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The Law of Harry Potter

potter5a.jpgWhat are the criminal consequences of a curse? Can a person commit a tort by unfair Quidditch play? How can the law of the Muggles be harmonized with the law of the Wizarding World? For a long time, attorneys struggled over these issues without much legal guidance. But that problem has now been fixed by Aaron Schwabach (law, Thomas Jefferson), who has posted an article on SSRN analyzing the law of Harry Potter: Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World. According to the abstract:

The astounding success of the Harry Potter series of children’s fantasy novels is an unexpected cultural phenomenon, but a welcome one for lawyers and legal academics: Harry’s story is a story about law, and about a society trying to establish a rule of law. There is law in every chapter, and on almost every page, of all six books. Sometimes the legal questions hang in the background, while at other times they are the focus of the story: We see numerous trials, and the author gives us statutes, regulations, school rules, and even international agreements to consider.

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Sober = Drunk in Washington, DC

wine2.jpgI’m quite in favor of cracking down on DUI, but this story from the Washington Post is really disturbing:

Debra Bolton had a glass of red wine with dinner. That’s what she told the police officer who pulled her over. That’s what the Intoxilyzer 5000 breath test indicated — .03, comfortably below the legal limit.

She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle’s automatic-light feature.

Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.

Bolton, 45, an energy lawyer and single mother of two who lives in Alexandria, had just run into a little-known piece of D.C. law: In the District, a driver can be arrested with as little as .01 blood-alcohol content.

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1

If only France could file for Chapter 11

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The Economist has a nice article on the Delphi bankruptcy. For those who don’t follow such things, Delphi is the largest car parts manufacturer in the country and it has just gone into Chapter 11. In doing so, it has availed itself of a process that would do much to help France out of its current economic malaise. Delphi in up against pension obligations entered into with union negotiators long ago. It thus has essentially the same problem as France — back in the day it promised more than it could realistically deliver. The difference is that ultimately Chapter 11 gives Delphi a way of rewriting its contracts in an orderly fashion. France has no such luxury.

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Originalists Take Over The Nation

Many progressives are opposed to the Harriet Miers nomination. Thus, it was no surprise to see an article in The Nation suggesting that she be quizzed about her beliefs, and that she be pressed not to extend the rights of corporations. What was surprising was the fact that the article, by Morton Mintz, relied on the bizarre adoption of a originalist interpretation of the Constitution. Mintz’s argument — which was mostly a plain-vanilla critique of corporate rights — contains (and relies on) this gem:

Who was the “person” whose basic rights the Framers of the Fourteenth Amendment, and the people who approved it, sought to protect? (The person was, of course, the newly freed slave. The history of the amendment, adopted in 1868–soon after the end of the Civil War–proves this.)

From there, Mintz argues that this original understanding shows that corporations should not be give Fourteenth Amendment protection.

Yes, that’s right. Mintz is suggesting that the Fourteenth Amendment should be construed according to how it was viewed in 1868. This is the interpretive methodology known as originalism — a school of thought more likely to be associated with the National Review than The Nation.

If the amendment is read in an originalist way, Mintz is right that it would probably not cover corporations. The original understanding of the Fourteenth Amendment was that it was to help slaves; that’s more or less where the original understanding ends.

Of course, such a reading creates a blinding assortment of new problems for progressives. For example, the fact that the 1868 understanding of the Fourteenth Amendment didn’t cover women. Or Hispanics. Or gays. Or anyone else except for newly freed slaves. And yes, it didn’t cover corporations. So Mr. Mintz is right, in a sense. Originalism is certainly one way to restrict the rights of corporations — and everyone else.

Originalist arguments, similar to that Mintz employs in his article, are nothing new. A nearly identical argument — that the Fourteenth Amendment was meant to protect freed slaves, no one else, and that no further rights should be drawn from it — was made by Robert Bork in The Tempting of America. Advocates like Bork, taking the originalist methodology to its logical conclusion, have argued that originalism invalidates a whole host of civil rights and liberties.

Is The Nation really willing to endorse originalism in order to score a few points against corporations and Harriet Miers?

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Juris Novus

jurisnovus.jpgWe are pleased to announce that Concurring Opinions is now a feed on the terrific resource site, Juris Novus. Juris Novus is now posting links to the headlines of our most recent postings.

Juris Novus also contains the headlines of postings at some other great legal blogs such as The Volokh Conspiracy, Leiter Reports, Lessig Blog, The Becker-Posner Blog, PrawfsBlawg, Conglomerate, JD2B, and more.

Juris Novus is part of the Meta Novus network, a group of sites that provide headlines from blogs about law (Juris Novus), technology (Machina Novus), politics (Polis Novus), science (Scientia Novus), and more. These are very useful sites, and they are definitely worth visiting.

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Do We Really Want Perfect Law Enforcement?

speeding3.jpgI just wrote a post about the possibility of cell phones being used to nab speeders. This raises a larger question regarding law enforcement. If we employ new technologies of surveillance to achieve a more efficient enforcement of various laws, the most obvious concern that comes to mind is the threat posed to privacy. There’s also another problem worth thinking about – Is it desirable to have very efficient enforcement of certain laws?

Of course, we’d want as perfect enforcement as we could get when it came to crimes such as murder and kidnapping. But what about speeding?

Consider what happened in 2000, when the Hawaii transportation department began using cameras mounted on vans to catch speeders. Tickets were issued for all drivers exceeding the speed limit by six miles per hour. The program resulted in an enormous public outcry. As one journalist observed, “it became possibly the most hated public policy initiative in Hawaii history, almost uniformly disliked, even by those who thought it actually worked.” Mike Leidemann, Few Saying Aloha to Van Cams Fondly, Honolulu Advisor, Apr. 14, 2002. Some drivers referred to the vans as “talivans” and radio stations broadcast their location.

In 2002, the program was cancelled. Where the cameras were used, traffic accidents and fatalities were down significantly. [In a recent post, however, I discuss a study of DC traffic cameras that reveals the opposite conclusion – that traffic cameras had no effects on accident or fatality rates.]

So why was there such a public outcry against the program?

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Using Cell Phones to Catch Speeders

speeding-cartoon1.jpgA glimpse into the not-too-distant future . . .

You’re driving along the highway. There is only light traffic on the road, and there’s not a cop in sight. You decide to give in to that dastardly rebel within and go 10 miles over the speed limit. You get to your destination without incident, a few minutes early. The sun is shining in the sky; there’s not a cloud in sight. It’s a happy day. Life is good.

But then a few weeks later, you discover that the day wasn’t as cheery as you had thought. That’s because you were caught for speeding that day. Your ticket arrives in the mail. But there were no police officers along the route, no speed traps, no surveillance cameras. How did you get caught?

You were ratted out, betrayed by a traitor in your car. No, not a secret agent, not a rat, not a mole. Instead, it was something you trusted the most, an inseparable companion . . . it was your cell phone.

According to the AP:

Driving to work with your cell phone on, you notice the traffic beginning to slow down. Instantly and unbeknown to you, the government senses your delay and flashes a traffic congestion update over Web sites and electronic road signs.

Other motorists take heed, diverting to alternative routes or allowing more time for their trips.

Futuristic as it might seem, the scenario actually is pretty close to becoming reality.

In what would be the largest project of its kind, the Missouri Department of Transportation is negotiating with private contractors to monitor thousands of cell phones, using their movements to produce real-time traffic conditions on 5,500 miles of roads statewide.

Cell phone users won’t even know anyone’s watching them. But transportation and technology leaders assure there is no need to worry – the data will remain anonymous, leaving no possibility of tracking specific people from their driveway to their destination.

I have a quote in the story, but I’m not saying anything really profound, so I won’t bother excerpting it.

Since there is no tracking that can be linked to identifiable people, the cell phone tracking described by the article appears to pose little of a privacy concern. However, it isn’t too hard to imagine in the future new ways that these devices can be used. Previously, I blogged about how cell phones can function as an RFID device to track people’s movement. With the technology described in the AP article, it doesn’t seem far-fetched to imagine cell phones being used to determine a driver’s rate of speed. Would there be a problem if cell phones were used as a way to nab speeders?

This raises another question regarding the enforcement of the law. When we devise ways to more perfectly enforce laws such as speeding, is this desirable? To keep this post from getting too long, I will explore this question in a separate post.

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The Unappreciated East Pediment

justiceliberty.jpgSince Miers’s nomination has focused the attention of the blogosphere on the Supreme Court, I figured that now would be a good time to discuss the unappreciated east pediment of the Supreme Court building. The lion’s share of the pedimentary attention at the Court goes to the west pediment. This makes sense, of course, since the building faces west (like the Capitol it has its back to Europe), but I think that it has led to an undue focus on the west pediment’s inscription: “Equal Justice Under Law.” Don’t get me wrong. I am all for equal justice under the law, but I think it is unfortunate this is the particular legal maxim-engraved-in-marble that has become so exclusively adopted as an icon of our law. I think that we would do well to pay more attention to the inscription on the east pediment, which reads “Justice the Guardian of Liberty.”

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The Airline Screening Playset: Hours of Fun!

After blogging a few weeks ago about the airline screening playset, I went ahead and ordered one.

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Each day, I would check my mailbox, eager with excitement about its arrival. Today, it finally arrived. I rushed to open it and began what would be hours of exciting play. Here’s what came in the playset:

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I was a bit disappointed in the toy’s lack of realism. There was only one passenger to be screened. Where were the long lines? The passenger’s clothing wasn’t removable for strip searching. The passenger’s shoes couldn’t be removed either. Her luggage fit easily inside the X-ray machine. There were no silly warning signs not to carry guns or bombs onto the plane. And there was no No Fly List or Selectee List included in the playset.

Another oddity was that the toy came with two guns, one for the police officer and one that either belonged to the X-ray screener or the passenger. The luggage actually opened up, and the gun fit inside. I put it through the X-ray machine, and it went through undetected. Perhaps this is where the toy came closest to reality.

The biggest departure from reality was that the passenger had a cheery smile on her face.

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To make the toy more realistic, I required the passenger to show her ID, which she didn’t have. Indeed, the playset didn’t come with an ID card, so it wasn’t the passenger’s fault. But I had the screener cheerfully deny her the right to board the plane. Ha!

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But she still had that silly smile.

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I wasn’t ready to give up, however, so I decided to have her searched from head to toe with the magnetic wand.

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But she still had that smile.

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