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GOES POP The Vanishing Line between Law and Popular Culture THE UNIVERSITY OF CHICAGO PRESS CHICAGO AND LONDON 2000
ONE Introduction: Law in the Age of Images It was by accident that I stumbled upon the path that led to this book. The journey began, simply enough, with a film, The Thin Blue Line (Miramax, 1988), Errol Morris's documentary account of a botched capital murder case in Dallas, Texas. As a former prosecutor and cur- rent professor of criminal procedure, I was struck by the variety of procedural errors depicted in the film. What a great review for my students at semester's end, I thought., ``Spot the errors," I would tell them. It was dramatic, and the students were enthralled. But then I began to wonder. Why was this film so convincing? After all, it wasn't just ordinary film viewers Morris managed to persuade. His film, which was based on interviews with the actual trial partici- pants, triggered a formal reopening of the case. As a result of that review, the defendant was ultimately set free -- after twelve years in prison, a good part of the time on death row. At last, the real story had emerged: a corrupt district attorney had persuaded a jury to con- vict an innocent man of murder and sentence him to death by electro- cution. It's the story of an unlucky scapegoat, trapped in an unjust frame-up. What's left to doubt when truth and justice triumph in the end? But not so fast. Something else is going on here, something that doesn't add up as easily as the clues in the mystery story Morris's film tells (who framed Randall Dale Adams, and why?). This is no simple documentary. In fact, the film is loaded with fictional devices, includ- ing simulations, dramatic reenactments, and humorous overlays of grade-B film clips -- not to mention that entrancing Philip Glass sound- track. So what's going on here? How could this Truman Capote-style narrative -- a real-life crime story told with the tools of fiction change the outcome in a real criminal case?1 That is the query around which this book began to take shape. For it was upon further reflection that I realized that the law is shot through with fiction. It is not simply the well-known use of legal fic- tions I am thinking of here, through which Judges "correct" doctrinal rules to get the right result in a particular case.2 What I have in mind is the fictional method of persuasion lawyers use to win cases, in court and out. It has always been so. Rhetoricians since the generation of Socrates taught their students as much (much to Socrates' dismay). Like contemporary postmodernists, these ancient teachers of poli- ticians and lawyers also realized that reality was subject to de- (and re-)construction. Meanings could be shaped in ways that might incline the public or a jury to reach a desired opinion or judgment. And in the late European Renaissance, Sir Philip Sidney argued much the same thing in his defense of law's affinity with poetry and the fic- tional method.3 No, the intermingling o£ law and fiction, like the interpenetration of law and popular culture generally, is hardly new. But there is more to tell. For one thing, the kinds o£ fictions lawyers use, and the ways in which they are employed, vary from one generation to the next. Lawyers are storytellers, and the stories they tell reflect changes in the culture around them. Notorious trials are particularly useful barome- ters o£ such changes. As chapters 3 and 4 show, these are sites where deep cultural conflicts and anxieties are symbolically played out; they are enmeshed in the legal narratives we hear and (with increasing fre- quency these days) see at trial. We can tell this is so not only from the stories lawyers recount inside the courtroom, but also from the mass media's characteristic reconstructions of those stories in the court of public opinion. Notorious trials are richly overdetermined with latent meaning; we have but to attend closely. The rituals of meaning-making they perform are not just for the parties concerned. These symbolic legal dramas make (as well as distort and repress) meanings that are of interest to society as a whole. But there is more yet to be told. The legal stories we hear and see today, both in court and out, confront law and the legal process with new challenges. An unprecedented convergence is now under way among powerful cultural and economic forces. Constructivist ("post- modern") theory, communication technology, and the needs of the marketplace are coming together with tremendous synergistic impact. As a consequence of this impact we are seeing a marked destabiliza- tion in our sense of self, and in our social and legal reality. Legal mean- ings are flattening out as they yield to the compelling visual logic of film and TV images and the market forces that fuel their production.4 In consequence, the customary balance within the legal system among disparate forms of knowledge, discourse, and power is under great strain, and is at risk of breaking down. For example, the virtues of the lay jury as a practical reflection of community values, expecta- tions, and beliefs are well known.5 So too are the virtues of judicial expertise and prudence, which operate at times as a countermajorit- arian check on public opinion, particularly when the latter runs afoul of important legal principles such as due process, among other consti- tutional safeguards.6 Under the influence of new modes of communi- cation, however, these disparate forms of lay and expert knowledge, together with their respective virtues, are growing distorted. This is what we see when techniques of mass communication fold disparate meaning-making practices into the homogenous stories and images of popular culture. It is what happens when the active, offscreen dimen- sion of lived experience and the varieties of common sense that it produces give way to the passive, self-gratification-enhancing, and image-based logic of commercial media. Then, the capacity for critical judgment -- of external reality, of self and others, of truth and justice in the individual case, and of the media themselves -- is significantly undercut.7 We witness a similar institutional breakdown when the ju- diciary, in an effort to enhance its legitimacy, converges on the same set of images as the mass media. When that happens the courts' countermajoritarian function also breaks down. For then the courts too have internalized the image-based logic of popular culture. In this book I will describe more fully these and other institutional distortions and the ways they affect law and the legal system generally. My conclusion is that what we are seeing today is no ordinary inter- mingling of law and popular culture, but a more generalized erosion of law's legitimacy. This is what happens when law goes pop. We begin with the notion of culture as a symbolic order. Culture provides the signs, images, stories, characters, metaphors, and scenar- ios, among other familiar materials, with which we make sense of our lives and the world around us. Being part of a community means that we perceive or interpret events in overlapping ways using shared cogni- tive and cultural tools and materials. Law is such a community, with its own materials and preferred tools of analysis, its own practices and habits of mind. But it is also the case that law's stories and images and characters leach back into the culture at large. In this way, law is a co- producer of popular culture.8 Notorious trials such as those involving Bernhard Goetz, O. J. Simpson, or the Los Angeles police officers who beat Rodney King, like other notorious cases before them, tend to be absorbed into the vernacular of society. As such they often come to embody larger, sym- bolic meanings. Will society tolerate acts of vigilante justice like Bern- hard Goetzs shooting of four unarmed youths in a New York subway? Is the legal process strong enough to resist the cult of celebrity that attends a defendant like O. J. Simpson? Can it survive unharmed the publicity and passions such a case arouses on top of the social and legal questions it raises regarding racial prejudice and spousal abuse? Can law in our time adapt to the reality-shaping power of mass- marketed visual images without going the way of public relations and media spin? But this is still only part of the picture. No less significant (though less well known) than the ways law stories leach back into the culture at large are the various ways the materials and communicative styles commonly found in mainstream culture leach into law.9 Savvy trial lawyers often tap, in order to direct strategically, the familiar meaning- making tools and materials trial participants carry in their heads into court. Familiar images, popular story forms, and recurring symbols, together with a host of unconscious prejudices, impulses, and pas- sions (including disguised or displaced feelings of rage and desire), are all grist for the lawyer's storytelling mill. And as the dominant media or technology of communication change, so too do the means of le- gal persuasion. The proliferation of visual images10 in contemporary society has been accompanied by a significarit cognitive shift. The linear thinking style (or interpretive fluency) characteristic of print-based culture is now in competition with what may be called an "associative" cogni- tive style, a style that is characteristic of our current image-saturated culture. As Richard Lanham writes, today we are more inclined to drift along the surface of electronic screens. We look at the signs and symbols that flow by, rather than through printed words for whatever meanings they may offer.11 Or, as some postmodernists are fond of saying, if meanings are there, they are all on the surface: appearing and disappearing, being created and recreated by image-makers and viewers alike as we gain increasing control over the flow of images we see and the order in which we see them. In order to be effective, legal persuasion must keep up with chang- ing stories as well as changing storytelling styles and technologies. Lawyers can ill afford to misjudge the thinking and speaking habits of the audiences they face. If communication fails, how can they ex- pect to influence the judges and jurors who determine how a particu- lar case will come out, or the public that will construe and act upon what it takes that outcome to mean? Thus have the methods of legal proof always adapted to reflect the introduction of new communica- tive technologies, from photographic evidence to tape recordings, sur- veillance videos, and digital simulations. For purposes of clarity, let me say again that I do not mean to sug- gest here that the interpenetration of law and popular culture is a new phenomenon. It is not, as the historic trials discussed in chapter 4 should make clear. What is new, however, is the extent to which law today is converging with the popular, and the deleterious effects of this convergence on law's stability and continuing legitimacy in the eyes of the public. The communication practices of law, both inside the courtroom and in the court of public opinion, are increasingly going the way of contemporary political discourse -- law too is suc- cumbing to the influence of public relations, mass advertising, and fabricated media events. An increasing reliance upon public relations campaigns in the court of public opinion as an adjunct to litigation is part and parcel of this trend. The shift in communication practices toward visual representations, including videos, computer-based ani- mations, and reenactments, also reflects the growing influence of the visual mass media on the way trial lawyers represent their clients' in- terests. In these and other ways law is showing signs of postmoderniza- tion. Along the way, it is inheriting many of the problems we associate with postmodern culture generally. Of particular concern in this re- spect are: the increasing conflation of truth and fiction; the image- based manipulation of irrational desire, prejudice, and popular pas- sions; and the concerted effort to deliberately construct preferred versions of (and judgments about) self and social reality. These and other meaning-making practices are displacing what, in earlier times, one might more readily (albeit naively) have referred to as the search for "objective" truth and "universal" justice through law. The belief that truth and justice are "out there," just waiting to be "discovered," is of course only one among the numerous ideas handed down to us from the European Enlightenment that postmodern thought has ren- dered problematic. Notions about the unified self, universalistic rea- son, and the linear logic of causation are others.12 In this book I maintain that the advent of postmodernism is not without value with regard to law. Certain unrealistic aspirations and repressive tendencies in the immoderately rationalist culture of mo- dernity are now undergoing an important and necessary corrective. At the same time, however, there is the danger of a new excess. Irratio- nal forces, long repressed by mainstream culture, are breaking into the popular imagination. They bring with them a new sense of anxiety, fear, and powerlessness. For surely the rational mind is helpless in the face of blind chance, implacable fate, surging fury, and intractable desire. The cultural juncture we have reached has been a long time in the making. We are no doubt now reaping the harvest of modernity's de- cline and the surge of nihilism Nietzsche foresaw over a century ago.13 In a more immediate sense, however, the current situation is also be- ing affected by a strange and powerful convergence. Constructivist ("postmodern") theory, the promulgation of visual communication technology, and the insistent gratification demands of the marketplace are working in unison. Our increased theoretical and technical facility with reality construction, our ability to manipulate images and sounds for the sake of verisimilitude, reflect and feed into the market's need for and capacity to produce and absorb (and just as quickly discard) new images and new information. In conjunction with the increasing technological and market capacity to commoditize reality and derea- lize experience we continue to learn more about the contingency of meaning, the multiplicity of self and social reality, and the manifold ways of reality making. A basic and far-reaching insight is at work here: while a great deal of order may exist in the reality we experience, much of the order we perceive is there only because we put it there. Today this constructivist perspective informs such diverse fields as psy- chology, linguistics, sociology, anthropology, history, philosophy, law, and, of course, the study of popular culture. Because law is both a producer and a byproduct of mainstream culture it cannot escape the forces and conflicts that play out in the culture at large. It is my contention that in law as elsewhere in the cul- ture we are becoming increasingly enmeshed in a futile and dangerous oscillation between two extremes. I refer to them as radical disen- chantment (or "skeptical postmodernism") on the one hand and a reactionary nostalgia for Enlightenment rationality and control on the other. 14 For the skeptical postmodern, the surge of the irrational is overpowering. In defense against being overwhelmed, many skeptics have retreated to a passive posture of ironic detachment. A more radi- cal alternative, for which other skeptics have opted, is simply to leap into the flow, to nonjudgmentally merge with the irrational flux within and without. With either move, however, amoral esthetics and the ap- peal of immediate gratification tighten their grip upon the mind. In chapter 7 we will encounter contemporary examples of both of these strategies with regard to law and legal meaning making generally. Faced with the equally unsavory prospects of amoral passivity and radical disorder, it is little wonder that a reactionary rationalist im- pulse has emerged to counter the skeptic's moves.15 Unfortunately, however, the devoutly to be wished for certainties of the modern En- lightenment are no more likely to succeed today than they have been in the past. Indeed, current cultural conditions make it rather more likely that this nostalgic longing will not be fulfilled. That the prolifer- ation of the visual mass media and its gratification-enhancing logic problematize in the very act of addressing the question of objectivity illustrates the difficulty we face. The more TV newscasters and film documentarians proclaim "the real," the greater our ontological anxi- ety becomes. A way out of the impasse between unacceptable ex- tremes has become an imperative of our time. In this book I contend that skeptical postmodernism is fatal to law. Ultimately, it renders judgment impossible. At the same time, however, I argue that a return to naive realism fares little better. Such a reaction to the uncertainties of skepticism fails to provide an adequate re- sponse to the immoderate repression (of chance, fate, fury, and desire) that modern rationality has long exerted. Nor can it do justice to the disappointed expectations to which modernity's unfulfilled promises have led. Simply stated, pining for the certainties of the past ignores the extent to which the failure of modernity's objectivist, rationalist, and universalistic program has helped to create postmodern condi- tions in the first place. Yet I believe that there is a way out of the im- passe. In what follows, I will suggest that there are signs in the culture around us of an alternative to the Hobson's choice between radical skepticism on the one hand and nostalgia for the days of the rational Enlightenment on the other. Another cultural construct is in the mak- ing, one I call tragic constructivism. It is this form of affirmative post- modernism that informs my approach to law throughout this book. In chapter 9 I attempt to flesh out what a tragic constructivist jurispru- dence might be like. This effort is driven, in significant part, by the felt need to acknowledge the vicissitudes of the irrational. In seeking to eschew the immoderate repressiveness of modernity, I strive to avoid dangerous institutional and psychological forms of distortion and denial. An example of one such danger, discussed more fully in chapter 6, is repression through unconscious displacement onto oth- ers of illicit and thus highly unpalatable impulses and desires. When law goes pop punitive retribution against the predatory other -- the "alien" among us, that perennial favorite of film and TV as well as "real" law -- becomes easy, perhaps too easy. We see this in the de- velopment of what I call the jurisprudence of appearances, a form of legal meaning making that adopts the media's visual logic as its own. As we will see, the ease of retribution masks significant dangers to law and society as a whole, especially when the repressed returns -- as it inevitably does. One of the main goals of this book is to expand the ways in which we think and talk about law. For a long time the law has been under- stood in terms of written texts. Law students and scholars still spend most of their time scrutinizing statutory rules and appellate court opinions. The syllogism, inductive reasoning, and the analogy remain the prime tools of legal analysis. Meanwhile, other tools of analysis and persuasion, and other sources of legal meaning, fail to receive the attention they deserve. The methods of legal storytelling, the strategic uses of visual technology, and the varieties of legal discourse from which practitioners must choose in the course of everyday lawyering are of principal concern to attorneys; yet legal training offers no sys- tematic account of these vital skills.16 In short, the historic gap between legal theory and legal practice remains. Within the precincts of legal academia new insights concern- ing the role of narrative, culture, and cognition in the meaning-making process have yet to be absorbed, much less applied to the practical demands of effective legal persuasion. How people act in the world on the basis of beliefs and desires,.how they strive to achieve particular goals, how they meet and overcome obstacles -- all this, set in a dis- cretely structured sequence in time, is conveyed by narrative. And it is through narrative that they are subject to influence. Surely, then, it makes sense to ask: What are the stories and storytelling tools people typically use to organize their experience and memory of human events? What kinds of cultural and cognitive models do they rely on (consciously or otherwise) in their search for truth and justice in par- ticular cases? Where do these models come from? And what kind of truth and justice do they produce? Seeking answers to these questions not only increases our knowledge of law and legal practice; it also adds new meaning-making tools to the lawyer's toolkit. Thinking about law in this way does not teach us to abandon the study of legal texts. But it does encourage the realization that law is not autonomous. It is not limited to the words of legislators and judges and administrative officials alone. Law is everywhere. It is in law offices in conversations between lawyers and clients, and between lawyers arguing or negotiating with other lawyers. It's in the minds of judges, clerks, bureaucrats, and jurors. And it's on the air -- on televi- sion, film, and computer screens in court and out. On this view, it is not enough to do legal theory from the top down based on Kantian moral universals or utilitarian ("cost/benefit") calculations or some other comprehensive theoretical system. We also need to proceed from the bottom up. There is much to be said for unfolding law's norms from its own forms of discourse, which is to say from patterns of thought and belief within actual legal practices. This includes discur- sive practices inside the courtroom (at both trial and appellate, levels) and elsewhere (in law offices, for example, as well as in the court of public opinion).17 To illustrate this more expansive view of the law's field of operation; I focus in this book not only on judicial discourse, but to an even greater extent on the words and images advocates use in trial courts and in the mass media in their effort to win cases18 However, I also contend that we must go further still. In addition to exploring var- ious cultural and cognitive sources and localized applications of legal meaning we must also remain open to law's implicit or hidden mean- ings. To do this requires a critical sensitivity to the different ways law masks meaning and power. At the same time, we must attend to the ways the irrational, subtextual, and symbolic play of rage and desire flow through law's discursive practices and strategies.19 Meaning abounds in the unsaid as well as in written, spoken, and visual com- munication. In addition to expanding the way we think and talk about law, I aim to provide an account of law's current oscillation between en- chantment and disbelief and the risks that lie at either extreme. Im- moderate rationality represses immoderately; but its injustice haunts us when the repressed returns. Radical skepticism, on the other hand, risks an excess of its own: left unencumbered, its embrace of irratio- nality leads to law's vanishing point. These are the conditions under which law goes pop. In responding to this situation it is incumbent upon us to open our minds to the manifold ways of legal meaning making. As filmmaker Errol Morris reminds us in The Thin Blue Line, there are times when law's demand for truth and justice may clash with the modernist mindset's demand for closure and certainty. Alter- native narratives of justice may also clamor to be heard. But how will we hear them if we are not willing to question how a given legal narra- tive shapes and informs (or represses, disguises, and displaces) our needs and desires for certainty and closure, or for furious retribution, illicit gratification, or compassionate and merciful justice? It is with this question in mind that we take up the task of confront- ing the salient cultural story lines of our time, both familiar and newly emerging. It is fitting that we do so, so that when faced with violent conflict and the prospect of law's violent response we may feel sure enough in our convictions, and in our reasonable doubts. The plan of this book is as follows. In chapter 2, I set out more fully the conditions under which law goes pop. Of particular concern here is the increasingly problematic status of truth and justice within the legal system. This is what we see when legal meaning making gives way to the popular, gratification-based logic of the visual mass media. Chapter 3 takes a closer look at the role of narrative and the devices of fiction in the production of legal meaning at trial. Here we see how discrete storytelling genres, like the mystery and the heroic drama, produce particular kinds of truth and justice. Illustrations of the dif- ferent ways in which narrative constructs legal reality are drawn from cases ranging from closing arguments in the O. J. Simpson case to Gerry Spence's closing argument before the jury in behalf of Randy Weaver, who was acquitted on charges arising from the fatal shooting of a federal marshal in Ruby Ridge, Idaho. Chapter 4 moves from the narrative construction of legal reality as a strategic matter to a symbolic one. Here we explore the richly overdetermined, often disguised symbolic meanings and unconscious forces notorious cases typically play out. Anxiety haunts the notorious case. Indeed, it is the specter of anxiety that makes these cases so strangely compelling to the public at large. Coming to grips with the invisible forces at work here is crucial if we are to understand why -- and how -- a particular legal controversy comes to symbolize larger social, cultural, and psychological conflicts. Deciphering the nature and effects of this symbolization process is what makes the notorious case such a useful cultural barometer. Chapter 5 examines more closely the implications for law of post- modern storytelling by focusing on a particular case study. Here we see how antagonistic modern and postmodern narratives play out, both in the capital murder case of Randall Dale Adams and in the film account by Errol Morris that helped set Adams free. In this case study we begin to see the deleterious effects on law of skeptical postmodern storytelling. At the same time, however, the analysis also points out the need for a more affirmative narrative form. Chapter 6 explores further the implications of skeptical postmodernism, specifically with respect to litigation public relations (i.e., the art of winning cases in the court of public opinion) and the jurisprudence of appearances. Here we see the corrosive impact on law's quest for legitimacy when lawyers and judges alike converge on popular media images as a basis for public persuasion. The Supreme Court's historic decision to allow state criminal trials to be televised serves as an ironic example of the special dangers television poses for law. Chapter 7 takes a broader look at current cultural manifestations of radical skepticism by shifting from legal to popular representations of law, justice, and the legal system in general. This popular cultural analysis ultimately points the way to law's vanishing point: the final breakdown of any coherent construction of self and of social or legal reality. In this way, it underscores the urgent need for an alternative to radical skepticism. With this need in mind, the chapter closes by examining possible cultural signs of an affirmative counterforce to dis- enchantment. Chapter 8 develops these suggestions further, tracing the affirmative dimension of rhetorical enchantment back to the Soph- ists of ancient Athens and to Sir Philip Sidney's eloquent defense, in the Elizabethan period, of law's affinity with poetry and the fictional method. Here I suggest that myth and rhetoric provide us with the tools we need to reconceptualize such core modernist notions as uni- versal reason, the autonomous self, the objectivist ideal, and the domi- nance of linear causation. Chapter 9 concludes these explorations by proffering a tragic con- structivist jurisprudence. Here I attempt to unite the tragic wisdom of ancient Greek drama with the insights of traditional rhetoric and postmodern constructivism. I also seek to concretize and humanize this synthesis by seizing upon the example provided by a contempo- rary film: the 1996 masterpiece Red, the final work of Krzysztof Kies- lowski and his law-trained cowriter Krzysztof Piesiewicz. This en- chanting and complex account of chance encounters, surging fury, illicit desire, and the transformative power of compassion serves as a parable of law, truth, and justice in the postmodern era. I believe that it suggests an approach to law that resists systemic distortion and the leaching out of authenticity in the face of radical skepticism. Perhaps it points to a path beyond the dangers we face when law goes pop. |
