Film and the Law

FILM AND THE LAW

Steve Greenfield, LLB, MSc
University of Westminster

Guy Osborn, BA, LLM, Barrister
University of Westminster

and

Peter Robson, LLB, PhD
University of Strathclyde

Cavendish Publishing Limited
London - Sydney
2001
reprinted with permission of the authors and publisher

CHAPTER 1

LOCATING FILM AND LAW:
THEMES AND PERSPECTIVES

INTRODUCTION

This chapter seeks to set out the terrain on which the teaching and study of legal film is
based, and to consider the boundaries to this evolving area. In that sense this chapter acts
as a method of orientation and provides the means to navigate the text as a whole. It
contains a number of important interlocking elements that are vital to the law and film
dimension. First, we consider the wider issue of the contemporary study of the
relationship between law and popular culture, and how film and the law intersect within
this broader field. Second, we analyse how films have been used as an aid to teaching in
general, and then law teaching more specifically. Third, we investigate the contemporary
academic work in the area of film and the law. Finally, we attempt to define the 'law film'.
In a sense this is perhaps the most difficult issue to address, and is a theme that pervades
the book as a whole. As we will show, the lines of demarcation between what is and what
is not a law film are, at best, unclear, yet clarification remains a central need. There is also
the additional question of how legal theory and film theory can intersect with respect to
legal films. It is perhaps necessary to indicate at the outset that we are approaching this
subject as lawyers with backgrounds more rooted in legal theory than with any specialist
expertise in film theory. We have sought, wherever possible, to engage with some aspects
of film theory and it is clear that this is a potentially profitable area of future enquiry.
Clearly some understanding of the rich history of work that seeks to explain the
dynamics of film is very useful. For example, we have endeavoured to apply the concept
of genre though, it must be said, not without some difficulty, much of which we ascribe to
the type of film we are examining.^l

It needs to be noted at the outset that the focus is almost entirely on films originally
made for the cinema, rather than television movies, and is dominated by American-made
films. In a sense this latter point reflects the cultural hegemony achieved by the American
film industry. Within Europe it is Britain that has found its market most saturated with
American films (Nowell-Smith and Ricci, 1998).² This entire issue of American film
domination and its consequences has a number of important economic and cultural
dimensions that are beyond this project, so in a sense we have merely worked with the
material that is presented to us and we are aware of the potential limitations. As film and
the law develops it is hoped that greater exploration will be made of other sources of film
and that European film-making can be utilised and analysed.

¹The concept of the legal film is often ignored by those writing from a film studies perspective.
Gangster, cop films, detective stories, murder mysteries all seem to have some claim whilst, at best,
courtroom drama is viewed as a sub-genre of crime films: see Neale (2000). In Neale's work there is
one reference to courtroom films that refers to work by Langmann and Finn (1995). Courtroom films
are included by Langmann and Finn within crime films. As Neale (2000, p 85), notes when
considering the courtroom film alongside three other categories: 'Whether regarded as genres or as
sub-types the point here is that they rarely feature in critical or theoretical discussions of the crime
film as such.'
²According to statistics from the BIPE Conseil in Paris, the American share of the British market did
decline between the 1980s and 1990s, but only reducing from 80% to 75% (Nowell-Smith and Ricci,
1998).

[1]

Although these are cinema films, many will have been watched through the medium
of television or video. The distinction between television and cinema films can be justified
on a number of grounds, one of which is rooted firmly in pragmatism. Cinematic films
are categorised, reviewed and generally readily available whilst television movies have
far less longevity. However, as Phillips observes: 'the technology of cinema exhibition
holds us much more powerfully than does television. The size (and shape) of the screen,
the quality of the images, the clarity of the sound all invite much more attention -- indeed
they demand it' (Phillips, 1996, p 131), although as Rafter (2000) notes, the original
differences that existed between television and film have altered. We agree that there are
still sufficient physical variances between the medium, particularly when allied to the
different criteria that may apply to the creative process which will in turn affect the
viewing of films, to justify the concentration on cinematic product.³

One way of determining the presence and validity of an area is to examine the subject
matter; with legal study this will mean any cases, legislation and academic texts. This is
where film and the law is so radically different; the substance revolves around films and,
thus far, a few texts, largely of American origin.⁴ The question with a subject that is so
original and uncharted is essentially one of where to start. We argue that there are two
key elements to this project. First, an analysis of those films that are generally accepted as
being within the category of law film and secondly, to try and establish the nature of legal
films. This book attempts to combine these two elements, but also to relate the subject to
wider perspectives. There is a growing area of theoretical work that considers the role of
law in the regulation of popular culture and this provides a useful starting point.

LAW AND FILM: LAW AND POPULAR CULTURE

The pity is that the law schools stand isolated from most of the issues about law and its role
that have or should have an empirical base. To me at least it seems patent that explorations
of legal and popular culture, and the way they interact, should be high on the list of
scholarly activities (Friedman, 1989, p 1606).

Popular culture has become established as an area of academic analysis for a number of
different disciplines, yet study of the relationship between law and popular culture has
been rather slow to develop. We suggest that there are a number of reasons for this. First,
law school curricula are to a large extent still based around the black letter tradition and

³ One obvious recent change that has moved the home viewing experience closer to that of the
cinema has been the introduction of digital quality images and, especially, sound. It is now possible at
reasonable cost to enjoy quite amazing surround sound in the living room. The advent of Digital
Versatile Disc (DVD) as been a boon to those who wish to study parts of film in detail and utilise
dialogue. Furthermore, many films will incorporate additional scenes and a Director's commentary
that can often provide additional insights, see, for example, our use of this in relation to Erin
Brockovich (2000).
⁴ As the bibliography indicates, there is a growing literature that greatly assists those coming to the
subject.

[2]

its hegemony can be seen in the many textbooks and casebooks that are produced.⁵ Part
of this reticence can be put down to the legal academy's resistance to change; it is often
isolated from the wider scholastic community and perhaps possesses an innate
conservatism that militates against progression. That said, there have been significant
shifts within the law curriculum, although many of these have been influenced by
professional demands. It needs to be recognised that the requirement to study a swathe of
subjects is determined by the professions so that the law degree retains its status as a
qualifying degree. This element has increased with the introduction of skills as well as
new substantive subjects such as European Law. However, it is illuminating at this
juncture to consider the recommendations of the Ormrod Report, which argued in 1971
that:

In the scheme of training for the practice of the law, the objectives of the academic stage
should be to provide the student with:
(i)   a basic knowledge of the law; which involves covering certain 'core' subjects ...;
(ii) an understanding of the relationship of law to the social and economic environment in
       which it operates
(iii) the intellectual training necessary to enable him to handle facts and apply abstract
       concepts (Ormrod, 1971, p 94).

Ormrod hints at a wider appreciation of law, and that law should be seen within its
broader socio-economic context, and there have been a number of developments within
legal study that have attempted to satisfy this aim. However, even these have at times
been viewed with suspicion and have had to battle for acceptance, notwithstanding the
fact that these subjects may; in fact, be very traditional in their coverage and emphasis:

Both Family Law and Labour are, for example, good examples of this phenomenon:
both are responsive to societal and legislative changes. However, a 'key' aspect of such 'new'
subjects is not so much the subject matter itself but the approach adopted. For example,
Labour Law could be seen on one level as a particular sub-strata of contract, tort and EU
Law, although on another it might be seen as a heavily politicised course and the approach
and coverage would reflect this accordingly. Similarly, ... any new subject can be
reactionary and mundane and not necessarily as vibrant and dynamic as the area might
suggest; 'new' does not necessarily equate with 'critical' or 'contextual' (Osborn, 2001,
p 168).

The area of 'law and popular culture', whilst of comparatively recent origin, is a further
example of a shift towards a more contextual approach. Within the broad field of law and
popular culture there is a conundrum: there is no obvious body of law and to a large
degree the delineation of subject matter is highly subjective. This is further compounded

⁵ As has been argued elsewhere, 'The black letter tradition assumes, of course, that the law is predi-
cated upon a rational and coherent body of roles that, once identified and applied, will provide the ans-
wer to the problem. However, whilst such an assumption might underpin much teaching, even a cursory
incursion into legal study reveals a labyrinth of confusion and non-conformity' (Osborn, 2001,
pp 164-75): see, further, here, Sugarman (1991).

[3]

by the fact that popular culture is itself a loaded term, and perhaps accounts for the lack
of academic treatment it has received. This is notwithstanding the fact that; `Popular legal
culture and popular culture are related to one another in two important respects. First,
popular culture gets its ideas of law, or at least some of them, from popular legal culture.
In other words, popular culture reflects popular legal culture' (Friedman, 1989, p 1579).
Friedman's point neatly illustrates one of the crucial aspects of law and popular culture,
and one that is exemplified in law and film particularly, that much 'public' understanding
of law is gleaned from cultural representations of the law. Recent years have seen the
emergence of a number of courses that attempt to draw upon this relationship; of course
these do not necessarily share any particular characteristics and use differing approaches
and coverage.

The status of popular culture, and cultural studies, exacerbates this situation. Cultural
studies has certainly embraced popular culture (see, generally, Storey, 1994) but the
question for lawyers is whether it has yet become academically respectable to study law
and popular culture. Perhaps even more problematic is defining exactly what law and
popular culture may mean. Defining the terms is perhaps a logical point to start, and we
need to organise the terms of popular culture and legal culture and what we may expect
from interactions between law and culture. Friedman (1989, p 1579) defines legal culture
as 'ideas, attitudes, values and opinions about law held by people in a society'. There is,
however, a narrower view of legal culture that refers to the working culture of the
profession itself: the norms and values that underpin the working of the law. As a means
of clarification we term the broader notion as 'external legal culture' and the narrower
profession-based perspective as the 'internal legal culture'. One of the most interesting
theoretical perspectives in this area is determining the relationship between the ideologies
of the cinema and the law or, more bluntly, exploring why the cinema gives us any
messages it does about law and lawyers. In many ways, though, this is rather jumping
the gun (perhaps a better analogy is fast-forwarding to the end) as we first need to
determine what films and, more broadly, popular culture, are saying about law and
lawyers. We would firmly argue that this is indeed the first task, to determine the nature
of the portrayal before this can be linked into wider theoretical debates. Tied in to this is
the idea of genre and how genre theory can be applied to legal films, and this is explored
later in the chapter. In a sense, much of the intricate theoretical debate concerning the
ideologies of culture and, in particular, that related to the cinema and high/low culture
debates, has bypassed many of those working with the relationship of law to popular
culture, often for purely practical reasons. As Redhead (1995, p 30) points out, 'it is
patently difficult to maintain expertise in both legal theory and cultural studies'. There
have, though, been a number of strands of work produced, some more firmly rooted in
social theory than others. Thus, in areas concerning gender, race and ethnicity and
sexuality the role of film in challenging stereotypes has been considered in a range of
literature. The theoretical framework of such studies has included equal rights liberalism
as well as various strands of feminism.

One area of the law and popular culture relationship concerns the legal regulation of
issues within contemporary cultural life, and is often more akin to traditional black letter
legal analysis. As Redhead (1995, p 30) observes:

Case law history across a whole series of 'traditional' and 'emerging' pedagogic areas of
legal study including sports law, licensing law, intellectual property law, heritage law,

[4]

privacy law, obscenity law, entertainments law, media law and computer law, testifies to the
increasing importance in the law school curriculum of law and popular culture.

Lawyers familiar with traditional subjects such as tort, contract and criminal law have
been able to apply concepts to the cultural industries themselves, and the products of
such industries. This has led to claims for the autonomy of subjects such as sports law as
opposed to the concept of sport and the law.⁶ Entertainment law has also begun to
emerge as an academic subject at both undergraduate and postgraduate level as well as
on Legal Practice courses though it has a far longer history within law schools in the
United States.⁷ On one level these are subjects that are often inherently interesting exactly
because they are concerned with popular culture. If we accept, for these purposes, the
definition of popular culture as the culture of everyday life then cases and statutes in
these areas are enticing precisely because they are part of our cultural life. The George
Michael litigation concerning his contract with Sony, or the regulation of the attempt by
BSkyB to buy Manchester United, are fascinating because we are so familiar with these
cultural products.⁸ Those lawyers ordinarily involved with the application of competition
law principles may not much care what the subject matter is but disputes within areas of
popular culture may attract much broader interest.⁹The cases above attracted massive
media attention that highlighted legal disputes that would not have been present if the
cultural status of the participants had been different. This stresses the importance of
popular culture to our daily life and widespread interest in the regulation of this culture.
Law that governs popular culture becomes tagged with the populist cloak.

A further approach analyses how popular culture portrays the internal legal culture,
and how this then affects the external legal culture. Simply, what does film and/or
television show us about the law and how does this alter public perceptions of law? This
view of one narrow subject matter of popular culture is encompassed in wider debates
about what popular culture is and how it works. Berger (1995, p 162) draws a convenient
distinction between two camps within cultural studies:

The difference between popular culture critics (many of whom are critical theorists) and
scholars who study and analyse the mass media per se is that popular culture critics tend to
focus much of their attention on texts-specific works and specific genres, in contrast to mass
communication scholars, who are more interested, generally speaking, in the way mass
mediated works affect attitudes, values, beliefs and related concerns in audiences. Mass
communication scholars tend to see themselves as social scientists, and their approach is (or
at least was) essentially social psychological, measuring effects, using participant

⁶Whilst there are a number of mainstream media textbooks there are few specific entertainment law
texts. Sports law textbooks have a more distinguished pedigree, largely through the work of Edward
Grayson (1999), though a wider range of materials is now starting to emerge: see, eg, Gardiner et al
(1998); Greenfield and Osborn (2000).
⁷There are, as yet, few academic texts covering entertainment law. For an excellent American book,
see Biederman et al (2001).
⁸Panayiotou v Sony Music Entertainment (UK) [1994] EMLR 229; see also, for earlier struggles,
Gilbert O'Sullivan v Management Agency and Music [1985] QB 428 and Elton John v James [1991]
FSR 397. Greenfield and Osborn (2000) deal with a number of legal interventions within sport, including
the criminal, and civil law. The BSkyB bid for Manchester United is covered in depth within Nick Toms'
chapter.
⁹This may, however, be a recent phenomenon. There had been little academic interest in the music
contract litigation prior to the George Michael contractual dispute.

[5]

observation and other such techniques. Popular culture critics draw much of their theory
from literary theory, philosophy, rhetorical theory, and related areas.

Much of the work by lawyers, particularly in the area of film and law, straddles this
divide. For example, there are numerous examples of work concerned with the effect of
popular culture. In the legal sphere this is often concerned with legal liability for
entertainment products that cause 'harm' and in the past this has revolved around the
legitimacy of the censorship of material. This idea of harm, whether to individuals or to
society's morals, has been the basis for the regulation of entertainment products including
books, films or music. More recently this has moved forward to consider whether such
products can lead to injuries to third parties caused by those consuming the cultural
products -- the 'copycat scenario' (Miskin, 1996). There are major legal difficulties to
surmount for claims to succeed, particularly with respect to causation, though there are
some signs that courts are starting to embrace some of the arguments concerning the
effects of violent material. There have been allegations against different media including
books, films, videos and music. Most significant has been the litigation surrounding the
film Natural Born Killers (1994).¹⁰The other angle that has interested film and the law
scholars has been to identify the meaning of the film, more akin to cultural criticism, but
also to chart these messages in terms of the public perception of law and lawyers. This
subject is explored in more detail below but it is important to recognise that this work
does have links with both cultural and mass communication studies and other work in
the area of law and popular culture. Also, on a purely one-dimensional level, cinematic
portrayls of law can be used as a teaching aid to replace or add to traditional teaching
materials, although to confine the use of film within teaching to the merely pedagogic
would be a tragic waste of its full potential.

LAW AND FILM TEACHING: FROM PERIPHERY TO CORE

Perhaps the most obvious use of film in the study of law is as an audio-visual teaching
aid to illustrate particular points. On a practical level, these might be in areas of legal
practice such as advocacy, skills or ethical issues. Examples of how film could be used at
this level could include using Philadelphia (1993) to illustrate discrimination in
employment, or perhaps A Civil Action (1999) to discuss environmental law and causation
in tort. In terms of advocacy, there are a number of fine oratorial performances that could
be utilised for critical analysis, comparison and learning, including Paul Newman in The
Verdict (1982) or Marlon Brando in A Dry White Season (1989). The final courageous
closing speech or the rigorous cross examination are often the hallmarks of the great
courtroom drama, especially in capital cases such as A Time to Kill (1996). Students can be
asked to view the positive and negative aspects of such advocacy and measure it against
the selected extracts. Whilst these scenes may be overly melodramatic and contrary to
elements of court protocol or procedure, they often possess great examples of timing and
eloquence, Anthony Hopkins' closing argument in Amistad (1997) being a case in point:

¹⁰ In addition, a number of musicians have been threatened with action, including Eminem, Judas
Priest and Marilyn Manson.

[6]

Your honours, I derive much consolation from the fact that my colleague Mr Baldwin has
argued the case in so able and so complete a manner as to leave me scarcely anything to say.
However, why are we here? How is it that a simple, plain property issue should now find
itself so enobled as to be argued before the Supreme Court of the United States of America?
[Adams argues that it is in fact the most important case to ever come before this court and
that it concerns the very nature of man. He goes on to argue that had Cinque (the leader of
the `slaves') been white he would have been revered.]
The other night I was talking with my friend Cinque. He was over at my place and we were
out in the greenhouse together. He was explaining to me how when a member of the
Mende -- that's his people -- how when a member of the Mende encounters a situation
where it appears there is no hope at all, he invokes his ancestors, ... tradition ...
See the Mende believe that if one can summon the spirit of one's ancestors, then they have
never left, and the wisdom and strength they fathered and inspired will come to his aid ...
[Adams walks over to survey the busts of past presidents in the Court] ... James Madison,
Alexander Hamilton, Benjamin Franklin, Thomas Jefferson, George Washington, John
Adams ... we have long resisted asking you for guidance, perhaps we have feared in doing
so we might acknowledge that our individuality which we so revere is not entirely our
own. Perhaps we feared an appeal to you might be taken for weakness, but we have come
to understand, finally, that this is not so. We understand now, we have been made to
understand, and to embrace the understanding, that who we are, is who we were.
We desperately need your strength and wisdom, to try and triumph over our fears, our
prejudices, ourselves. Give us the courage to do what is right, and if it means Civil War,
then let it come. And when it does, then may it be, finally, the last battle of the American
Revolution. That's all I have to say.

Certainly Anthony Hopkins' (Adams') appeal is a stirring and emotional one and could
be utilized in terms of illustrating delivery of text and message, notwithstanding the fact
that a student is extremely unlikely to get a chance to make a similar submission.

In addition, ethical topics abound in law films from narrow legal ethics such as codes
of conduct, Cape Fear (1991), through to issues such as the legitimacy of capital
punishment in films such as Let Him Have It (1991), The Green Mile (1999), Dead Man
Walking (1995). As we argue in Chapter 4, great moral dilemmas are often a mainstay of
law films, with examples such as racism in To Kill a Mockingbird (1962), A Time to Kill
(1996) and homophobia, Philadelphia (1993). Such films can be used to promote critical
discussion of the subjects as well as providing an enjoyable method of learning. Use of
film in this way is an adjunct of the move towards using teaching aids more generally,
which, while not completely embedded, is certainly prevalent:

Audio-visual aids are already widely employed in the practice of law, continuing legal
education and in most fields of higher and professional education including medicine,
psychiatry and business. While law schools have not been swept along by this trend, the
idea that audio-visual devices can be used to enhance law teaching is certainly accepted to
some degree for even the most hardened sceptic would find it difficult to picture a professor
-- even a law professor -- without a blackboard and chalk dose at hand (Johnson, 1987, p 97).

Recent years have seen an acceleration of ths process with the rise of multimedia and the
ability to integrate different mediums within the practice of law teaching (see, for

[7]

example, ABA, Focus on Law Studies (1995). In early pioneering American courses look-
ing at law in film, the emphasis was on how film might be used to enhance the process of
teaching law. Bergman and Asimow (1996), for example, have a clearly articulated 'legal
education' goal. They seek to provide a guide as to how Hollywood bends the rules to
inject drama or humour into trial movies. The aims expressed by Nevins (1996) share this
concern; to draw attention to features of good practice through the medium of film. Film
is the vehicle for this enlightenment as a result of its availability and apparent
accessibility to student lawyers. While the concern of law educators to engage their
students' attention, and hence the use of law films, is presented with pride in some
quarters, the imputation that film is simply understood and decoded because a film only
takes 100-120 minutes to view is treated with some concern by others (Black, 1999). There
is, however, a significant difference in undertaking what Bergman and Asimow, Denvir
and others talk of by way of 'livening up' their courses with film, and claims to develop
theory. In this more limited area, the use of film to draw attention to moral dilemmas and
ethical issues for prospective law practitioners does not purport to add to theory. It does,
however, serve the purpose of embedding and signposting points and also acts as a
natural break within a class to ensure that material is absorbed. Even on a more mundane
level film clips can contribute to a positive teaching strategy. Certainly the experience of
Hausermann (1995) on her Introduction to Law course bears this out, with increased
student attendance and a greater degree of useful participation. The use of films can, of
course, apply to the teaching of many disciplines besides law as many of the same
benefits will apply. Furthermore law films that handle important moral or ethical
problems can contribute to education generally. Those who support the general
integration of film into education argue that Inherit the Wind (1960) can be used to open
up discussions in a number of ways:

Inherit the Wind can be used to introduce children to the pivotal question that must be
resolved by each democracy, that is, the balance between the rights of the majority and
those of individuals. In addition, it will serve as a platform to discuss the debate over
'creationism', which is still raised on occasion by some Americans, the red scares, and
fundamentalist religion.¹¹

Teachers using film clips, for whatever reason, as part of their law teaching on traditional
courses can afford to ignore a detailed analysis of films. It is the development of law and
film courses that have provided the impetus for a more elaborate critical comment on
films and the struggle to deal with issues related to film theory. Although 'law and film
studies' have sprung from the interests principally of law teachers in using film to
illustrate and improve their teaching within the broad field of legal education, the true
picture of what has developed and what has been done is rather more complex. There is,
for example, also work which makes links between 'legal films' and areas of legal and
social theory, with the aim of illustrating concepts and perspectives mediated through
film. This work has been of note in relation to ideas within feminism and race studies
about the representation of women and ethnic minorities in film.

The discrete law and film courses have a radically different approach in that they seek
to use legal films as the source of critical analysis of the law. Both the substantive content

¹¹ www.teachwithmovies.org/guides/inherit-the-wind.html. The site offers guides and suggested
discussion questions.

[8]

of the films and how the various issues are dealt with cinematically may be important.
For example, Greenfield and Osborn's Film and the Law course was devised as a first
year undergraduate elective. It originally aimed to develop general transferable skills and
to provide a medium to introduce a form of critical jurisprudence at an early stage in the
law programme (Greenfield and Osborn, 1995a). The skills that they sought to address
were those of viewing and listening, teamwork, presentation and research. Films were
used to replace texts that are often inaccessible to students at this point in their academic
life. In terms of the substantive content, the course was concerned with ideas and theories
about how the law and lawyers work and the contribution of law films to our
understanding of this process. This centred upon issues such as ethics, locating the
courtroom, myths and images and tried to draw out what legal films might tell us about
law and the legal process. One outcome that had not originally been envisaged was that
the course could be empowering to participants. They have argued strongly that students
find films less 'threatening' and are more open to critical comment and discussion:

This of course is the joy of using film; it is accessible and allows the students to perceive
films on a number of different levels without having to feel that their own answer is in
some way peripheral to the traditional academic perspective. A crucial factor that has
emerged, as the course has developed, is the ability of students to draw upon their own
store of knowledge ... This enables the less assured students to gain confidence and feel
able to make important contributions (Greenfield and Osborn, 1995b, p 6)

They argue that the aims of the module were helped by the fact that their Film and the
Law course runs in the first year of legal study and that the students do not bring with
them baggage that may have been acquired through prior legal study. This has been
identified by Hunt (1987) as a problem of placing theoretical law options at the end of a
degree, a 'finishing school syndrome' that means that students have already adopted
immutable ideas that effectively have to be `unlearnt' before theory can be tackled. This
point about the consequential effect of law teaching and being taught to think `like
lawyers' is made by Meyer (1992) who argues that 'story senses' are important to lawyers,
'That upper-level law students rediscover their creative and imaginative story senses is
imperative. They must learn to listen to and trust their instincts and their emotions in
addition to categorical analytical functions'. It is also important to note that there may
well be a number of different educative functions that a Film and the Law course may
have. Writing about the Westminster course, Osborn (2001, p 171) explains:

Even within the confines of this course are a number of different, and perhaps competing,
educative functions, and this may be replicated throughout other courses. Dunlop puts it
thus in terms of research: that there is a crucial difference between research in law and
research about law. The latter allows an appreciation of a subject by utilising the tools and
experience of a different discipline, whilst the former 'consists of doctrinal analysis of texts
... tends not to involve empirical study of the actual workings of the legal order or of its
economic or social consequences ... It apparently has a coherence and an autonomy
enabling one to call it a discipline'.¹² The difference between the two is that research about
law allows the law to be discussed, interrogated and critiqued. Dunlop has refined this
categorisation to explain the difference between the competing, but arguably

¹² The original quote is taken from Dunlop (1991).

[9]

complementary, approaches of 'Law in Literature' and 'Law as Literature'. Here, the former
looks at representations within the field of literature, whilst the latter adopts some of the
tools of literary criticism to assist in the analysis of legal texts. My approach has generally
been to utilise the first model (law in film) in order that it might tell us something about the
law.

Meyer's argument for the use of film offers a distinct variation to many of the other
versions of teaching law and film and is, in part, more about providing necessary legal
practice-based skills. There is, though, some comparison with the skills aim of the Film
and the Law course taught at the University of Westminster. Meyer (1992, p 897) describes
the use of film as part of a law and literature course entitled Law and Popular
Storytelling. He persuasively argues that trial attorneys are 'fact-based storytellers' and
draws a comparison with movie makers:

Like the movie-maker the trial attorney is an oral cultural storyteller who tells fact-based
narratives that convey a story and a particular vision of the world. The principles of
narrative ordination for a trial storyteller are like the aesthetic structures that compel movie
directors to craft stories along a tightly ordered narrative spine. Severe constraints are
placed on narrative subjectivity by certain storytelling conventions, such as the rules of
evidence.

This is an interesting notion; first that trial attorneys may be viewed as story tellers, and
secondly that there is a close relationship with film directors and script writers in terms of
the structuring of the story. No doubt many lawyers would be appalled to be described as
story tellers, and this view in part reflects a legal training described by Meyer as
'analytical indoctrination'. Again this links to some of the criticisms of the rather limited
aims of legal education and the presence of the vocational alongside the academic. As the
Film and Law course has developed at Westminster, themes or groups of films have been
used to provide integrated links. For example, miscarriages of justice are well represented
and can provide an excellent focus for detailed discussion of whole question of innocence,
guilt and the criminal justice system.^l3

Films can also be used to explore more involved issues. Robson's course has as one of
its goals the use of film to provide a comprehensible introduction to concepts which
impact on, but are without, traditional legal theory, like feminism and postmodernism
(Robson, 1998). Again the possibility of this developing a critique of the legal process and
its operation is by no means automatic. Whilst the concepts within feminism and
postmodernism may not be subjected to a rigorous critical analysis, this approach makes
space for the development of theoretical perspectives. The work which has been carried
out by critical theorists on culture, such as Adorno (1991) and Horkheimer and Adorno
(1973), provides a valuable and, arguably, less threatening introduction to the key
concepts encountered in materialist theory. Similarly the perspectives on competing
versions of reality that are the essence of postmodern discourse and the notion of
discourse itself can be introduced most effectively through the medium of film. Although
the films studied would not for this purpose require to be centred on law and justice, past
experience indicates that this is indeed a common source of shared experience for those
studying law. Indeed, when we have asked our students what were their reasons for

¹³ For example, we have used Let Him Have It (1991), In the Name of the Father (1993), for this pur-
pose. There are, of course, a number of other films that could also be used, see, generally, Chapter 3.

[10]

wanting to study law, images from film have always ranked highly in attracting them
into law school. Stone (2000, p 588) indicates that in the seminar on film at Harvard Law
School which he teaches, his approach is to work with films 'which present complex
ideas, interesting moral questions, ambiguous and subtle and psychological themes,
challenges to settled beliefs, and creative ambition -- films that explore the nexus between
psychology and morality, character and context'. What he is seeking is to 'discover the
underlying coherent structure and meaning of the film'. Like Denvir (1996) he discovered
that students who are alienated from the law school classroom are confident in working
with film and engaged by this, a process which allows them 'to debate and defend their
own sense of justice' (Stone, 2000, p 588). This reiterates the point above made by
Greenfield and Osborn concerning the freedom that film provides for law students.

LAW AND FILM SCHOLARSHIP

Apart from the interests of those intimately involved in legal education, other scholars
have homed in on broadly legal issues as part of wider academic goals. These have
included situating lawyers within the culture within which they operate. For example, the
essays in Gunn (1993) proceed firmly within this mode. They consist of the proceedings of
a conference on the lawyer and popular culture where papers were presented on the
portrayal of lawyers and the legal system in the popular media. This focus was wide
enough to encompass not only books and television, but also Gilbert and Sullivan's
operettas, with pieces on themes such as the image of District Attorneys specifically and
lawyers generally. The collection of essays edited by John Denvir (1996) under the title
Legal Reelism avoids the concerns of professional legal education and provides the
opportunity for speculation about a wide range of postmodern and feminist themes. It is,
for instance, concerned to illuminate the socially constructed notion of justice in less
obvious vehicles like Thelma and Louise (1991) as well as to look at notion of patriarchy in
Class Action (1990). There have been other scholarly developments in the area, and the
basis on which these have been constructed is analysed below. This writing has explored
not only the use of films in law teaching, but has also sought to provide a perspective on
how legal systems operate and how their rules are represented in fictional forms. This
exists within a framework which perceives that popular culture is an important source of
the public's knowledge of legal rules and the justice system.

In any developing scholarship it is crucial that a consensus should be obtained in
relation to both the subject matter and method of enquiry. As can be seen from the
appended bibliography, there has been an explosion of study linking law and film from
the late 1980s. This comes in the form of conference papers, articles, books and college
courses. The entire area has yet to be defined, and no protocols as to what counts as
effective scholarship in this area have emerged as yet. The work continues to include a
wide range of styles and levels of theoretical abstraction. There is practice centred work
sitting alongside work that seeks to illuminate areas of legal theory and sociology of law.
Less pervasive, but part of this emerging movement, we find work situated more firmly
within the traditions of film studies (Silbey, 2001; Bohnke, 2001). There is a clear link with
work being carried out within the field of law and literature and a number of parallels
can be drawn. That said, the object of law and literature is often that of high culture items

[11]

and it will be interesting to see if the subject will expand into areas of more popular
fiction. The relationship between law and film studies and the broader academic
disciplines of film studies and areas of cultural studies has, so far, largely been
overlooked. As we observe later in the chapter, there is a need to engage with elements of
each area though the breadth and depth of work required is significant. There are,
though, signs of an increasing acceptance of the subject matter within the academy, with
developments such as the special issue of Journal of Law and Society bearing testament to
this.^l4 This in part may be due to the originality of the area and uncertainty over the
boundaries. This book's broader aims are to not only draw out where the current level of
enquiry is, but to set a firmer perspective on its legitimate boundaries and enable links
with other disciplines to be explored.

What is apparent is that there is a developing body of scholarly work that has legal
films as its critical core. Writing about legal films, and particularly courtroom drama, is
not a new phenomenon outside the academy. Journalists and film critics have, in the past,
commented on the subject area as they might write about any other types of film.
However, what has now started to emerge is a different type of analysis, by law (and
other) academics within law journals. One of the earliest developments has been part of a
broader law and popular culture approach outlined above. This type of writing emerged
from the mid 1980s and has attempted to sketch out the connections between legal culture
and popular legal culture and how these relationships manifest themselves. Stemming
mainly from television, the impact of the portrayal of the legal process on TV shows
attracted interest from both lawyers (Stark, 1987; Friedman, 1989) as well as theorists
(Macaulay, 1987) and historians (Rosenberg, 1994). This has extended the subject matter
beyond the traditional interest concerning law and lawyers in literature (Post, 1987). It is
part of the process of the emergence of cultural studies as a significant discipline and the
gradual incorporation of portrayals of law and legal issues within various aspects of
popular culture. The major concern has been the significance of the image presented.
Interestingly, the portrayal of law seems to attract little attention from those academics
working primarily within the field of cultural studies. Aside from the work in the area of
law and popular culture (or cultural studies), there has been more specific work that
addresses the nature of the portrayal or representations. This might be seen as part of the
project to discern the idea of what a law film is, and what its constituents are. It is possible
to discern two principal strands in the work on lawyers and legal issues in film that are
briefly examined here.

First, there is work which seeks to provide either a comprehensive or at least general
perspective on law and its portrayal in film. Some writers in this category have concerned
themselves broadly with the nature of law and justice as seen in film and what the
underlying messages or ideologies are.^l5 Secondly, consideration has been given to
individual films and the development of insights using these as a basis. This includes
work on persistent themes within the broad legal arena, where film feeds into the debate
on these particular issues such as women, criminal law, sexuality, the family and the

¹⁴ Law and Film, Special Issue (March 2001) 28 JLS I also published in book form edited by
Machura and Robson (2001).
¹⁵ Witness, for example, Kuzina (2001) on the 'social issue courtroom drama', and Drexler (2001) on
German courtroom films during the Nazi period.

[12]

environment. The goals have sometimes been the same (Sherwin, 1996) whilst others
have used these films as texts for exploring ideas and theory from a range of areas
(Denvir, 1996). Although often found in conjunction with the consideration of individual
films, there is scholarship which bridges the panoramic overviews and the examination of
individual works. This to an extent combines elements of the two approaches, looking at
such questions as women in law films (Shapiro, 1995; Graham and Maschio, 1995-96),
family law (Lurvey and Eiseman, 1996) and criminal law (Selinger, 1997; Harding, 1996).
From the Oklahoma City Law Review (1997) there are, in addition to reflections on a num-
ber of individual films, essays on environmental law, the counterculture (Chase, 1997) and
the image of lawyers (Coyne, 1997). This engagement with specific areas of law or cultural
practice means that the work has a different focus from the initial concerns to provide an
overview of cinema's contribution to law's explication. Clearly one would have
reservations about the viability of such contributions as general theory. What may be a
valid observation for film on family law in the United States can tell us only so much
about how the legal process is routinely presented. However, it is important that the often
narrower focus of enquiry is not overlooked.

A significant body of more recent work has centred on shedding light on either theory
or practical aspects of legal process through the examination of individual films. Hence,
the approach taken in Legal Reelism: to reflect on disparate ideas using film as the hook on
which to test hypotheses about law. The texts are not directly about law. Denvir explains
that 'the essays ... are essays by non-specialists in film that use film as a tool to get better
purchase on their study of how law operates in the larger culture' (Denvir, 1996, p xii).
The very broad selection criteria stem from the general illuminating goals of Denvir and
his colleagues and the essays look at a wide variety of film genres. Westerns, gangster
films, foreign classics, contemporary comedies and sex thrillers are all represented. In fact,
the one film style that Denvir acknowledges is 'underrepresented' is the courtroom
drama. Only two of the 14 essays examine movies that might be considered within the
category of what Denvir terms the 'courtroom genre': Mark Tushnet writes on the civil
injuries claim film Class Action (1990) and Norman Rosenberg on legal issues in the genre
film noir. The other films, ranging as they do from modern thrillers like Thelma and Louise
(1991) through It's a Wonderful Life (1946) to The Man Who Shot Liberty Valance
(1962) and Westerns of the 1930s show how the choice of film is secondary to the writer's
broader concern to develop some aspect of theory. These range from quite detailed legal
commentaries (Denvir on Frank Capra, and a Supreme Court decision on child protection
under the Constitution) to cultural ones (Judith Grant on Woody Allen's Crimes and
Misdemeanours (1989)).

Some of the papers published after the 1994 Picturing Justice Conference concentrated
on detailed examinations of single films; Sherwin's (1996) analysis of Cape Fear (1961,
1991) provides a good example of this. In addition, a number of interesting tangential
issues are examined, such as the impact of video in the courtroom. In conjunction with
the Picturing Justice Conference, the University of San Francisco Law Review also invited
a select group of lawyers and academics to write short essays exploring the utility of film

[13]

to the understanding of how law and lawyers are perceived in America. This was
published under the collective title 'One Movie No Lawyer Should Miss'. The essays were
to be informal in tone and written for lawyers and lovers of film, not specialists in film
studies.¹⁶ They concentrate principally on films where the trial process is central to the
presentation. In the later compilation of essays in this area in the Oklahoma City Law
Review the dominant feature is the essay on a single film such as Justin Brooks on Boys in
the Hood (1991) and John Burkoff on Body Heat (1981).¹⁷ Again it should be emphasised
that the concern to establish general patterns in the portrayal of law in film is not the
principal aim of such approaches. Their target is more specific. It is generally to illustrate
how law relates to the larger culture. There are, of course, more ambitious projects based
on a limited canvas. Thus, we find Sherwin (1996), noted above, contrasting the two film
versions of Cape Fear (1961, 1991) in seeking to illustrate the change in the role and
reputation of lawyers in the 1960s with that of the 1990s. The approaches have been
heterogeneous and the issue of delineation has not overly troubled many of the writers at
this early stage in the development of the field. We feel, however, that this is an issue
which needs to be addressed if a reasonable level of coherence and articulation is to be
achieved with law and film scholarship. The diversity of approach in the field is a
strength but there is also a need to draw together some of these distinct threads. One
initial way of identifying links is to start with the nature of the subject matter: what makes
a law film?

DETERMINING THE BOUNDARY: WHAT IS A LAW FILM?

The establishment of the boundaries to an area of academic analysis is certainly a concept
that legal scholars are familiar with. In a sense, the traditional compartmentalisation of
law into discrete subjects of study is somewhat artificial and a result of the historical
development of textbooks, amongst other factors (Sugarman, 199I). For example, with
respect to the common law the division between tort and contract is often artificial, with
claims made for a Common Law of Obligations encompassing the two areas (Cooke and
Oughton, 1998) and even suggestions of a wider concept embracing criminal law as well.
Similarly, new areas such as Labour Law and Sports Law have developed as it becomes
apparent that there is a body of legal principles that apply to a distinct area. On one level
this might be a fragmenting of different types or areas of law that might impinge upon a
new or emerging area. An analogy here might be made with colour theory and, in
particular, the links between primary, secondary and tertiary colours -- emerging subjects
might build upon or blur the traditional primary colours (the core subjects perhaps) and
in fact be coalitions or fragmentation of these core subjects (secondary or tertiary
subjects). This is further complicated by the field of enquiry moving outside 'law' subjects
to embrace areas such as psychology, literature, sociology, or even film studies. However,
whilst we may be accustomed to shifting ideas concerning the order of the law

¹⁶ This approach provides for a breadth of analysis that is not reliant on the conventions inherent
within film studies.
¹⁷ This contrasts with the thematic approach taken in the journal of Law and Society Special Issue
2001.

[14]

curriculum, delving into the exotic world of film studies and applying the concept of
genre as a means of classifying our subject matter is a rather different proposition.

We would argue that our point of entry from the legal world into film presents us
with a different view of what law and lawyers are concerned with, and consequently how
filmic portrayals could be legitimately organised. Only a very traditional black letter
lawyer would lay claim to law merely being concerned with the application of cases and
statutes, and there is a growing realisation that the practice of law, and indeed the
importance of law, spreads widely throughout society. Our attempt to decide what is
within the law film parameters is influenced by this belief that there is a great deal more
to law than the study of both its rules and the application of those rules through the
adversarial system. Put into film terms, there is far more to law than a courtroom drama,
and this chapter seeks to develop the concept of how far the notion of the law film
stretches. The broader the definition of law and its function, clearly the greater the
amount within the law film genre (if indeed there is such a thing). The other half of this
project is then to determine those characteristics that provide the definitional framework
for the films themselves.

There has, then, been a difference of approach as to how broadly scholars should cast
their net in looking at films about law when engaged in law and film as an area of
intellectual enquiry. These range from a suggestion that there is a need for a strict
specification of the field (Robson, 1996) to an analysis in which the field of enquiry is
covering all fiction films in which legal processes are depicted (Black, 1999). For this latter
approach, nothing is off limits. One can contrast the difference in coverage of 'legal film'
by the interesting contributions of Thomas J Harris, on the one hand, and the Tarlton Law
Library catalogue on the other, with coverage of eight films and well over 600
respectively. This reflects to some extent the explosion of work in this field since Harris
observed in 1987, 'I was amazed to discover that the subject of courtroom cinema has not
even been touched in the thirty-odd years since film scholarship began to be taken in this
country and abroad' (Harris, 1987). Much has changed since Harris' observations on
'courtroom cinema'. A growing and vibrant literature has emerged around the area of law
and film that has addressed a whole range of distinct issues and has been part of the
wider concern with law and popular culture.¹⁸ It has, however, been unclear in the
precise object of analysis.

Writing on law and film has proceeded from an initial concern to describe the general
portrayal of justice within a legal construct. Hence, much of the initial work of scholars
has been to indicate the range of situations where the legal process has featured as a
dominant factor. This descriptive work continues to be a significant feature as scholars
seek to consider the significance of law's portrayal in film. This process is, however, not
without its own problems of definition. The question of the breadth of the films under
analysis and, perhaps more importantly, the rationale for their selection, is often
problematic. The starting point has been a shared understanding between writer and
audience of the 'legal film'. This is sometimes referred to as the `courtroom drama' or
`trial movie'. Harris (1987, p 102) refers to Anatomy of a Murder (1959) and notes that it
features:

¹⁸ The bibliography gives an indication as to both the breadth and depth of the work in the area.

[15]

many of the 'classic' elements of courtroom drama evidenced in countless previous efforts,
both major and minor: the humble country lawyer versus the city slicker, with the former
defeating the latter by virtue of his essential honesty; the drunken sidekick who risks his life
for one last chance at fighting for justice; the witty unpaid secretary of the hero; the last
minute 'surprise'.

Although Harris suggests that these are familiar elements in courtroom dramas it is not
clear exactly what films he has in mind. He mentions, for example, America's love affair
with certain kinds of court rituals as found in Madame X (1929), Counsellor at Law (1933)
and The Life of Emile Zola (1937).¹⁹ It is, however, worth noting that none of the other films
cited by Harris in his collection of films representing the finest hour of the courtroom
cinema in America includes these 'classic' elements. Interestingly, Harris does not include
To Kill a Mockingbird (1962) in his collection, nor is there any mention of that treatment in
his book. His selection numbers only eight and ranges between the mid-1950s and mid
1960s. They seem to Harris to '... provide the greatest opportunity for examining social
problems of the past and present and for making statements about the validity of the
judicial process' (Harris, 1987, p xii).

Other early writers tended to take a similar line to that of Harris and start from a
shared body of experience. Thus we find Greenfield and Osbom talking of the 'cinematic
portrayal of the law', 'films with a legal theme' and 'films with a strong legal content'.
Their initial selection might seem random both in terms of time, nature and style, and
they did not specify their criteria in detail (Greenfield and Osborn, 1993).²⁰ They also hint,
in their later work, of notions of a sub-genre (Greenfield and Osborn, 1995c). They
suggest that legal films come within the same penumbra as police dramas and private
detective stories. Their selection stems from a wide range of concerns, from the courtroom
and the portrayal of justice, to lawyers as deliverers of this precious commodity and their
overall demeanour and dress. They were generally concerned with the `filmic portrayal of
lawyers and the legal system'. Their initial analysis was based on some 25 films
representative of this portrayal over the past 60 years, both British and American. For his
part, Rennard Strickland, in the early 1990s, talked of selecting films and including a film
from 'the half-dozen or so classic lawyer movies from the late fifties and early sixties'
(Strickland, 1993, p 50). He commented on the different motivations and skills shown by
`Hollywood lawyers' in a range of films from Inherit the Wind (1960), through To Kill a
Mockingbird (1962) and Cape Fear (1961), to The Young Philadelphians (1959).

¹⁹ A somewhat unusual choice since the chaotic French courtroom scenes are more reminiscent of
farce than the model Harris worked from: 'a muted atmosphere of hushed ritual and controlled decorum ...
awash with ancient rites and Latinised antiquities' (Supreme Court Justice Voelker, JD, Anatomy of a
Murder, cited in Harris (1987, p xi)).
²⁰ In their defence, they argue that they were starting out with little in the way of established litera-
ture and initiated their film collection for the Film and Law course from scratch. They attempted to make
use of literature where it relates to film, though this has generally been concerned with films based on
'true' stories, see, for example, Bentley (1995). There are numerous books written on gangsters such as
the Krays and (in)famous trials, see Hodge (1984), Moiseiwitsch (1964).
The accessibility of material and over-dependence on American films were two practical problems. At
the outset it was perhaps inevitable that the net would be cast wide and their collection includes
superb examples of the genre such as The Trial of the Incredible Hulk (1989): it not only starred but was
also directed by Bill Bixby.

[16]

The contribution of Bergman and Asimow (1996, p xix) was also conceived in very
broad terms as they point out in their introduction: 'This book is written for everybody,
lawyers and non-lawyers, who enjoy trial movies'. They explain that their book selects 69
'trial movies' of the present and the past and this selection includes the 'great classics of
the genre'. They have also included some not-so-great movies which present interesting
legal and ethical issues. The analysis incorporates a rating system from four gavels to one,
ranging from classics, through good to OK, and finally 'ask for a new trial'. As indicated,
they do not specifically define 'trial movies' although they do describe it as a 'genre'.
Their goals, then are diverse and conform to the notion of a shared understanding of the
legal film. They use the phrase 'trial movie' although, of the films that they look at, some
25 have only a limited courtroom focus. Their criteria for trial movies' popularity,
however, contain elements for identifying a genre with its stress on routine conventions:

the drama of one-on-one confrontations -- attorney versus witness; attorney versus
opposing counsel; attorney versus judge; attorney versus client;
the built-in suspense factor of wondering what judgment the jury (or in some cases the
judge) will decide about the fate of the defendants;
movie makers select eternally fascinating themes such as murder, treachery and sex
rather than day-to-day grind from the courts of speeding tickets or slip-and-fall cases;
controversial legal and moral issues are presented in a sugar-coated way. They can
present the clash between good and evil such as the movie lawyer fighting for Morality;
and Justice (Bergman and Asimow, 1996, p xvi).

In one sense this plays down the importance of law in legal films, and makes the point
that even courtroom dramas are far more about other things than they are about the law.
Social issues are often far more important to the overall film as narrow legal issues are
often confined to the periphery. The courtroom scenes can provide 'dramatic' moments or
elements and demonstrate climactic innocent or guilty flashes, but the very constituents,
such as the architecture and the structure of the proceedings, also provide the limitations.
Often the dramatic elements are created by the hero stepping outside of the formal limits,
such as Frank Galvin in The Verdict (1982). The amount of leeway though is necessarily
very confined, otherwise the law film will lose its shape and recognition. These
restrictions in terms of space, people, and conduct require that the drama must extend
beyond the confines of the court. For example, the classic Twelve Angry Men (1957) is not
just about the deliberations of the jury in a movie trial, as Cunningham (1991, p 109)
notes:

Treating typical Lumet concerns such as the necessity for personal responsibility if
democratic processes are to survive, and the tendency for humanity's illusions, guilts, and
prejudices to endanger its legal systems, Twelve Angry Men goes beyond the well
intentioned 'message picture' to make a remarkable cinematic statement about the nature of
the limitations of the American jury system and of the American democratic process itself
(emphasis added).

The subtleties and nuances in the work provide the depth that such dramatic works need,
and go far beyond the 'built-in suspense factor of wondering what judgment the jury (or
in some cases the judge) will decide about the fate of the defendants' (noted by Bergman
and Asimow, above). Yet it is possible to argue, taking a very narrow view on
architectural grounds, that Twelve Angry Men (1957) is not a law film on the basis that it is

[17]

not really a courtroom drama. This film encapsulates some of the problems of making
rigid classifications. Rafter's work deals in considerable depth with crime films and
confronts the problem of genre head on:

Crime films do not constitute a genre (a group of films with similar themes, settings and
characters) as Westerns and war films do. Rather, crime films constitute a category that
encompasses a number of genres -- detective movies, gangster films, cop and prison movies,
courtroom dramas, and the many offerings for which there may be no better generic label
than, simply, crime stories. Like the terms dramas and romances, crime films is an umbrella
term that covers several smaller and more coherent groupings (Rafter, 2000, p 5).

Rafter includes courtroom dramas within her crime film 'umbrella' and points out the
changing nature of the genre, arguing that contemporary courtroom dramas 'increasingly
embed a short trial scene in a longer adventure story'. Rafter's solution to this tricky
problem is to divide crime films chronologically into three periods: the 1930's to the mid
1950's, the mid 1950s through the 1960s and the 1970s to the present. Rafter's analysis
does quite neatly skirt around some of these seemingly unworkable dilemmas and
concurs with some previous work that identified aspects of courtroom films. Perhaps
almost inevitably it raises further questions, most notably where the issue at stake is not a
criminal offence but relates to a civil dispute. Rafter acknowledges at the outset that as
her focus is crime she is excluding films that have a civil core. As we have observed, the
prime focus of law films is generally a serious criminal offence, though there are a
number of prominent civil examples such as: The Verdict (1982), Class Action (1990) and
A Civil Action (1999). There are other less obvious 'law films' that deal with other aspects of
the function and purpose of law; such as Devil's Advocate (1997) and Cape Fear (1991). In
neither of these two latter examples is there a sufficient length of courtroom scene to merit
the description of a courtroom drama, but both are strongly concerned with the role and
function of law and, in Cape Fear (1991), achieving justice. In essence, those writers
pursuing a general theme have adopted an individual approach that fits in with their
chosen methodology. The lines are not neat and tidy and much categorisation is
subjective; in the absence of any clear conventions about relevance this is perhaps
inevitable. As we noted above, there were a number of essay collections published in the
1990s and these seem to hint at the notion of a genre, or at least a shared body of
reference, that emerges, albeit obliquely.

To academics operating outside its borders, film studies seems to offer a very different
terrain. A central feature is the ability to find a means of analysing films and finding
common ground to further that analysis. Genre is a way of fulfilling this need to classify
film so that theoretical and descriptive analysis may be developed:

Genres are formal systems for transforming the world in which we actually live into self
contained, coherent systems controllable structures of meaning. Genres can thus be
considered to function in a way that a language system does -- offering a vocabulary and
a set of ruleswhich allow us to 'shape' reality, thus making it appear less random and disordered.
(Phillips, 1996, p 127).

When considered in this way, the use of genre ought to be well within the compass of
lawyers. After all, the common law is heavily reliant upon the classification of cases
through the doctrine of precedent. The theoretical point of the doctrine of stare decisis is to
find common ground and make future decisions on the basis of this original case. So, in a

[18]

sense, we might usefully compare the process of the classification of films with the
classification of cases, and an essential part of this action is finding out the meaning in
both. Although cases have the benefit of written statements, the reason for a decision is
often unclear, particularly when judicial creativity in distinguishing cases is taken into
account. Comparing a judge with a film director may, on the face of it, seem a little
bizarre, yet if we move more to encompassing an auteur theory the link becomes more
obvious. For example, Lord Denning operated in a very distinctive manner both with
respect to his approach to the substantive law and his written style.²¹ His judgments have
a distinctive mark, as recognisable in their own way as the films by directors such as
Sidney Lumet.²² That judges develop their own styles is well chronicled and, indeed, the
whole issue of whether the function of the judiciary is creative or interpretative has been
subject to academic scrutiny and the differences between judges such as Blackburn,
Denning and Goff, with their more creative and realist approaches, are in stark contrast to
approaches by those such as Keith.²³

Phillips posts a warning on treating the boundaries of a genre too rigidly, and that
classification can become self-fulfilling. Furthermore, that the creation of genres can be
counter-productive to analysis:

Ultimately we need to be alert to the possibility that in constructing an argument around a
particular genre, auteur or star, we may be producing a very neatly organized overview --
but we may also be constructing a fiction every bit as credible but every bit as contrived as
the narratives of the films themselves ... The temptation to force the film into the
framework we have constructed, by the most convoluted of means if necessary, is great.
Neatness will have been prioritised over genuine complexity and truth (Phillips, 1996,
p. 125).

We have argued consistently through this introductory chapter that if law and film is to
develop as an area of critical enquiry then efforts will have to be made to determine the
legitimate framework to the subject. We are also conscious that there is another dimension
to genre that may illuminate our understanding of film. Hunter (1996, p 115) suggests
that: '[most] Hollywood films are "hyphenates" these days, opportunistic fusions of
successful formulae. Thus Under Siege is Die Hard-on-a-boat, Waterworld is Mad Max-on
water, and so on ... genericity ... is signified by glancing allusions to famous movies'.²⁴
This point may have some relevance for law films that maintain the key elements but
then expand the other, more significant, issues. Genre as a method of classification within
film studies has also been criticised because of the problem of 'isolating intentions', and
the related issue that any classification is only useful in terms of what it is designed to
achieve; that is, that the classification should have some point:

²¹ See, eg, his innovative attempt to create a principle of inequality of bargaining power in Lloyds
Bank v Bundy [1975] QB 326, a view firmly rejected by the House of Lords in National Westminster Bank
v Morgan [19851 AC 686. His distinctive style can be observed not only in Bundy, but numerous other
cases.
²² For an excellent account of the films of Sidney Lumet, see Cunningham (1991).
²³ The function and role of judges is the subject of long standing debate, see, for example, Adams
and Brownsword (1987); Pannick (1987); Osborn and Sutton (1996).
²⁴ Under Siege (1992), Die Hard (1988), Waterworld (1995), Mad Max (1979).

[19]

To take a genre such as a 'Western', analyse it, and list its principal characteristics, is to beg
the question that we must first isolate the body of films which are 'Westerns'. But they can
only be isolated on the basis of the `principal characteristics' which can only be discovered
from the films themselves after they have been isolated, for which purposes a criterion is
necessary, but the criterion is, in turn, meant to emerge from the empirically established
common characteristics of the films (Tudor, 1976, p 121).

This dilemma can be solved in one of two ways. First, by classifying on the basis of the
critical purpose of the enquiry, genre as a specific term becomes redundant as the
classifier can determine his own 'genre'. The second way to solve the dilemma is to
attempt to reach a common consensus as to what a `Western', or 'Law Film' is and then
establish relevant conventions to go with this. Law, in a narrow sense, as a set of
governing rules could be viewed as inherently uninteresting and the majority of such
rules is concerned with unimportant matters. Friedman (1989) makes the point that to be
an attractive subject matter for the cinema more than trivia must be at stake, noting that
no films are made about obscure acts or dog licences. That said, it might be argued that
the audience fascination for the minutiae of detail in court television and other televised
'real life' trials points away from this notion. However, we would argue that there are a
number of other significant factors at work here and minor criminal or civil disputes are
unlikely to offer sufficient depth of story-line. Thus it is not the rules of law that provide
the fascination essential for maintaining audience attention but rather the human and
social context to the dispute. Often the key element is the larger social or moral issue that
is being debated through the medium of law. For example, the rules relating to the
submission of evidence in a trial are unlikely to quicken the beat of many hearts, but in
The Verdict (1982) they become a vital feature of the case. The crucial part of the plaintiff's
claim is struck out by the judge, as it falls foul of the procedural rules. The issue then
switches to the morality of the plaintiff's claim and the ability of the jury to deliver justice,
as they see it, regardless of the paper evidence. Frank Galvin (Paul Newman) implores
the jury to find the right result:²⁵

Judge: Mr Galvin.
Judge: Mr Galvin? Summation.
(Galvin slowly rises, sighs and addresses the jury.)
Well you know so much of the time we're just lost, we say `Please God tell us what is right,
tell us what is true'. And there is no justice, the rich win, the poor are powerless, we become
tired of hearing people lie. And after a time we become dead, a little dead -- we think of
ourselves as victims and we become victims. We become, we become weak, we doubt
ourselves, we doubt our beliefs, we doubt our institutions and we doubt the law. But today
you are the law.
(Galvin walks towards the jury box.)
You are the law. Not some book, not the lawyers. Not a marble statue or the trappings of the
court, those are just symbols of our desire to be just. They are, they are in fact a prayer, a
fervent and a frightened prayer. In my religion they say 'Act as if ye have faith, faith will be
given to you'. If we are to have faith in justice we need only to believe in ourselves and act
with justice. I believe there is justice in our hearts.

²⁵ The same trope occurs in the 'real life' film A Civil Action (1999).

[20]

The rules of law here are being shown as a barrier to the pursuit of a just cause, and the
issue at stake is not the narrow one of whether the evidence should be admitted but a
broader one of achieving justice in spite of the rules. This idea of the legal rules operating
as a barrier to justice is a theme that we explore in greater depth elsewhere in the text.
Our point here is that the rules are a side issue compared to the wider moral point. A
good example of law being the means to debate great moral questions can be seen in the
Scopes Trial. The issue is the relationship between science and religion examined through
a state law which prohibited the teaching of Darwinian evolution theory in public schools
(Minow, 1996). Law in this instance provides the means to address social dilemmas of the
era in the same way that To Kill a Mockingbird (1962) considers race relations in the USA in
the mid 1950s. Law, then, has little to offer intrinsically. What matters is the moral point at
stake, for example, racism (To Kill a Mockingbird (1962)), homophobia (Philadelphia
(1993)),²⁶ family relationships (Twelve Angry Men (1957)) and the death penalty (Let Him
Have It (1991), Dead Man Walking (1995)). The crux of the film is generally the eider social
problem or moral issue and the legal dimension is how the law can be used to resolve
such questions. A further dimension can be explored through the range of legal roles that
can be introduced, and such things as character defects and development can be
addressed via the lead role. This may relate to a great public figure such as the emergence
of Abraham Lincoln (Young Mr Lincoln (1939)) where his background in law allows him to
emerge as a figure within the community. In Suspect (I987) and The Verdict (1982) the story
line is concerned with redemption in personal terms and, in the latter film, also
professional rehabilitation. Indeed, as we argue later, this element of personal redemption
is often a key feature in a number of legal films. Law films are, then, not really about what
might be described as the substance of law or the detail of law; rather they are concerned
with the penumbra of law, the places of law and the people of law. If this is night, and law
itself is largely peripheral, then two linked questions are immediately pertinent. First,
what can we classify as a law film and what characteristics apply? Secondly, if films are
not directly about law what can they tell us about law? The first of these tasks is to try
and determine what law films are.

The most obvious classification for legal film has been to concentrate on courtroom
drama, and this has emerged as a traditionally accepted type. Films that fall into this
category could include, for example: Witness for the Prosecution (1957), Suspect (1987),
And Justice For All (1979), To Kill a Mockingbird (1962), Kramer versus Kramer (1979).
Thus a film that 'revolves' around the courtroom would attract classification as a courtroom
drama. However, we have made the point earlier that the law is often a vehicle for the telling
of a substantial moral tale. In the above cases these are a love story, corruption and politics,
racism and family relationships. In a sense, then, the courtroom element is the spatial
focus, but does this make it a law movie? A Fish Called Wanda (1988) has some significant
courtroom scenes, as does Brothers in Law (1957), yet neither is a drama; both are
essentially comedies and not even explicitly courtroom comedies.²⁷ Courtroom drama is,
then, somewhat of a misnomer, and therefore refers really to dramas that have an
attachment to an element of the courtroom, not necessarily with the courtroom itself as its
fulcrum. For example, with The Verdict (1982) the courtroom scene is important, but only

²⁶ See, generally on this, Moran (1998).
²⁷ The nearest to this are perhaps My Cousin Vinny (1992) and Trial and Error (1997).

[21]

in the context of the rehabilitation of Frank Galvin. The plaintiff has to win and justice be
served in order for Galvin to re-emerge. Law films must be more than mere courtroom
located drama, otherwise films such as The Firm (1993) and Twelve Angry Men (1957) are
outside the established category. The latter film is probably one of the most memorable
'law' films and to exclude it would seem perverse.

When considering the whole issue of legal film and genre it is worth bearing in mind
the important differentiation in terminology drawn by Schatz (1991, p 642):

Because it is essentially a narrative system, a film genre can be examined in terms of its fund-
amental structural components: plot, character, setting, thematics, style, and so on. We
should be careful, though, to maintain a distinction between the film genre and the genre
film. Whereas the genre exists as a sort of tacit 'contract' between filmmakers and the
audience, the genre film is an actual event that honors such a contract. To discuss
the Western genre is to address neither a single Western film nor even all Westerns,
but rather that system of conventions which identifies western films as such.

As we have indicated above, our move into film theory is extremely tentative, as we have
been working towards ideas of genre more from an examination of legal films rather than
from any detailed theoretical standpoint. However, we are concerned to address initial
notions of the genre of legal film and in this chapter we are primarily engaged with what
Schatz has labelled 'film genre', the description of the category. We have outlined above
some of the problems of organising definitions of legal film that have been encountered
by many of those working in the area. There does, though, seem to be some common
consensus around the descriptive tag, 'courtroom drama'. It appears to be an accepted
category of a type of legal film, regardless of what exists beyond this line, and wherever
this line may be drawn. We argue throughout this book that it is very difficult to draw
clear boundaries. At one end we have those who claim that the crucial feature of law films
is 'justice', and at the other those who take a very narrow interpretation using the
courtroom drama label. This is the wider debate that is at the core of the book, but it is
worth starting with the more accepted condensed definition.

There is good reason why the courtroom drama has been categorised and recognised
as a distinct type. One of the most important elements is the setting: the architecture of
the building and, in particular, the courtroom itself. Whilst American courtrooms are
more functional and lack the theatrical pageantry of their British counterparts, there is
still a common and accepted layout (Silbey, 2001) which is instantly recognisable. The
British films are able to make use of a more elaborate setting, with the defendant
physically singled out from the rest of the proceedings including his own legal team.
There is the additional dimension of judicial uniform that permits identification of the key
players. As we explore further in Chapter 4, dress can be used in a number of ways to
draw the viewers' attention to the central figures. Thus the physical environment is a
limited and known quantity and cannot be altered, trials cannot take place elsewhere,
though there are other tribunals, such as courts martial, that need not take place in
courtrooms but will generally still adopt the same formal set-up. Thus law governs the
type of building, rather than the other way round, and the style is also fixed. We know the
rules of engagement and these must follow their course. The participants cannot shift to
any degree from the pre-determined path. Of course, individual eccentricities are
permitted, even encouraged, as are moral and ethical defects that are capable of

[22]

rectification. The whole point of trials is that they are formulaic; they are after all based on
procedure and films must follow this or else the courtroom becomes unrecognisable.
Films will sometimes stress the importance of the procedure; for example, in My Cousin
Virnny (1992), when the judge is checking the credentials of the defendants' newly arrived
lawyer, the solemnity and procedural dogmatism of his court is stressed, and the point
forcefully made that the system of criminal justice in place in Alabama is as highly
sophisticated as that of states such as New York.

This is the beauty of the courtroom scene -- it is fixed; it has to be, otherwise the law
does not work. Of course, you can throw in a biased or corrupt judge (And Justice For All
(1979), Suspect (1987)), or a maverick lawyer (Fighting Justice (1989)) or juror (The Juror
(1996)) but the framework remains.²⁸ Similarly, the plot is constant with two parties
taking opposing sides over a serious issue. Trials do not take place over minor incidents,
though lawsuits involving mistakes are acceptable, especially when wrongful convictions
result. There is little room for humour. Courtrooms are serious places, especially where
the defendant may be on trial for his or her life. Behaviour must necessarily be grave and
solemn. We cannot joke about a person's possible execution, though humour may be used
tactically as in Young Mr Lincoln (1939). Thus it is possible to see that courtroom actions
are by definition limited and instantly recognisable, and easily attributable to the idea of a
genre. However this does not tell us much about law and legal films, which must be
more than the strictly defined trial movie.

It has been argued that one solution to this debate is to take a broader perspective on
what is meant by 'courtroom', thus including films such as Judge Dredd (1995) that have
instant street-level justice:

Dredd is as much the master of his `courtroom' as any previous cinema judge, the change is
the arena not the authority; his judicial robes are signposted as clearly as those historically
trimmed with ermine. When Dredd indicates his judicial supremacy by declaring 'I am the
Law' he is still acknowledging the legal process albeit one vested within him, only that
the parameters of the courtroom are no longer fixed (Greenfield and Osborn, 1999, p 33).

This is perhaps the other end of the spectrum from the limitations of the traditional
courtroom drama. It cannot fit into the more rigid structures enjoyed by films such as
Inherit the Wind (1960). Similarly, the jury room in Twelve Angry Men (I957) could be
viewed as the courtroom. An alternative approach is to adopt the phrase 'trial movies' to
cover all those films that have some element of trial, yet in many ways this has the same
fault line with much of the action taking place outside of the trial. The development of the
concept of courtroom or trial movies undoubtedly reflects influence from outside of the
legal world and offers a view that this is what law and lawyering is all about.

If law films are more than mere courtroom drama the question is how and why do we
adopt the definitions we choose? One possibility is to take a broader approach and
consider what the role and function of law is within society and how this is translated
into film. The key concept is probably the relationship between law and justice, and a
recurring theme through law films is the delivery of justice at the expense of formal legal
rules, as we noted with The Verdict (1982). Law is often portrayed as a barrier to justice
and lawyers have to step outside of legal procedures to ensure the end result is just. In

²⁸ Fighting Justice (1989) is also known as True Believer (1989) (Halliwell's, 2001).

[23]

Suspect (1987), public defender Kathleen Riley develops an improper relationship with a
juror to try and solve the mystery that is inevitably leading her client towards a wrongful
conviction. Again, as we show in Chapter 4, in Young Mr Lincoln (1939) procedure and
legal niceties are warped somewhat in the search for truth.

If justice is the key concept, how can we devise a category or genre that has sufficient
meaning to make it a workable and useful tool? We suggest that law films are always
concerned with the enforcement of justice in some shape or form and that this is a crucial
starting point. Films may then be divided into a number of sub-categories of films that
share the relevant characteristics -- rookie lawyer wins through; lawyer on the skids
redeems himself; last-minute evidence or witness saves the day; unpopular cause or
defendant is proved to be meritorious There are then two factors that may be applied to
the question of justice: formal and informal enforcement, though these may exist
separately or co-terminously. For example, with vigilante films the emphasis is solely on
an informal subjective method and system of the enforcement of justice. At the other end
of the scale is the formal process of law, though often there will be an element of informal
or improper justice such as within Suspect (1987). In order to qualify as a law film the
following characteristics must be present in some shape or form: the geography of law,
the language and dress of law, legal personnel and the authority of law. This excludes
films where 'justice' is enforced outside of any legal framework for example, war films,
social dramas and family sagas. This book further develops this definition of law films
through analysis of each area to determine the operational characteristics. We do not,
however, give extensive coverage to cop films (Rafter, 2000), Westerns (Nevins, 1998) and
vigilante films, as these have been areas that have been subject to detailed analysis.
Having considered some of the problems of classifying law films we must also consider
how film and the law relates to both film and legal theory.

LAW FILMS, FILM THEORY AND LEGAL THEORY

The whole idea of a law film creates a number of difficulties, not least in terms of the
differences in approach that necessarily exist between seemingly disparate disciplines:
'law' and 'film'. Both subjects have been heavily influenced by a range of political and
social theories, and there is the question of how we can relate the various theoretical
perspectives to the study of film and the law. An interesting area for future development
is to see how law films reflect various branches of legal theory. Given the broad range of
theoretical perspectives that have emerged within both law and film studies, legal film
would seem to be an area ripe for significant theoretical discourse. We suggest that the
framework of applicable legal theory ought to be kept as broad as possible and
encompass notions of postmodern jurisprudence. One of the traditional debates to which
law students are introduced at an early stage in their studies is between those who argue
that law is no more than a human construction and those who suggest law transcends
mere human agency. This `naturalist-positivist' debate could be reflected, or indeed
fought out, in legal films and it is possible to find examples of both ideas within the same
film, such as The Verdict (1982). In another example, ideas from legal realism can be
identified in the courtroom scenes in Serial Mom (1994). Whilst this provides one route
into theory, it is perhaps other theoretical aspects that have been influential in film studies

[24]

that may provide a more immediate relevancy. A key area of debate is the representation
of women, ethnic minorities and lesbians and gay men within mainstream film. Our
approach to this question with respect to legal film has been to identify absences and the
limitation of roles and these are collected together in Chapter 5. Whilst this potentially
leaves ourselves open to charges of tokenism and ghettoisation, we believe that without
such an intervention these issues remain invisible, and our intervention is offered in that
light. Our elementary position is to consider the nature of these performances and, in a
sense, what we have outlined in Chapter 5 needs to be considered in the light of Chapter
4 with respect to the traditional male lead. We appreciate that the very adoption of the
structure and terms may itself be questionable. By lumping these three 'categories'
together we are perhaps consciously acknowledging and, it could be argued, capitulating
to the dominant cinematic practice of casting a white male as the main protagonist. It is
arguable that characteristics such as those dealt with in Chapter 5 could be dealt with
pervasively, and that perhaps sexuality, race and gender could be integrated as part of the
analysis of the screen lawyer. We have taken an alternative approach to observe in
Chapter 4 that the main figure is almost inevitably a white straight male and consider the
alternative characteristic constructions in the following chapter. Of course, we are
immediately mired in complex theoretical territory, not only because of our structure, but
also the terminology employed. In terms of race, there is a question over the use of
whiteness as a classification. Dyer has explored this awkward concept and points out
some of the initial difficulties:

It is the way black people are marked as black (are not just 'people') in representation that
has made it relatively easy to analyse their representation, whereas white people -- not there
as a category and everywhere everything as a fact -- are difficult, if not impossible, to
analyse qua white. The subject seems to fall apart in your hands as soon as you begin. Any
instance of white representation is always immediately about something more specific --
Brief Encounter is not about white people, it is about English middle-class people; The God-
father is not about white people, it is about Italian-American people; but The Color Purple
is about black people, before it is about poor, southern US people (Dyer, 1993, p 143).

Nowhere is this point so obvious than with the vast majority of law films or, more
specifically, the lawyers. The majority of films are about lawyers, not white lawyers, and
the race of the participants is only an issue in certain circumstances that we have noted
above. Otherwise the mechanics of law films are dominated by a white middle-class
interpretation of law and the legal system. Race may be a focal moral issue but the racial
characteristics of the lawyer are rarely a central feature.

However, in To Kill a Mockingbird (1962) Finch's characteristics are important not only
as a lawyer, but as a white lawyer. As the film has a central theme of racism within the
justice system generally and, more explicitly, within the local community, the fact that
Finch is white is a central and vital feature. Finch makes a stand, although as we note
elsewhere, the extent of his valour is debatable and yet is important because of his
whiteness, a point stressed through his clothing. The question we need to consider here is
whether there is an inherent element of the legal system itself, or the representation of the
legal system, that neutralises the question of race. Perhaps this might be examined
through the interrogation of the portrayal of black lawyers. We may discover to what
extent race is an important element within the construction of the character, or whether

[25]

black lawyers are first and foremost lawyers in the same way that their white
counterparts generally are. This is precisely the point that African American attorney
LaTanya Richardson makes to explain why she has been retained by the white would-be
adopters in Losing Isaiah (1995). The idea that law is blind to issues of race is clearly open
to challenge on numerous fronts, yet it remains as part of the idealism of law that
contributes to the myth that informs filmmakers. This point of law as a neutral arbiter
could have a telling point on representation. The lawyer is both above and beyond
prejudice when it comes to enforcing or being part of the enforcement of justice. When
Atticus Finch dons the white suit of justice he is imbued with the professional status of
the lawyer who is independent and serves only justice. Can we see Joe Miller (in
Philadelphia (1993)) in two guises: `homophobic black lawyer' and 'justice-seeking
lawyer'? To what extent does this homophobic tag apply to Miller the lawyer? As we
argue elsewhere, his conversion to Beckett's cause is initially triggered by some sympathy
at seeing the library incident, but he becomes involved when he realises that Beckett has
an arguable legal case. He is no less prejudiced than he was before (witness the altercation
in the grocery store), but the law, and Miller as the harbinger of law, is apparently blind to
Beckett's sexuality. Some theoretical aspects of law's relationship with the visual are
explored in Chapter 2; here it is interesting to consider how Miller sees Beckett, and his
own occlusion offers an insight into the way in which Miller himself is seen and
constructed.

We need to make clear at this point that we are not suggesting that the law is in any
way independent of ideological considerations and that it acts in a neutral way. What we
are suggesting is that the ideals and myth of the impartiality of law, that are still
presented, offer the cloak under which screen lawyers perform. When Finch represents
Tom Robinson he has faith in the ideal of law, even if deep down he doubts the fairness of
the system. One might argue that as it is the jury that convicts Robinson, the blame can be
laid at the door of the community and not the legal system itself. Despite the conviction
Finch still places his faith in the rule of law and talks of an appeal. Finch believes in the
law and its ability to deliver justice. Similarly, when questioned, Beckett's love for the law
is revealed as being part of the process of justice. He believes in justice and, despite his
initial problems in finding a lawyer, still clearly places faith in the legal system.

The essential focus of this book is the screen characterisation of law and lawyers, and
there is little attempt to contrast this with the reality of law and legal practice. The notable
exception is the contrast of screen accounts with real life cases, though here the
comparison is essential in the narrative rather than the characteristics of the law or
lawyers. There seems to us little point in spending too much time pointing out that screen
law does not obviously mirror real law. There is no real comparison to make. Young
makes a crucial point about attempting to draw out contrasts when referring to images of
black people:

A great deal of critical work has been concerned with representation and the relationship
between the external reality referred to and the image constructed of it. This relationship is
problematic if it is implied that there is some direct transfer of material reality from the
object to the image. It is a difficult and complex subject which extends and problematises
debates about producing positive images or combating stereotypical imagery (Young, L,
1996, p 8).

[26]

For us there is little to be gained from comparisons between the real and the image. We all
know that lawyers are not normally the son of Satan (Devil's Advocate (1997)) or drunken
ambulance chasers (The Verdict (1982)). But we also know that they are definitely not
Atticus Finch nor Henry Fonda (Twelve Angry Men (1957)).²⁹ The difference is that it is
Finch or Fonda that we would wish our lawyers to be. It is these great 'hero' screen
lawyers that have contributed to the myth of law; they have become the role models to
which not only lawyers but the public 'should' aspire to or, rather, expect. The crucial
point is that this applies even though we know that it is not real. The proper comparison
to make is between the cinematic portrayal of law with the cinematic myth of law. How
far do our lawyers measure up against the ideal not in real life but in popular culture? As
we have identified throughout, the screen is generally kind to both law and lawyers,
good people working within a fair system or, at least, a system that delivers justice in
some shape or form. There is a clear lineage from Lincoln, through Finch, via Galvin and
to Riley, that law succeeds in some shape or form, or perhaps rather that justice prevails.
How, then, do we account for those films where justice is not delivered, such as Let Him
Have It (1991), The Hurricane (1999), and In the Name of the Father (1993)? For a start,
these are based on true events so it is not unexpected. We are not surprised when Bentley is
executed or Rubin Carter and the Guildford Four are falsely imprisoned. The beauty of
these films is that they do not disturb our faith in the law; the failings are those of
individuals, normally police officers, who are shown as corrupt. The ideal of law is shown
as subverted by individual or even communal dishonesty (To Kill a Mockingbird (1962)).

CONCLUSION: LAW FILMS -- CAUSE AND EFFECT

This book is concerned with finding and defining law films and drawing out what
different types of legal film contain. One of the claims of the profession that we explore in
some detail in Chapter 4 is that lawyers are the subject of overly critical portrayals and
that the great hero lawyers have been replaced by a less salubrious contemporary version.
If this is true, does it much matter? Do we think any worse of our lawyers because Al
Pacino, as a lawyer, is the devil (Devil's Advocate (1997))? This takes us back to theories
and ideologies of the effect of the media and popular culture more generally. Determining
the causal effects of media portrayals on society is an extremely difficult and contentious
issue (Barker and Petley, 2000). Generally, the debate revolves around the twin issues of
images of sex and violence, and both proponents and opponents of censorship utilise
causal arguments to support their positions. This debate is not confined to film and is
primarily directed towards television and video, but it also encompasses music and
computer games. The major concern in this area is whether the viewing of particular
images can lead to changing behaviour. What we are concerned with is not alterations in
behaviour, but whether the development of consistent portrayals can change how the
subject matter is perceived by the viewing public. Put simply, do 'anti-lawyer' films make
or contribute towards 'anti-lawyer' attitudes in the cinematic audience?³⁰

²⁹ We ascribe a hero lawyer's role to Fonda even though he is, of course, a juror.
³⁰ In Fair Game (1995) the tone is set for guarded police/lawyer co-operation when the police officer
asks the lawyer what you call 500 hundred lawyers at the bottom of the ocean. Not surprisingly, the
unamused small claims poor persons' lawyer is not hugely amused -- she knows the answer, 'A start',
of course.

[27]

Allied to this important question of image are the wider theoretical perspectives that
seek to inform our understanding of the cinema. Film theory is, certainly to outsiders, an
area fraught with complexities and nuances, though there are similarities with the
development of strands of jurisprudence. Some theorising about law and film has begun
to incorporate ideas that have been influential within film studies, like the constitution of
the viewer subject (Silbey, 2001) and the significance of framing (Bohnke, 2001). This book
is not principally concerned with any contribution to the theoretical debates within film
studies, nor detailed arguments about the causal effects of the media. Our primary
interest is with providing a detailed analysis of the films we have selected. Yet, of course,
this analysis is essentially subjective in nature and one of the difficulties that we face is
determining the various 'meanings' of the films. It also needs to be pointed out that we
are coming to this project with not only legal backgrounds, but with a significant history
of watching and attempting to categorise law films. As with any academic work, there
may well be law film analysts who take a different view of our interpretations of some of
the films we have looked at. Academic disagreements about the meaning of texts or,
indeed, cases and legislation is part of the nature of law and legal research, and there is no
reason why there should be any more chance of finding the right answer to a question of
film criticism

It seems to us that the first task is to construct a typology of `law films' rather than
note that issues of justice can occur in the most unlikely vehicles. In the early stages of
establishing a field of academic enquiry, a number of benchmarks need to be clarified.
This should be seen as a heuristic device whose aim is to see whether or not it is possible
to mark out any trends and consistent features in realist representations of the legal
enterprise in film. This remains an important goal if we are to make sense of the plethora
of material which touches on the legal. That said, we have tried in this book to
demonstrate the porous nature of the category 'legal' and how a critical approach to the
issue of 'justice' can widen the area of scholarly activity without rendering the field
unhelpfully vague. A starting point which has been advocated has been to separate out
'naturalistic portrayals' of lawyers. This was written in the context of determining how
one might assess the likely impact of this work on the public perception of the law
(Macaulay, 1987). In a paper in a Conference on Globalisation and Justice it was noted
that 'law films' thus defined were predominantly centred on the US court system. These
films were concerned with crime, principally murder and, very infrequently, civil matters.
A range of films was specifically excluded -- courts martial, celestial justice, comedies -- on
the basis that they are unlikely to be seen as everyday juridical role models (Robson,
1996). It can, however, be useful to contrast mimetic approaches to justice with symbolic
representations of the justice issue -- the potential of the Western has been explored
(Nevins, 1998) as well as other areas such as detective films (Robson, 1997), gangster films
and comedies (Denvir, 1996). Celestial justice, for its part, adds an imagined world of how
justice might be through being de-historicised and de-contextualised, although the
examples which have been studied provide rather less than might have been expected
following the innovative Powell and Pressburger treatment in A Matter of Life and Death
(1946) (Robson, 1998).

There has been a concentration in most of the previous work which we note in the
bibliography on 'naturalistic' portrayals of justice in both the traditional courtroom
setting as well as slightly more oblique images of law and lawyers. As indicated, this

[28]

model has dominated because of the pedagogical interests of the scholars involved. There
has also been a tendency to try to delimit the field of enquiry. In order to develop a clearer
understanding of the filmic portrayal of aspects of the phenomenon of late; it is necessary
to examine more than the mainstream 'trial movie'. The fictional cinematic representation
of the legal system and its personnel, and the transposition of real-life justice issues into
film involves more. Outside the standard courtroom or legal procedural there are a range
of different genres and styles, like Westerns and science fiction, which involve the broader
issue of justice.

As we have indicated, there is a recognised staple product of the film industry which
involves drawing on the drama of litigation and trials. The traditional focus of films
utilising law has been the courtroom drama. In films as disparate as Witness for the
Prosecution (1957), Judgment at Nuremberg (1961), To Kill a Mockingbird (1962) and
Anatomy of a Murder (1959), we witness the forensic skills of crusading lawyers. This is what
the law is about; the guarantee of liberty, a right of everyone to have the services of a selfless
and dedicated fighter for truth and justice. The expansion to look at a broader role for
lawyers is found in a kind of movie which can best be described as the legal procedural.
The final forensic battle may still be retained, but there is more to law and its practice here
than simply verbal skills. Similarly; there have been films which examine other actors in
the drama of law, the judge and jury. These examine whether they are simply passive
ciphers in the legal process.

Opening up the portrayal of law to look at the question of how the formal system
relates to the more nebulous, but crucial, concept of justice is vital. This conflict between
law and justice, the formal and informal, can be seen in the private eye movies where this
issue is explored. Related to this we find the oblique comment on the nature of the
defence of technicality and the interface between the lawyer and the rest of the personnel
in the system of law enforcement. We find here another cinematic representation of justice
in a harsh legal climate -- the rogue cop. Finally, law films are not limited to the
contemporary formal or informal legal system. How law and justice have been
represented in the past and in the future provide an opportunity for an exploration of the
nature of law and justice. A prime example of the 'law as justice' construction is provided
by Henry Fonda, playing Lincoln in John Ford's Young Mr Lincoln (1939). During a
courtroom scene where he is defending two young boys against a murder charge he is
berated by the prosecuting counsel for not knowing enough about the law, and that
perhaps he would be able to better represent them if he had more legal knowledge.
Lincoln, unabashed by the challenge to his professional position, observes:

I may not know so much about the law, but I know what's right and what's wrong.

This interface is played out generally through the following chapters, ranging from the
focus of the courtroom itself (Chapter 2), the portrayal of real life events (Chapter 3) to the
portrayal of law and lawyers themselves (Chapter 4). Some of the specificities of legal
film are then tackled, from the depiction of what we have termed the invisible lawyers
(Chapter 5), via the judge and jury (Chapter 6) to the private eye (Chapter 7). Our
conclusion (Chapter 8) tries to place these interventions within their wider context and
attempts to map a way forward for film and law scholarship.

[29]

APPENDIX: Works Cited

Adams, J. and Brownsword, The Ideologies of Contract, (1987) Legal Studies 205
Adorno, T., The Culture Industry, 1991, London: Routledge
American Bar Assn., Focus on Law Studies (1995) Special Issue
Barker, M. and Petley, J., Ill Effects: The Media Violence Debate, 2000, London, Routledge
Bentley, I. with Dening, P., Let Him Have Justice, 1995, London: Pan.
Berger, A., Cultural Criticism, 1995, London: Sage
Bergman,P. and Asimow, M., Reel Justice - The Courtroom Goes to the Movies, 1996,
     Kansas City: Andrews and McMeel
Biederman D., et al, Law and Business of the Entertainment Industries, 2001, N.Y.: Praeger
Black, D., Law in Film: Resonance and Representation, 1999, Chicago: University of
     Illinois Press
Bohnke, M., Myth and Law in the Films of John Ford, (2001) 28 Journal of Law and
     Society 47
Chase, A., Subterranean Government, Underground Film (1997) 22 Oklahoma City
     University Law Review 167
Cooke, J. and Oughton, D., Common Law of Obligations, 1998, London: Butterworths
Coyne, R., Images of Lawyers and the Three Stooges (1997) 22 Oklahoma City
     University Law Review 247
Cunningham, F. R., Sidney Lumet, Film and Literary Vision, 1991, Lexington: Kentucky
     University Press
Denvir, J., Legal Reelism: Movies as Legal Texts, 1996, Urbana: University of
     Illinois Press
Drexler, P., The German Courtroom Film During the Nazi Period: Ideology, Aesthetics,
     Historical Context (2001) 28 Journal of Law and Society 24
Dunlop. C., Literature Studies in Law Schools (1991), in Black, 1999.
Dyer, R., The Matter of Images, 1993, London: Routledge
Friedman, L., Law, Lawyers, and Popular Culture (1989) Yale Law Journal 1579
Gardiner, S. et al, Sports Law, 2001, London: Cavendish
Graham, L. and Maschio, G., A False Public Sentiment: Narrative and Visual Images
     of Women Lawyers in Film (1996) 84 Kentucky Law Journal 1027
Edward Grayson, E., Sport and th Law (3rd ed.) 1999, London: Butterworths
Greenfield, S. and Osborn, G., Lawyers in Film: Where Myth Meets Reality (1993) New
     Law Journal 1791
Greenfield, S. and Osborn, G., The Living Law: Popular Film as Legal Text (1995a) 29
     The Law Teacher 33
Greenfield, S. and Osborn, G., The Empowerment of Students (1995b) ABA, Focus on
     Law Studies
Greenfield, S. and Osborn, G., Where Cultures Collide: The Characterization of Law and
     Lawyers in Film (1995c) 23 International Journal of the Sociology of Law
Greenfield, S. and Osborn, G., Law and Sport in Contemporary Society, 2000, London:
     Frank Cass
Gunn, D., (ed.), The Lawyer in Popular Culture: Proceedings of a Conference, 1993,
     Littleton: Fred B. Rothman
Harding, R. Celluloid Death: Cinematic Depictions of Capital Punishment (1996) 30
     University of San Francisco Law Review 1167
Harris, T., Courtroom's Finest Hour in American Cinema, Metuchen, N. J.: Scarecrow
     Press1987
Hausermann, N., Learning Can Be Fun: High Tech Meets Undergrad Law (1995) ABA,
     Focus on Law Studies
Hodge, H., Famous Trials, 1984, Harmondsworth, Penguin
Horkheimer, M. and Adorno, T., Dialectic of Enlightenment, 1973, London: Allen Lane
Hunt, A., Jurisprudence, Philosophy and Legal Education - Against Foundationalism
     (1987) Legal Studies 92
Hunter, I. Q., Capitalism Most Triumphant: Bill and Ted's Excellent History Lesson, in
     Cartmell, D., et al (eds.), Pulping Fictions, 1996, London: Pluto Press
Lurvey, I., and Eiseman, A., Divorce Goes to the Movies (1996) 30 University of San
     Francisco Law Review 1209
Macaulay, S., Images of Law in Everyday Life: The Lessons of School, Entertainment
     and Spectator Sports (1987) 21 Law and Society Review 185
Machura, S., and Robson, P., Law and Film, 2001, London: Blackwell.
Meyer, P., Law Students Go to the Movies (1992) 24 Connecticut Law Review 893
Minow, N., "An Idea is a Greater Monument Than a Cathedral": Deciding How We
     Know What We Know in Inherit the Wind, (1996) 30 University of San Francisco Law
     Review 1225
Miskin, C., Death by Entertainment (1996) 7 Entertainment Law Review
Moiseiwitsch, M., Five Famous Trials, 1964, London, Heinemann
Moran, L., Heroes and Brothers in Love: the Male Homosexual as Lawyer in Popular
     Culture (1998) 18 Studies in Law, Politics, and Society 3
Neale, S., Genre and Hollywood, 2000, London: Routledge
Nevins, F., Man in the Middle: Unsung Classic of the Warren Court, (1996)
     30 University of San Francisco Law Review 1097
Nevins, F., Through the Great Depression on Horseback: Lawyers in Western Films
     of the 1930's, in The Lawyer in Popular Culture: Proceedings of a Conference,
     Littleton, CO: Fred B. Rothman & Co., 1993
Nowell-Smith, G. and Ricci, S., Hollywood and Europe, Economics, Culture, National
     Identity 1945-95, 1998, London: Brotosh Film Institute
Ormrod, J., Report of the Committee on Legal Education, Cmnd 4595, 1971, HMSO
Osborn, G., Borders and Boundaries: Locating the Law in Film (2001) 28 Journal of Law
     and Society 164
Osborn, G. and Sutton T., Of New Orders and New Dawns: Freewheeling Returns to
     Negligence (1996) Professional Negligence 2
Pannick, D., Judges, 1987, Oxford: Oxford University Press
Phillips, P., Genre, Star and Auteur: An Approach to Hollywood Cinema (1996) in
     Nelmes, J. (ed.), An Introduction to Film Studies, 1996, London; Routledge
Post, R., On the Popular Image of the Lawyer: Reflections in a Dark Glass (1987) 75
     California Law Review 379
Rafter, N., Shots in the Mirror: Crime Films and Society, 2000, Oxford: Oxford University
     Press
Redhead, S., Unpopular Cultures: The Birth of Law and Popular Culture, 1995, Manchester:
     Manchester University Press
Rosenberg, N., Hollywood on Trials: Courts and Films, 1930-1960 (1994) 12 Law and
     History Review 341
Schatz, T., Film Genre and the Genre Film (1991), in Braudy, L. and Cohen, M., Film Theory
     and Criticism, 1999, Oxford: Oxford University Press
Selinger, C., Dramatizing on Film the Uneasy Role of the American Criminal Defense
     Lawyer: True Believer (1997) 22 Oklahoma City University Law Review 223
Shapiro, C., Women Lawyers in Celluloid: Why Hollywood Skirts the Truth (1995)
     25 University of Toledo Law Review 955
Sherwin, R., Cape Fear: Law's Inversion and Cathartic Justice, (1996) 30
     University of San Francisco Law Review 1023
Silbey, J., Patterns of Courtroom Justice, 2001, 28 Journal of Law and Society 97
Stark, S., Perry Mason Meets Sonny Crockett: The History of Lawyers and the Police
     as Television Heroes, (1987) 42 University of Miami Law Review 229
Stone, A., Teaching Film at Harvard Law School (2000) 24 Legal Studies Forum 573
Storey, J. (ed.), Cultural Theory and Popular Culture, 1994, Hemel Hempstead: Harvester
     Wheatsheaf
Strickland, R., The Hollywood Mouthpiece, in Gunn (ed.) 1993
Sugarman, D., A Hatred of Disorder: Legal Science, Liberalism, and Imperialism, in
     Fitzpatrick, P. (ed.) Dangerous Supplements, 1991, London: Pluto Press
Tudor, A., Genre and Critical Methodology, in Nichols, B (ed.), Movies and Methods
     (1976) Berkeley: University of California Press
Young, L., Fear of the Dark: Race, Gender and Sexuality in the Cinema, 1996, London:
     Routledge

Tarlton Law Library
Jamail Center for Legal Research

Quick Links:

Main Navigation

Law in Popular Culture collection

Tarlton Law Library Jamail Center for Legal Research

Quick Links:

Main Navigation

Law in Popular Culture collection

Tarlton Law Library
Jamail Center for Legal Research