Law and Magic Blog

A Short Course In Law and Magic

Check out Mateusz Pekala and Mateusz Stepieri, The Relationship Between Law and Magic: Preliminary Remarks, published in Towards an Anthropology of the Legal Field: Critiques and Case Studies (T. Ledvinka, ed., Prague, 2012), at 24-34.

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?

 

The Law of the Ban

Jack of Kent (David Allen Greene) on the banning of things as legal magic. Says Jack (aka Mr. Greene), in the New Statesman article,

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.

Skepticism, Magic, and Legal Thinking

Jessie Allen, University of Pittsburgh Law School, has published The Persistence of Proximate Cause: How Legal Doctrine Thrives On Skepticism, at 90 Denver University Law Review 77 (2012). Here is the abstract.

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?

 Download the article from SSRN at the link.

A New Article On the Teller Copyright Infringement Lawsuit

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.

A Foundation To Help Magicians In Need

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

c/o

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."

The Vanishing Driver

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. 

Lindsay Lohan--Your Lawyer Called (and Your Psychic's On Line 2)

Lindsay Lohan's lawyer Mark Heller told the media that a fortune teller says that 2013 would be a lucky one for his client. It's certainly starting out that way. Prosecutors put off her assault case (stemming from an altercation in a New York night club last November) for now, which was really lucky for her. According to Mr. Heller, no charges have yet been filed. As for Ms. Lohan, she's still in London.  More here at tmz.com.

 

A Magician's Act Catches Fire--The Wrong Way

Oh, dear. This ending was definitely not part of the act. TV host Franklin Barazarte apparently tossed some flammable cologne on magician Wayne Houchin, who was a guest on the show "Closer To the Stars." Seconds later, the cologne ignited, and Houchin suffered first and second degree burns to his head, neck, and hands.

Why would Mr. Barazarte do such a thing? One theory: Mr. Barazarte wanted to "bless" Mr. Houchin's performance. But according to anthropologist Paul Draper, the host might have had other things in mind, such as the desire to ward off evil. The result, though--the police are seeking Mr. Barazarte for assault, and Mr. Houchin is recovering from his injuries. More coverage here from L. A. Weekly.

Law and Unicorns

The New York Times reports on a recent Supreme Court oral argument which seems to have gone off the rails (ever so) slightly when the Justices mused over the existence of the mythical trial lawyer who fails to object to an unfavorable ruling at trial, thus taking the chance that an appellate court will rule favorably on an issue between the time that an issue affecting her client comes up at trial and the time that her client's own case comes up for appeal. In the case before the Court, the appellant had pled guilty and received a longer sentence than he would have had he gone to trial and been found guilty; his reason for the plea deal was his desire to receive drug treatment while in prison. However, between the time of the plea deal and his appeal, the Supreme Court ruled in another case that the "Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant's rehabilitation." The attorney had not objected to the deal because, as she explained to the Justices, "I was not aware of that statute." Well, maybe not. Even if she had been, though, could she have foreseen that the Court would interpret the statute in this way?

The idea that trial lawyers will fail to object in the hope that a later ruling will help their clients is fanciful, he added. “The lawyer who thought that is like the unicorn,” Justice Breyer said. “He doesn’t really exist.”

Justice Scalia agreed that a lawyer who decides not to object for strategic reasons “is a unicorn, I suppose.” But he added that requiring objections at the risk of serious harm to a client’s interests may make some lawyers more careful, including those “unaware of a statute that they should have been aware of.”

Justice Elena Kagan was unconvinced. “Isn’t it just as much of a unicorn for an attorney to say, ‘I’m not going to take great care because I think that the law is going to change between now and the appeal’?” she asked.

The Chief Justice asked the attorney in the case for the appellant for her views, and she sort of muffed her response, referring to Chief Justice Rehnquist as "Justice Rehnquist." The present CJ corrected her, and then said, "It matters to one of us." Later in the questioning, she again referred to CJ Rehnquist as "Justice Rehnquist." Oops. Never mind. More than a mistaken identification by a nervous attorney is needed to transform a CJ into a "mere" Associate Justice. Or an attorney who isn't psychic. Or a unicorn.

Hallowe'en At Lowering the Bar

I always find the posts at Lowering the Bar funny and/or interesting , but the items for October 31st this year were thought-provoking, particularly the one about Oakland's police chief, who had set his spam filter to send email messages about "occupy," "police brutality," and "excessive force" to his junk mail folder. Thus, when important email messages arrived concerning the Occupy movement, he didn't get them, well, because...they went to his junk mail folder. Natch. The magic of technology is indeed wondrous. (The other items in the post are pretty good, too, including the ones about the bones under the tree, the naked clown, and the lawsuit against the Great (make that a really big) Pumpkin).