WANDS AND GAVELS: MAGIC SPELLS IN LEGAL OPINIONS

Haden C. Blair

Haden C. Blair

            Law students and practitioners alike are well acquainted with the term legal fiction. The term has even found its way into Black’s Law Dictionary as “[a]n assumption that something is true even though it may be untrue, made [especially] in judicial reasoning to alter how a legal rule operates.”[1] According to its dictionary entry, lawyers have been well acquainted with legal fiction for quite some time.[2]

            As a lifelong literary fiction enthusiast, I was particularly drawn to the phrase legal fiction when I first encountered it during my 1L year. I majored in English at Tennessee Wesleyan University, so I was fortunate to have my reading schedule saturated with works of fiction from antiquity to contemporary literature. One genre we studied closely was science fiction (or fantasy). Within the context of fantasy novels and short stories, events, abilities, or circumstances often otherwise impossible are assumed to be true.[3] That said, legal fiction and science fiction are perhaps not as disconnected as lawyers and fiction enthusiasts may think.

            One interesting cross section between the fantastical worlds of legal fiction and science fiction lies in a remarkable phrase: magic spell. I know what you may be thinking—magic spell has about as much to do with chemistry class as it does legal fiction. However, there are obscure bookshelves in the vast library of American caselaw wherein one may find the words magic spell in a judicial opinion. A couple interesting examples arose relatively recently.

            In 2017, the United States Court of Appeals for the Fifth Circuit denied a petition for rehearing a case en banc.[4] The dissenting judges attacked the underlying panel opinion’s “flawed preliminary injunction analysis” as “permit[ing] perhaps the most egregious deprivation of First Amendment rights possible: a content-based prior restraint.”[5] So, where in the dissent does the magic spell appear? The dissent remarks that to allow mere use of national security interests in depriving First Amendment rights, it would treat the words “‘national security’ as a magic spell, the mere invocation of which makes free speech instantly disappear.”[6]

            Similarly, magic spell waltzed itself into another opinion in 2020. Judge Mark A. Roberts of the United States District Court for the Northern District of Iowa granted a defendants’ motions for summary judgment.[7] On its way to granting the motion, the court quoted caselaw from the Iowa Court of Appeals: “[M]erely reciting the word ‘partner’ does not act as a magic spell to instantly create a partnership.”[8]

            These are just two instances in which legal words or phrases do not or should not operate as magic spells. This caused me to ponder whether any words or phrases do or should operate as a magic spell would. Surely, in the thousands upon thousands of opinions penned by American jurists there must lie some words or phrases, whose mere invocation can have legal effect.

            One of my favorite plays ever written is William Shakespeare’s The Tempest. In The Tempest, Prospero is a wizard of sorts who often uses magic throughout the play to work his will against the antagonists.[9] [RR1] As one example, he uses his magic to terrorize his past enemies by manifesting a tempest to wash them ashore.[10] Yet, what has this to do with law? Well, you see, as I was researching for this post, I thought about The Tempest and how impactful it was in my undergraduate studies. Then, oddly enough, I remembered that Prospero has a daughter named Miranda.

It is Prospero’s daughter, Miranda, that reminded me of Miranda v. Arizona.[11] Particularly, there is one interesting aspect of Miranda in the search for “magic” legal words or phrases. First, consider the typical Miranda warning that every cadet memorizes in the police academy. You have undoubtedly heard it recited on television and in the movies. An officer turns a suspect around, handcuffs them, and begins the incantation, “You have the right to remain silent . . .” Then, as a matter of course, the legal community essentially gives effect to those words. The “clear and unequivocal terms” of an officer’s Miranda warning signals that the accused is legally informed of their Constitutional rights.[12] Though the Court certainly does not describe Miranda warnings as a “magic spell,” it is still a limited connection that I find interesting.  

            All in all, magic spells are truly potent only in science fiction, not legal fiction. Surely others can join in my dismay that phrases like corpus juris secundum and habeas corpus and nemo dat quod non habet all sound like magic spells, but are no more than common legal phrases in Latin. Though, that does not stop the rest of us from dreaming on in the land of legal fiction.

[1]. Legal Fiction, Black’s Law Dictionary (11th ed. 2019).

[2]. Id. (listing the 17th century as the earliest known use of the phrase in English).

[3]. See, e.g., Fantasy, 2b, Merriam-Webster, https://www.merriam-webster.com/dictionary/fantasy (“a creation of the imaginative faculty whether expressed or merely conceived: such as . . . imaginative fiction featuring especially strange settings and grotesque characters.”).

[4]. Defense Distributedv. United States Dep’t State, 865 F.3d 211, 212 (5th Cir. 2017) (Five judges voted in favor of rehearing en banc; nine judges voted against the rehearing. Judge Elrod filed a dissent alongside the court’s denial of the petition to rehear.); see also Defense Distributed v. United States Dep’t State, 838 F.3d 451 (5th Cir. 2016) (involving plaintiffs’ suit to enjoin enforcement of laws regulating export of prohibited munitions data and concluding that the district court did not abuse its discretion in holding that the public interest in “national security” outweighed the plaintiffs’ interests).

[5]. Defense Distributed, 865 F.3d at 212.  

[6]. Id. at 213.

[7]. Ceran v. Reisch, 2020 U.S. Dist. LEXIS 193337 (N.D. Iowa, Sept. 9, 2020).

[8]. Id. at *20 (quoting Carlson v. Vondrak, 555 N.W.2d 238, 241 (Iowa Ct. App. 1996)).

[9]. William Shakespeare, The Tempest act 1, sc. 1.

[10]. Id.

[11]. 384 U.S. 436 (1966).

[12]. Id. at 486.

 [RR1]No line number in citation, but he is citing to the play as a whole & not just a line. Just wanted to flag because it’s slightly different than the Bluebook example for a Shakespeare citation.