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Volume 27, Number 1 (2003) reprinted by permission Legal Studies Forum HOW DOES LAW LOOK IN THE MOVIES? DAVID RAY PAPKE* Anthony Chase, Movies on Trial: The Legal System on the Silver Screen (New York: The New Press, 2002) One scholar who helped me find my bearings in my new calling was Anthony Chase. I never met him face-to-face and to this day have never laid eyes on him, but his scholarship was an encouraging illustration of the ways the works and dilemmas of American culture could be combined with the traditional concerns and pursuits of legal academics. In particular, I greatly admired two of Chase’s articles. In “Lawyers and Popular Culture: A Review of Mass Media Portrayals of American Attorneys” he provided a ground-breaking survey of lawyers’ imagery in American movies and novels.1 In “Toward a Legal Theory of Popular Culture” he identified the wide range of cultural formats with images of law and lawyers and speculated about law-related genres.2 In the years since the publication of these articles, Chase has been prolific. He has established himself as one of legal academia’s most original scholars, especially in the interface between legal scholarship and cultural studies. Along with others, I eagerly awaited the publication of his Movies on Trial: The Legal System on the Silver Screen. Simultaneously synthesizing and innovative, the volume does not disappoint. Movies on Trial instantly assumes its place as a central text in the emerging body of law and film scholarship. Chase sets out in the volume to critique the ways in which movies render law visually. The task is not a simple one. Law in the movies is of course not a matter of statutes or appellate holdings, and it is only sometimes a matter of dramatic courtroom proceedings. “How, exactly,” Chase asks, “do we see the law?” (3). In answering his own question, Chase turns, somewhat surprisingly, to the legal curriculum as a structuring device. His volume includes opening and closing chapters more general in nature, but the five core chapters are consciously organized around doctrinal areas familiar to any law professor: constitutional law, criminal law, torts, international law, and comparative law. How timid and conventional this might seem at first, but in reality Chase’s law school curriculum is less of a practical mirror than it is an unpredictable kaleidoscope. Chase may not intend it, but his treatment of law in the movies also invites the reader to rethink his or her own legal taxonomy. Constitutional Law The first of Chase’s curricular areas is “constitutional law,” and his chapter illustrates as well as any how inclusive and imaginative the author can be. Disdaining for the most part films about specific constitutional law questions, he begins by considering films about the American Revolution, ranging from D.W. Griffith’s America (1924) to 1776 (1972) to The Patriot (2000). These films, he concludes, have “little to say of significance, indeed so little to say at all.” (37). He then broadens his study to pick up movies about patriots in general and, undeterred by even the medium he is ostensibly discussing, addresses as well Davy Crockett, the television series, and Liberty Square and the Hall of Presidents at Disney World.3 The two “constitutional law” movies which Chase discusses at the greatest length are Disney productions: Ben and Me (1953) and Johnny Tremain (1957). For those who might have forgotten, the former is an animated work which assigns a major role in the Revolutionary War to Amos, a mouse who is Benjamin Franklin’s advisor and confidante. If the colonists have gone through hell because of the King, the movie suggests, mice have suffered even more because of cats. Amos at one point grows tired of Franklin’s practical jokes, e.g., using Amos as a lightning rod. He refuses to continue advising Franklin unless the latter signs a contract regarding how Amos is to be treated. As Franklin raises his magnifying glass to read the tiny contract which Amos has drafted, who should arrive but Thomas Jefferson. When the latter hears the contract’s first words, “When in the course of human events, it becomes necessary . . . ,” he and Franklin realize the path they must follow. “The rest, as they say, is history.” (60). Johnny Tremain, meanwhile, is loosely derived from Esther Forbes’ novel of the same name, a 1943 winner of the Newbery Medal for the best children’s book of the year. In the Disney version a haughty Brit falsely accuses the egalitarian Johnny of stealing a silver cup, and Johnny quickly finds himself arrested and behind bars. Paul Revere visits Johnny and introduces him to the attorney Josiah Quincy, who assures Johnny that “Any innocent man can afford me.” At trial, Johnny with Quincy’s help of course prevails. The victory over the little tyrant who had accused him prefigures that of the colonists over the big tyrant which is soon to follow. Recall, the resourceful Chase tells us, that Johnny Tremain was produced and released in the context of rabid anti-Communism. Indeed, Walt Disney himself joined the witch-hunt and seems one of the Hollywood figures most willing to tolerate a denial of constitutional rights.4 However, Johnny Tremain itself seems an endorsement of lawyers who represent persecuted clients and the ability of courts of law to find justice. In Chase’s words: “The system works.” (49). Chase’s sensitivity to the historical context of Ben and Me and Johnny Tremain is appropriate. I have argued in my own work that a striking group of American legal films from the 1950s and very early 1960s glorified lawyers, courtroom trials, and the rule of law in general.5 The times were especially ripe for the production of law-related ideology, and this ideology need not have come only from politicians and government officials. As the film scholar Robert Ray has said, American cinema is “one of the most potent ideological tools ever constructed.”6 If, as it seems to be the case, Chase’s ultimate target in his chapter on constitutional law movies is legal constitutionalism in a changing capitalist economy, Chase might have gone even further in historicizing the movies he discusses. Criminal Law In his “criminal law” chapter Chase discusses what those picking up a book titled Movies on Trial would most likely have expected: movies with stirring criminal trials. Movies featuring criminal trials constitute a large percentage of all law-related films. The likes of 12 Angry Men (1957), Witness for the Prosecution (1957), Anatomy of a Murder (1959), Inherit the Wind (1960), To Kill a Mockingbird (1962), And Justice for All (1979), Presumed Innocent (1990), and A Few Good Men (1992) are some of the most popular legal movies in cinema history. However, Chase has different fish to fry, and none of these films receive extended treatments in Movies on Trial.7 Invoking Hegel’s sense of dialectical opposition, Chase seeks to capture and critique the animating contradiction or dialectic in criminal law films. As did the scholar Herbert Packer,8 Chase points to “the dichotomy between crime-control and due-process values within an adversary system of criminal justice.” (68). Examples are abundant on both sides of the divide. Chases chooses as an illustration of the crime-control animus in cinema the infamous Dirty Harry (1971). “It was from within the maelstrom of the first Nixon administration,” Chase says, that this “quintessential crime-control motion picture” emerged. (70). Shakedown (1988) and True Believer (1988), his illustrations of the due-process alternative, are less familiar and illuminating. Perhaps tiring of the very dialectical opposition he has himself suggested and illustrated, Chase then asks if the criminal law movie might somehow reinvent itself. Donning the helmet of the spelunkean film critic, he tours at some length relevant underground films, and discusses Orson Welles’ Touch of Evil (1958), The Devil’s Advocate (1997), and American Beauty (1999)–all examples of the criminal film “gaining its second wind and exploring new territory beyond the now familiar crime-control/due process impasse.” (79). Chase especially likes Steven Soderbergh’s Traffic (2000). In the film, Chase says, “Every part of the system is carefully coordinated to fit with every other part, a continuum within which crime control and due process are rendered perilously abstract reflections of outmoded legal ideologies.” (85). Chase tentatively casts the scholar John Griffiths as the Herbert Packer of this emerging criminal law cinema. Griffiths sought a way out of the crime control/due process conflict, and in an article I remember well from my law school days he proposed an alternative family law model for the criminal process–an informal, communitarian approach identified with Native American tribes and perhaps utilized in Castro’s Cuba.9 But really, how far can one go with this? Chase darts from reference to reference and proposes analogies with the best of them. Yet one might doubt the very dichotomy with which he begins the chapter. Cinematic crime and, by extension, cinematic criminal investigations and trials are highly variable narratives. Might the history and current state of the criminal law film be better understood as an evolving constellation rather than a dialectical synthesis? Torts If one might have expected to find a critique in Movies on Trial of movies with criminal trials, the chapter on the cinema of tort liability is more surprising. It resembles, albeit on a smaller scale, the scholar Nan Goodman’s study of accidents and the law’s treatment of them in works of American literature.10 Chase and Goodman agree that accidents are common but often overlooked parts of American cultural work. The “master discourse” of tort cinema, Chase argues, derives from four movies made between 1982 and 1997: The Verdict (1982), Class Action (1990), Philadelphia (1993), and The Rainmaker (1997). The four movies “can be seen as expressing a single story or narrative, in spite of the fact that each film is directed by an individual stylist or auteur . . . .” (105). The most distinctive feature of this shared narrative, according to Chase, is not the protagonist but rather the antagonist. “The villain in tort cinema,” he says, “is private, not public power.” (108). One by one, negligent physicians, the automobile industry, discriminatory law firms, and insurance companies slither past us. How nice it is to see villains squished in the end. But wait a second, Chase says, wasn’t the period in which the exemplars of tort cinema were made and distributed one of new respect and trust for private power? In the more immediate post-Enron era a leeriness of private power has emerged, but the movies on Chase’s list come from an era of conservative backlash, one including a corporate counter-attack on progressive tort law and practice. This flummoxes the author, and Chase even suggests that movies must have “relative autonomy from the social and economic infrastructure.” (108). What Chase seems to overlook is that intended political and economic meanings are not necessarily what viewers enjoy in and take from film. Writers and directors might have those meaning in mind, and sophisticated critics might grasp and wrestle with them. Yet there is no assurance that viewers will respond in the same way. For example. Francis Ford Coppola hoped in The Godfather (1972) and The Godfather, Part II (1974) to use the Mafia as a metaphor for American greed and capitalism. He wanted to portray Don Corleone, Michael Corleone, and their mobster cronies as violent, self-interested and despicable. Critics such as Pauline Kael and Leslie Fiedler seemed to grasp and even extend the points Coppola was attempting to make.11 However, Coppola was then disappointed when the majority of viewers apparently found the Corleones appealing self-made men with heroic dimensions and a strong love of family. “I was disturbed that people thought I had romanticized Michael,” Coppola said after the release of The Godfather, “when I felt I had presented him as a monster . . . .”12 After the public reaction to The Godfather, Part II became clear, he was even more disappointed: “If you were taken inside Adolf Hitler’s home, went to his parties and heard his stories, you’d probably have liked him.”13 In the case of Chase’s tort sub-genre the general viewing public may not have reflected on tort liability or on the danger of private power in capitalist American during the Reagan/Bush years. The movies may just as easily have been received as tales of the independent, financially restricted lawyer rushing in as a knight-errant to right wrongs and deliver justice. The movies’ protagonists fit within well-established American heroic molds. Viewers may have related to them and not thought much about the specific antagonists whom Chase takes to define the works. Chase concludes his chapter with a provocative discussion of A Civil Action (1998) and underscores that in the movie the corporate interests win out. I have been struck in conversations about the movie, meanwhile, by the way viewers relate to John Travolta’s portrayal of crusading lawyer Jan Schlichtmann and completely disregard how the movie actually ends. Final Scene Chase tells us more than once that his final chapter, titled “Popular Culture, Legal Genre, Realism,” is his “theoretical chapter.” (xiv, 158). For some reason, he seems almost defensive about being theoretical. He prefers to see Movies on Trial as primarily a down-to-earth discussion of particular films arranged in legal curriculum categories. Personally, I’m pleased that Chase turned in his final chapter to the most significant issues in the interdisciplinary consideration of law and film. The first and broadest of these issues involves the appropriateness of discussing law-related film and film in general with reference to ideology. Chase reminds us of how Frankfurt School theorists and others thought popular culture “a sophisticated barrage of loaded imagery that reduced people to a life of mindless consumerism and diverted them from an authentic confrontation with the way America really was.” (163). The author rejects this so-called “dominant-ideology thesis” and reminds us that “film after film about the legal system draws into question the legitimacy and fairness of the system.” (164). “Popular culture,” he insists, “is not of a single piece, a simple prop supporting the façade of blind justice and legalization of the way things are.” (165). I agree that popular culture should not be reduced to a monolithic, system-supporting whole. I also think, as noted earlier, that writers, directors, and even the film industry cannot simply dictate the meanings of their works and products. Sophisticated scholars have persuasively brought the reader-response criticism first developed in literary studies to bear on film and popular culture generally.14 But still, influenced by Raymond Williams, I do apprehend a dominant ideology in the United States, one which, among other things, promotes the notion that we live by a rule of law.15 This ideology is a part of not only films which suggest the system works but also films which present apparent miscarriages of justice. In law-related films such as I Want to Live (1958) or To Kill a Mockingbird (1962) we are invited to believe that were it not for isolated examples of pettiness, greed or bias, law and legal institutions could have gotten things right. We are fortunate, the dominant ideology teaches us, to live in a nation in which the citizens at least respect and aspire to a neutral rule of law which can be applied fairly and objectively. As Helle Porsdam puts it when discussing American pop cultural works: In many of these cultural products, there is an element of utopian hope–a commitment to law, all complaints about litigiousness, greedy lawyers, and the adversary system run wild notwithstanding . . . . [T]here is an underlying yearning in these cultural products for the active inclusion of everyone, by law, into community life.16Chase segues from a discussion of ideology to a consideration of genre. He wonders if there is “a formal distinction or category–a legal genre–comparable to other genres.” (165). He wrestled with this same question over fifteen years ago,17 but over the years he has become less sanguine about the possibility of a legal genre. The trial, he concedes, is prominent in many legal films and has great potential to engage viewers. But as scholars John Denvir and David A. Black have argued, many recognizably “legal” films lack trial scenes.18 In the end, Chase simply thinks “a definition of the legal genre should be located somewhere between trial films (too narrow) and every commercial film ever made (too broad).” (169). Conceding this point and leaving the genre question to others, might one nevertheless assign some special significance to the pop cultural courtroom trial? For my own part, I take it to be a convention, that is, a familiar and in large part predictable cultural form.19 From the earliest decades of the Republic, courtroom trials–both actual ones and those imagined in the popular culture–have been crucial ritualistic drama reinforcing the legalism of the dominant ideology. Modern print and broadcast journalism routinely reports on trials, and a cable channel features trials. Fictional trials are mainstays in not only the Hollywood cinema but also popular novels and day-time and prime-time television. Most other nations’ popular culture industries do not employ a courtroom trial convention as frequently as the American popular culture industry. Chase concludes Movies on Trial by discussing the extent to which legal films should be expected to be realistic, that is, present legal practice, courtroom trials, and the like with a high degree of accuracy. He points out that Paul Bergman and Michael Asimow, in their widely cited survey, stress the importance of knowing “how Hollywood bends the rules to inject drama or humor into trial movies.”20 Bergman and Asimow then go on to underscore misrepresented rules of evidence, inaccurate courtroom procedures, and unbelievable jury conduct in various individual movies. All of this often makes perfect sense to law students, lawyers, and judges. In the opinion of the average legalist, films can and should be judged with reference to an aesthetic of accuracy. Chase thinks this kind of film criticism is unsatisfactory. Even though he is a senior law professor who organizes his book with reference to the law school curriculum, he stresses that legal films “provide a different kind of narrative, a different impression of the legal system than the conventional legal narrative, the language of lawyers and courts.” (180). He finds it “impossible to argue that movies are simply a mirror held up to a system of blind justice, providing one more authorized account, one more official version.” (180). What is important in the end is that legalists use the picturing of law–the way it looks in the movies–as a basis for critiquing law in their lives and in society. Indeed, lay citizens should also engage in a similar undertaking. Law and legal institutions are too important to be merely accepted and taken for granted. Political self-actualization requires that we scrutinize, confront, and sometimes overturn the law and legal institutions we call our own. In Movies on Trial Anthony Chase provides both a delightful trip to the movies and a valuable tool for critically considering law in American life. * Professor of Law, Marquette University. 1. Anthony Chase, Lawyers and Popular Culture: A Review of Mass Media Portrayals of American Attorneys, 1986 Am. B. Found. Res. J. 281. 2. Anthony Chase, Toward a Legal Theory of Popular Culture, 1986 Wis. L. Rev. 527. 3. In the latter lifelike robots resembling all of the Presidents twitch, gesture and move on stage while discussing Americanism. The program is equal amounts eerie and propagandistic. 4. See Robert Sklar, MOVIE-MADE AMERICA: A SOCIAL HISTORY OF AMERICAN MOVIES 256-66 (New York: Random House, 1975). 5. David R. Papke, Law, Cinema and Ideology: Hollywood Legal Films of the 1950s, 48 UCLA L. Rev. 1473 (2001). 6. Robert B. Ray, A CERTAIN TENDENCY OF THE HOLLYWOOD CINEMA, 1930-1980 55 (Princeton, New Jersey: Princeton University Press, 1985). 7. By contrast, Thomas J. Harris, Courtroom’s Finest Hour in American Cinema (Metuchen, New Jersey: Scarecrow Press, 1987) focuses exclusively on legal movies with trials in them. 8. Herbert Packer, THE LIMITS OF THE CRIMINAL SANCTION (Stanford, California: Stanford University Press, 1968). 9. John Griffiths, Ideology in Criminal Procedure; or, A Third “Model” of the Criminal Process, 79 Yale L. J. 359 (1970). 10. Nan Goodman, SHIFTING THE BLAME: LITERATURE, LAW, AND THE THEORY OF ACCIDENTS IN NINETEENTH-CENTURY AMERICA (Princeton, New Jersey: Princeton University Press, 1998). 11. The reactions of Kael and Fiedler are reported in Jonathan P. Latimer, The Godfather: Metaphor and Microcosm, 2 J. of Popular Film 204-08 (1973). 12. Quoted in John Hess, “The Godfather II: A Deal Coppola Couldn’t Refuse,” in Bill Nichols (ed.), MOVIES AND METHODS: AN ANTHOLOGY 83 (Berkeley: University of California Press, 1985)(1976). 13. Quoted in William Murray, Playboy Interview: Francis Ford Coppola, Playboy, July 1975, 60. 14. See Janet Staiger, INTERPRETING FILMS: STUDIES IN THE HISTORICAL RECEPTION OF AMERICAN CINEMA (Princeton, New Jersey: Princeton University Press, 1992). 15. See Raymond Williams, MARXISM AND LITERATURE 121-27 (New York: Oxford University Press, 1997). 16. Helle Porsdam, Arts, Popular Culture, and Law, in Kermit Hall (ed.), THE OXFORD COMPANION TO AMERICAN LAW 40 (New York: Oxford University Press, 2002). 17. Chase, Toward a Legal Theory of Popular Culture, supra note 2, at 563-67. 18. See John Denvir (ed.), LEGAL REELISM: MOVIES AS LEGAL TEXT (Urbana: University of Illinois Press, 1996); David A. Black, LAW IN FILM: RESONANCE AND REPRESENTATION (Urbana: University of Illinois Press, 1999). 19. See David Ray Papke, Conventional Wisdom: The Courtroom Trial in American Popular Culture, 82 Marquette L. Rev. 471 (1999). 20. Paul Bergman & Michael Asimow, REEL JUSTICE: THE COURTROOM GOES TO THE MOVIES xviii (Kansas City: Andrews and McMeel, 1996). |
