Law and Magic Blog

Denverites Not Watching the Skies

Oh, how could I have missed this ballot measure? Denver, Colorado voters had the opportunity to create an extra-terrestrial commission (seven members) (Initiative 330).

Shall the voters for the City and County of Denver adopt an Initiated Ordinance to require the creation of an extraterrestrial affairs commission to help ensure the health, safety, and cultural awareness of Denver residents and visitors in relation to potential encounters or interactions with extraterrestrial intelligent beings or their vehicles, and fund such commission from grants, gifts and donations?

Resident Jeff Peckman, who backed the measure enthusiastically, described it as "a jobs measure," saying that "sci-fi film directors" would "flock...here, space-travel researchers, and engineers hoping to pry the secrets of intergalatic technology from space visitors." Kind of an upscale Roswell, in fact. Alas, 84 percent of the electorate indicated it is anti-alien. Mr. Peckman remains optimistic, finding the pro-SETI vote "better than we thought." E.T.: To the phone bank.

More at Lowering the Bar.

The European Court of Justice and Gaming Laws of the Member States

The European Court of Justice has struck down an Austrian law that restricts the issuance of casino licenses to Austrian companies, finding it a violation of the "obligation of transparency flowing from Articles 43 EC and 49 EC and from the principle of equal treatment and the prohibition of discrimination on grounds of nationality precludes the grant without any competitive procedure of all the concessions to operate gaming establishments in the territory of a Member State." This decision follows on an ECJ ruling that invalidated a German law limiting the entry into the German gambling market by foreigners in certain cases as being contrary to the public interest. The Court said in part:

The answer to the first question in each of the cases must therefore be that, on a proper interpretation of Articles 43 EC and 49 EC:

(i)   in order to justify a public monopoly on bets on sporting competitions and lotteries, such as those at issue in the cases in the main proceedings, by an objective of preventing incitement to squander money on gambling and combating addiction to the latter, the national authorities concerned do not necessarily have to be able to produce a study establishing the proportionality of the said measure which is prior to the adoption of the latter;

(ii)   a Member State’s choice to use such a monopoly rather than a system authorising the business of private operators which would be permitted to carry on their business in the context of a non-exclusive legislative framework is capable of satisfying the requirement of proportionality, in so far as, as regards the objective concerning a high level of consumer protection, the establishment of the said monopoly is accompanied by a legislative framework suitable for ensuring that the holder of the said monopoly will in fact be able to pursue, in a consistent and systematic manner, such an objective by means of a supply that is quantitatively measured and qualitatively planned by reference to the said objective and subject to strict control by the public authorities;

(iii) the fact that the competent authorities of a Member State might be confronted with certain difficulties in ensuring compliance with such a monopoly by organisers of games and bets established outside that Member State, who, via the internet and in breach of the said monopoly, conclude bets with persons within the territorial area of the said authorities, is not capable, as such, of affecting the potential conformity of such a monopoly with the said provisions of the Treaty;

(iv)   in a situation where a national court finds, at the same time:

– that advertising measures emanating from the holder of such a monopoly and relating to other types of games of chance which it also offers are not limited to what is necessary in order to channel consumers towards the offer emanating from that holder by turning them away from other channels of unauthorised games, but are designed to encourage the propensity of consumers to gamble and to stimulate their active participation in the latter for purposes of maximising the anticipated revenue from such activities,

– that other types of games of chance may be exploited by private operators holding an authorisation, and

– that, in relation to other types of games of chance not covered by the said monopoly, and which, moreover, present a higher potential risk of addiction than the games subject to that monopoly, the competent authorities are conducting or tolerating policies of expanding supply, of such a kind as to develop and stimulate gaming activities, in particular with a view to maximising revenue from the latter,

the said national court may legitimately be led to consider that such a monopoly is not suitable for guaranteeing achievement of the objective for which it was established, of preventing incitement to squander money on gambling and combating addiction to the latter, by contributing to reducing opportunities for gambling and limiting activities in that area in a consistent and systematic manner.

The ECJ also ruled on a Swedish law that limits the advertising of Internet gambling.

Article 49 EC must be interpreted as not precluding legislation of a Member State, such as that at issue in the main actions, which prohibits the advertising to residents of that State of gambling organised for the purposes of profit by private operators in other Member States.

Article 49 EC must be interpreted as precluding legislation of a Member State subjecting gambling to a system of exclusive rights, according to which the promotion of gambling organised in another Member State is subject to stricter penalties than the promotion of gambling operated on national territory without a licence. It is for the referring court to ascertain whether that is true of the national legislation at issue in the main actions.

The ECJ has ruled on Dutch gaming laws here and here, interpreting Article 49 of the ECT (Freedom To Provide Services).

Tip of the magician's hat to Jurist (Paper Chase) which does such a good job keeping up with breaking legal news.

Brain Scans As Evidence In Criminal Trials

I've posted before about neuroscience and the possibility of examining or scanning brains. Here's an article about the conviction of an Indian (that's the nation of India) woman for the murder of her ex-fiance. Included in the evidence admitted against her was a brain scan to which she consented. The court accepted the prosecutors' contention that the scan's results demonstrated that the defendant had memories of the murder.

A law professor at the University of Iowa and the University College, Galway, examines the implications of accepting such evidence in criminal trials under human rights law. Does admitting such evidence still protect the rights of the accused? And more particularly, is such evidence scientifically sound?

Brian Richard Farrell, Univesity of Iowa College of Law and University College, Galway, Irish Centre for Human Rights, has published Can't Get You Out of My Head: The Human Rights Implications of Using Brain Scans as Criminal Evidence, in volume 4 of the Interdisciplinary Journal of Human Rights Law (2010). Here is the abstract.

The June 12, 2008, conviction of a woman for the murder of her former fiancé in India marked the dawn of a new era for the use of scientific technology in law enforcement. For the first time, a brain scan was admitted by a court against a criminal defendant as evidence that she had experiential knowledge of the alleged crime. While the use of such technology is currently very limited, strong interest exists in its development for use in the realms of both law enforcement and national security.

This article analyzes the use of brain scans purporting to show the presence or absence of memory of an event as evidence against criminal defendants under the civil liberties guarantees of international and regional human rights instruments. It begins with an overview of brain scan technology and its potential application in criminal prosecutions. The article then considers the scientific and civil liberties arguments against the use of such evidence in this context. Finally, it draws conclusions as to the legality of the use of brain scan evidence under prevailing human rights norms.

Download the article from SSRN at the link.

Online Gaming in the EU

Online gaming is an issue in Europe just as in it is the US. Here is a paper discussing the matter.

Julia Hoernle, Queen Mary University of London, has published Freedom to Provide Services and Online Gambling. Here is the abstract. 

 
This Article looks at the conflict between national regulation of gambling on the one hand and the freedom to provide services within the EU/EEA on the other hand. Operators of online gambling from Member States with liberal licensing regimes (such as Malta or the UK) may wish to provide gambling services to consumers in Member States prohibiting or restricting certain forms of online gambling (such as Germany, France, Italy, Portugal, Norway) and may argue that such prohibition or restriction is an infringement of the freedom to provide services guaranteed under the EC Treaty. The Article examines the social policy objectives behind the regulation of online gambling, EC law (the freedom to provide services, attempts to harmonise the relevant laws and country of origin regulation) and analyses in detail the jurisprudence of the European Court of Justice (ECJ). The Article concludes by taking stock of the current jurisprudence and by looking at the likely future developments.

 

Download the paper from SSRN at the link.

Desperately Seeking Radovan

In today's New York Times Magazine, a story about Radovan Karadzic, who used the alias Dragan Dabic, attempting to hide from the International Criminal Tribunal for the former Yugoslavia. During his period in hiding, Mr. Karadzic professed interest in alternative energy fields and alternative medicine and attained a certain celebrity, probably not a good idea for someone who wanted to avoid the attention of war crimes tribunals and investigative journalists. Read more here in Jack Hitt's article.

Call For Papers

Christopher Buccafusco has posted this Call for Papers on Food and the Law.

The field of food studies has grown enormously over the last decade, as evidenced in part by the steadily increasing number of academics and professionals in the humanities, social and nutrition sciences, culinary arts, and hospitality studies who have become engaged in cross-disciplinary conversations about food. Operating in tandem with the explosion of popular fascination with food, these conversations have been joined of late by academics, attorneys, and activists who are particularly concerned with the question of how our relationship to food is, has been, and should be, mediated through law. In response to this emerging area of inquiry, we are soliciting both conference papers and publishable essays that integrate multidisciplinary scholarship in food studies with legal scholarship related to food in existing fields such as agricultural, constitutional, criminal, administrative, tort, intellectual property, and international trade law.

Among the questions we hope to answer are: How might one account for the law’s varying treatment of food over time and/or cross-culturally? What role does law play in shaping cultural ideas about food production, trade, and consumption?

And, inversely, what role does food play in shaping ideas about the law?

Initially we seek papers written from a variety of perspectives appropriate for presentation at one or both of the following conferences: the Association for the Study of Law, Culture, and the Humanities (Suffolk University Law School, Boston, April 3-4, 2009) and the Association for the Study of Food and Society (details for the 2009 conference TBA on the ASFS website). Although we aim to use these panels as a partial foundation for creating the edited collection, we are also happy to consider abstracts and articles from potential contributors who are unable to attend either ASLCH or ASFS. Finished essays should be of a quality suitable for publication with an established university press and reasonably accessible to a multidisciplinary audience of scholars and students of the law, social sciences, and humanities, as well as interested readers outside the academy.

Topics can include, but are not limited to:

Intellectual property rights in food and recipes Prison food, e.g., hunger strikes & force feeding, Nutraloaf Last meals Food torts, e.g. exploding sodas, fingers in chili, coffee in the lap Regulation of food, alcohol, and/or obesity Dietary laws and regulations in different cultures History of dietary laws and regulations Geographical indications of origin Farm subsidies and international trade law Linguistic classification of food, e.g., kosher, 1st Growths, Organic Sumptuary laws Famine and famine aid Labeling, packaging, and branding Rationing Food stamps Ethanol production and the food supply Illegal food production, commerce, and consumption Agricultural nuisance and zoning law Food and environmental law

Please submit a paragraph author’s bio and an abstract of no more than 500 words to Doris Witt ([email protected]), Chris Buccafusco ([email protected]), AND Amy Dillard ([email protected]). Abstracts for ASLCH are due by Oct. 1, 2008; abstracts for ASFS or for the essay collection alone are due by Jan. 15, 2009. Please indicate clearly whether the abstract is for ASLCH, ASFS, the essay collection, or some combination thereof. Finished essays should be approximately 10,000 words in length and will be due on or before January 1, 2010.

In advance of submitting an abstract, please feel free to contact Doris Witt, Christopher Buccafusco, or Amy Dillard with any questions about the conference panels or the essay collection.

The Secret Life of Radovan Karadzic: The War Crimes Fugitive Lived a Life as an Alternative Medicine Healer

NPR's Deborah Amos and Sylvia Poggioli report on the hidden life of former Bosnian Serb leader and current war crimes suspect Radovan Karadzic. He was hard to catch because he had help from friends who gave him assistance in concealing himself over the years, and because he changed his appearance so successfully. Commentators note he "looked like something...out of Harry Potter", or "like Professor Dumbledore." Although educated in traditional medicine and qualified as a psychiatrist, he worked "underground" as an alternative healer in "human quantum energy", maintained a website, and published articles on alternative medicine in the leading popular magazines. Now he's headed for trial at the Hague, where he apparently plans to take on his own defense. 

UK Magician Pleads Guilty To Charges of Selling Illegal Decoder Cards

Mark Elsdon, a North Wales man who works as a professional magician, and has published books of magic,  has pled guilty to charges of selling decoder cards to various Wales pubs so that they could receive satellite transmissions of sports events without paying the subscription fees. The judge has set sentencing for early April. Such charges can carry a sentence of up to ten years in prison. Mr. Elsdon had originally claimed that the European Satellite Television Association told him, and he believed, that the cards were legal for use in the United Kingdom.

Being a Goddess? Not Such Steady Work

Ten-year-old Sajani Shakya of Baktapur, Nepal, was a goddess in her home country until she returned from a promotional trip to the U.S. where she had toured on behalf of a documentary about her own and several other young girls' roles as "living goddesses of the Katmandu Valley." But that trip cost apparently cost her her position: some priests in Baktapur decided that the trip had sullied her to the point that she could not longer continue as a living goddess and they decided to terminate her employment. According to a New York Times story, the priests who did so may not have the right to do so, however, so maybe she's still a living goddess, at least until she hits puberty.

An Associated Press story reports that these girls, called Kumaris, now receive a pension of about $40, paid by the Nepalese government, when they retire. Folklore says that any man who marries one will die prematurely, so many men are understandably reluctant to do so. The story also notes that children's law experts believe the tradition of selecting Kumaris violates international and national children's rights laws.

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.