In a comment responding to my recent observations about due process in the world of Harry Potter, Jennifer Hendricks drew my attention to a paper by her colleague, Ben Barton (see Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 (2006)). The paper is pretty good (and a great read!) although I think he somewhat overstates the extent to which the Ministry of Magic represents a libertarian-oriented critique of all government. (Without revealing too much about the plot of Book Seven — published after his paper — I think I can say that some of the problems at the Ministry are the work of malicious Death Eaters, not public choice theory. Unless, I suppose, you consider the Death Eaters stand-ins for special interests.)
Looking up that paper, I soon found a whole vein of “Law and Harry Potter” scholarship, stretching far past my original theme of due process. An SSRN search on “Harry Potter” in titles and abstracts found 11 papers. There is work on agency law in Harry Potter and a piece by two economists from Bar Ilan University about the “Potterian economic model.” Another paper inquires into whether the fixation requirement of copyright law would apply to portraits made by wizards, since the subjects of these paintings continue to move around, often speak, and sometimes leave the confines of their frames. Then there’s this collection of essays published in the Texas Wesleyan Law Review.
My favorite, though, was this one, Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World. It’s the classic law review gambit: exhaustive study of a narrower topic which then enables a broader observation. Even the title, colon and all, is perfect. From the abstract:
This article attempts to examine the problems with the wizarding word’s legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death.
There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry’s world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry’s regime as well as under relevant British (Muggle) and international law.
As Larry Solum might say, download it while it’s hot! Meanwhile, I am starting to think maybe this whole Empirical Legal Studies thing could just be a fad, about to be displaced by “Potterian legal reasoning.”
[Cross-posted at Concurring Opinions]