The Wizarding World of the Trial Court

I’m not too proud to admit that Harry Potter helped get me through law school. More than once as a 1L, while trying to understand a dry contract case or an ancient property rule, I would have thought I was under a confundus curse preventing me from understanding whatever I was supposed to have learned. Happily, I found that occasionally Harry Potter presented scenarios that explained concepts to me better than my casebook. For example, the idea that just through the performance of an act one can enter into a contract. For me, I understood unilateral contracts by thinking of the infant Harry surviving Voldemort’s killing curse not because of his mother Lily’s sacrifice but because of the contract that was formed when Lily offered her life in exchange for Harry’s. Thus when Voldemort acted on her offer and killed her, he created a contract. When Voldemort subsequently tried to kill Harry, he was in breach. As the first novel recently turned 20, it is a good time to see how other lawyers and judges have used the books to explain the law or the facts of their case in court.

In State v. Kuykendall, 2005 OHIO 6872, No. CA2004-12-111 (Ohio Ct. App. Dec. 27. 2005), the appellate court drew a distinction between the magical world of Harry Potter, where verbal precision is required, and the courtroom, where the reviewing court needs only general assurances that the law has been followed rather than specific verbiage. “[A] trial court is not required to state any talismanic, or as the trial court referred to it, ‘Potteresque,’ language.” Id. The court contrasts this with Harry Potter, where language and enunciation is important to achieve the desired results. The court notes that in the novels, “the failure to follow not only the precise words, but also the correct pronunciation of a spell may lead to disastrous results. For example, in an early lesson on levitation, Professor Flitwick admonishes students that saying the magic words properly is important, and uses the example of a wizard who said ‘s’ instead of ‘f’ and ended up with a buffalo on his chest. J.K. Rowling, Harry Potter and the Sorcer’s Stone 171 (Scholastic 1998).” Id. at n.2.

An Indiana Bankruptcy court twice referenced Harry Potter, both times when parties refused to call pleadings or people by their proper names. Chief Bankruptcy Judge Grant was reminded of how characters referred to Voldemort as “He Who Must Not Be Named” or “You Know Who,” writing “[m]uch like the wizards and witches in J.K. Rawlings [sic] Harry Potter series, where Lord Voldermort [sic] is ‘He who must not be named,’ rather than stating what is actually being talked about, the motion creates and then uses terms like ‘PII’; ‘Designated Filings’; ‘Replacement Filings’; ‘GLBA’ and ‘OCC’.” In re Bicker, No. 13-10280 (Bankr. N. D. Ind. Aug. 10, 2015). When used in the novels, the technique showed the reader the depths of the characters’ fear and sometimes reminded the characters to face their fears. But in the courtroom, these phrase created confusion. “Such terms do not enhance the reader’s comprehension.” Id. See also In re Rybolt, 550 B.R. 422, 426 (Bankr. N.D. Ind. 2016) (comparing a party’s hard work to avoid naming an individual to Rowling’s literary technique).

In U.S. v. Bonas, a government lawyer urged the trial judge to “‘utter the magic words,’” i.e., manifest necessity, in order to declare a mistrial yet allow the government to bring a second trial without violating the defendant’s protection against double jeopardy. U.S. v. Bonas, 344 F.3d 945, 951 (9th Cir. 2003). The trial court did, but the Ninth Circuit took umbrage at its bare assertion, noting there was “no evidence supporting the district court’s determination of manifest necessity.” Id. at 949. Merely uttering the words did not make it so. In reversing the district court’s judgment, the Ninth Circuit wrote “this is not a Harry Potter novel; there is no charm for making a defendant’s constitutional rights disappear.” Id. at 951.

A few courts have mentioned apparating and disapperating. The United States Court of Federal Claims used it as a metaphor to explain that goodwill is not transitory and doesn’t exist only when the company turns a profit. Deseret Management Corp. v. U.S., No. 09-273T (Fed. Cl. Aug. 22, 2013). “According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm’s current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good.” Id.

The Georgia Court of Appeals referred to disapperating more literally to explain how criminal trespass and loitering statutes must be read to avoid absurd results. Isenhower v. State, 750 S.E.2d 703, 706 (Ga. App. 2013). Before the defendant could be convicted of trespass, a defendant required “some reasonable amount of time to remove herself from the second floor of the building, reach her vehicle in the parking lot below, and drive off the school grounds.” Id. Referencing Harry Potter to make itself clearer, the court wrote “it is logical that upon being asked to leave by Edwards, Isenhower could not simply vanish into thin air, ‘disapparating’ like a character in one of J.K. Rowling’s ‘Harry Potter’ novels. (Isenhower was, after all, at Heard County High School, not Hogwarts.)” Id.

The Superior Court of Pennsylvania used apparation to explain a person’s relationship to space and time in a negligence case resulting from a car accident and the death of a pedestrian. Wright v. Eastman, 63 A.3d 281 (Pa. Super. Ct. 2013). At issue was the location of the decedent when she was struck and whether or not the driver could see her as he was driving. If the driver could only see her when she was 30 feet away, as he testified, the court was forced to ask itself whether the driver was negligent in not noticing her earlier as she “traversed the distance from one side of the road or the other to the point where she was struck” or whether she “instantly [] materialize[d] in a new location.” Id. at 293. The court explained “[i]n the world of Harry Potter, wizards refer to this mode of travel as apparition.” Id. at n.6.

A few times, cases have presented fact that nearly put judges under the imperious curse, compelling them to make a Harry Potter reference. Such was the case in Wyrostek v. Nash, where the plaintiffs lived at 4 Privet Drive, the address of Harry’s non-magical family and “the very last place you would expect astonishing things to happen.” Wyrostek v. Nash, 984 F.Supp.2d 22, 24 (2013) (D.R.I. 2013) (quoting J.K. Rowling, Harry Potter and the Sorcerer’s Stone 17 (Scholastic Press 1997)). The court felt the need to point out that the facts of this case took place “squarely in the Muggle [non-magical] World.” Id. at n.1.

Making a slightly more tenuous connection—and being all the more entertaining for it—in Barneck v. Utah Dept’t of Transp., the facts mentioned “mile marker 46.5.” Barneck v. Utah Dep’t of Transp., 353 P.3d 140, 142 n.1 (UT 2015). Incredulous, the Court remarked “[w]e are unsure of what to make of that formulation, as we suppose that a ‘mile marker’ is in fact a mile marker and not a half-mile marker, and see no indication in the record or elsewhere that UDOT uses half-mile markers.” Id. They compared their disbelief to that of Harry’s muggle family upon learning about Platform 9 3/4, the place at the train station where young witches and wizards catch the train to their school Hogwarts. Id.

Finally, I find myself moved by the judge who discussed Harry Potter in chambers with a shy child who was the subject of a suit under the Hague Convention. In re Koc, 181 F.Supp.2d 136, 144 n.10 (E.D.N.Y. 2001). The judge notes that he was not wearing his “judicial robe” during the conversation, leaving the reader to wonder if he was wearing a different kind of robe, such as wizard robes the characters in the books wear. Id.

The above is only a small sampling of the times Harry Potter was referenced in court. It is interesting that it has been referenced so frequently, given that it is a relative newcomer to our pop culture lexicon and aimed at an audience much younger than lawyers and judges. That it has transcended the age gap and is so relatable to yet far removed from the legal system make these references all the more amusing and—dare I say—magical.

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You can’t snub people who ignore you

Apparently I live in the friendliest place in England. But saying that is like saying this guy is the most open-minded and accepting ISIS fighter. I learned quickly that rude and polite are standards unique to each society. People here probably think I’m loud and pushy. That’s OK. I think they are snobs and that England is a cold place filled with cold people. But I know it’s just that I don’t know how to make friends here.

People here don’t make eye contact. In the US, I’m used to people you pass in the streets smiling and nodding, if nothing else. When I lived in the deep south, there was one woman who would smile and say hello to me every morning as I walked to school. We had never met. I had no idea who she was. She was just friendly.

Here, even people I know avoid my glance. The parents of my kids friends ignore me. I ask to make play dates and get blown off. Sure, maybe their own lives are so busy that they don’t have time to schedule things for their kids. How many times should I ask before I realize they are trying to send me a message that they don’t want anything to do with me?

Maybe it’s me. Maybe it was something I said or did. Maybe I’m a rude American. But it also happens with people I’ve never met. This one woman whose kid goes to daycare with mine, I see her almost every day for years now. Everyday, I tried to make eye contact. Everyday, I failed. Now when I see her, I want to shake her and say “acknowledge my presence, you limey cunt!”

I’ve tried to adapt to my surroundings, but maybe people here need to be open and accepting of differences too. I shouldn’t have to change who I am to make friends. And besides, I have made friends. With the members of the British-Pakistani population.

 

 

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What does it feel like living abroad in unpresidented times?

I can only speak for myself, but I feel alone. People here are freaking out about Brexit. Someone who I want to be friends with said that Trump is 4 years, 8 years max (it sounds like a prison sentence: 8 years, 4 with good behavior), but Brexit is forever. Maybe so, but I don’t think the amount of damage they can do is comparable. How many people will die because of Brexit? I can’t find any data, other than Jo Cox. He Who Must Not Be Named will kill more than 43,000 a year just from repealing the ACA. This does not count dead soldiers in the needless wars he will start, dead civilians from the terrorist attacks that will occur because he emboldens ISIS and domestic terrorists and will not read intelligence briefings.

I also feel helpless. What can I do from here? All the “action items” or whatever I’m hearing about are to call a senator or march. Yeah, I can calculate the time difference and pay way too much for a long distance call in the hopes that I won’t be on hold for too long and will actually get through. So I spend my time writing emails that will never be opened or using “contact me!” forms that limit me to 1000 characters fewer than I need. If you have any answers, let me know.

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Buffy update and a question

I’ve gotten a surprising amount of hits and comments on my I don’t like Buffy post, and I feel like it deserves an update.

I still don’t like Buffy, but I do appreciate the people debating it reasonably with me and trying to open my mind. I admit, some of my judgment may be unfair (it’s not fair to say I don’t like it because it’s not feminist enough). But some of it is just taste. And to those people, I want to share this:

My husband loves Buffy, and we had a baby girl about 2 years ago. My husband works all the time (often late into the night), a lot of the time from home on his computer. And he’ll usually have a favorite show on in the background. Like Buffy, Star Trek, or Friends. Because he works late into the night, he took a lot of middle of the night feedings when she was a newborn.

On one such night, he was watching Friends and feeding her, and he just felt icky watching this show that he felt objectified women. And he just became so much more aware of sexism and objectification that now he doesn’t like Friends anymore. So he decided to watch Buffy with her, because he thought Buffy (and presumably Willow, Tara, and Anya) would be better role models and the show would have more egalitarian themes and focus more on women’s strength and intelligence. Even though I have my own issues with Buffy, I was touched by this.

But here is my question: Do you think any of the images in Buffy are inherently frightening? This is not to pick on Buffy generally, I mean any frightening image generally. In particular though, I am thinking of the Gentlemen.

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Babies like looking at faces and can recognize faces. Do you think a baby would recognize it as a frightening face, or is it learned that they are scary?

I am not such a prude or whatever that I told him no, don’t watch Buffy with her. I did suggest that he be careful with the monsters that looked like scary human faces.

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Kushiel’s Mercy readalong: weeks 6 and 7

Ok, so I had to stop reading after week 5. I realized why this book isn’t my favorite of the series despite having 200 pages or so that I love more than any other portion. It’s because Sidonie and Imriel return to the City of Elua and learned that they all voted for Donald Trump. And I just can’t. Most of the time, when I do a reread, I stop after Astegal is dies. I don’t need Frodo et al. returning to the Shire and overthrowing Saruman. I can stop when real evil is defeated.

Nonetheless, here we go (sorry my heart’s just not in it anymore):

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Kushiel’s Mercy readalong: week 5

Chapters 50-62. Questions by Lynn.

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The Sex Lives of Eunuchs

The Closet Professor

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Throughout history, there has existed basically three types of eunuchs: those where were castrated before puberty, those who were castrated after puberty, and those who had their penis and testicles removed during the castration. Those in the first group, who castrated during puberty, never developed mature sexual organs because they did not go through puberty. With the lack of mature male hormones, i.e. testosterone, their voices never changed, they had more feminine features, often gained weight very easily and lacked muscle tone, and they were totally impotent. 6a00e55370249988330120a7c50f2c970b-400wi The second group, those who were castrated after puberty, went through puberty and though many took on feminine traits, it was easier for them to gain muscle mass, and they had the ability to get an erection. However, because of the lack of testicles, they could not produce sperm and therefore could not reproduce. They did however, have the ability to ejaculate, though…

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Kushiel’s Mercy readalong: week 4

Chapters 23-35. Questions by me.

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Kushiel’s Mercy readalong: week 3

Chapters 23-35. Questions by me.

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Kushiel’s Mercy: week 2

Time for week 2, chapters 11-22. Questions by Allie.

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