Keith Hawk (KH) John Granger (JG) Judge Karen Morris (KM) Tim Slattery (TS)
[Show music begins]
Eric: Hey! Josée! Wait up!
Josée: Oh hi, Eric! I'm sorry, I really can't talk right now. I'm running late.
Eric: Late? Late for what?
Josée: Oh, it's because I have to go meet Keith and John Granger. I'm actually going to listen to a Harry Potter literature lesson at MuggleNet Academia.
Eric: Oh cool, that sounds awesome. Can I come with?
Josée: Yes, of course you can. Just come with me.
Eric: Okay. Let's go!
[Show music continues]
KH: Welcome to MuggleNet Academia! My name is Keith Hawk with MuggleNet.com. John, my co-host, how are you today?
JG: Very good, Keith! Good morning.
KH: John, you were just in St. Andrews for a conference. Tell me a little bit about what happened out there. That really sounded interesting.
JG: All the way over in Scotland. Yeah, it was a blast. We had the first international academic look at Harry Potter as literature. Folks from Sydney, Australia, Manila in the Philippines, South Africa, all over the Commonwealth nations, so many folks from the UK and the United States... it was a party. And the media there went nuts, Fleet Street went over the hill. We had... the BBC was there, I was interviewed on BBC world, the Daily Mail, The Guardian, The Telegraph, The Times. I mean, everybody wanted to laugh at how silly it was that we were doing this conference, but the heavy weights that were there... I was one of the keynotes, but major universities from all over the world were represented so it was kind of a refute to those people that were trying to laugh at and laugh down their sleeve that Harry Potter as a serious subject. And it was a real step forward. People were talking about how this will legitimize attempts to take Harry Potter seriously because St. Andrews, it's only 600 years old so [laughs] it has a bit of a track record as a serious place. Anyway, it was a great time. Thanks for asking.
KH: Yeah, we had it covered on MuggleNet and we had a news story about the conference actually starting. And then we also had... I saw some discussions on some of the newspapers scoffing at the idea of...
KH: ...a Harry Potter conference on literature, saying, "How can you possibly take this stuff seriously?" Well, just from our conversations here, I think you can definitely take this stuff... I mean, we wouldn't have this show if we couldn't take it seriously.
JG: That's right. And pretty soon, St. Andrews will have some of the better talks up on their website so fans here can tune in to see some of these high-octane discussions.
KH: Yeah. I mean, this show has been pretty well reviewed so far. In fact, let me read one of the reviews for you from the last show. It was really interesting. On iTunes, we had a review from Sierra and it goes:
"This podcast is excellent! It's really great to listen to in tandem to the new Alohomora! podcast series that MuggleNet is putting out. They're both seeking to analyze the 'Harry Potter' series in depth, but from a new critical perspective that hasn't really been done before, at least not in such a public way. MuggleNet Academia explores a focalized subject matter on each episode and it really gets in depth into the analysis. For example, Episode 3..."
which was our latest episode.
"...looks exclusively at translation issues: how do you translate the unique names, words, and places within the HP series, whether it be a simple change from UK English to American English, or a radically different change from English to Chinese, et cetera. Additionally, they always feature a good mixture of commentators, from the show regulars Keith Hawk and John Granger, to university professors and students who can offer special insight into the issues discussed. The one drawback of the show is that they sometimes overanalyze certain moments in the text much more than they need to..."
KH: I know! [laughs] I can't believe we actually do that, but that's what we do.
"...taking care to make too much of a point out of something that might not actually be there in the text for most readers."
And that's what we do. We try and bring out this to the listeners.
"It's all personal interaction though and I don't think that should stop anyone from listening to this great podcast!"
So that was kind of a good mix.
JG: Not to pat ourselves on the back, but what the heck. That's great.
KH: Yeah, no, and the translation show got a lot of great reviews on it. I mean, it was a fascinating subject, we had people from Germany and different countries, Singapore, and everything else had commented to me about how the translations were in fact something to look at. They dived into the American English or the British English, and helped them to learn English by reading Harry Potter.
KH: And I thought that was a really unique stand on the subject, so that was a good show.
JG: I hope that folks that are listening will also not only listen to the program and go to iTunes and leave their comments there, but you and I are going to be in Orlando, right? Coming up? Is that...
KH: I can't believe how quick it's coming up! Yes, Ascendio 2012 with the HPEF and Heidi. And yeah, we're going to meet there and hopefully get a discussion going at some point.
JG: That's right. We'll definitely have a meetup. Look for updates from Ascendio about that. Judge Karen, are you going to be there? You were down in Orlando last year. Are you going to be there again?
KM: I am going to be there!
JG: All right!
KM: And I'm presenting and reading from my book.
JG: Oh, that's right! I saw that on the list. That's right! All right!
KM: So, I'm excited!
KH: I guess now is a better time than ever to say welcome to our guest today!
JG: Oh, I'm sorry.
KM: Thank you!
KH: On the show today, we have Judge Karen Morris. Judge, hello, and tell us a little bit about yourself.
KM: Hello, hello! It's fun to be with you today. I am a full-time faculty member at Monroe Community College in Rochester, New York. I teach various law courses and I am also a judge elected in the town of Brighton, and I also write textbooks.
KH: Yes, and speaking of your textbooks, you wrote the book, Law Made Fun Through Harry Potter's Adventures, which is available on Amazon. I believe you can also get it in ebook formats on your Kindles and Nooks and everything else. How did you get into that book?
KM: I started reading the Harry Potter books and, like so many people, just became very enamored with the storyline. And then as I kept reading, I realized that JK Rowling must love the law because she wove into her stories so many vignettes that implicate the law. So, then I started looking at where those pieces were in the storyline, and there were so many, I said, "Wow, there's a book here. I love the law, I love to teach the law, what a great way to teach, by using a story that so many people are familiar with."
KH: True, that's very true, and it is amazing how many aspects of the books have been used in the real world. I don't know if you know this, but there is a class of genetics being taught by using Harry Potter.
KM: Oh my goodness.
KH: I mean, how insane is it that a genetics college in China is using genetics research in the Harry Potter books to teach the class?
KM: Absolutely. It makes sense to me. It also gives great lessons on the Holocaust and how Nazi Germany determined who was Jewish and who wasn't. Who is a wizard and who is not. There are definitely parallels. In fact, at one of the Harry Potter conferences, I did a whole session on Holocaust references from the book. So, the storyline is limitless in terms of lessons for so many disciplines that can be drawn from the books.
JG: Well, I confess... I don't know if... Tim has got me drawn in here somewhere. Tim, I can't wait to hear what you think. Do you think the Chinese are probably talking about eugenics and pure blood when they're talking about teaching a class on genetics and Harry Potter?
TS: Well, I mean...
JG: All my red flags just went soaring there, like, "Oh no!"
JG: "What are they teaching in terms of genetics? In terms of Harry Potter?"
TS: Well, it's a very precarious and delicate political situation, I'm sure. And I don't know if that's [laughs] one we want to get into.
TS: But I think it's fascinating that they're talking about it. It's one of many, many ways that the books have kind of been brought into academia and public culture all around. I mean...
JG: Jump the gun here, Tim. We don't even know who you are yet! [laughs]
KH: Yeah, I know. I was going to say, let me introduce Tim. [laughs]
JG: I'm sorry, I'm sorry.
KH: We'll bring Tim into the discussion and put him in a little bit earlier.
KH: And also joining the show, we have Tim Slattery, a lawyer in the Washington area. Tim, hello. Tell me a little bit about yourself.
TS: Hey, Keith. I am an antitrust attorney in DC, I've been a big fan of the Harry Potter books since they first came out - actually, I should clarify that - since the fourth book came out and the first movie came out because then at that point I saw the movie and I stole the books from my sister and got into reading them then.
[JG and KH laugh]
TS: So ever since then, though, I've been a big fan.
KH: You know what? That's about the same time that I joined up in the fandom, is before the fourth movie came out. I was watching the first three movies with the kids. And I had all the books since they came out because I collected them for my oldest daughter, and I was like, "Hmm, I've got to read these books. I've got to just dive into them and get this... see what this thing is all about." Here I am... how many years later? [laughs]
JG: Tim, I've only known you for about fifteen seconds and you've already told me you're a thief. I mean, this is incredible.
TS: Well, you already knew I was a lawyer, John, so...
JG: I mean, I didn't even want to go there.
JG: Gosh. My goodness, I...
KM: Here's how I got out into them. I was at a conference of textbook authors when the first midnight party was being held for launching the next book, and I was with a whole group of authors. I said, "Oh my goodness, what could be more exciting than to have your book released at a midnight party all across the country?" So we, a group of us, got into the car, went to the closest Barnes & Noble, and had great fun at the event. And of course, I had to buy one of the books and...
KM: ...that led to a love affair.
KH:[laughs] Well, I'm glad to have both of you on the show. We're going to kick it off, then, and get right into the discussion of law in the Harry Potter series.
[Show music begins]
KH: From MuggleNet.com, my name is Keith Hawk.
JG: I'm John Granger, the Hogwarts Professor.
KM: Karen Morris, judge and professor.
TS: And Tim Slattery, today's student.
[Show music continues]
KH: All right, I'm going to start off the show by reading a little piece, and the reason I'm doing this is because these books are British books. Correct, John? They are British.
JG: That's right.
[JG and KH laugh]
JG: British author...
JG: ...British audience, British publisher, we can be sure that it's the UK.
KH: Yeah. And our guests today are both from America. Now, we did try to bring on a British lawyer. I tweeted, I've put out notices to please contact me, but to no avail. So, without a British law figure in hand here to talk about British law, I wanted to clarify for the audience some of the similarities that we have between what we're going to be discussing on the American law side, and you're going to hear words such as "constitution" and "amendments" and everything else, and I don't want the English fans to say, "Hey, these are British books. Why are you talking about American law and comparing it?" So, just for the record, let me say this:
"The development of English Common Law on which much of Anglo-Saxon laws are based is dim as to its actual historical origins, unlike the law in France, for example, which is most definitely based on the Napoleonic Code of 1803. What was (and still is) certain is that, in many cases, British common law is based on very strict precedents. In earlier times, especially when Henry VIII formed the Church of England, and later, in the 17th century, when Oliver Cromwell became Lord Protector of Britain, 'it was hard upon judges, who were required to change their religion as the sovereign changed.' Of course, this religious advocacy has changed in Britain in modern times, and in the United States, it was never a factor. Politics, rather than religion, is what got some American judges appointed or elected - even to the Supreme Court."
Anybody want to say Clarence Thomas? So, anyway...
"Great Britain does not have a Supreme Court, in other words, a totally separate entity of government. Instead, the House of Lords is the 'court of highest appeal'. Unlike America's legal system which separates state from federal courts (and legal systems including judges), Britain includes the lowest criminal courts called Magistrates' Courts, which deal with minor offenses. 'More serious cases and ones appealed from the Magistrates' Courts are heard in the Crown Court."
Which is the Queen's Bench Division.
"Cases are appealed to the Court of Appeal."
Which is the Criminal Division.
"When one says that the House of Lords is more or less the equal of the US Supreme Court, it has to be stated that the House's judicial functions are quite separate from its legislative work. '...cases are heard by up to thirteen senior judges known as Law Lords.'"
Also of note, it's interesting that Scotland and Northern Ireland have a completely different legal system, separate from that of England and Wales. So, we're not going to get into the differences between Scotland and Northern Ireland, even though JK Rowling is Scottish, and we're not going to go that far into this.
"While so-called 'colonial law' in the decades before the American colonies decided to become the United States of America had some major differences from the laws of the motherland, in fact they varied from state to state. However, 'after the Revolution, American law became, in some ways, more than less English.'"
So, a big point to this show is that the commonalities between English law and American law are dramatic. They are the same, they are just called differently.
"Then there is the matter of the death penalty. As can be seen on various Internet websites, sponsored by Amnesty International."
Who JK Rowling does sponsor.
"The US is far and away the greatest 'sinner' when it comes not merely to sentencing the accused to death, but actually carrying out the sentences. Only China, Saudi Arabia, and Iran can compare with capital punishment actually carried out in recent years. Britain now subscribes to a European human rights resolution, whereby capital punishment may be used only in extreme cases during wartime. It is simplistic, of course, to say that Britain is a less violent country, where, in fact, the police don't even carry guns. However, as the same rainbow coalition of immigrants and a growing minority population in Britain has stirred up racial troubles, so one may see some harsher methods of convicting everyone from mere rabble rousers to those who incite riots, and cause damage to persons and property.
If there is one constant in the two systems of law..."
Between England and America.
"...is that they are evolutionary, rather than revolutionary; meaning that the sets of laws and judicial circumstances seldom make great changes overnight."
So, with that said, I want to dive right into today's subject, right into that death penalty. I thought that... when I was researching this, that came up and it really hit me hard when I was thinking about the death penalty. And then I was like, "Okay, well, in the wizarding world, they have the Dementor's Kiss." Certainly it's not a death penalty because the person is not killed, but they become soulless.
KH: So, isn't that the same as capital punishment here in America?
KM: "Wow" is right. It seems to me that a soul is, of course, such a central part of what a human being is. But death is defined as not breathing, not having any vital signs. So taking someone's soul, were that possible in our world, would be a very serious crime, but would be short of murder. The death penalty, in virtually all states, is reserved for murder. I believe... though I can't say for sure, but I believe there are a few states that allow the death penalty for various... for very violent rapes. But otherwise, it's reserved for death. And then our country has had a very difficult history in designing a death penalty that passes muster with the Constitution, which protects people against cruel and unusual punishment. So many states, New York being one of them, which is my state, has attempted a number of times to adopt a death penalty only to have it declared unconstitutional because of some unfairness detected by higher courts.
KH: Well, let me preface what I was saying by this. Let's take the example of Barty Crouch Jr., okay, in Goblet of Fire. Barty Crouch was sentenced to a life term in Azkaban for the torture of Frank and Alice Longbottom, okay?
KH: He escapes prison by Polyjuice Potion, gets out of prison, so he's really an escaped convict unbeknownst to the wizarding world. He gets into Polyjuice Potion, which we're going to discuss a little bit later with identity theft, where he takes the personality and traits and everything else of... the look of Alastor Moody, goes into Hogwarts and teaches his class where he performs Unforgivable Curses on students. Now, that's another reason for a life sentence in Azkaban according to the wizarding law.
JG: He doesn't perform them on students, does he?
KH: Absolutely he does. He did it on Harry several times. He did it on all the students on how to...
JG: Oh, the Imperius Curse! You got me.
JG: Okay, yeah. I'm sorry.
KH: Yup, yup. So then, he sets this all up for Voldemort to come back, blah blah blah, and he's found to be Barty Crouch impersonating Alastor Moody. Without anything else happening, we actually even get into another subject then, with Veritaserum and self-incrimination that we can discuss, when he's exposed to the Veritaserum from this. I mean, Barty Crouch is the perfect law topic for this whole thing.
KH: I mean, it's absolutely perfect. Then, without any trial, without any proof of evidence, the Minister of Magic, Cornelius Fudge, brings with him a Dementor and produces the Dementor's Kiss on Barty Crouch Jr. I mean, capital punishment without a trial. How can that possibly happen?
KM: Well, here's what I would say. First, capital punishment, to me, refers to death penalty, which is very, very different than life imprisonment. Our law is extremely protective of human life. And lawyers, and clients, spend a lot of time preparing arguments and then making arguments to courts and juries to save a defendant's life, and secure for them instead life in prison. So, big difference between those two.
KH: Well, that's true, but he wasn't sentenced to life in prison. He was given capital punishment through Dementor's Kiss.
JG: Here's the crazy thing, okay. First of all, we're talking about Azkaban like it's a normal prison. It's essentially a medieval torture chamber where your soul is... for [unintelligible]... basically you're in a fetal position. All the joy is being sucked out of you. You're being subject to the most horrible, really horrific tortures. Where someone like Hagrid spends a month there, feels like he'll never be the same again, psychologically, emotionally damaged, socially scarred. I mean, this is not your normal prison. This is not incarceration the way any one of us recognize it. And then, to draw a distinction between having your soul sucked out of you and death is described throughout the books as being worse than death. We never get to see Barty Crouch after his soul is sucked out of him. I don't know where they... what corner they stand up his soulless body [laughs] where his heart may be beating. I mean, Tim, is this anything like anything we recognize as a judicial system? We have showroom court trials, they're either OJ or Stalin... [laughs] I mean, we have these bizarre trials. And then these punishments are absolutely out of this world. What world are we living in, in the Harry Potter books?
TS: Well, I think the existentialism question aside of whether the destruction of the soul is equal to death in the eyes of the law. I think, putting that aside, the US Constitution under the Eighth Amendment prevents cruel and unusual punishment. And like Judge Karen said, it limits it to extreme circumstances of murder. Usually there have to be aggravated situations, or aggravated circumstances. But I think it may also be a consideration that arguably they are in a time of war at the point when Voldemort returns and Barty Crouch Jr. is killed by - or I guess his soul is sucked out - by one of the Dementors. But at the same time, I don't know that it was Fudge that said to the Dementor, "Go get him." It was more of the Dementor acting under its own accord. So, those facts aside, I think that there is a certain amount of repulsion to the death penalty that JK Rowling seems to suggest, and she seems to reserve it only for a certain few. And it seems like it's justified or accepted in the eyes of Fudge when it comes to Barty Crouch Jr., but Dumbledore, and Snape, and McGonagall, and the others had serious reservations about it and they wanted to send him off to prison, to Azkaban. And I think the same can be said for Peter Pettigrew at the end of the third book when Harry decides that it's up to... it's not for Harry to decide and that it's up to a court or it's up to Dumbledore and the Ministry to decide what happens to Pettigrew.
KH: That's a real good example of going back to that. And in fact, John, going back to Azkaban, can't we compare Azkaban to Alcatraz? I mean, if you're put in isolation in Alcatraz back in the day, wasn't that the same as...
JG: No. No, no, no.
KH: ...being in a fetal position?
JG: I mean, the most famous example of Robert Stroud, the famous birdman of Alcatraz. The man was performing experiments and noting... an ornithologist or whatever. This is not a torture chamber. I mean, yes, you could say any form of incarceration in some respects is torture and that you're denied freedom of movement, you're denied freedom of speech per se, you don't have right of recourse to publications and stuff. But other than that, Azkaban is totally over the top. Unless you're an Animagus, you're tortured daily, you're driven mad inside this prison. Every person in the wizarding community lives in absolute fear of being sent to Azkaban. It's definitely a Stalinist thing. That's... to go back to my question, this is not a world we recognize. Well, just for example, the school things. How about Alastor Moody deciding to turn a student into a bouncing, white ferret? Now, can you imagine what would happen in an American school - or even a private school - a teacher so demeaned and punished a student as to humiliate them publicly and beat them physically, really. It's very comic to us, and we're with Ron and it's one of these memories we'll keep forever, whatever - the amazing bouncing ferret - but we're obviously living in a world which is more Regency or Victorian England than we are, as you said. Our ideas of justice have evolved in a way that make this world almost unrecognizable to us.
KM: I would concur with that, that it's not a world that we recognize. There are, in our society today, all sorts of rules that police are bound by and sheriff's departments, in terms of managing and operating jails and prisons. So, they have to be of certain size, they have to be... the inmates have to be monitored so that if somebody is in distress that would quickly be brought to the attention of the jailors, they're entitled to certain exercise time, there are other regulations that protect the well-being and the health of the prisoners.
KH: Yeah, but at the same time, you still have some of these... the stories from Azkaban. While yes, they are being punished more so than any other prisoner would be in any kind of jail, whether it be America or Britain or any other country. You still have visitations. Fudge goes to visit the prisoners and that's where Sirius gets the newspaper in Prisoner of Azkaban. So, in a way, the Ministry is still overseeing the well-being of these prisoners. I think JK Rowling really puts the point well how being in prison is like having Dementors circling around you. It's depressing, it's drawing out who you are as a person, your happiness. Everything that you know to be out in the real world is lost when you're in prison, and I think she really brings that out well with the use of Dementors.
KM: Yes, no question. Prison is not the place that anybody wants to be. I occasionally will do an arraignment on a very serious felony - an arraignment being the first time that a defendant comes to court, so immediately following an arrest on a serious felony, the police bring the defendant to court. And the judges are on call 24/7, so whenever that occurs, we come to court. And you see defendants who are realizing, oh my goodness, they may be spending the rest of their life in jail and it is just coming to their consciousness that this is what's going down. And it's really... it is a very sad circumstance, though, and at that moment, defendants are innocent. They're innocent until proven guilty and the proof doesn't come until trial, which is numerous months down the road. But their... these defendants are facing a very serious accusation. They probably know in their head what the realities are, based on the evidence that the police have gathered. And it's a heavy burden to think about spending years and decades in jail. No question. It is not a happy place.
JG: So, what both of you are saying is, okay, yeah, we see this as a cartoon in a way, of incarceration and what happens to the person there, but it's a literary representation of what happens to the human person in jail, that we're seeing largely in her really sort of 19th century picture of jails. Really, her Amnesty International perspective on jails worldwide and political prisoners and what this does to human beings and society at large to have that kind of institution as the backdrop for justice.
KH: Well, I think what she really wanted to do with Dementors was show how depression affects people, and she used the Dementor as that visual imagery of sucking out the happiness from you. Now, obviously she needed a place for these Dementors to be housed and what better of place than in prison where the ultimate depression is located. So, what better of a guard than for a major prison like this than Azkaban, and I think that's where she uses the Dementors really well.
JG: I get it. I want to go back to something you mentioned earlier, Keith, about Alastor Moody as the victim in Goblet of Fire, of identity theft. Now, this is... all three of the books, really, from the first use of Polyjuice Potion, in Chamber of Secrets on, we have a remarkable disregard for the integrity of the human person, [laughs] in that if I can get enough lacewings and bloomslang or whatever, I can become Judge Karen, right? I mean, I met you in Florida last year, Judge Karen, and if I had plucked a hair from you while we were having our conversation, I could any moment now appear in court and go absolutely insane.
KM:[laughs] Oh my goodness.
JG: That's right! You'd lose the next election and I have detroyed your life or whatever.
KM: Too funny.
JG: Tim, what do you think? What is Rowling after, with this identity theft thing? For us, especially in the United States, this is absolutely outrageous. But even the children get involved with this, and the victims are usually people that you don't sympathize with. I think of Bellatrix. I mean, Hermione slips into Bellatrix's skin in the last book [laughs] and we don't think, "Oh, wait a minute, she shouldn't be doing that. She shouldn't be representing Bellatrix at Gringotts Bank of all places." But I've never heard fandom say, "Wait a minute." What's going on here? Why is Rowling that fast and easy with identity theft?
TS: John, I think that's a good point. The major thing that I kind of take away from this is that there's a moral ambiguity to it, that identity theft is against the law, it's a federal offense as well as... I'm sure many, many states have individual identity theft laws as well. But the main idea is that if you steal someone else's identity, you're responsible for the acts that you commit while you've stolen your identity. And there's a civil, and in some instances, criminal aspect to it as well. But I think in the books, there's this moral and legal ambiguity to it, where it's very difficult for us to read all of Goblet of Fire and then at the end find out that Alastor was not actually Alastor.
TS: But then you get into instances in Chamber of Secrets and then all throughout Deathly Hallows where they're changing into characters for the trio's own benefit. And so one of the questions I kind of have about it is, is it for the greater good in that sense? So, is identity theft allowed in those exceptions? And I think the law would generally say no, that there's kind of this strict liability to it, in a sense. And I don't think that just because it's for a good reason that that's enough to allow it.
JG: It seems pretty dog on froggy that the good guys can do this arbitrarily and it's all okay, the bad guys do it and they have their soul sucked out of them. I mean, it's a... it seems to be an Unforgivable Curse if the Nazis do it, but if the Allies do it then more power to you. I mean, it's... I confess... I have never thought of it this way, but Keith brought this up and I thought, yeah, identity theft seems to be what we would consider to be an Unforgivable Curse, that even though it's a potion... if you drink Polyjuice Potion and really deceive people by being someone else, how is that really substantially different than the Imperius Curse?
KM: Well, what's interesting about the Polyjuice Potion is that it is for a very limited amount of time, so the effects are for a matter of hours. I also don't worry so much about the ethical issues associated with it. I think that JK Rowling wanted us to think about identity theft, that it is an issue in the world at the time that she wrote. So, she had to weave it into the story in a way that made the story realistic in the sense of the storyline. And so I think it's enough that she put it in there and gives us the opportunity both to discuss identity theft and raise the issue of the ethics. So, that it's there to be raised is enough.
JG: Judge, what do you think the difference is between Polyjuice Potion and the Imperius Curse? Because if use the Imperius Curse and wap you with that when you're not looking and all of a sudden you're doing my will, in effect you're not the same person that you are. So, in fact, you're doing what I've told you to do. I have really stolen your identity because my will is, in effect, what you're doing. And that's a life sentence in Azkaban for using that curse. How is that substantially different than me taking on your identity, walking around doing what I want to do, pretending that I'm you? I'm confused, it seems to be... I see your point that she's using it as a plot device, she's using it maybe as a false front about, hey, here's an issue we want to talk about. But it seems that it's a bit of a flint here, where she's created this one curse that does one thing and we have a potion that does the same thing, and yet they are treated absolutely different.
KM: Well, I think that with the Polyjuice Potion, 1) it's very limited in time, 2)...
JG: Well, again, I don't think it's limited in time. We have got a character that does it for an entire year. An entire school year.
KM: That's true.
JG: I mean, you can use it... yeah, you've got to go to the hip flask or whatever, but it can be done for extended periods of time. We don't see it that often for extended periods of time because it would be tiresome and it's certainly more exciting when they are revealed as who they really are in short time. But the time thing I don't think is a sufficient objection because we do see a character go through it for a whole school year.
KM: That is true. That is true. So, with identity theft and the Polyjuice Potion, what is done is ultimately reparable. So, what is done to the reputation of the person who is imitated is reparable. Once the Polyjuice Potion effects end, whether it is short in time or long, the real person comes forward, the problem and the identity theft is identified, the person reclaims their identity and goes on with their life having still their full faculties available to them. With the Imperius Curse, your mind is gone. It's not reparable. It is a... there is no way to get back to yourself, to be yourself.
TS: I think one of the things that Judge Karen is kind of touching on is this idea that the US law and British law and most law that is based on this British common law is... the main point is that autonomy or individual autonomy is the primary focus of the law. The US Bill of Rights goes through ten amendments that provide individual rights to every citizen and resident of the United States, from free speech to free press to the ability to carry a weapon. So, those are individual, autonomous rights and I think that's the distinction between the Imperius Curse and the Polyjuice Potion, is that the Imperius Curse... it takes that autonomy away from the individual and places it in the hands of the person dictating the curse. So, I no longer have control over anything that I do. Whereas under the Polyjuice Potion, somebody is simply assuming my identity while I can go on doing what I'm doing.
TS: So, to me, it seems like that is the thread that makes the Imperius Curse more legally distinguishable from the Polyjuice Potion and therefore also more punishable.
KH: Well, as far as punishment goes, I mean, putting the Imperius Curse on somebody is punishable by a life term in Azkaban. Is that a little extreme for doing that? Taking away somebody's autonomy?
KM: There has to be proportionality between the crime and the sentence. Taking away somebody's mind and someone's self-control and their total identity is [laughs] a very serious crime, so I think there's proportionality there. So no, I don't think it's too much.
JG: Yeah, from what Tim and Judge Karen say, Keith, I think what we have there is proportionality in that the Avada Kedavra Curse kills you, the Imperius Curse, in effect by robbing you of your identity in a way, has robbed you of your life as much as we know it. So, they seem to be... there's a kinship there between death and the loss of your personhood. So, that makes sense. I'm much more concerned about the Cruciatus Curse. I mean, Harry whips that out even in Deathly Hallows. Say time of war if you want, but there seems to be... that seems to be odd to me, that torture in Joanne Rowling's world is akin to full identity theft, the Imperius Curse, and murder. Do any of you think that that satisfies the proportionality test? That torturing somebody in time of war or in peace is the equivalent, as an Unforgivable Curse, of killing somebody or taking away their will, their free will?
KM: Torturing somebody is a very serious crime in most legal systems. Torture suggests leaving the victim with long-term injuries that will impact their quality of life. That would be viewed as a very serious crime. It would probably be the equivalent in our society of what might be first-degree assault, which would be assault with a weapon causing serious injury, meaning an injury that's either permanent or protracted in its effects. I think a long jail term bordering on life imprisonment would not be disproportionate.
JG: That's a distinction that she doesn't have in the books. So basically, when you use the Cruciatus Curse, it's supposedly an Unforgivable Curse in itself. Now, I see your point - Neville's parents, they were tortured to the point where they were incapacitated and never regained their mental faculties. That seems proportional to the Avada Kedavra Curse or the Imperius Curse. They've been robbed of their lives. But when Harry and others use the Cruciatus Curse basically as an attack device, where they don't damage the person long term, is that... Rowling seems to make it equivalent. As you say, I don't think in a court of law that that kind of attack would be seen as equivalent to murder.
KH: Maybe not in a time of war, but I think in a time of peace if you just tortured somebody...
KH: ...like Bellatrix and Barty Crouch and Rodolphus Lestrange did when they attacked the Longbottoms, if they would not have gone as far as... even if they didn't go as far as torturing to the point of insanity, I think they still would have received, as Judge Karen was saying, the first-degree assault because it was an intentional use of torture to injure somebody.
TS: And I think that's a good point that Keith makes, is that JK Rowling also goes out of her way to make sure that the trio are not using the Cruciatus Curse at all until the very end. And it seems like there are very rare circumstances in which they use it, and it seems more to be a focus of the war than of anything else, and I think that's a point that JK Rowling is trying to make.
JG: Okay, let's go to another point of big ambiguity in the books. At the end of the books, Harry names his second son Albus Severus Potter, and he says that Severus may have been the bravest man he ever knew. Severus is a murderer. Severus blows Albus Dumbledore off the tower in what we assume - which we see in memory, really - is an assisted suicide. Would a court of law accept Severus Snape as a hero at the end of the books? He's conveniently [laughs] killed by Nagini, but if he had survived the story, as some say he did...
[JG and KM laugh]
JG: ...then how would a court of law treat Severus Snape, who not only is... he saved Albus's life certainly, after Albus foolishly picked up the ring, the curse of the Gaunt ring, but... he saved his life, but then he murders him, in public view. How are we to look at this as lawyers or whatever?
KM: Our law does not, in most states, permit assisted suicide. It matters not how much pain the person who wants to die is in. It matters not how limited their quality of life is. I think these are issues that are so ripe for our society to continue to review and tweak and ultimately change the law on. And I think JK Rowling was nudging us as a society to do exactly that. But where the law currently stands, this is... what Snape did is assisted suicide and it is a very serious crime. Know that in most states, even attempted suicide is a crime. If you attempt and are successful, then there is nobody to pursue so it's not a crime itself. But attempted suicide, where you attempt yourself unsuccessfully to commit suicide, that is a crime that is listed in most state statutes in the homicide section of the penal law.
KH: But does that actually go through with any court system? Because if you have anybody that is committing suicide or attempting to commit suicide... in today's society, all the bullying that's going on in these schools and then these kids are turning around and they're looking for help, and they can't find the help they need and they don't know where to turn, and they're committing or attempting to commit suicide here. How can the courts say to somebody in that stature that you're committing a crime? How can they do that when they're actually reaching out, asking for help, or trying to end their demise that they're going through with bullying?
KM: And the circumstances around bullying are so sad today, and again Rowling was so great in bringing that issue to the fore in her books. The law as it relates to kids, in what differentiates a kid from an adult... it varies depending on the circumstances, but we're talking sixteen, seventeen, eighteen. The law treats children, young people, differently. So, I can't imagine that many courts would pursue an attempted suicide charge against a youngster, but rather would want to coddle that youngster. What is the problem? How can we help you? What is going wrong here? Let us as a society assist, both in getting you, this young person, the subject of the bullying, some kind of assistance through therapy and the like, and let's also address the school environment and any other environments from which the bullying is emanating. But there's no question, bullying is big, it goes on, it's so mean and cruel, and it impacts youngsters in a very big way.
JG: Okay, so how about the end of Goblet of Fire where they gang up on... I think it's the end of Order of the Phoenix. Forgive me here, you may have to help me out here. When Draco, Crabbe, and Goyle are on the train and they are basically jumped by everyone that's one of Harry's allies, and they are multiple jinxed so that they are basically a set of boils and twitching legs and then they're shoved up into the compartments. That sounds like bullying to me. Should those... should the Gryffindors have been basically punished, all of the supposed good guys? Because they bullied, tortured, misused, and abused their magic on these bad guys.
KH: Well, that's a good point because even at that point in time, they were attacked by a bunch of other seventeen-year-olds on that train, who in the eyes of the law are adults. So, that is a good point. Would they have been punished for that act, versus Harry, Ron, Hermione, who are still minors in the eyes of the wizarding world? They probably would not have been punished for that.
JG: Tim, what court do you want to bring these guys up for?
TS:[laughs] Well, bullying is one of those things that... obviously, it happens, it's going to happen but it's kind of how fast can you mitigate it as opposed to how fast can you prevent it without bringing down the long arm of the law on everybody for minor offenses. So, in situations on the train at the end of the book, I think you've got to do something because it seems to be a concerted effort, there were multiple people taking part in that. But I don't know that you could bring them up on bullying charges per se, but I think you could bring them up on any number of juvenile offenses: assault, battery and things like that. But that's more, I think, Judge Karen's expertise than mine. When we get into the corporate law stuff, we'll talk in my terms.
KM: I think there's also an issue of self-defense and what sometimes is called common combat. So, self-defense allows somebody to defend themselves. If you are being attacked, you can use that amount of force as is necessary, as is reasonably necessary, and not more, to repel the attack. So, once you have people fighting back and forth, they're throwing curses back and forth, at some point self-defense comes into play. Somebody was the aggressor and the non-aggressor is entitled to self-defense. Then there are issues if the aggressor ultimately says, "Okay, I'm walking away. I am retreating," and now somebody else becomes the aggressor. That original aggressor who retreated can defend himself without liability.
KH: So, you're saying that all the bullying that's been going on throughout the first four books - or actually the first five books because this does take place at the end of Order of the Phoenix - all those instances of bullying by Draco, Crabbe, and Goyle on Harry are in the line of self-defense at this point in time?
KM: Well, no, I'm not necessarily saying that. I'm saying that we have to look at each incident to see if self-defense might apply. But self-defense comes into play only if there is force that is being used against you, and at that moment in time, you need to repel the force. Names alone, bullying alone, if it's just name-calling, would not give rise to the defense of self-defense. If in response to name calling, you use force against the bully-er, the person using the force, the victim of the bullying is the one who is going to end up being charged with assault or harassment, whatever the facts indicate.
JG: I'm uncomfortable here because I don't want to be the barrister that's going to court with Draco and Lucius Malfoy as my clients. I want to have Harry and Hermione as my clients and the suit that I want to bring to court before you, Judge Karen - maybe Tim is going to be my lawyer here - [laughs] I want to bring the suit for the Muggle-borns and people living with Muggle parents, who are not allowed to use magic while the Draco Malfoys and the Ron Weasleys and all the pureblood people, they get to use magic arbitrarily, at will, at home, for their parents' discretion. But my clients here, Hermione, as a Muggle-born witch, and Harry as a pureblood, if you will, who is residing with Muggles... if a house-elf appears and [laughs] drops a pudding, I get an owl...
JG: ...in a heartbeat here and Mrs. Mason's hair... flipping out about the misuse of underage magic. Isn't this a legal discriminatory practice against people that are not from pureblood families? Where do I sue? Where do I sue here?
KM: I would say this: first of all, as a lawyer, you don't always get the client that is...
KM: ...advancing the part of the argument that you wish to advance. So, you don't always have your choice of which side of the case you're going to be on. However, you do have a duty as a lawyer to zealously represent your client, and if your client is taking a position contrary to yours as the lawyer, you have a duty to step down from that case and say... if you believe that that difference in opinion will cause you not to be able to zealously represent the client.
JG: That's good because I'm never representing Draco. I do want to represent [laughs] these things. Tim, will you take this case? Will you help me out here?
[KM and TS laugh]
JG: Judge Karen seems to be hostile in my case here.
TS: Well, as long as we don't end up...
KM: No, I'm on...
TS: I was going to say, as long as we don't end up before Judge Karen, I think it will be okay.
[JG and TS laugh]
TS: But I think...
KM: To the contrary, I want your...
[KH and TS laugh]
KM: I would rule in your favor.
KM: There should be equal application of the law.
TS: Well, then...
KM: I'm only saying as a lawyer, you don't always have the option of getting the side of the case that you want.
TS: Yeah, and that's exactly right. But to go to the facts of the case, it seems that... under US law, they would have a number of Fourteenth Amendment arguments which are Equal Protection, Due Process... aside from the fact that many argue that the Supreme Court is improperly using the Due Process Clause to take in everything that should be under the Equal Protection Clause, aside from those kind of academic arguments, Hermione and the other Muggle-borns, I guess, would have a very strong Equal Protection argument and Due Process argument. But the problem then becomes this added wrinkle in the wizarding world, that there is this Statute of Secrecy, and it seems like above anything else, that seems to be rule number one. And if we were running into a US court and that was an issue, then I think that may be a big concern that a court may have. But that being said, they are being discriminated against in a sense. But the law requires that the discrimination be against a protected class of citizens: race, national origin, and gender, among many others... or among a couple of others. But if you're not within one of those protected classes, you don't necessarily get the same protections under the application of the Equal Protection Clause or the Due Process Clause.
So, the first question then would be whether being a Muggle-born versus being of, I guess, wizarding descent, whether that is a sufficient distinction or whether the Muggle-borns would be a protected class under the law. And if we assume for the sake of argument that they are, then that would make the case very easy and there would be a violation of the Fourteenth Amendment and Hermione would have a pretty good case. And what I would argue, if I were Hermione's attorney, would be absolutely that, that it is considered a protective class because it is the primary distinction among people in the wizarding world. And that, to me, would be persuasive enough that they should be protected and that Hermione should be allowed to summon her glasses from across the table or something like Harry did in the seventh book. But I think that would be my Fourteenth Amendment argument. And Judge Karen, do you think that makes sense?
KM: I think it makes a lot of sense. I think that it's... your wizarding background and the wizarding genes that you have or don't is akin to nationality which in our world is a protected class.
KH: Well, you mentioned the Fourteenth Amendment, and Due Process and Equal Protection Clauses that are in that amendment. Let me ask you this: speaking on that, what about elf rights? Let's jump into elf rights for a minute and say, "Isn't that really slavery when we talk about Dobby and Hokey and Winky and every other house-elf out there, creature?" They're basically induced into slavery in these books.
KM: It absolutely is slavery. And slavery, of course, in this country was long ago eliminated. Not long enough ago, but long ago eliminated. And then of course we have a very unproud history, this country, of dealing with numerous minorities, primarily African Americans. Fortunately, things are changing and the law very much enforces equal application of the law, equal access. But no question, there is in the wizarding world hierarchies. I mean, you have giants in there as well and a number of other categories of folks who are not given equal rights. I much, much prefer a society where all are treated equally and the law reinforces that.
KH: And I think Hermione went that way.
JG: I'm not sure I want giants to have equal rights.
JG: But the centaurs, they're restricted to the Forbidden Forest and that seems pretty bizarre to me. They seem to be a relatively benign magical creature and yet they're not allowed out of the forest, I assume because of the Statute of Secrecy, that somehow they're considered something like dragons that would spill the game in terms of there being another world out there. But my concern about the house-elves is what it tells us about this evolutionary character of the law that we were talking about, that Keith introduced the show with, is that Dumbledore seems to have a very evolutionary or what usually is called the Fabian Socialist position. He's not going to have a revolution and free all the house-elves at once. We see what happens when the house-elves are freed against their will. They're psychologically destroyed, except for Dobby who is certainly a spectacular case that you don't want to base your law on. Dumbledore seems to want the law to evolve so that the house-elves will seek their own freedom, eventually, and take a better place in society. But as it is, we have... as Keith points out, we have a slave class that's... [laughs] especially we see it at the Malfoy Manor and such, that Dobby and his friends are considered to be not even second-class citizens, but not even magical creatures per se.
KM: Ideally, any society works towards making equal all of its peoples. And maybe there are issues in doing it overnight once a society realizes that a procedure that it's been following is wrong, as this society did once we had Brown v. Board of Education and "separate but equal" was declared to be unconstitutional. But I would advance a position of moving forward at a reasonably rapid pace whatever action is necessary to ensure equal access to all.
KH: Well, I think Hermione took care of that after Deathly Hallows. She went on to work at the Ministry of Magic, and she moved her way up to where she is in the Magical Law Enforcement agency as the head. So, I am sure that house-elves these days are free in the wizarding world. I'm sure she ended slavery.
KM: And I love that she got involved with... in fact, she even started that organization to advance the welfare of elves. I can't remember the term that was...
JG and KH: SPEW.
KM: SPEW, of course! Society for the Protection of Elfish Welfare.
KH: Protection of Elfish Welfare, that's right.
KM: It was so wonderful. I was sorry that she didn't continue that as the books kept unfolding, but advocacy groups are very important and I loved again that JK Rowling threw that into the story so that we would all be discussing advocacy groups.
JG: I could talk all day about house-elves. There's a wonderful woman at Emory University in Atlanta that argues, I think persuasively, that the house-elves are actually housewives, and that Rowling's case about the house-elves is largely about second and third generation feminism. But that's not the law, let's go back to the law here. How about student rights? Back to what I was talking about earlier, we were in some 19th century Tom Brown's School Days version of the law because these students have no right. I mean, there are Probity Probes out everywhere in terms of searching them before they go to Hogsmeade, and this is... and Filch has still got the shackles on the walls. He's ready to whip those things out as Dolores Umbridge gladly unshackles Filtch to use the shackles. What would... Tim, is this a barrister's delight? Is this a set of lawsuits all waiting to happen?
TS:[laughs] Well, it's going to be a tough case to prove in a lot of cases. I guess there are two main issues that you bring up when you talk about student rights or school rights. The first is free speech in schools, and the second is kind of the rights of protection against violations of search and seizure under the Fourth Amendment. So, you've got those two main areas that most obviously affect students in that respect. And the first, I guess... if we go with the free speech for students... I guess the big case in the US is Tinker v. Des Moines. It's a case where a guy or a student was protesting the Vietnam War, but instead of carrying signs or a bullhorn or anything like that, the student simply wore a black armband, and she was suspended from school for ten days and sued. And eventually the Supreme Court said that it was non-disruptive and that it was well within her rights as a citizen of the United States to protest and express her free speech that way. So, in a lot of ways, the students at Hogwarts have a lot of the same rights and you see that a lot throughout the books kind of being tempered, especially their right to association in the fifth book when Professor Umbridge decides that no student groups are allowed anymore. I forgot which number Educational Decree it was, but...
TS: ...it was one of the many, many ones that she came up with. But the main point there is that those rights obviously seem to be trampled on quite a bit by Professor Umbridge in particular. And it's also interesting seeing the contrast with Professor Dumbledore because Dumbledore seems to really embrace those student rights and encourage his students to exercise those rights. And you see the stark contrast with Umbridge trying to wrest as much control as she can, and I think, at least in my opinion, it would be in clear violation of Tinker and its progeny. But that's the main free speech argument, but do you guys want to comment on that before, I guess, we dive into the other side of it?
KH: Well, it is Educational Decree Number 24, just so you know.
TS: Oh. Thank you, thank you.
KH: Sorry. I had to throw that in there for my people that are taking OWLs right now.
KM: Free speech is a very important right for students and our law is... as was Dumbledore and McGonagall protective of that right of free speech, subject only to the school having a right to pursue the work that it does, teaching students and discipline, maintaining good order. So, if something that students are saying interupts the discipline or the work or the order of the school, then the school has a right to limit those free speech rights of students. The armband case that was mentioned is a great case, it was protesting the Vietnam War. Nothing about wearing a black armband disrupts the school, disrupts order in the classroom, and yet it does allow the students to make a statement. The black armband means we're unhappy with matters relating to the Vietnam War. There have been some other cases - the progeny that was mentioned - where we get examples of circumstances of students overstepping their free speech rights.
There was an interesting one very recently, within the last couple of months, involving a mortuary student, a student studying to become an undertaker at the University of Minnesota. She was taking an anatomy class, was working with a cadaver, and made some comments on Facebook that were disrespectful to the cadaver. She was given a number of sanctions including failing the class, needing to enrol in a clinical ethics course, needing to get a psychiatric evaluation. She was placed on academic probation. And she challenged all of that, and there the court said that this kind of conduct does impact the school in the sense that people in the field look at the school as non-professional if they allow these disrespectful, derogatory comments about the cadaver, and also then make families who might otherwise donate cadavers, which are necessary to maintain the program, think twice and instead donate the cadaver to some other school or some other program. So, there, the court said that student's free speech rights were not violated. The school did have the right to step in and curtail the student's rights to make those comments on Facebook.
JG: Tim, I'm going to bring a case again...
JG: ...in front of you, judge. Recuse yourself here, Judge Karen, for a second.
JG: I've got a student here that is aware that a rebellion against the order of things, has come about that a super criminal has returned to the world, and he's announced this inside his classroom. His teacher has decided that he is out of order by basically inciting riot and revolt inside the classroom by talking about this unproven assertion that a certain person, not to be named, has returned from the dead, seemingly. And the teacher decides not only to restrict this student's speech, but to torture him with magical devices that cause scarring on his hands. Something about his dishonesty, about I'm telling lies. Tim, is this... in terms of the cases that Judge Karen is talking about, is Professor Umbridge perfectly within the law for restricting Harry's speech and even torturing him to make sure that he's not a recidivist?
TS: Well, I'm going to take that in two parts, but first I will say it kills me to side with Professor Umbridge a little bit.
TS: It really does. But I think on the free speech issue, it is a pretty obvious disruption to the classroom environment. There have been other cases where students have made speeches laced with sexual innuendo, and they've made speeches to the students assembled at an auditorium or something like that, and the courts have found that that is disruptive or that the superintendent's decision to suspend the student was perfectly within the school's rights. Now, the same sort of situation may apply here, that it would be a violation... or no, sorry, that Professor Umbridge would be within her rights to discipline Harry. Now, the form of that discipline is what I would... pardon the pun, but what I would take umbrage with.
KM: I love the puns.
TS:[laughs] And I think that that would be the problem that any defense of Professor Umbridge would have. I don't think... as Judge Karen mentioned earlier, I don't think the proportionality of the punishment meets the crime, so to speak, or the overstepping of his free speech rights. Now, I think that if she had simply suspended him or kicked him out of the class or disciplined him by giving him detention, that may make sense. But I think once it got to the point where he was writing in his own blood on a piece of paper, then a court may not see too kindly to that.
JG:[laughs] How about taking a student into the Forbidden Forest for being out of bounds after curfew?
TS: Well, if they're with Hagrid then it's okay!
TS: No, I think I agree with you there, John. I think that might be a little over the bounds, too.
JG: Yeah, when Hagrid bullies Draco...
JG: ...and says if you want to stay at Hogwarts, you're going to step into this insane, dangerous place with werewolves, Quirrell-demort as a snake... this is a mad, mad world we're walking into, but you're going to do it because I told you to.
TS: I would agree, I think that is a little too far, and I think that may be... the punishment may not fit the circumstances there either. And I think bringing him into a potentially dangerous situation that Hagrid and the rest of the school knows is potentially dangerous is a big part of the problem. But I don't think that Harry should have gone without punishment when it came to speaking out in class. I just think that it was a little too far for Professor Umbridge to go.
KH: Well, we had talked earlier about the Fourth Amendment as well in this. We were talking about the freedom of speech and then also we were doing students with searches and seizures. When we get into Hogwarts during the sixth year, Filch is there with the Secrecy Probe, searching every student that walks in or comes off the Hogwarts Express into the school, and they are searching for illegal items. That's the same, in my opinion, as these X-ray machines that are being put up in schools today for weapons. Isn't that correct?
JG: I think so.
KM: I think that there is a similarity. The certain seizure issues like First Amendment are balanced between rights of students and rights of the school. And students have less rights in this area, as with free speech, than do adults. But the school does have the right to maintain discipline, it has a duty to provide a safe environment for learning, it has a duty to prevent harm to students from weapons and drugs, and it is from that obligation that the school has the right to search students as they come in, if the school wishes to exercise that right.
JG: I'm looking for a lawyer here, Tim. Help me out. There's no probable cause! No one has ever smuggled anything into the school that would justify this kind of search and seizure. Has there been something that I missed that justifies this extraordinary action? I mean, inner city schools... we've got gangs with guns. I mean, there's cause here, we know that there are weapons inside the school. So, hey, we've demonstrated there is cause. Is there any cause at Hogwarts? I mean, these guys are carrying weapons? They're being taught how to use weapons everyday in their wands.
TS: Well, I think that's a good point, John, but I think at the same time that there's kind of a distinction between the particularized cause that you need to search an individual related to a crime and then this blanket sort of searching that is done at airports, at schools, at stops on the highway when they're checking for drunk drivers and things like that. And I think part of it and some of the Supreme Court decisions have been that those sort of uniform searches, where you're searching everyone to a limited extent for a specific purpose, they have been allowed. And I know there was a case in... I want to say it was in Indianapolis, that allowed that sort of broad-based stopping of cars to check for drunk drivers and things like that. And so, the same sort of analysis may apply, that you can allow that sort of search or situation to occur in a school if you're checking for a particularized... a very narrow search, such as for weapons and things like that. But the X-ray machines are not necessarily going to pick up on things like drugs and all that. I mean, I don't know how the technology is, but it may not be the focus of those kind of searches, and in that case, the search is for weapons to protect the safety of the students. And I think that safety argument goes a long way. But, I mean, that's at least my reading of it. Judge Karen, do you...
TS: Do you agree?
KM: Yes. I would say two things, though, that have to be in effect in order to make these kinds of searches of all students legal. One is that the intrusion has to be limited. So, if it was a strip search, that would be overly aggressive and would not be permitted. If it's a search where you're going through a metal detector, that's limited intrusion, a minimal intrusion. The other factor that must be necessary to pass constitutional muster is that everybody must be treated equally. So, you're not... the school is not searching some and not others. But everybody who passes through that entrance door goes through the same search and the search is limited in terms of its intrusiveness. Then... and the school has a legitimate concern about its duty to watch over students in its care to make sure that they are safe and not exposed to illegal circumstances. Then the school can do that kind of a search.
KH: So, bottom line is, in the end, that Hogwarts and Filch was perfectly within their rights to search all students entering the grounds of Hogwarts from anything that was dark.
JG: Okay, I'll yield.
JG: I'll yield on this one. But here's... I want to say two things. I've been going after all of these things that we would consider to be illegal or failings in protecting people's rights and things. I want to give my Order of Merlin Second Class, say, [laughs] to someone who already has a First Class badge, to Dumbledore for his... basically his compliance with the Americans With Disabilities Act. And long ago with Lupin, who is a werewolf, and with Hagrid, who is a half-giant - people that would definitely be considered to be pariahs or, in some sense, other... [laughs] in some sense, not welcome really in the magical community - Dumbledore welcomes them, makes special things available to them as extras. But here's a failing... so he's... I'm giving him his good dues and all those things, but I want to know more about Squibs. Squibs seem to be a... they seem to follow... they're magical persons, in that they're born to magical families, they exist within the magical community, and yet they don't seem to have any of the rights or privileges of witches or wizards. What do we do with someone like Mrs. Figg? What do we do with a Filch?
TS: John, I guess before we get right into that, I just want to mention that this is one of the places, too, where US common law and UK common law does not really have something for this, and so the US came up with the American With Disabilities Act, I believe in the seventies, but it's been a major...
KM: Nineties, actually. Early nineties.
TS: Excuse me, the nineties, yes. But it's been a major focus of US law since. And UK law has kind of had a patchwork of disability laws, but in 2010 they came out with kind of a uniform equality act that covered this sort of disability law and the disability discrimination. And so even though it may not be British and US common law that's the basis of it, there is a basis in statute for both. So, when we address this we can talk pretty freely about both UK and US common law combined. So, that kind of ties in the British aspect of it, and Keith, I hope that means that we won't get too many nasty-grams from some of the listeners.
KH: No, that's perfect.
JG: What about the Squibs? Where do the Squibs fall under that statute of protection?
KM: To be... well, the Americans With Disabilities Act is a great law and Dumbledore was wonderful to Lupin when he was a student, protecting him on those nights when he turned into a werewolf. He was a threat to other students. Dumbledore could have said, "Sorry, we have a duty... we at the school have a duty to protect our students, we can't have you here." Dumbledore did not do that. He made what we call in law an accommodation, so the Shrieking Shack was the place that Lupin hung out on those nights, and the Whomping Willow protected both Lupin and any other students from getting into the shack when Lupin was transforming. So, it's just a fabulous example of accommodating students who have disabilities. Now, in turns of the Squib, a disability is a circumstance that impacts in a substantial way a person's ability to carry on a life activity like walking, breathing, talking, thinking, carrying something. So, I'm not sure that the Squibs even trigger the rights that come into play with the Americans With Disability Act or any disabilities law.
KH: And I think the Squibs are protected by wizarding law, they just don't have the ability to perform the magic that the rest of the wizarding world has. But I still think they have every right to be protected under wizarding law.
KM: Right, I'm just not sure that they fall under "Disabled."
TS: I think I would agree with Judge Karen on that, but I think it's also important though that Squibs are treated in the eyes of the law, at least in the wizarding world, not necessarily as equals and that may go to the equal protection side of things but I don't think it necessarily goes to the disability law issues.
JG: You guys have lost me entirely. They don't have the ability to perform magic, they are disabled by definition, and yet they're part of the magical community by being part of these families. Certainly, they'd have to be eliminated in terms of the Statute of Secrecy. Any one of those Squibs could go out into the world and explain fully everything that goes on inside the magical world, and yet their testimonies are discounted? They are beneath even Muggle-born witches and wizards during the persecutions of Umbridge, during the nightmare of Deathly Hallows? I'm confounded, I've been hit by a Confundus Charm here...
JG: ...that you all see these people as disabled.
KH: Well, they are under the secrecy act of the wizarding world. They are still held into account by that secrecy statute of 1709.
JG: Right, so they are a part of the community and yet they are disabled in that they were born, essentially, with a birth defect, in that they can't do the things that other witches and wizards can do. So, they are members of this community, they are unable to perform...
KH: Yes, but they are not disabled in the world of Muggles. So, most Squibs seem to perform as a Muggle citizen regular and true to that nature, and there are no disabilities there. So, are they discounted in the wizarding world? Yes, they are discounted in the wizarding world, but I don't think that they are not protected either.
KM: I understand your confusion. It's a very interesting portrayal of what would be a disability. So, if a life activity in the society is using magic, which of course it is in the wizarding world, then if you lack that ability we could say that is a disability. Interesting. Then you want to accommodate it in order to make the person with the disability able to engage the world as a non-disabled person can. I don't know how you do that. If you don't have the ability to do magic, I don't know what accommodation would give you that ability. I think under equal laws, or laws that protect equal rights, that Squibs... it would be good if they had equal rights on things like testifying, but I don't know if the American... if the disability issue is a direct parallel. But a very interesting one.
TS: I think that's right, Judge Karen. I think it's one thing to be able to build ramps so that people in wheelchairs can get into and access public buildings, it's another thing to have American Sign Language interpreters at a public event. But at the same time, how do you make a reasonable accomodation for a Squib at all in the wizarding world? It sort of seems like, okay, well, if they can't do a certain charm or any other sort of spell, then how are you really going to make up for it in a lot of ways? And it almost seems like there would be so much potential accomodation to try to make up that gap that it no longer is considered reasonable and therefore it wouldn't fall under the Americans With Disabilities Act anyway. So, it's this disjointed...
JG: So, the best I could hope for from you guys is that these Squibs, disabled witches and wizards, will be able to have equal protection under wizarding law, and will not be used and abused as Arabella Figg certainly is when she testifies in front of the Wizengamot. That's the best I can hope for from you guys. No Muggle Quidditch games or Squib Quidditch Games, nothing. You guys are leaving me in the cold.
TS: You make us sound so heartless, John.
[KM and TS laugh]
JG: I know. I'm feeling bad for these Squibs here. And first of all, we don't know how many Squibs there are, but it certainly seems to be something that is something like Down's Syndrome, that if there were a genetic test for Squib-dom, we'd see abortions for Squibs in the magical world. The great fear in Neville's family, that he's actually a Squib, as he describes it in the first book... that's his chief terror, is that he's a Squib, that he'll be entirely alienated from his community and that he'll be completely [unintelligible] and basically sent into exile, life exile as a Squib. So, to me, Dumbledore's great outreach to werewolves, not only to Lupin himself, but through Lupin to the other werewolves in the war against the Dark Lord, and with the giants and his full acceptance of Hagrid as a half-giant and his outreach to the giants... that we don't see the same kind of thing. He has relationships with Arabella Figg in terms of that she actually has an assignment to protect Harry or oversee Harry's well-being, but we don't see the same kind of protection for Squibs that we do see for Muggle-born witches and wizards and certain other magical creatures. Anyway, sorry, I'll get off my hobby horse here.
KM: No, it's a very interesting issue.
TS: It's a very good point.
KM: It's a very interesting issue. I would have to think it through because it's so different from the parallel non-wizarding world rules. Or circumstances. But again, I would say they certainly should be entitled to benefits of equal protection laws, and I'd have to think further on the... whether the disability rules might apply. But you would be a good advocate for those Squibs!
JG: All right, we await your ruling here, Judge Karen.
JG: I hope that you'll contact us. [laughs]
KM: I'll keep you posted!
JG: Thank you, thank you.
KH: I want to touch on one last subject and then we'll close up the show, if that's all right with you guys. It's been a great discussion so far. We brought up the fact of Veritaserum earlier in the show when we talked about Barty Crouch, right in the very beginning of the show. Veritaserum is basically the law of self-incrimination, is that correct?
KM: In a sense, yes. Veritaserum: you take it and you tell the truth. You speak up and you speak the truth.
KH: It's against your own will, though.
KH: So, using that to get facts out of somebody is not legal. In the Muggle world, all right, we have criminals who are being interviewed by police and it is illegal for them to go into these interview rooms and torture the truth out of somebody just to get a confession. It comes up all the time in these court trials, that the confessions were wrongfully obtained. Yet, in the wizarding world, we have Veritaserum being given to people to get the same exact type of confessions out of people and make them tell the truth. How is it legal to give somebody Veritaserum, or isn't it legal to give somebody Veritaserum, to get the truth of self-incrimination?
JG: And we need to note here this is not just the bad guys that do this. Dumbledore pours this right down the throat of Barty Crouch Jr. at the end of Goblet of Fire and Umbridge gets Snape to give her a good enough vial full of this stuff in Order of the Phoenix. So, this is good guys and bad guys in the wizarding world that arbitrarily use this truth juice to get information that they need. Tim, this seems to be an obvious violation of...
TS: Yeah. Well, whoever said at the beginning that Barty Crouch Jr. seemed to be the perfect example for all the topics that we would discuss today, I think hit it spot on...
TS: ...because we've come full circle coming back to him. But I think that... I would make the argument that it's definitely illegal to use Veritaserum in almost any circumstance. I don't that off the top of my head I could think of one that would be appropriate. But, to kind of go with the Barty Crouch Jr. theme, I think that it would be very obvious that it would violate, in the US, what are known as Miranda rights. And for anybody that has seen any episode of Law and Order or CSI...
TS: ...or any kind of crime show, you know that you have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to an attorney and if you cannot afford one, one will be provided for you. Those are kind of the standard rights that came out of a Supreme Court case called Miranda v. Arizona and the main idea of it is that you are not required to testify against yourself in any sort of trial or proceeding against you. And that...
JG: So, this is an extension of the Fifth Amendment. I don't have to...
TS: Absolutely, yes. And my argument would be that this would be in plain violation of the Fifth Amendment to require or to use Veritaserum against anybody else for them to testify against themselves. I mean, obviously there are many other contours to the law and specifics that could take an entire show, to be quite honest with you, but based kind of narrowly on that swath of it, I think it's pretty obvious that it violates the Fifth Amendment.
KM: And the Fifth Amendment protects the right against self-incrimination. You can make a confession but only if you do it voluntarily, and our law protects this right so greatly that at the very moment when the police want to get information, when police want to intice the accused to make a confession, they have to stop and remind the accused that the accused has these rights: the rights to remain silent and the right to have an attorney, so that you are informed as the defendant that you can stop talking, you can have an attorney, and not involuntarily make statements that will indeed be used against you in a court of law, and may very well be what it takes to convict you. So, it's a very important right. There is, however, this lie-detector circumstance that a defendant can opt for. Most courts will not allow results of lie detectors in as evidence because the lie detectors are not fully reliable. But a defendant can work out a deal with a prosecutor, where the defendant agrees to take the lie detector. If it supports the innocence of the defendant, the prosecutor then agrees to drop the charges. That's not an unheard of arrangement. So, I could see in the wizarding world where perhaps somebody accused would make a similar deal with the Veritaserum, saying, "Hey, I'll take it, but if I pass, then that ends the inquiry, it ends any possible sanction, it's over."
JG: This is fascinating, but I want to say one thank you here, to Joanne Rowling. I am so glad, when Albus Dumbledore blasts open the door to the Defense Against the Dark Arts room and Harry sees him in the Foe Glass, blinding light... it's like he is at King's Cross or whatever. He's the avenging angel that comes into the room. I am so glad that he does not read Barty Crouch his Miranda rights.
JG: Not only does he not read him that, but he doesn't ask him, "Would you like to take Vertaiserum so that we can cut a deal here." Anyway, I'm glad there were no barristers to...
KM: And I would say...
KH: But you see what happened to Barty Crouch in the end. In the end, he tells the truth under the implications of the Veritaserum coursing through his veins, and what happens to him? He gets a Dementor's Kiss for his troubles.
KH: So, there were no rights there whatsoever. Everything was violated when it comes to Barty Crouch Jr.
JG: Again, I'm really uncomfortable sitting in the corner with Barty Crouch Jr. here. I'm thinking... he needed to kill him. Forgive me.
JG: I live in Oklahoma now. There was a case just this last week where a man caught another man molesting his four-year-old daughter and he beat that man to death by catching him in the act. And Texas - this happened in Texas - has not even indited the man, that they've condemned a grand jury to see if they'll even bring this man up on charges, and there's great doubt that the man will even see court time other than this arraignment. I'm sort of in that corner right now with Barty Crouch Jr., all the havoc and craziness, that he brought the Dark Lord back and all the madness that's going to come. But I'm uncomfortable with that position as well because as we point out, you're on a slippery slope here. It's like justifying torture to get the information you need to prevent the bad guys from doing some horrible crime. Once you start torturing people... once you allow it in this case, the next case seems to be a little easier to go there. Soon we'll have drone attacks right and left. [laughs] It's politically naive, I think, to think you can draw the line and say this guy needed killing and this guy didn't need killing.
KM: No question. No question. Once you start compromising rights, there is no end. And whose empower determines what the rights are? So it's, I think, critical to have a document like a constitution that lays the foundation for these rights.
KH: Great. That was a great way to end the show. I think we touched on a lot of subjects today. I wasn't really expecting to get into so many and we did. Wow. Anyway, let's pass through the show and once again, Karen, really appreciate it. Judge Karen Morris, her book, Law Made Fun Through Harry Potter's Adventures, is available on Amazon. Thank you so much for coming on the show, Karen. We really appreciate it.
KM: Thank you! Very fun to spend this time with you all. And I hope the audience enjoys and is enlightened.
JG: Well, Keith and I will see you in Orlando at Ascendio 2012 in just a couple of weeks here. I hope we'll all get together at some sort of MuggleNet Academia meetup there in Orlando.
KH: I think Tim ought to come down to Ascendio for it, too.
TS: Well, I'll see if I can talk to my boss and get some time off. I'll let you guys know! [laughs]
JG: All right! All right!
KH: Well, Tim, we also thank you very much for coming on the show. It was great having you. We certainly appreciate your input.
TS: Oh, thanks guys for having me. It's been great and I really think that you guys have done a fantastic job so far with this podcast. I hope that it grows exponentially in the future.
KH: Well, thank you. Well, the only way to make sure that happens is by getting the word out there. If you are a student of literature, of law, of some academic purpose, a graduate student, or you're actually practicing in the field under a specialty and you can relate your specialty...
[Show music begins]
KH: ...to the books of Harry Potter, write into me at keith at staff dot mugglenet dot com. Go onto the MuggleNet site, go under the Academia section, and see exactly what kind of information I need to have from you. We'll evaluate everything, John and I will talk about future episodes and bring you on as a future guest, and we'd love to have you be a part of the show. We want to thank Theater Nation for the music that was provided on the show. From MuggleNet.com, my name is Keith Hawk.
The thing about growing up with Fred and George is that you sort of start thinking anything's possible if you've got enough nerve.
Ginny Weasley Order of the Phoenix, Chapter 29, Page 655
When Arthur Weasley takes Harry and his pals to the Ministry of Magic they must first dial a secret code into a telephone keypad. He enters the number 62442. The letters underneath those numbers on a standard mobile phone spell out the word "magic".