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Volume 30, Number 4 (1996) reprinted by permission of the Law Review© cite as 30 U.S.F.L. REV. 1111
By JUDITH GRANT*
THE SUPERHERO IS a fixture in American
popular culture. The importance and popularity of superheroes coincide
with the move away from simple industrial economies and the concomitant
rise of techno-rational and post-industrial economies in the West. To examine
the reasons why this might be, we have only to survey the conventional
superhero scenario and to note its link to two late 20th century mythological
systems: reason and the law.1
Typically, superheroes of the comic book variety possess some uncommon strength or ability that sets them apart from mere human beings. Superheroes are often marked by some personal tragedy that sets them off on a life of fighting crime.2 Frequently, superheroes have acquired this ability from some otherworldly intervention or from a scientific experiment gone awry. For instance, The Incredible Hulk's periodic transformation into a huge, green creature is the result of an overdose of radiation. Likewise, Spiderman's arachnid form is the result of an exposure to radioactivity. Of course, Superman is the most famous example, emerging from another world entirely, the planet Krypton. Sometimes the superheroes astounding abilities are enhanced by, if not the outright result of, technological intervention. Batman, for example, is merely an ordinary millionaire absent his special suit, fantastic car and array of gadgets. The same is true of the distinctly more carnal, although equally heroic, James Bond. Superheroes ensure their status as "heroes" through their ability and willingness to "do good" (as one fictional Elliot Ness put it). This propensity to "do good" unequivocally positions them on the side of the law, insofar as legal systems are understood and portrayed as just. However, the relationship between the superhero and the law becomes unstable when the forces of evil appear to lurk within or even control the law and the state. The world of rationality and order (i.e., legal systems as they exist in the modern state) rules, but legal systems are sometimes portrayed as having a seamy side, where disorder and chaos ultimately prevail and justice is subverted by the covert activities of greedy individuals, drunk on their own power and removed from democratic oversight. Recall the 1960s television spy spoof, Get Smart, which featured fictional intelligence gathering agents named "Control" and "Chaos." They were thinly veiled representations of the CIA and the KGB respectively, and illustrated that at least one kind of evil facing the superhero is government, or some aspect of it, run amuck. I. Introduction It is clear that the government and the role of reason figure prominently in superhero narratives, both as sources of power and as complex representations of evil. The superhero's position vis-a-vis these systems functions to set him even further apart from ordinary men. The superhero is sometimes mistaken for a criminal himself (this is a running motif in Spiderman), and frequently characterized as alone and on the run, having only other superheros for companionship. William Gibson has argued persuasively that this quality of "aloneness" is also a major characteristic of the mythic warrior figure as it is represented in the popular culture of post-Vietnam America.3 As Gibson points out, films such as Rambo4 and Dirty Harry5 follow what I describe here as the superhero narrative. They feature men who exist on the margins of prevailing structures of power, and through their own personal skills, combined with somewhat magical devices - Gibson discusses the importance of big guns and knives in these films - are able to ferret out and triumph over evil wherever it exists.6 In sum, the superhero is often poised against a backdrop of technological prowess and rational legal rules,7 with which he has a profoundly ambivalent relationship. Within the context of techno-rational and post-industrial societies, describing superheros in terms of reason (sometimes technology or science) and law makes perfect sense. Technological rationality has been described by a number of thinkers, although none have done it better than Theodor Adorno and Max Horkheimer.8 Adorno and Horkheimer argue that the high Enlightenment notion of rationality always saw reason as connected justice.9 However, they also argue that societies in the advanced capitalist world tend to mutilate reason by ripping it away from justice, leaving only the relatively bankrupt concept of "usefulness."10 As a result, technological reason is employed as a mere instrument to serve a goal, regardless of that goal's moral quality or lack thereof.11 The quintessential example of reason absent justice is the horrifying use of technology and bureaucracy, which were brought to bear on the astoundingly perverse goal of genocide during the Holocaust.12 Post-industrial society as one manifestation of advanced capitalism was first noted by Daniel Bell13 Bell argued that post-industrial economies rely less on the production of commodities than on the sale of services, information, and technique (techne14 Therefore, technological reason is an important component of post-industrial societies. Science and law also figure prominently in both technological reason and post-industrial society; however, science, like reason, is reduced to its applied version (technology) and mere "facticity."15 By the same token, Max Weber has argued that law in modern states parallels science as it becomes rationalistic, bureaucratic and so focussed on technique that it results in a kind of "iron cage" of totally administered rules and regulations.16 Given this, it should come as no surprise to find that lawyers now occupy the space once reserved for crime-fighting superheroes. This trend can be seen through a simple perusal of several recent Hollywood films. To illustrate this, I have chosen three films based on the enormously popular novels of John Grisham: The Firm,17 The Client,18 and The Pelican Brief.19 As I have written elsewhere, nothing, aside from the possible exception of health care, captures the popular imagination of the American people like crime.20 Police and attorneys are equally popular characters on television, in films, and in best-selling novels. However, stories about police tend to focus on the deviousness of criminals and the need for the subversion of rules, often through brute force,21 while narratives involving attorneys are more likely to show how scrupulous attention to rules yields a just result. In fictional narratives, lawyers, unlike cops, prevail because of their technological skill at manipulating the law. II. The Films The films discussed below are distinctly mediocre as both films and stories, and to refer to them as mediocre is to be charitable; however, it is this relatively below average quality that makes their popularity all the more intriguing. It suggests that they are appealing not because they tell a good story or tell it well (in fact, the stories are convoluted, and their plots riddled with holes), but rather because they evoke a pre-existing story with which we are already familiar. This familiar story is the tale of the superhero. A. The Firm The Firm is perhaps the strongest entry in the Grisham triology. It is the story of Mitch McDeere (Tom Cruise), a crackerjack tax attorney and recent Harvard Law School graduate (as the character tells us, he was in "the top five," not the top five percent, of his class). Much sought after by prestigious Wall Street firms, Mitch decides instead to go to a relatively small but elite firm in Memphis, Tennessee. The firm, Bendini, Lambert and Locke, is rather strange from the get go. At the interview, several associates mention that the firm values family, stability, and only hires white men. Mitch's devoted, upper-crust wife, Abbey (Jean Tripplehorn), is correct to be put off by the firm. However, Mitch, who has a brother in prison, has grown up in a trailer park, and has worked his way through law school as a waiter, is enchanted by the firm's extremely lucrative financial offer and its promise to include him in their "family." The danger of this seduction becomes apparent when the senior partner of the firm, like the patriarch of a dysfunctional family, puts his arm around Mitch and confides, "We keep each other's secrets." Indeed, there would be no story if the firm did not have a seamy underside of corruption and murder. As sole council for the Muralto crime fam- ily in Chicago, the firm's unwholesome job is to make offshore deals in the Cayman Islands between the Mafia and legitimate businessmen. In short, Bendini, Lambert and Locke is laundering money for the Mafia, and no attorney has ever left the firm alive. Mitch fits the profile of the post-industrial superhero. Like the comic book superhero, Mitch's personal tragedy (his poverty) is overcome because of his extraordinary character. His uncommon strength and ability resides in his technical facility with the law. As I have argued, with the rise of post-industrial societies and techno-rationality, the superhero is the one with the most knowledge and technical expertise, and this is clearly Mitch. However, he also represents an anti-technological rational position in his triumph over the bad guys, not merely by using extraordinary technique to serve some abstract goal, but by keeping sight of the link between justice and reason. In the end, Mitch triumphs because of something he learned in studying for the bar exam. This information becomes key to Mitch's primary directive, which is to guard attorney-client privilege and refuse to do anything illegal. In other words, Mitch has principles. Through scrupulous attention to the law and a naif's belief in its righteousness, Mitch is able to conquer the chaos and corruption of the technologically rational cops, lawyers, and Mafia men whose only aspiration is to use the law to achieve their goals (no matter what those goals might be). The FBI asks Mitch to steal files from the firm and turn them over as evidence, but Mitch is troubled by the violation of attorney-client privilege this would entail. He also wishes to avoid testifying against the Mafia in open court and having to enter a witness protection program, but this is portrayed as a secondary concern in the filmic text. When Mitch discovers that the firm has been routinely over charging clients and mailing fraudulent billing statements, he remembers from the bar exam that such fraud and racketeering carries a penalty of $10,000 and three years in prison for each offense. He decides that rather than gather substantive information that would violate the attorney-client privilege, he should copy all of the firm's billing statements and get the Mafia on the mail fraud charges. As he tells Abbey, "If we follow the law, it just might save us." Always following every detail of the law, Mitch telephones each client for written permission to copy the documents before turning them over to the FBI. By the way, none of the clients mentions this phone call to his personal attorney, and even the Mafia is cooperative in Mitch's plan. In what is perhaps the most preposterous scene in this very unbelievable film, Mitch marches himself into the main office of the Muralto crime syndicate in Chicago and announces, "I'm afraid my firm has behaved in an unethical manner." He proceeds to promise them that if they sign over all of the billing statements, he will never reveal what he knows about their worldwide holdings and illegal doings (which is, everything), because it would violate the attorney-client privilege. Instead of shooting him on the spot, the mobsters sign for the documents and let him go to the feds. The Mafia behaves honorably, but the attorneys and the FBI do not. In a final scene where Mitch finally reveals the plan to his FBI contact (played by Ed Harris), the agent is incredulous. "You let the Mafia off the hook?" he asks. "They're my clients," Mitch answers. The lawyers are the real criminals anyway, Mitch contends, and the mail fraud charges will put them away for hundreds of years. "You think that if they don't pull guns they're not the bad guys .... If you want the Mafia, get their lawyers. Without the firm the only way the Muraltos can launder money is in a washing machine." Reminded that the family will simply retain other council when the members of the firm of Bendini, Lambert and Locke are behind bars, Mitch is nonplussed. We'll get crooked lawyers "one at a time," he tells the FBI agent. "I've done my job. Now you do yours." The mandate to do one's job and to do it well, employing the expertise and ethics of one's chosen profession, marks Mitch McDeere as a post-industrial superhero. In a final dramatic moment he declares, "I discovered the law again." Thereupon Mitch hands the agent a cassette tape the former had obtained while wearing a wire in early negotiations. On the tape, the agent is caught saying some very incriminating things about how he plans to violate Mitch's civil rights in order to force his cooperation with the investigation. Mitch says to the agent while throwing the tape in his direction, "Here. It's you at the dog track - I could have gone public with it." "Why didn't you?" asks the stupefied agent. "It's against the law," replies Mitch. Mitch is, above all, honest. In fact, the degree of his honesty is ludicrous and cartoonish, not unlike Elliot Ness's imperative to "do good" or Superman's to fight for "truth, justice, and the American way." Like all superheroes, he basically stands alone in an ambivalent relation to the law - a crusader on the margins of power. In The Firm, the real criminals are those who hold official positions of power in the justice system (the FBI and the law firm), while Mitch's helpers in the quest to "do good" are his ex-convict brother, a low-life private investigator (who dies rather than giving Mitch up to the firm's hitmen), and the investigator's white-trash secretary. Early in the film, before confiding in him about his fears regarding the firm's Mafia ties, Mitch says to his brother, "Hey Ray, wouldn't it be funny if I went to Harvard and you went to jail and we both ended up surrounded by crooks?" Aided only by his technical expertise and his belief in the truth, he is able to win handily by asserting the high Enlightenment imperative about the connection between justice and reason. B. The Client Both The Client and The Pelican Brief are superhero buddy films that pair a female attorney with a man (or, in the case of The Client, a boy). The Client, like The Firm, features a scenario in which the Mafia is in cahoots with the law. One of the heroes is the child, Mark Sway. The story begins when he and his little brother Ricky (who, by the way, live together with their young, white-trash mother in a trailer park - just like the young Mitch McDeere) witness the suicide of a mob attorney, Romy Clifford. Before Romy dies he tells Mark why he is committing suicide. "If I don't kill myself - he will." The "he" is one Barry "The Blade" Muldano, who has killed Senator Boyd Boyette and hidden the body. Boyette, who had been on the take from the Mafia, had double-crossed them. The FBI can only be sure of convicting the mob if they find the location of Boyette's body. The cops, the FBI, and the district attorney (the sleazy, ambitious and well-known Reverend Roy Foltrigg, played by Tommy Lee Jones) all quickly catch on to the fact that Mark knows something he is not telling. In trying to intimidate Mark into testifying, the Cops tell him, "The FBI puts kids in jail. They have a little kid-size electric chair." The mob also knows that Mark knows something, and they send a variety of scary looking people to follow and intimidate him. Mark, sensing that his life is in danger from all sides, does what any post-industrial child would do: He decides to keep quiet until he is represented by good legal council. His choice, Reggie Love (Susan Sarandon) is a small-time lawyer who also happens to be a recovering drug and alcohol user. She decided to go to law school after having lost her children in a custody battle with her ex-husband. She, like Mitch, is committed to justice. Her last name, "Love," also signifies the mothering she is able to give to Mark - mothering she cannot give to her own children but can now dole out to Mark under the cover of her astute command of the law. Reggie first shows her mettle against Foltrigg, the cops, and the FBI by entrapping them with a tape recorder (as Mitch had done in The Firm). Under Reggie's direction, when the trio attempts to illegally interrogate Mark without his attorney or his mother present - telling Mark that "lawyers just get in the way" - Mark captures the comment on tape. This staves off the corrupt law for a while, but he is still in trouble from the Mafia. Fearing for Mark's life, Reggie encourages him to tell her where the body of Senator Boyette is: "Wanna tell me, Mark? I can call the police right now and put an end to this whole thing." Indeed she could, but Mark must refuse or the film would be over. Using strong-arm tactics, the FBI takes Mark into protective custody and forces him to testify pending obstruction of justice charges. At this proceeding, just when all appears lost, Mark (not his lawyer), gets the idea that he should take the Fifth Amendment. Then, using an ingenious ruse (faking post-traumatic stress syndrome) Mark escapes protective custody and calls Reggie, convincing her that they must go to New Orleans to find Boyette's body. Why, however, is not clear, since they could just as easily have notified the police, just as they could have from the beginning of the film. It turns out that the body has been hidden under a boat at the boat house of the now dead lawyer, Romy Clifford. In a dramatic chase scene, Mark is able to save himself and Reggie from the Mafia hit men by cleverly using the pulley system in the boat house to capture one of the hit men's gun and escape. But Muldano catches up to them again. Reggie wrestles the gun away from Mark. As Reggie points the gun at Muldano, trembling in terror, Muldano smirks, "You shoulda let the kid shoot, [expletive]. You haven't got the balls." Presumably her "not having balls" - not being a man - also accounts for the reason why her young charge, Mark, is often more astute about the law than she! In this instance, she responds by shooting out the neighbor's alarm system, waking the neighborhood, and alerting the police. "You're a genius," Mark tells her (and he should know). In a happy ending, the Sways are relocated through a witness protection program, which means they will, for the first time in their lives, have a house and a decent standard of living. Once again, the hero is able to prevail through her uncommon strength and prowess with the law, and the enemy is a coalition of criminals and good guys gone bad. In using the law correctly (e.g., when Mark takes the Fifth Amendment), wits prevail against thuggery. Reggie and the law are able to protect Mark using the one thing that probably could not save them from the Mafia in real life: technical expertise. The staunch moral standards of Reggie and the boy, Mark Sway, enable them to use the law as it was intended, to conquer evil and protect innocence. C. The Pelican Brief The final film in this trilogy, The Pelican Brief, follows the same basic formula as the previous two films. This time, absent a Mafia angle, our hero is a brilliant and lovely Tulane Law School student, Darby Shaw (Julia Roberts). In an early scene designed to show her liberal idealism, Darby is sitting in class at law school. Her professor, Thomas Callahan (Sam Shepard), a charming legal genius with an alcohol problem, is discussing the right to privacy law in the case of Bowers v. Hardwick.22 Callahan is asking the class about the legitimacy of the right to privacy concept, which does not, as is well-known, actually appear in the United States Constitution but forms the basis for various controversial legal protections, most notably the right to abortion. Callahan asks, "The Supreme Court found that the statute did not violate the right to privacy - why is that?" Darby retorts "Because they were wrong," an answer that is both flippant and incorrect but signals her good intentions and charming attachment to liberal principles. We later find that she is not only Callahan's student, but also his lover. As they lie in bed watching television that evening the news breaks of the murders of two Supreme Court justices: Rosenberg and Jenson. It is a puzzle why these two particular justices were killed since Rosenberg is a sort of Justice Douglas-type liberal, while Jenson is a Rehnquist conservative (interestingly, killed in a gay-porn theater). Enter a host of unsavory government types, ranging from a Reaganesque President, who seems to be perpetually engaged in training his Irish Setter to roll over, to the CIA and FBI directors whom the President suspects of being somehow involved in the murders, to the President's chief aid, who is clearly a montage of the Nixon staff. None of them have any suspects in mind. Darby Shaw alone has the answer. Her considerable powers of observation and legal expertise enable her to deduce immediately that the reason for the deaths of these two Justices has to do with simple greed, and that the answer to the mystery of who killed them will emerge when the places where their decisions converge are uncovered. She isolates several areas of overlap, including the fact that they both tend to decide in favor of protecting the environment. Working late into the night for a week, she prepares a brief (the "Pelican Brief" of the film's title) that details her theory, which, of course, turns out to be true. The brief details the business and political activities of Victor Matisse, the largest contributor to the President's campaign. Matisse, Shaw discovers, had struck oil in Southern Louisiana but needed permission to dredge through protected marsh lands to get equipment in and oil out. After making massive presidential campaign contributions, he not so miraculously secures this permission. Then, with a billion dollars at stake, an obscure environmental organization files suit to stop the drilling. In making their case, they point out that the oil rich area is near a wildlife refuge where the rare Louisiana Brown Pelican lives and that the pelican would be endangered by the drilling. The case takes seven years to get to trial. Matisse wins, but the injunction remains in place on grounds that the Green Fund will appeal. The case is pending in the circuit court and, if appealed, will come to the Supreme Court in three to five years. Jenson and Rosenberg would be expected to hold against Matisse. The film asks us to believe that Matisse has the Justices killed on the theory that the President will appoint two new Justices more favorable to Matisse's perspective. The plan seems based on speculations so numerous that it taxes the mind to follow the logic of this absurd plot line. Darby Shaw figures out that she is in danger after Callahan is killed in a car bomb intended for her. Several others connected to the case turn up dead as Darby goes on her desperate secretive search to find proof of her story. She is aided in this quest by the talented and well-known Washington journalist, Gray Grantham (Denzel Washington). Upon hearing about the brief, the President instructs the director of the FBI to "back off" Matisse as a suspect. This proves a fatal error since the FBI director hates the President and is led to go to the press and file obstruction of justice charges against the President. The story ends with Darby spirited away in an FBI plane to a secret destination, where she will stay in hiding until she is out of danger. Grantham publishes the story a la Woodward and Bernstein, and the bad guys, once again, bite the dust. Conclusion In The Pelican Brief, as in The Firm and The Client, the partnership of capitalist and federal government presents an overwhelming example of the way in which these films depict evil. Simply put, it is evil to manipulate the law for private gain in the manner of instrumental reason and technological rationality. The heroes (in this case the media as well as the attorney) become heroes because they are so good at their jobs. They are able to ferret out information, they are dedicated, disciplined, and they know what to make of information once it is obtained. They are fearless in their search for justice, and the tool with which they wage war is rationality and scrupulous attention to legal rules and details. Unlike the case of police dramas, where the hero often emerges victorious because he is willing to break rules, fictional depictions of attorneys present the opposite view. In all three of these films heroes emerge by virtue of following the rules of law, gathering information, and holding true to the ideals of justice and truth. Lawyers, however, are not unequivocally good. These plots are driven by the very fact that most attorneys - and most people in power - are corrupt. What is incorruptible is the principle of law, but those who carry it forth unfettered are too few and far between to be placed in the same category as the superheroes of the l950s and 1960s. |
