondents' religious doctrines or beliefs. Or that court may have concluded that the withdrawal of the issue of the truth of those religious doctrines or beliefs was unwarranted because it resulted in a substantial change in the character of the crime charged. But on whichever basis that court rested its action, we do not agree that the truth or verity of respondents' religious doctrines or beliefs should have been submitted to the jury. Whatever this particular indictment might require, the First Amendment precludes such a course, as the United States seems to concede. 'The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.' Watson v. Jones, 13 Wall. 679, 728. The First Amendment has a dual aspect. It not only 'forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship' but also 'safeguards the free exercise of the chosen form of religion.' Cantwell v. State of Connecticut.... Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. West Virginia State Board of Education by Barnette....It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. Murdock v. Pennsylvania....As stated in Davis v. Beason.... 'With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.' See Prince v. Massachusetts.... So we conclude that the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents.

Respondents maintain that the reversal of the judgment of conviction was justified on other distinct grounds. The Circuit Court of Appeals did not reach those questions. Respondents may, of course, urge them here in support of the judgment of the Circuit Court of Appeals. Langnes v. Green....; Story Parchment Co. v. Paterson Co..... But since attention was centered on the issues which we have discussed, the remaining questions were not fully presented to this Court either in the briefs or oral argument. In view of these circumstances we deem it more appropriate to remand the cause to the Circuit Court of Appeals so that it may pass on the questions reserved. Lutcher & Moore Lumber Co. v. Knight,...; Brown v. Fletcher,.... If any questions of importance survive and are presented here, we will then have the benefit of the views of the Circuit Court of Appeals. Until that additional consideration is had, we cannot be sure that it will be necessary to pass on any of the other constitutional issues which respondents claim to have reserved.

The judgment is reversed and the cause is remanded to the Circuit Court of Appeals for further proceedings in conformity to this opinion.

[Bold added by editor].

Read the entire opinion here.

John Dee, Magician, Elizabeth's Alchemist

I was watching a number of my DVDs and tapes during the (just concluded) writers' strike, among them the wonderful Elizabeth R, starring Glenda Jackson as Elizabeth I. There are not a lot of amusing scenes in that drama, but one features Elizabeth and her official alchemist, Dr. John Dee, during the episode "Horrible Conspiracies". She wants him to make a prediction about her life and he responds that making such predictions is against the law. Indeed, the Witchcraft Act of 1541 said that "It shall be Felony to practise, or cause to be practised Conjuration, Witchcraft, Enchantment or Sorcery, to get Money; or to consume any Person in his Body, Members or Goods; or to provoke any Person to unlawful Love; or for the Despight of Christ, or Lucre of Money, to pull down any Cross; or to declare where Goods stolen be." The later act of 1563 was even more severe. But Elizabeth perserves, wondering whether a great personage, such as a queen will die shortly, and Dr. Dee valiantly and comically attempts to avoid predicting the death of his monach by responding that a queen may die or perhaps someone else; they agree that it may be a queen, or maybe "the cousin of a queen."

Opinions may differ on whether Dr. Dee was operating through genuined prophecy or political shrewdness. The focus of Elizabeth's concern during the period of the 1570s-1580s (until 1587) was the plots that seemed eternally to revolve around her cousin and supposed heiress Mary Stuart. Mary was Catholic and did not trouble to make known her desire to restore that religion should she come to the English throne. In 1587 Elizabeth's worry over possible assassination at the hands of Mary's supporters came to a head with the Babington Plot, and in 1587 Elizabeth signed Mary's death warrant. Mary was executed, an act which eventually led to the launching of the Spanish Armada. Mary was of course both a queen, since she had been crowned Queen of Scotland in her own right and Queen of France as the wife of Francis II, and the cousin of a queen, since she and Elizabeth were descended from the same man, Henry VII.

For more about John Dee, Elizabeth's alchemist and fortuneteller, see the John Dee Society webpage, and

Dee, John, The Diaries of Dr. Dee (Edward Fenton, ed.)(1998).

Clulee, Nicholas H., John Dee’s Natural Philosophy: Between Science and Religion (1988).

Deacon, Richard, John Dee: Scientist, Geographer, Astrologer, and Secret Agent

to Elizabeth I (1968).

French, Peter J., John Dee: The World of an Elizabethan Magus (1972).

Harkness, Deborah E., John Dee’s Conversations With Angels: Cabala, Alchemy, and the End of Nature (1999).

Sherman, William H., John Dee: The Politics of Reading and Writing in the English Renaissance (1995).

Shumaker, Wayne, Renaissance Curiosa: John Dee’s Conversations With Angels, Girolamo Cardano’s Horoscope of Christ, Johannes Trithemius and Language (1982).

Woolley, Benjamin, The Queen’s Conjurer: The Science and Magic of Dr. John Dee, Adviser to Queen Elizabeth I (2001).

Susan Jacoby On Anti-Intellectualism In American Culture

In today's New York Times, Patricia Cohen notes that some commentators are finally taking on the current antipathy toward education and critical thinking that seems rampant. Well, I shouldn't say "current." It seems to have been "rampant", strident, and ongoing for some years now. In particular, Ms. Cohen discusses Susan Jacoby's new book The Age of American Unreason (Pantheon, 2008, just out on February 12). Ms. Jacoby is the author of the wonderful Freethinkers: A History of American Secularism. Says Ms. Cohen,

Ms. Jacoby, whose book came out on Tuesday, doesn’t zero in on a particular technology or emotion, but rather on what she feels is a generalized hostility to knowledge. She is well aware that some may tag her a crank. “I expect to get bashed,” said Ms. Jacoby, 62, either as an older person who upbraids the young for plummeting standards and values, or as a secularist whose defense of scientific rationalism is a way to disparage religion.

Ms. Jacoby, however, is quick to point out that her indictment is not limited by age or ideology. Yes, she knows that eggheads, nerds, bookworms, longhairs, pointy heads, highbrows and know-it-alls have been mocked and dismissed throughout American history. And liberal and conservative writers, from Richard Hofstadter to Allan Bloom, have regularly analyzed the phenomenon and offered advice.

...

Ms. Jacoby also blames religious fundamentalism’s antipathy toward science, as she grieves over surveys that show that nearly two-thirds of Americans want creationism to be taught along with evolution.

Ms. Jacoby doesn’t leave liberals out of her analysis, mentioning the New Left’s attacks on universities in the 1960s, the decision to consign African-American and women’s studies to an “academic ghetto” instead of integrating them into the core curriculum, ponderous musings on rock music and pop culture courses on everything from sitcoms to fat that trivialize college-level learning.

Read the entire article here.

I would suggest that the quite active turn toward magical thinking, the great interest here (and abroad) in paranormal phenomena and New Age thinking, and the lack of understanding that these beliefs have an historical foundation have a great part to play here.  Whether or not one shares them, one should understand, I think, how belief systems fit together--how they relate and influence one another. Few people, it seems, have any interest in tracing the history of their belief systems in an intellectual (as opposed to a doctrinal) way, but such studies would, I think, lead a long way--toward empathy and toward peace. I see huge implications for non-inquisitive folks, both in terms of their own spiritual growth and in terms of their wallets. The same thing goes for new OTC medicinal aids that clean your body of toxins overnight and new perpetual motion machines. Lack of education can be really expensive. And I haven't even gotten to the legal implications.

Do I sound like an old fogey? After so many years, I suppose I was bound to age. At any rate, I look forward to reading Ms. Jacoby's new book.

Shades of Paper Moon

iTricks notes that an "English speaking magician" has apparently made off with what seems to be an impressive amount of cash from a certain number of Hungarian banks. According to this article by reporter Adrian Courage, the perpetrator confused the bank teller and made off with a handy stash of bills. A magician, or a good old fashioned con man?