Law and Popular Culture : International Perspectives [1 ed.] 9781443861588, 9781443858106

Citation preview

Law and Popular Culture

Law and Popular Culture: International Perspectives

Edited by

Michael Asimow, Kathryn Brown and David Ray Papke

Law and Popular Culture: International Perspectives, Edited by Michael Asimow, Kathryn Brown and David Ray Papke This book first published 2014 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2014 by Michael Asimow, Kathryn Brown, David Ray Papke and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-5810-2, ISBN (13): 978-1-4438-5810-6

TABLE OF CONTENTS

Introduction ................................................................................................. 1 Michael Asimow, Kathryn Brown and David Ray Papke Part One: Lawyers and Mediators Chapter One ............................................................................................... 11 Ally McBeal and Subjective Narration Michael Asimow Chapter Two .............................................................................................. 27 Comedic Critique: The Pop Cultural Divorce Lawyer David Ray Papke Chapter Three ............................................................................................ 43 Fairly Legal: A Canadian Perspective on the Creation of a Primetime Mediator Jennifer L. Schulz Chapter Four .............................................................................................. 57 Grisham vs. Solmssen Richard H. Weisberg Part Two: Crime, Criminals and Criminal Justice Chapter Five .............................................................................................. 79 Gender, Human Rights and Cybercrime: Are Virtual Worlds Really That Different? Kim Barker and Olga Jurasz Chapter Six .............................................................................................. 101 Honor Matters Most: Judging Law in the “Spenser” Novels of Robert B. Parker Anthony Bradney

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Chapter Seven.......................................................................................... 121 Seeing the Big Picture: Why Law Fails in The Wire John Denvir Chapter Eight ........................................................................................... 141 Legal Transplants and Legal Drama: A Comparison between the US and Italy Elena Falletti Chapter Nine............................................................................................ 153 Justice with a Vengeance: Retributive Desire in the Popular Imagination Cassandra Sharp Part Three: Portraying the Courtroom Chapter Ten ............................................................................................. 177 A Mobile Judge: An Analysis of a Dutch Television Hit Odile Heynders and Philip Paiement Chapter Eleven ........................................................................................ 195 Managing the “Critical Independencies” of the Media and Judiciary in the United Kingdom Leslie J. Moran Chapter Twelve ....................................................................................... 219 Popular Culture and the European Court of Justice: The Anonymous Engine of the European Integration Process Stefano Montaldo Chapter Thirteen ...................................................................................... 233 The Law through the Eye of Courtroom Comedy: The Light Legal Procedural in Context Peter Robson Part Four: Pop Cultural Jurisprudence Chapter Fourteen ..................................................................................... 253 Renegotiating the West in Joel and Ethan Coen’s True Grit Kathryn Brown

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Chapter Fifteen ........................................................................................ 269 Affirmative Cinema: When Film-Makers Defend Minorities Pedro R. Fortes Chapter Sixteen ....................................................................................... 285 “It’s my culture, stupid!”: A Reflection on Law, Popular Culture and Interdisciplinarity Jeanne Gaakeer Chapter Seventeen ................................................................................... 305 Film and Mass Tort Litigation in the United States: A Civil Action and Erin Brockovich Byron G. Stier Chapter Eighteen ..................................................................................... 323 Engrenages: Antilegalism and French Realism Barbara Villez Part Five: Teaching Law and Popular Culture Chapter Nineteen ..................................................................................... 337 Popular Culture in the Classroom and Beyond: Using Harry Potter as a Portkey for Civics and Community Involvement Kelly E. Collinsworth Chapter Twenty ....................................................................................... 357 State-Sanctioned Violence, Beethoven and Kubrick’s A Clockwork Orange Terri Mester Chapter Twenty-One ............................................................................... 369 More Media and More Countries: New Approaches to Teaching Law and Popular Culture Donald Papy Chapter Twenty-Two............................................................................... 383 Teaching a Writing Intensive Law and Popular Culture Freshman Seminar Gary E. Peter Contributor Biographies .......................................................................... 401 Index ........................................................................................................ 409

INTRODUCTION MICHAEL ASIMOW, KATHRYN BROWN AND DAVID RAY PAPKE

This book draws together scholars from Australia, Europe, North America, South America and the United Kingdom to analyze intersections between law and popular culture within and across a range of cultures and nations. While much scholarship in this field has provided significant insights into the ways in which cultural products can shape expectations about legal systems and contribute to critical debates about lawmakers, justice, and the exercise of state power, discussions have often remained confined to examples within individual countries. Furthermore, they have tended to focus primarily on the portrayal of lawyers and court proceedings in common law jurisdictions. In light of the increasingly global circulation of cultural products, however, it has become necessary to expand this discussion to consider a wider sample of publics and cross-border critical exchanges. While the present volume certainly does not purport to offer global coverage, it does seek to broaden the current debate by considering ways in which popular representations of law mediate legal practices and conceptions of justice locally, nationally, and internationally. The chapters therefore examine the representation of lawyers and judges in contrasting practice settings and ask what can be learned from the study of popular representations of justice in systems that are not one’s own. In addition to drawing on examples from a range of cultures and nations, contributions to this book also adopt a broad view of the genre “popular culture.” While paying close attention to films, television series, and novels, chapters explore new intersections between law and multiplayer online games, the reporting of cases in mass media publications, and the implementation of public communications strategies by legal authorities. The constant development of new cultural products and more complex networks of their dissemination makes the study of law in and around popular culture a dynamic area for both research and teaching. Accordingly, contributions to this book also seek to highlight various

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Introduction

methodological innovations that have developed in response to a subjectarea in constant evolution. The chapters comprising this study are organized under five headings. Legal practitioners routinely emerge as the protagonists or most important characters in law-related popular culture. Part one therefore examines portrayals of legal practitioners at work and compares various narrative strategies that are designed to reinforce or challenge popular stereotypes. Michael Asimow begins by analyzing narrative conventions and innovations in the US television series Ally McBeal (1997–2002), focusing in particular on the show’s comic and often controversial treatment of issues relating to gender, sexuality, and personal relations in the workplace. The unrealistic portrayal of lawyers in the series gave primacy to the turbulent inner lives of the characters and, by refreshing a staid genre, it developed ingenious techniques to open up a branch of legal drama for a new and wider demographic. If Ally McBeal shattered conventions relating to legal narratives and types, popular portrayals of divorce lawyers have, by contrast, tended to reinforce audience expectations. David Ray Papke examines the recurring characteristics of divorce lawyers in film and television and locates their portrayal in the context of the wider aims and profitmaking strategies of a successfully functioning culture industry. Neither a “brainwashing” exercise nor a social critique, cultural products that perpetuate myths about the prototypical divorce lawyer are seen to be in alignment with public expectations about this branch of the legal profession and are analyzed as part of the culture industry’s profit-seeking aims. In this case, the popularity of a legal-cultural product is enhanced by its audience’s familiarity with “type.” Jennifer L. Schulz then turns to an unusual character in legal fictions, namely, the figure of the mediator. Taking the US series Fairly Legal (2010–2012) as her subject, Schulz pays attention to the impact of the series across geographical boundaries, suggesting that the “pro-mediation” message of the series found an increased resonance in Canada rather than in the, arguably, more litigious environment of the United States. She also acknowledges, meanwhile, that this show’s chief mediator takes on the characteristics of a lawyer-like trickster. Richard Weisberg concludes this section with a chapter about character development in the legal fictions of John Grisham and the lesser-known writer, Arthur Solmssen. Weisberg offers a detailed interpretation of the narrative strategies employed by each author to convey lawyer-client relations and the machinations of day-to-day work in a law firm. Contrasting these writers’ use of dialogue and plot structure, he shows how legal fiction can subtly invoke familiar tropes for the purpose of addressing complex psycho-

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logical and social themes that extend beyond the parameters of the law firm or the courtroom. Part two of the book shifts attention to the role of cultural products related to crime, criminals and criminal justice in a wide range of cultures and nations. More so than other varieties of law-related popular culture, these works in general invite reflection on fundamental socio-cultural normativity. Kim Barker and Olga Jurasz begin by examining a new intersection of law and popular culture that has a genuinely global reach, namely the legal and regulatory challenges that arise from massively multiplayer online role-playing games. Barker and Jurasz closely analyze types of role-playing enjoyed by gamers and examine forms of gender violence that players are able to enact online. Locating their analysis against conventional definitions of “harm” and “crime,” Barker and Jurasz argue that new legal concepts and techniques of enforcement are needed for the purpose of dealing effectively with the increasing prevalence of “genderbased cyber violence.” The chapter highlights the failure of law to keep pace with a swiftly developing branch of popular culture and points to some of the difficulties of developing a cross-border legal framework to address the issues raised by online gaming on a global scale. Anthony Bradney develops the theme of crime by considering a familiar figure in legal fiction, the “hard-boiled” detective. Taking the “Spencer” novels of Robert B. Parker, Bradney identifies innovative narrative developments in this genre and, like several other chapters of this book, shows how familiar tropes can be used to invoke pressing ethical questions about selfknowledge and human behavior within a structure of state-imposed laws. While Bradney’s chapter addresses the “fragility” of legal rules, John Denvir shows how the television series The Wire (2002–2008) revealed outright failures in the US criminal justice system. Aiming at goals beyond broad popularity and lively story-telling, the show is interpreted by Denvir as a forceful drama that exposes key bureaucratic and economic problems hindering the effective administration of criminal justice in the United States. In its ability to point to such failings and to bring them to the attention of a wide audience, The Wire becomes, in Denvir’s analysis, a powerful political statement capable of motivating positive social and legal change in the jurisdiction it seeks to criticize. Elena Falletti develops this theme by arguing that popular culture has had a direct influence on recent changes made to the Italian Criminal Code. In a chapter dedicated to the “transplant” of legal concepts from one jurisdiction to another, Falletti examines how developments in Italian courtroom procedure and popular conceptions of legal practice in Italy have been shaped by films and television series set in the United States. The result, she argues, is the creation

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of a hybrid system in Italy that imports aspects of common law procedure into a civil code tradition in ways that sit uneasily with the historical roots of Italian criminal justice. Cassandra Sharp concludes this section by shifting the discussion to popular conceptions of criminal justice in Australia. Using evidence drawn from media reports and opinions about punishment expressed in focus groups, she argues that cultural artifacts (including, for example, newspapers, popular symbols, images and narratives) have contributed to widely held misconceptions about crime and sentencing in Australia. Her chapter highlights the importance of “everyday stories”—as opposed to carefully crafted legal fictions—in influencing both the popular perception of law and criminal justice and public expectations about the role of retribution in the wider social function of punishment. Part three examines contrasting portrayals of courts and judges in a range of media. If lawyers are the most common protagonists in lawrelated popular culture, courtrooms with judicial officials presiding are the most common settings for high drama. Odile Heynders and Philip Paiement open the section with a discussion of a popular Dutch reality television program, The Mobile Judge [De Rijdende Rechter]. Far from a “courtroom” in the familiar sense, the series brings judicial decision making directly into local communities as the judge visits complainants and rules on disputes in situ. Conceptually as well as physically, law is “on the move” in this series, a factor that separates judicial administration from the symbolic anchor of the courtroom and serves the more practical purpose of injecting variety into the show. In Heynders and Paiement’s analysis, “reality” is turned into a “human comedy” (reminiscent of Balzac), and a figure of legal authority is propelled directly into the community not only for the purpose of adjudicating on disputes between neighbors but also with the aim of repairing wider social fractures. Taking up ways in which popular culture can form a bridge between an impersonal legal system and members of the local community, Leslie J. Moran examines new communications initiatives undertaken by the judiciary in the United Kingdom. Considering strategies undertaken for the purpose of improving the public’s perception of the law and its administrators, Moran examines why a “deference deficit” has become apparent in recent years and why popular culture is being used as a means of redressing this balance. The theme of communication between judges and the public is given cross-border treatment in Stefano Montaldo’s discussion of the European Court of Justice. While the court was established as part of an ideal vision of European political integration, Montaldo asks how much people actually know about the court’s function, structure and decision-making. In contrast to the “deference deficit” discussed by Moran, we have here a wide-

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spread “knowledge deficit” that, in Montaldo’s account, might be ameliorated by greater coverage of the European Court and its workings in popular culture. In the final chapter of this section, Peter Robson examines the portrayal of lawyers and judges in novels written by Hastings Draper (the pseudonym of barrister Roderic Jeffries) from the late 1950s to the early 1960s. Although taking the form of “light fiction,” Draper’s novels are, according to Robson, capable of offering significant insight into social and class problems that beset the legal profession in a beleaguered post-war Britain. At a time when deference to judges was still very much in evidence, Draper’s novels were a subtle means of critiquing the judicial system while avoiding direct confrontation with the dominant academic discourse of the period. In this case, popular culture is seen to slip free of prevailing ideologies and serve as an important outlet for critical engagements with law and its practices. Part four considers ways in which popular culture offers the public ways to think about law and legal institutions, a type of “pop cultural jurisprudence.” While many chapters in this volume offer perspectives on the migration of legal ideas between countries, Kathryn Brown’s contribution considers ways in which a single narrative can address social issues relevant in different historical periods. Taking Joel and Ethan Coen’s True Grit as her example, Brown examines how the film deviates from the familiar format of the Western to explore the role that voluntary agreements can play in different forms of social organization. With its origins in Charles Portis’s novel of the 1960s, the film speaks to a variety of civil rights issues and notions of personal autonomy that are identified as relevant to ideals of civil society from the nineteenth century to the present. Pedro R. Fortes takes up the themes of law, popular culture and civil society by considering ways in which cinema (particularly Hollywood films) can protect or undermine minority rights. He discusses examples of “affirmative cinema” in which film-makers create works that aim to transform dominant ideologies and stereotypes. In Fortes’s account, it is through the creation of “counter hegemonic narratives” that popular culture may be able to empower minorities and effect a form of social emancipation. If Brown and Fortes take an optimistic view of the positive social potential of pop cultural jurisprudence, Jeanne Gaakeer’s chapter offers a more skeptical account. She examines the possibilities and limitations of interpreting cultural products as jurisprudential artifacts and identifies various methodological and practical issues that lawyers and cultural theorists face in their attempts to do so. She advocates a more stringent approach to fundamental questions concerning the meaning of “law” and “culture” in

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this interdisciplinary field and stresses the need to address and challenge the assumptions that researchers bring to this subject. She argues that researchers need to pay greater attention to the legal and popular culture in which they are embedded (including its history) before seeking to judge and analyze ideas across disciplines and jurisdictions. Byron Stier’s discussion of two films about mass tort litigation in the United States (A Civil Action and Erin Brockovich) highlights the severe problems of litigation finance confronted by plaintiffs’ lawyers and the difficulties they encounter in striking a proper work-life balance. The films suggest a model of lawyering (morally infused pragmatism) that may deliver the best outcomes for both clients and lawyers. Barbara Villez concludes the section with a discussion of Engrenages, an internationally popular television series set and produced in France. She describes how the series has evolved since its first broadcast in 2005, highlighting its increasing stylistic divergence from British and US legal drama. She identifies ways in which the series addresses a widespread skepticism about the legal profession in France, one that relates specifically to the embedding of legal administration in an institutional political hierarchy. The “antilegalism” expressed in the show is, Villez argues, the extension of a core set of ideas expressed by Edgar Quinet in the mid-nineteenth century. Appreciating the historical roots of this concept underscores core themes of the television series and points to a separation in France between the expression of democratic freedoms through political processes rather than through the law. The teaching of courses about the intersection of law and popular culture is perhaps most predictable in university-level legal education, but courses involving this intersection can prompt critical thought in other settings as well. For this reason, Part V includes four chapters offering approaches to the teaching of law and popular culture in a range of educational environments. They demonstrate the breadth of material used in this subject and the variety of learning outcomes that this branch of study can achieve. It would be difficult to find two more widely diverging narratives —as regards both content and target audience—than those discussed in the opening chapters of this section: Harry Potter and A Clockwork Orange. While Kelly Collinsworth shows how proceedings brought before the “Ministry of Magic” in J.K. Rowling’s Harry Potter novels can provide a trial model that stimulates students’ interest in, and understanding of, issues relating to law and government, Terri Mester uses Stanley Kubrick’s film A Clockwork Orange to examine dramatic conflicts between individual agency and state control. In her search for a law film that goes beyond the familiar structure of the “righteous outsider vs. state-sanctioned legal machine,” Mester draws attention to the aesthetic density of Kubrick’s

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film while also acknowledging the challenges of teaching undergraduates through a work that some think celebrates violent eroticism and misogyny. Mester also discusses the signifying power of music in film, exploring the problematic manner in which Kubrick uses Beethoven’s Ninth Symphony at every stage in the narrative. Gary Peter shows how the study of law and popular culture can be structured in the context of a writing-intensive freshman seminar. Like Collinsworth, his approach to the subject highlights ways in which the study of law from an interdisciplinary perspective can stimulate active learning on the part of students, in this case encouraging their creative as well as analytical skills. Taking up the idea that there remain stimulating new ways in which to develop the study and teaching of law and popular culture, Donald Papy encourages the examination of a wider range of media in this subject. Reinforcing a core theme of this book, he also identifies the advantages of a cross-border approach to the subject, showing the benefits of examining the mediation of legal concepts across cultures and considering how popular culture from one country can influence, for better or worse, conceptions of law and legal systems in other countries. The enhancement of cross-border study remains one of the most valuable attributes of law and popular culture studies. The present study developed from a conference co-organized by the editors in 2012 and held at Tilburg University (Netherlands). The editors are grateful to the University’s School of Humanities and to the Tilburg Law School for the use of their facilities and for their generous funding of the event. The chapters comprising this volume are versions of only some of the papers presented at the conference. The editors would, therefore, also like to take this opportunity to thank all of the participants in the conference for their presentations and lively contributions to debates about the expression of legal themes in cultural products that are subject to ongoing exchange across time and geography.

PART ONE LAWYERS AND MEDIATORS

CHAPTER ONE ALLY MCBEAL AND SUBJECTIVE NARRATION MICHAEL ASIMOW

For thousands of years, human beings have tried to understand their world by telling mythological and religious stories. Stories remain an essential part of human communication because they still help us to make sense of our environment and the people we encounter. More important, perhaps, everyone takes pleasure in telling and consuming stories. This creates a market for story that the popular culture industry exploits. All of us consume (or struggle to avoid) an endless flow of story material in the form of movies, television, books, songs, computer games and other media. Most discussions about pop culture stories focus on the representation of characters, institutions or events in the story. Alternatively, we can discuss a story by focusing on the way that the story is told. Thus, it is important to distinguish story content (or narrative) from storytelling (or narration). Part one of this chapter discusses the conventions of film and television in general and the conventions of the legal television genre in particular. Part two discusses innovations in both narrative and narration that push the boundaries of the legal television genre. It focuses on Ally McBeal as a genre buster. In terms of narrative, the show is unique in the legal television genre for the way it treats issues of gender and sexuality and the way it decenters legal materials. In terms of narration, Ally McBeal focuses heavily on the inner life of its characters. It is also anti-naturalistic and makes creative use of music and technical innovations such as computer graphics.

1. Narration in Film and Television (a) Conventions in film and television drama Numerous conventions relating to narration apply across all pop cultural genres, including legal ones.1 A story generally involves a departure from the ordinary and expected course of events (such as a murder or a betray-

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al). The story is built around characters who seek to achieve goals. The characters encounter trouble and try to overcome obstacles (either within themselves or involving others) that stand in the way of reaching goals and getting out of trouble. Events are connected by chains of reasonably plausible cause and effect. The story must establish psychological motivation for the actions taken by the characters. Each important character should provoke a response from viewers. The response might be sympathetic, empathetic, or antipathetic. The story should produce reactions like surprise, laughter, pleasure, suspension of belief, escapism, or arousal. And, of course, a good story requires an imaginative storyteller (for our purposes, a writer) who is skilled in manipulating these basic tools. A good story has a beginning, in which matters break away from the ordinary, characters are introduced, and the story is situated in place and time. It has a middle, in which characters struggle to overcome the obstacles that stand in the way of reaching their goals and getting out of trouble. And it has an ending (or “closure”), in which characters reach or fail to reach their goals and most or all of the loose ends are tied up. Most films and television programs contain more than one story line (often referred to as the A and B stories), and both stories are resolved in the ending. In feature films and dramatic television, most stories strive to produce the illusion that they are “realistic” or possess “verisimilitude” or “naturalness” (of course, some genres such as horror films or cartoons do not strive for verisimilitude, and viewers do not expect it). Verisimilitude means that the story seems to deal with events and characters that viewers believe might actually occur in the world. Naturalistic storytelling promotes the audience’s suspension of disbelief. Of course, this sense of reality is an illusion produced by skillful writing, editing, acting and direction. The events and characters in pop culture stories are completely unrealistic, as they must be to function as entertainment and meet the various artistic and commercial constraints imposed by the medium. Film and television are visual media. One implication of the visual character of film and television is that the inner lives of characters (such as their undisclosed thoughts, feelings, dreams, fantasies, desires and emotions) are difficult to show on the screen. Yet good storytelling requires that the viewer understand the motivation of the characters. Moreover, audiences are unlikely to empathize with a character unless they understand the character emotionally. Consequently, the storyteller must find a way to convey information about the inner lives of the characters. To some degree, the inner lives of characters can be inferred from what they do and from skillful acting that reveals emotionality. Inner life can be explicitly described in dialogue in which characters say what they are feel-

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ing, but such passages tend to slow the action down. Narratologists sometimes refer to visual texts as objective (meaning that the text discloses relatively little about the characters’ inner lives) or subjective (meaning that the text discloses a relatively large amount of information about the characters’ inner lives). Sometimes, the extent of disclosure of inner life is referred to as “depth of characterization.” Soap operas, for example, tend be quite subjective and dwell heavily on emotionality and romance.

(b) Conventions of narration in the legal film and television genres Since the 1930s, countless movies have told stories about law, lawyers, and courtrooms.2 The same is true of television. Since the 1960s, each television season brings a new crop of lawyer-oriented stories. It seems fair to identify these bodies of material as film and television genres, like westerns, musicals or detective stories. Genre means a body of texts that share common themes and formal styles. The creators of films and TV shows rely heavily on genre to predict what ideas and images might prove marketable. Spectators rely on genre to predict what types of stories and characters the cultural product is likely to contain. Thus, genres contain conventions that involve both narrative (what the stories are about) and narration (how the stories are told). This chapter focuses on the television legal genre, meaning TV shows that tell stories about lawyers or judges functioning primarily in their professional capacities. Legal stories strive to produce the illusion of verisimilitude by using familiar locations like law offices, jails and courtrooms, and familiar courtroom procedures such as cross-examination and closing argument. Story telling is naturalistic rather than surreal or absurdist. Of course, this sense of reality is purely artificial and induced by technique. A realistic account of a trial might take six days and would be unutterably boring. Viewers willingly accept that film or TV lawyers don’t care about getting paid, criminal cases come to trial within days after the arrest, cases are never settled or plea bargained, discovery of the opponent’s case does not exist, closing arguments are rendered in sixty seconds, witnesses confess to ghastly crimes under cross examination, and similar nonsense. Most legal stories in both movies and television are objective, meaning that relatively little is disclosed about the inner lives of the characters. In this respect, legal drama resembles the well-worn detective story genre with which it shares common ancestors. Typically private eye stories in pop culture are only about solving cases, and little is disclosed about the lives or emotional states of the detective. The same is true of most legal

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shows. Although we understand the motivation of the characters, we learn little about their inner lives. Most legal stories on television are stand-alone episodes in a series that may extend over one or more seasons. They can be viewed in any order. A few legal stories have been serials, meaning that a single story is told over numerous episodes, perhaps an entire season. These shows must be viewed in sequence to make sense. Some legal stories are hybrids between series and serials, meaning that they contain character arcs (that is continuing stories about the characters) that develop over numerous episodes. These episodes can be viewed out of sequence, since each contains some stand-alone material, but most viewers prefer to watch them in sequence so that the character development makes more sense.

(c) Narration in classic televised legal drama (1) Perry Mason.3 The most influential televised legal drama of all time was Perry Mason, which ran on CBS from 1957 to 1966. The televised series, consisting of 257 episodes, and starring Raymond Burr, was adapted from a long line of novels by Erle Stanley Gardner and a highly successful radio show. After the series went off the air there were thirty made-for-TV movies employing exactly the same format. There is even talk about reviving this ancient and hackneyed show on contemporary TV. If you’ve seen one Perry Mason episode, you’ve seen them all. The narrative structure remains precisely the same in every televised episode and made-for-TV movie. In each episode, a murder is committed and the police arrest a suspect who is always innocent. The suspect becomes Perry’s client. Perry’s withering cross examination causes the true killer to confess. Perry Mason originated the narration conventions for the televised legal genre. The story is told in naturalistic and chronological style. It resembles a generic detective story, in that the identity of the real killer is always concealed. Perry and his staff (investigator Paul Drake and secretary Della Street) spend most of their time sleuthing out the real killer. Perry’s legal work, usually in a California preliminary hearing, comes in only at the end of the episode. The narration in Perry Mason is naturalistic, striving to produce a feeling of verisimilitude. There is no character arc, meaning that none of the characters ever change or sustain continuing personal stories. As a result, each episode is freestanding, and the episodes can be viewed in any order. Having freestanding episodes is a great advantage when it comes time to

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syndicate the show. As a result, Perry Mason reruns have been a staple on cable for many years. The narration on Perry Mason is objective, meaning there is no treatment of the inner life of the characters. Indeed, the show never disclosed anything about the personal lives of the key characters or considered any social, political, ethical or legal issue outside of the bounds of the particular case. So far as you can tell from movies and TV, Perry Mason had no private life at all and lacked any emotions (except that he wanted to win whatever case he was working on). (2) The Defenders.4 The classic show The Defenders, which ran back-toback with Perry Mason on CBS from 1961 to 1965, was different from the latter show in nearly every way. The creators deliberately avoided Perry Mason-type plotting. Instead, they used each episode as a vehicle to explore a particular legal or social issue through the prism of the legal process. The father and son law firm of Lawrence and Kenneth Preston tackled abortion, women’s rights, the insanity defense, racism, defending the free speech of Nazis, the anti-Communist blacklist, and dozens of other hot button issues, many of them far ahead of the times. Despite the cutting-edge narratives, the narration on The Defenders was conventional and naturalistic. There was no character arc, so each episode was freestanding. The two lawyers appeared to have no personal life outside the office, and their relationship never changed. The father, Lawrence Preston, was cautious and calculating. The son, Ken Preston, was more impulsive and wanted to change the world. Other than disagreements about how to handle a particular case, however, neither lawyer appeared to have any emotions or inner life. (3) L.A. Law.5 L.A. Law was a hugely successful series that ran from 1986 to 1994 on NBC. The show created a new set of narrative conventions for the legal genre. L.A. Law was about a good-sized law firm consisting of partners, associates, and staff. Prior to L.A. Law, television lawyers practiced solo or in very small firms. The firm of McKenzie, Brackman, Chaney and Kuzak was a profit-maximizing entity and the partners lived well on the earnings. Prior to L.A. Law, the economic aspects of law practice were ignored on television. The shows frequently tackled thorny issues of legal and social policy, as well as legal ethics, although not with the seriousness of The Defenders. The characters had personal lives, professional conflicts, and romantic relationships with each other, so it was helpful (though not essential) to view the episodes in sequence.

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L.A. Law was moderately creative from the point of view of narration. One important innovation was the use of ensemble casting, so that different combinations of lawyers and staff were involved in each episode. The program pioneered in the legal genre the formula of including two stories in each episode—the A and B stories—and intercutting between them. The narration was considerably more subjective than Perry Mason or The Defenders since the personal lives of the characters were an essential part of the stories. As a result, they had inner lives and emotions, although they seldom discussed them directly. In addition, some of the lawyers were relatively antipathetic and rather unethical, such as the family lawyer Arnie Becker (who often became sexually involved with clients) and the profit-maximizing but socially inept managing partner Douglas Brackman. (4) Law & Order.6 Law & Order holds the record for the longest-running TV show of all time—an amazing twenty years (actually it tied with Gunsmoke for the duration record.) Each Law & Order story involved exactly the same structure—the first half involved the cops catching the suspect and the second half involved the prosecutors trying to put the wrongdoer away. From the point of view of narration, Law & Order was consistently naturalistic, even documentary-like. It augmented the sense of reality by using identified New York locations and often employed hand-held cameras. Each show was freestanding and employed no character arcs. The characters of the police and prosecutors never changed. The stories were quite complex and demanded the viewer’s entire attention (if you got up to go to the bathroom, you’d lose the thread of the story). Law & Order stories were also extremely objective. Neither police nor prosecutors appeared to have any private life. Viewers occasionally got tantalizing glimpses of their lives outside the office, such as alcohol problems, busted marriages, or McCoy’s affairs with the female prosecutors who worked for him, but never in any detail. The characters seem to have no emotions, except for a desire to catch the perps and put them away. The prosecutors often struggled with difficult moral dilemmas about the nature of justice and prosecutorial discretion, but all of their emotionality seemed to be wrapped up in their jobs. Indeed, Law & Order is quite puzzling. What accounts for its remarkable twenty-year tenure? Why did so many millions of people watch stories that often dwelt on legal technicalities of interest mainly to lawyers? There was no sex or violence on Law & Order. All of the characters were replaced over the twenty-year life of the show, but that didn’t seem to matter to audiences. The answer to why the show was so successful is elusive, but

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certainly audiences appreciated the sophistication of the stories (often “ripped from the headlines”) and the consistently strong acting. Perhaps viewers really liked to see competent professionals doing their jobs well.

2. Storytelling on Ally McBeal (a) Ally McBeal refreshes the genre Ally McBeal7 was a show originated by David E. Kelley that ran from 1997 to 2002 on the Fox network. The talented actress Calista Flockhart starred as the eponymous protagonist. The show was commercially successful and developed a large fan base, but was also quite controversial.8 Many young professional women identified strongly with Ally McBeal’s character and appreciated the show’s treatment of gender issues and the conflicts between personal and professional life. Other women despised the show because it suggested that women professionals are emotional and incompetent, cannot balance their personal and professional lives, and act inappropriately at work such as by wearing very short skirts.9 The range of viewer interpretation of the show and its characters was remarkable.10 Part two of this chapter addresses the significant changes in both narrative and narration that occurred on Ally McBeal. To some degree, these changes reflect Kelley’s efforts to refresh what might be viewed as a somewhat stale genre. The changes seem to reflect his belief that television viewers would no longer be satisfied with dry and analytical legal story lines. They wanted more emotionality. They were looking for characters with inner lives who engage in romantic affairs and other nonprofessional pursuits. The changes also reflected a need to compete with technological advances in television production (such as vastly improved animation techniques). Kelley sought to make legal television shows less cerebral and talky, again because of the action-packed competition from other channels.11 It is also noteworthy that Ally McBeal, as well as many other later shows including Damages, Drop Dead Diva, Harry’s Law, Judging Amy, Fairly Legal, JAG and The Good Wife, center on female lawyer protagonists. This is unsurprising, given that about half of all new lawyers in the United States are female. It also reflects a perceived need to provide programming of greater interest to the female viewing demographic.

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(b) Subjectivity on Ally McBeal (i) Subjectivity and character arcs in legal drama. As discussed earlier, subjective narration discloses copious information about the inner lives of the characters, while objective narration discloses relatively little. Perry Mason, The Defenders and Law & Order bump up against the objective end of the spectrum, as the characters in these shows have no private lives and no emotions. L.A. Law was slightly more subjective, since its characters had personal lives and their emotional lives were somewhat accessible, but most of the narrative consisted of characters doing objective and analytical work. Most legal dramas now disclose information about the inner lives of the characters. In Boston Legal a good part of the attractiveness of the show was the buddy relationship between Alan Shore and Denny Crane, two opposite personalities who were the best of friends.12 Alan and Denny ended each episode schmoozing over drinks, and sometimes disclosing their emotions and feelings, but there was relatively little character arc and not much information about their personal lives aside from affairs they were having with other lawyers. In Harry’s Law, most of the screen time was concerned with lawyers doing their jobs. However, the characters had personal lives, romantic relationships and emotions and feelings, and there was some character arc.13 In The Good Wife, character arcs are the heart of the show. The ups and downs of Alicia’s marriage to the unfaithful Peter Florrick and her affair with her boss Will Gardner are developed throughout the four seasons of the show (as of the time this chapter is written, the series will continue for at least a fifth year). Other main characters, such as Eli Gold, Kalinda Sharma, Diane Lockhart and Alicia’s teenage children, also experience political and personal character arcs that span numerous episodes. Thus, the characters definitely have private lives and a good deal of information about their life outside the office is disclosed. However, the show is not very subjective. The characters seldom reveal their feelings and emotions. They are quite reserved when it comes to disclosing personal information. Their emotions can be inferred from their actions; obviously when Alicia decides to have an affair with Will Gardner, we can guess at her feelings about her life and her marriage and her sexual attraction to Will, but Alicia is very guarded about discussing these feelings with anyone.

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(ii) Innovation in narrative and narration on Ally McBeal. (1) Narrative. Ally McBeal was quite innovative in stretching the narrative conventions of the legal drama. For one thing, it was a comedy (sometimes called a “dramedy,” to signal the mixture of drama and comedy), itself a rarity in the genre. Most strikingly, the show was notable for its candid treatment of issues of gender and sexuality.14 Consider just a few of the many issues relating to gender, sex, love, dating and marriage, all occurring during the first season: x Do men and women have different attitudes toward casual sex? How about men who are treated as boy toys? x Is it appropriate for the firm to make use of Ally’s sex appeal to attract clients? x What are the consequences of married professors having affairs with their students? x How should a law firm senior partner deal with his wife’s unreasoning jealousy of a beautiful associate? x What are the problems of working in an office with your first love (now married to your friend who is also working there) when you still have feelings for each other? Should you have honest discussions about these feelings? x Why are dirty jokes funny? Which ones are just gross? Do men and women have different attitude about dirty jokes? x Is sexual harassment law (particularly its hostile working environment branch) vital for the protection of working women or does it represent the victimization of women? When the men in the office stare at a particularly sexy-looking woman, are other women in the office victims of sexual harassment? On the other hand, is the sexylooking woman harassed if the other women are mean to her because she draws attention from the men? x Does a woman who is sexually assertive deserve her bad luck with men? x Does penis size matter to women? The characterizations on Ally McBeal were completely different from other legal shows. To start with, Ally herself has a miserable personal life, plenty of neuroses, and a heavy dose of narcissism. She is always in search of true love, but it always escapes her. As a lawyer, Ally is thoroughly incompetent. She has no impulse control and loses her temper or makes wildly inappropriate remarks in court or while negotiating. She is nearly disbarred because of inappropriate behavior. At one point, Ally remarks

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that she helps her clients forget their problems by giving them even bigger ones. The other characters are equally cartoonish and inappropriate. Richard Fish is the personification of every lawyer joke; he cares only about making piles of money and specializes in politically incorrect statements (known as “fishisms”). John Cage is a capable lawyer but has eccentric and obnoxious personal traits, such as nose whistling, shoe squeaking and stomach gurgling during client meetings or in court. Elaine is a nosy secretary who adores gossip, craves attention, and describes herself as a slut. And the list of crazy and dysfunctional characters goes on from there. Although set in a law office, the drama focuses almost entirely on the personal lives of the characters. In a typical episode of Ally McBeal, only a few minutes are devoted to legal matters. These bizarre cases are treated superficially and often for laughs. The legal disputes usually blend into the personal problems of the characters. For example, in one episode Ally’s client is a Jewish woman who has been civilly divorced and wishes to remarry. Her ex-husband is in a coma and has failed to give her a Jewish divorce (a “get”), which is necessary for her to remarry. Ally’s negotiation with the client’s rabbi is disastrous. She loses her temper and makes all sorts of inappropriate remarks about Jewish customs. This antagonizes the rabbi, who expels the client from the synagogue. It is obvious that Ally’s insecurity about whether she will ever marry has rendered her professionally unable to negotiate an issue relating to marriage. In respect to narrative, Ally McBeal is sharply different from all other shows in the legal genre. Indeed, Ally McBeal could have been situated in any type of work environment. Because the show dealt far more with universal personal and emotional issues than with law or legal disputes, it was accessible and attractive to viewers who find legal shows boring. (2) Narration. Ally McBeal shattered the narration conventions of the legal genre. The show is situated at the far reaches of the subjective end of the spectrum.15 Each episode discloses a large amount of personal information about Ally, including her emotions, dreams, and fantasies. The writers developed numerous techniques to convey this information to viewers. Ally and other characters constantly engage in dialogue about their feelings. Thus, Ally takes a job at a small firm, only to discover that another associate is her former lover Billy, now married to Georgia, who also becomes an associate at the firm. Ally and Billy discover that they still have strong feelings for each other, which they discuss in numerous episodes. All of the other characters, male and female, freely discuss their inner lives. Much of this conversation takes place in the firm’s unisex

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bathroom, itself an interesting and original narrative device with endless comedic possibilities. In addition to copious dialogue about feelings, Ally often discloses her inner life through voice-over narration, speaking directly to the audience about how she feels. The scripts also include depictions of Ally’s fantasies as well as flashbacks to her past experiences, for example, having sex with Billy or with one of her law school professors. Ally frequently discloses her inner feelings during trials or negotiations, because many of them concern the same issues that have arisen in her personal life. For example, she handles a number of cases involving marriage. In addition to the rabbi story discussed above, these stories include the refusal of a conservator to agree to the conservatee’s marriage or the refusal of a warden to permit the marriage of a prisoner under a life sentence. When Ally argues for the right to get married (or has tantrums in court), she is really dealing with her own desire to find a husband before she reaches thirty. (3) Music and special effects. Many Ally McBeal episodes include pop music that reinforces the emotional messages.16 The theme music at the beginning and end of the episode summarizes Ally’s inner life.17 In addition, the action is frequently interrupted by songs whose lyrics are carefully selected to reinforce our understanding of Ally’s feelings and heighten the emotionality of the narrative. Some of the music is actually heard by the characters (so-called diegetic music, such as songs performed in the bar where they gather for drinks at the end of the day) while other music is heard only by the audience (so-called non-diegetic music). Most strikingly, the shows frequently utilize whimsical clips prepared with digital technology. These clips illustrate directly how Ally or other characters feel. For example, when Billy asks Ally to join him for coffee, the screen flashes a clip of the two of them making love in a giant coffee cup. When Georgia reveals her (false) pregnancy, we see Ally with a big hole blown through her stomach. When characters are ditched by a boyfriend or girlfriend, we see them being picked up with the trash by a garbage truck. A picture of a horse’s ass or horse poop summarize Ally’s opinion of opposing counsel’s arguments. Most notorious is the recurring clip of a dancing baby, with a big “ooga chaka” beat, that symbolizes Ally’s intense concern with the ticking of her biological clock. (4) Verisimilitude. One consequence of the highly subjective approach taken in Ally McBeal is a loss of the sense of reality or verisimilitude. With few exceptions, legal dramas are told in rigorously naturalistic style to create the illusion that the viewer is seeing what lawyers really do. This

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is definitely not the case on Ally McBeal. Although the show makes use of familiar signifiers of the legal genre like law offices and courtrooms, it is far from naturalistic. In real law firms, people don’t stand around discussing their innermost feelings in the bathroom (and certainly not in a unisex bathroom). The voice-over narrations and non-diegetic musical numbers interrupt the flow of the action, and real life certainly includes no dancing babies. Yet, the commercial success of Ally McBeal suggests that many viewers enjoy stories that make little or no pretense at verisimilitude. Hard-core lovers of legal drama may well have disliked Ally McBeal because of the silliness of the legal plots, but the show more than made for the loss of such purists by attracting a wider demographic of people who probably also enjoyed soap operas, family comedies and other staples of television fare. I, for one, disliked Ally McBeal and didn’t watch it much while it ran from 1997–2002, but I have since come to appreciate the show for its technical artistry and its cutting-edge treatments of gender and sexuality. I like the fact that Ally McBeal tackled hot-button personal and gender issues in every episode. I also find it much funnier now than I did the first time around. (5) “Cro-Magnon.” “Cro-Magnon” is a classic and very funny episode from the first season of Ally McBeal18 that includes all of the elements discussed above. In this episode, the legal story involves the successful criminal defense of a young man who punched out (and severely injured) another man who called his date a “slut.” John Cage and Ally handle the defense which is based on the idea that men by nature are warriors and are hard-wired to protect the honor of women. Women also expect men to use violence to protect their honor, so the client acted appropriately in throwing the punch. Needless to say, not much time is wasted on the court proceedings, and Cage clowns around a lot in court. But the courtroom scenes nicely illustrate the gender issues that are the real subject of the episode. In this episode, Ally and her roommate Renee are taking a sculpture class. Glen is a male model with an enormous penis. After numerous jokes and sight gags about Glen’s dimensions, Glen asks Ally for a date. After the trial victory, the episode turns to scenes of a brutal boxing match greatly enjoyed by the male lawyers (as well as the horny secretary Elaine). The fight scenes are intercut with tender and erotic scenes of Ally and Glen making love. This episode introduces the famous dancing baby, who at first terrifies Ally. At the end of the episode, Ally embraces the fantasy by dancing with the baby. In another scene, we see Ally’s fantasy in which she imagines herself undressing with her nineteen-year-old client. In the

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unisex bathroom, and then later in bed, Billy and Georgia discuss male sexual insecurity.

Conclusion From the 1960s to the mid-1990s, the conventions of narrative and narration in the legal television genre remained remarkably stable. The model was Perry Mason: objective narration, naturalistic storytelling, straightforward single-episode stories recounted in chronological order, and concentration on the character’s work life rather than personal life. Most shows concerned criminal law and closely resembled detective stories. Beginning with shows like L.A. Law and The Practice in the 1990s, the genre evolved into more interesting stories, more nuanced characters and more attention to character arcs. This chapter points out that recent legal shows have engaged in some highly provocative genre-busting, both in narrative and narration. Ally McBeal leaped from drama to comedy and from traditionally objective narration to an extremely subjective approach. It tackled a whole variety of sexual and gender issues, largely to the exclusion of legal issues. It concentrated on personal life and emotionality rather than analytical work. It made no pretense of naturalistic storytelling, and attracted a great many new fans in the process. Will future televised legal drama on television be more like Ally McBeal as well as other genre-benders like Damages, Eli Stone, Drop Dead Diva and The Good Wife? It’s too early to say whether these shows signal a new era of subjective narration and non-naturalistic storytelling. There are still plenty of relatively conventional and successful legal shows, such as Harry’s Law or Suits. Only time will tell. I wish to thank Merrie Asimow, Terry Diggs and Jessica Silbey for assistance in the preparation of this chapter. A different and lengthier version will be published in Law and Narrative (Mexico City: CIDE 2015).

Bibliography Asimow, Michael. “Bad Lawyers in the Movies.” Nova Law Review 24 (2000): 533. —. “When Harry Met Perry and Larry: Criminal Defense Lawyers on Television.” Berkeley Journal of Entertainment & Sports Law 1 (2012): 77.

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Asimow, Michael & Shannon Mader. Law and Popular Culture: A Course Book. 2nd Edition. New York: Peter Lang Publishing, 2013. Bergman, Paul & Michael Asimow. Reel Justice: The Courtroom Goes to the Movies. 2nd Edition. Kansas City: Andrews & McMeel, 2006. Bordwell, David. Narration in the Fiction Film. Madison: University of Wisconsin Press, 1985. Bordwell, David & Kristin Thompson. Film Art: An Introduction, 9th Edition. New York: McGraw Hill, 2010. Brinkerhoff, Corinne. “Reality Bites: Boston Legal’s Creative License with the Law.” In Lawyers in Your Living Room!, edited by Michael Asimow, 253–63. Chicago: ABA Publishing, 2009. Cohen, Jonathan. “Deconstructing Ally: Explaining Viewers’ Interpretations of Popular Television.” Mediapsychology 4 (2002): 253. Ginsberg, David. “The Defenders: TV Lawyers and Controversy in the New Frontier.” In Lawyers in Your Living Room!, edited by Michael Asimow, 63–76. Chicago: ABA Publishing, 2009. Joseph, Paul R. “Saying Goodbye to Ally McBeal.” University of Arkansas, Little Rock Law Review 25 (2002): 440. Keetley, Dawn. “Law & Order.” In Prime Time Law: Fictional Television As Legal Narrative, edited by Robert M. Jarvis & Paul R. Joseph, 33– 54. Durham: Carolina Academic Press, 1998. Kelley, David E. “Creating Law Franchises on Television.” Berkeley Journal of Entertainment & Sports Law 1 (2012): 99. Kitei, Brett. “The Mass Appeal of The Practice and Ally McBeal.” UCLA Entertainment Law Journal 7 (1999): 169. Mader, Shannon. “Law & Order.” In Lawyers in Your Living Room!, edited by Michael Asimow, 117–28. Chicago: ABA Publishing, 2009. Meyer, Phillip N. “Revisiting L.A. Law.” In Lawyers in Your Living Room!, edited by Michael Asimow, 51–61. Chicago: ABA Publishing, 2009. Mittell, Jason. Television and American Culture. New York: Oxford University Press, 2010. Nevins, Francis M. “Perry Mason.” In Lawyers in Your Living Room!, edited by Michael Asimow, 51–61. Chicago: ABA Publishing. 2009. Papke, David Ray. “The Defenders.” In Prime Time Law: Fictional Television As Legal Narrative, edited by Robert M. Jarvis and Paul R. Joseph, 3–16. Durham: Carolina Academic Press, 1998. Rosenberg, Norman. “Perry Mason.” In Prime Time Law: Fictional Television As Legal Narrative, edited by Robert M. Jarvis & Paul R. Joseph, 115–29. Durham: Carolina Academic Press, 1998.

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Sharp, Cassandra. “Ally McBeal—Life and Love in the Law.” In Lawyers in Your Living Room!, edited by Michael Asimow, 221–32. Chicago: ABA Publishing, 2009. Thompson, Kristin. Storytelling in Film and Television. Cambridge: Harvard University Press, 2005.

Notes 1

The discussion of the conventions of narration was informed by David Bordwell, Narration in the Fiction Film (Madison: University of Wisconsin Press, 1985), chapters 3 and 4; Jason Mittell, Television and American Culture (New York: Oxford University Press, 2010), chapter 6; David Bordwell & Kristin Thompson, Film Art: An Introduction, 9th Edition (New York: McGraw Hill, 2010), chapter 3; and Kristin Thompson, Storytelling in Film and Television (Cambridge: Harvard University Press, 2005), chapters 1 and 2. 2 See Paul Bergman & Michael Asimow, Reel Justice: The Courtroom Goes to the Movies, 2nd Edition (Kansas City: Andrews & McMeel, 2006); Michael Asimow, “Bad Lawyers in the Movies,” Nova Law Review 24 (2000): 533. 3 See Norman Rosenberg, “Perry Mason,” in Prime Time Law, ed. Robert Jarvis & Paul Joseph (Durham: Carolina Academic Press, 1998), chapter 9; Francis M. Nevins, “Perry Mason,” in Lawyers in Your Living Room, ed. Michael Asimow (Chicago: ABA Publishing, 2009), chapter 5. 4 See David Ray Papke, “The Defenders,” in Jarvis and Joseph, Prime Time Law, chapter 1; David Ginsburg, “The Defenders: TV Lawyers and Controversy in the New Frontier,” in Asimow, Lawyers in Your Living Room!, chapter 6. Sadly, The Defenders is lost to history; it has never been syndicated and there are no commercially available DVDs. It can be viewed only in television archives. One episode is available on You Tube (http://www.youtube.com/watch?v=EHi7WJQ-D5s). Incidentally, this classic show of the 1960s has nothing in common with the inferior show of the same name that appeared in the 2009–10 season. 5 See Philip N. Meyer, “Revisiting L.A. Law,” in Asimow, Lawyers in Your Living Room!, chapter 8. 6 See Shannon Mader, “Law & Order,” in Asimow, Lawyers in Your Living Room!, chapter 10; Michael Asimow & Shannon Mader, Law and Popular Culture, 2nd Edition (New York: Peter Lang, 2013), chapter 8; Dawn Keetley, Law & Order, in Jarvis and Joseph, Prime Time Law, chapter 4. 7 See Cassandra Sharp, “Ally McBeal—Life and Love in the Law,” in Asimow, Lawyers in Your Living Room!, chapter 19. 8 See Paul R. Joseph, “Saying Goodbye to Ally McBeal,” University of Arkansas, Little Rock Law Review 25 (2002): 440, 459, 475–81; Brett Kitei, “The Mass Appeal of The Practice and Ally McBeal,” UCLA Entertainment Law Journal 7 (1999): 169. 9 Picturing Justice, “Don’t Call Me Ally,” http://usf.usfca.edu/pj//allyfriedman.htm Elizabeth J. Friedman objected to the way that the stories made fun

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of rape, sexual harassment, and disability discrimination. See also Picturing Justice, “Is Ally Our Ally?” http://usf.usfca.edu/pj//ally-no-ally.htm 10 One study asked viewers to choose various possible interpretations of Ally’s character. They could choose the dominant meaning (Ally is a strong, independent woman), the resistant approach (Ally is lost and bewildered), or a negotiated approach (the show is a comic reflection of the dilemmas faced by young professional women). Of the respondents, 46% chose the negotiated interpretation, 35% the dominant interpretation, and 19% the resistant interpretation. Jonathan Cohen, “Deconstructing Ally: Explaining Viewers’ Interpretations of Popular Television,” Mediapsychology 4 (2002): 253. John Denvir interprets Ally McBeal as David Kelley’s attempt to subvert the legal status quo in favor of a different vision of law. John Denvir, “Romancing the Law: Ally McBeal and the Art of Subversive Comedy,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334440 (accessed February 27, 2014). 11 See David E. Kelley, “Creating Law Franchises on Television,” Berkeley Journal of Entertainment & Sports Law 1 (2012): 99. This article was derived from a speech Kelley gave at a Stanford Law School popular culture symposium in 2011. Kelley, the creator of Ally McBeal, The Practice, Picket Fences, Boston Legal and Harry’s Law, as well as numerous non-legal shows, remarked on the success of Lost and 24. He stressed the fact that shows need to be as loud as the amped-up commercials that constantly interrupt the action. 12 See Corinne Brinkerhoff, “Reality Bites: Boston Legal’s Creative License with the Law,” in Asimow, Lawyers in Your Living Room!, chapter 22. David Kelley tells of a conversation he had on a fishing trip. A lawyer from Texas denounced law shows on TV and said he never watched them. But when someone mentioned Boston Legal, the lawyer said, “Wait. Wait. Boston Legal? I love that show. That has nothing to do with the actual practice of law.” Kelley, “Creating Law Franchises on Television,” 99. 13 See Michael Asimow, “When Harry Met Perry and Larry: Criminal Defense Lawyers on Television,” Berkeley Journal of Entertainment & Sports Law 1 (2012): 77. 14 My thanks to Terry Diggs for opening my eyes to this aspect of Ally McBeal. 15 Eli Stone, which ran from 2008–09, was a legal show that arguably pushed the barriers even further than Ally McBeal. Eli was a lawyer who experienced all sorts of prophetic visions (which we see on the screen), possibly because he had a brain aneurysm or because some supernatural forces were at work. The show was renewed for a second season but canceled midway through that season. 16 See Picturing Justice, “The Music of Inner Justice in Ally McBeal,” http://usf.usfca.edu/pj//ally-music.htm; Sharp, “Ally McBeal- Life and Love in the Law,” 229–31. 17 The poignant song Searchin’ My Soul by Vonda Shepard (who performs much of the music on the show) says it all: “I’ve been down this road/ Walking the line, painted by pride/And I have made mistakes in my life/That I just can’t hide ….” 18 Ally McBeal, Episode 12, Season 1.

CHAPTER TWO COMEDIC CRITIQUE: THE POP CULTURAL DIVORCE LAWYER DAVID RAY PAPKE

1. Introduction Divorce has become extraordinarily common in the contemporary United States. According to one source, the divorce rate for first marriages is 41%, the rate for second marriages is 60%, and the rate for third marriages is a whopping 74%.1 So many people divorce that new customs and ceremonies related to divorce have developed, such as the “unbridled shower,” a gathering at which a divorcing spouse receives gifts to replace items a soon-to-be ex is keeping. In addition, selected stores now have “divorce registries,” in which, like “wedding registries,” people list gifts they would welcome receiving.2 None of this is to say, meanwhile, that divorce itself has become painless. Michael Asimow has captured the disputes and disorientation of divorce: “Marital disintegration and divorce are typically accompanied by high emotion, feelings of hurt and betrayal, clashes of values, conflicts relating to sexual conduct, fights over money and property, and abrupt changes in lifestyle.”3 At the time of divorce, many people are angry and distrustful, wounded and festering. Often, they project these feelings onto lawyers. It is easy to understand why hostility might be directed toward a spouse’s lawyer, since he or she is, after all, working against one’s interests. After an ugly divorce, the actor and comedian Alec Baldwin described his ex-wife Kim Basinger’s lawyer as an “avaricious, inhuman garden slug.”4 More surprising is the hostility some divorcing spouses direct against their own lawyers. One’s own lawyer, it seems, might be associated with the pain and feelings of betrayal one is experiencing and therefore subject to hostility. Divorce lawyers, in general, Baldwin said,

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are “men and women who were not sufficiently smart to become doctors or engineers.”5 Baldwin’s comments are unusually mean-spirited, but if one has divorced friends, one is likely to hear them complain about their lawyers. The most common complaint is probably that the lawyer did not want to hear about why the marriage fell apart and did not really care about the client. Other complaints are more conventional and can involve the commingling of funds, missing filing and court dates, and the lack of zealous representation. Some states report there are more ethics complaints against divorce lawyers than any other type of lawyer.6 In some years, the American Bar Association’s National Discipline Data Bank has shown more divorce lawyers being punished for ethics violations than any other type of lawyers.7 Special ethics rules are on the books for just divorce lawyers. Now twenty years old, New York’s rules require divorce lawyers to provide estimates of what their work will cost, itemize charges on their final bills, and provide their clients with a copy of the so-called “Consumers’ Bill of Rights.” New York’s rules prohibit asking divorce clients to sign over mortgage equity as security for fees and also bar requests for nonrefundable retainers. One rule says divorce lawyers cannot have sex with their clients, a seemingly old-fashioned restriction borne of the suspicion that divorce lawyers might and sometimes do take advantage of their emotionally needy clients by guiding them into the bedroom rather than the courtroom.8 For the longest time, American divorces and the concomitant complaints about divorce lawyers did not appear in either a direct or even a refracted way in Hollywood movies. In 1922, under pressure from religious and conservative organizations, the studios hired the former Postmaster General Will Harrison Hays to head the newly formed Motion Picture Producers and Distributors of America (MPPDA) and to sanitize the movies. He first issued a list of “Don’ts and Be Carefuls,” a list that originally included profanity, licentious or suggestive nudity, illegal trafficking of drugs, sexual perversion, white slavery, miscegenation, sexual hygiene, venereal disease, actual childbirth, children’s sex organs, ridicule of the clergy, and willful offense to a national, religious or racial groups. The list eventually grew in the early 1930s into the notorious “Hays Code,” a comprehensive MPPDA catalogue of what could or could not be shown in the movies.9 As unbelievable as it might seem today, the Code included divorce among the subjects thought inappropriate for the big screen. One provision of the Code insisted that “the sanctity of the institution of marriage be up-

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held.” The film industry’s censors interpreted this provision to mean that people should not get divorced in the movies.10 Without stories of divorces, portrayals of divorce lawyers, nefarious or otherwise, were also infrequent. Only after the Hays Code lost its clout in the 1960s did Hollywood begin producing divorce-related movies in large numbers. Some of these divorce movies are crushingly sad. Too Far to Go (1982), for example, tells the story of a marriage falling apart. Adapted from a series of stories by John Updike, the movie traces the devolution of a marriage from its romantic beginning through extramarital affairs to deep resentment to divorce. Just as many divorce movies are funny. In Manhattan (1978), for example, Isaac Davis, played by Woody Allen, has been divorced several times, but he is especially worried about his most recent ex, who has eagerly detailed in print what a total loser he is.11 Regardless of the tenor of the movie, once divorce movies began to appear, the door was open for the portrayal of divorce lawyers. And indeed, after being virtually nonexistent for decades, divorce lawyers began appearing in both movies and television series with some regularity. By the 1990s, the major portrayals of divorce lawyers had even coalesced into something of a prototype. It is not refined enough or used frequently enough to be a stock character of the sort to which the culture industry so frequently turns, but, like a stock character, the pop cultural divorce lawyer prototype has a feeling of familiarity for most viewers. They do not have to think a great deal about it, and they know in advance what to expect from the pop cultural divorce lawyer. This chapter addresses the pop cultural divorce lawyer prototype. The first section describes a television series and three movies featuring divorce lawyers, introducing readers to the lawyers. The series and movies are in large part comedic, and the divorce lawyers of course appeal to different viewers to a variable extent. The second section addresses the four pop cultural divorce lawyers’ similarities. These similarities are crucial in establishing the pop cultural prototype, and the prototype, in turn, constitutes a light critique—but a critique nonetheless—of divorce lawyers. The conclusion of the chapter springs from the critique represented by the pop cultural portrayal of divorce lawyers to a consideration of the workings of the culture industry and, especially, the relationship between the industry’s products and public attitudes.

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2. Divorce Lawyers on the Big and Little Screens Almost all of the major portrayals of divorce lawyers in contemporary popular culture are comedic, but they nevertheless take on a somewhat different flavor in keeping with the type of comedies in which they appear. The exemplar of the pop cultural divorce lawyer is, arguably, Arnie Becker from the successful prime-time television series L.A. Law. His immense popularity prompted Hollywood to conjure up comparable divorce lawyers such as Gavin D’Amato, Fletcher Reede and Miles Massey for the big screen. Since these four pop cultural divorce lawyers are not necessarily known to all readers, it might be useful to describe them and the television series and movies in which they appear before examining their shared characteristics and the critique the pop cultural divorce lawyer prototype implies. As suggested, Arnie Becker of the television series L.A. Law (NBC 1986–94) was the first of the prototypical divorce lawyers to catch on. Played by the actor Corbin Benson, Becker was a lawyer in the fictional firm of MacKenzie, Brackman, Chaney and Kuzak. While lawyers had certainly found their niche in prime-time television, such popular lawyer shows as Perry Mason (CBS 1957–66), The Defenders (1961–65), Judd for the Defense (ABC 1966–69), Owen Marshall, Counselor at Law (ABC 1971–74), and Petrocelli (NBC 1974–76), to name only a few, featured lawyers who practiced on their own or in small partnerships, usually with an emphasis on criminal defense work. MacKenzie, Brackman, Chaney and Kuzak, by contrast, was a law firm, and storylines revolved not around the exploits of a single, heroic lawyer but rather the cases and personal struggles of the firm’s dozen lawyers, secretaries and office boys. The winner of thirteen Emmy Awards, including four for Outstanding Drama Series, L.A. Law attracted huge viewing audiences. The lawyers at MacKenzie, Brackman affected what many expected of lawyers, and at its peak L.A. Law, with its sexy, successful lawyers, supposedly contributed to a surge in law school applications. In law schools, students and faculty members often gathered on Thursday evenings to watch the newest episode, and failure to do so left one with nothing to say in hallway discussions the next day. One legal scholar found the series’ impact to be truly astounding, characterizing the series as “the single most important influence on the popular conception of lawyers’ work and ethics.”12 MacKenzie, Brackman was not huge, but it was large enough to allow its lawyers to specialize. Arnie Becker, his secretary and occasional private investigators handled all of the firm’s divorce work. Oily but effective, Becker, like real-life divorce lawyers, did most of his work not in the

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courtroom but rather in his office, in the conference room, and over drinks and dinner. In the earliest episodes of L.A. Law, Becker was portrayed as an often offensive hustler, but according to a lawyer who did consulting for the series, the writers “realized that they needed to show Arnie’s softer side and some of his vulnerabilities.”13 When they did, Becker, despite being “ethically challenged” and routinely in one jam or another, became the series’ most popular character. He was a somewhat despicable guy you did not necessarily like but rather found fun to watch. Inspired by the popularity of television’s Arnie Becker, Hollywood came up with a string of divorce lawyers, all of whom were also somewhat despicable yet enjoyable. The first was Gavin D’Amato, played by Danny Devito in War of the Roses (1989). Adapted from the novel of the same name by Warren Adler,14 War of the Roses a fine example of a “black comedy.” Black comedies feature “baleful, naïve, or inept characters in a fantastic or nightmarish modern world.”15 Developments in a black comedy are some combination of the hilarious, frightening and quite simply absurd. The popularity of black comedies might suggest something about the widespread disappointment and alienation in the world in which we live. In the film, Oliver Rose, played by Michael Douglas, and Barbara Rose, played by Kathleen Turner, raise two children and financially prosper, but eventually Barbara grows frustrated with Oliver’s conceited, dismissive attitude. He is, when all is said and done, very hard to take. In one particularly important scene, Oliver suffers what he thinks is a heart attack (in reality, a hiatal hernia). Barbara realizes while Oliver is in the emergency room that the possibility he might die leaves her feeling relieved and happy. She shares this with Oliver and then adds that she would like a divorce. Negotiations and arguments follow, with most involving the house the Roses had bought early in their marriage and which Barbara has wonderfully renovated. The divorce grows nastier and nastier as the movie goes on, becoming something of a miniature version of the historical English War of the Roses, which pitted the Houses of York and Lancaster against one another. Near the end of the movie, Oliver and Barbara engage in a tragic fight while hanging from the chandelier in their home’s threestory atrium. When the bolts give way, the chandelier crashes to the ground. Oliver and Barbara Rose, it can be said, literally killed one another. Gavin D’Amato not only represents Oliver Rose in his divorce from Barbara Rose but also serves as the film’s narrator. His words frame the story at the beginning and the end, and we are invited to listen, via voiceovers, to what he learned from the Rose divorce. Two scholars who have

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reflected on D’Amato’s work and supposed wisdom were quite disappointed: DeVito as the seemingly hopeless divorce lawyer can do no more than stand by at the beginning and end to tell us the story, smoking a big, comforting cigar. Has a fascination with greed and self-absorption so clouded his thinking that even the mythmakers of Hollywood cannot break through?16

A second Hollywood divorce lawyer is Fletcher Reede, played by Jim Carrey in Liar Liar (1997). Not surprisingly with Carrey as the star, Liar Liar is a slapstick comedy, that is, one featuring horseplay, ridiculousness and improbability at every turn. This type of comedy might strike some as excessive and old-fashioned, but Carrey continues to have his fans. His frequent pratfalls and facial contortions are perhaps reminiscent of Jerry Lewis in an earlier era. In the film itself, Reede is a divorced father and prone to careeradvancing moves at the expense of others. His young son is quite forgiving with regard to his father’s failings and has a loving relationship with him. But then, after Reede does not show up for his birthday party, his son makes a birthday wish that his father be forced to tell the truth for a day. The wish comes true, and the obligation to tell the truth greatly complicates Reede’s divorce practice, career moves and daily activities. Everyone from clients and co-workers to beggars on the street and strangers in elevators experience first-hand Reede’s struggles to be truthful. Indeed, Liar Liar is something of an elaborate comedic conceit juxtaposing two presumably dissimilar behaviors, namely, practicing divorce law and telling the truth.17 As a divorce lawyer, Reede is quite prepared to solicit perjury from a client to win a major divorce case, but when he realizes in open court that his client is about to perjure herself, he actually objects to his own question. At the end of the same case, after Reede prevails, he screams that the judge must reverse the decisions, at which point the frustrated judge jails Reede for contempt of court. Intolerable Cruelty (2003) is a third and, for now, final Hollywood movie featuring a divorce lawyer, namely one Miles Massey, played by “Mr. Hollywood” George Clooney. A lesser Coen Brothers movie, Intolerable Cruelty features the type of wry, sophisticated humor for which the creators are justly famous. Clooney and his co-stars Catherine Zeta-Jones, Geoffrey Rush and Billy Bob Thornton are proud of their cleverness, but their cleverness often has bizarre and even grim ramifications. In more specific terms, Massey practices with the Los Angeles firm of Massey, Myerson, Sloan and Derolnick, which specializes in big-ticket

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divorces. In one case, Massey’s client Rex Rexroth has been captured in a video recording having kinky sex with a woman other than his wife in a motel room. However, Massey is able to establish in court that Rexroth’s wife is a proverbial gold-digger, who married Rexroth because he was rich and stupid. Once her true motivations are revealed, she loses her case and then vows to get even with Massey. After various improbable plot twists and turns, Massey and the former Mrs. Rexroth become lovers, and the film ends with them considering an idea for a television show to be named “America’s Funniest Divorce Videos.” It is a challenge to take Massey all that seriously as a divorce lawyer, what with his excessive preening and teeth-cleaning. Yet Massey is known nationally for the “Massey pre-nup.” A “pre-nup” is a type of premarital agreement that controls what happens to a couple’s assets at the time of divorce. Parties who find themselves disappointed by what a pre-nup awards them at the time of divorce sometimes challenge or try to “break” the pre-nup in court. This might be done by arguing that you were tricked into signing the pre-nup or that the actual terms and provisions of the prenup are, in a legal sense, “unconscionable.” In a surprisingly number of real-life cases, those who challenge them succeed in breaking them, but in the movie Massey’s pre-nup is legendary because it cannot be broken. Massey lectures on it at divorce lawyers’ conferences, and a whole course devoted to it is supposedly a part of the Harvard Law School curriculum. As previously acknowledged, not everyone will enjoy the antics of Becker, D’Amato, Reede and Massey. They seem, to some extent, to be caricatures, that is, characters whose peculiarities are magnified and exaggerated, usually for comic effect. But Becker, D’Amato, Reed and Massey also change before the viewers’ eyes. They grow in positive ways. Becker’s vulnerabilities come to light, and he becomes much more sympathetic. D’Amato, Reede and Massey develop a greater understanding of human nature and also adopt more appealing moral codes. At minimum, Becker, Amato, Reede and Massey are engaging pop cultural divorce lawyers. They are able, as characters, to attract and hold most viewers.

3. The Comedic Critique of the Divorce Lawyer Although most pop cultural divorce lawyers are comedic, their characterization has a critical thrust. Comedy is a large and complex cultural phenomenon. In the words of Rajani Gupta: Comedy finds its way into the smallest forms of human communication and expression, extending from tiny-witticisms or ill-mannered jokes to the full-blown parodies or comprehensive satires of human existence often

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To be sure, comedy has a universal dimension to it—jokes and longer narratives about sexual awkwardness can probably be found in all cultures— but comedic novels, television series and movies are also derisive critiques of people, behaviors and events in particular cultures. Comedy is a “light attack on the existing norms of a given population.”19 Comedy “situates itself as disrespectful observer of a given situation, society, culture, or even particular human behavior.”20 Customarily, writers and film-makers direct comedy toward an individual or type of person, the so- called “butt” or “foil.” The comedy makes fun of the person or type, the butt or foil. In light of the public’s skepticism regarding and, in some cases, active dislike of divorce lawyers, comedy might be an ideal way to critique divorce lawyers. The culture industry might rely on certain characteristics to create a comedic prototype that corresponds in one way or another to the public’s sentiments. Through that comedic prototype, the culture industry might indirectly and gently critique the divorce lawyer. In this vein, Becker, D’Amato, Reed and Massey do indeed share certain important characteristics, the first of which is a pronounced tendency to manipulate and connive. They use laws, situations and people in sneaky ways. Becker, for example, knows that divorce in California and elsewhere has become “no-fault,” and as a result it makes no difference if one party or the other wrecked the marriage with extra-marital affairs. However, he is able to threaten using the criminal law to force a soon-to-be ex to pay in the divorce settlement for his flings. D’Amato locates a statute “designed for poor people,” which allows divorcing spouses to stay in the same house as they go through a divorce, and he tells his well-heeled client Oliver Rose how to use the statute for his own purposes. Reede convinces a client who has been unfaithful to her husband so many times that she is not even sure if her children are also his that she is the true victim of marital wrong-doing. Her case, Reede somehow convinces her, is comparable to the one Tina Turner had against her abusive husband Ike Turner. The client then hugs Reede and shows her appreciation further by squeezing his butt mid-hug, producing the classic Jim Carrey double-take. And not to forget Massey, who is a master at using private investigators armed with video cameras to capture the spouses of his clients in compromising situations and then use the videos to advance his clients’ interests in divorce proceedings. Why are Becker, D’Amato, Reed and Massey so conniving and manipulating? The chief reasons, to the extent they are explored, are money,

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the material things you can acquire with money, and the way you can have more money and material things if you climb the ladder of success. Becker, D’Amato, Reede and Massey are materialistic. They are hungry and self-interested, and this is the second characteristic they share. In general, being hungry produces no shame. When a client tells Becker she resents the way he humiliated her soon-to-be ex, Becker tells her that she will change her mind in a few months, consider his immense fee more than reasonable, and start sending more business his way. When a secretary tells Becker that a senior partner seems to be dead, Becker says matter-of-factly, “If he is, I get dibs on his office.” D’Amato has an elegant office, drives expensive sports cars, and takes cases with an eye to how much money they will yield in fees. Reede wants to make partner in his firm, and in order to order to get the additional money that will come with it, he’ll say anything to anybody to advance his self-interest. In one funny scene, during the period in which Reede is restricted by his son’s wish that he tell the truth, Reede is approached by a homeless man who asks if he has any spare change and could he help him out. Reede answers, “Of course I have some spare change, but I won’t help you because I’m CHEAP!” This is followed by another immense Carrey double-take. Massey is the highest-priced divorce lawyer in L.A., and he hustles to get as much money as possible out of his divorce clients’ soon-to-be former spouses and also out of his clients themselves. The third striking characteristic of the pop cultural divorce lawyers is their heterosexual lustiness. Becker sleeps with secretaries, clients, other lawyers, and his promiscuity is something of a standing joke around MacKenzie, Brackman. D’Amato is attracted to blonde floozies, went through a stretch in his life when he was into feet, and, when asked if he would like to have angry sex, responds, “Is there any other kind?” Reede misses his son’s birthday party because he is in bed having sex with a partner in his firm. As noted, he wants badly to make partner, and in order to do so he is quite consciously prepared “to make a partner.” When Reed is in his truth-telling stage, he meets a woman in his building’s elevator, and when she tells him how nice everyone has been to her, Reede, with a lecherous look on his face, tells her it is because she has large breasts. Massey is on the prowl generally and so libido-driven that he tries to seduce the wife of one of his own divorce clients, an attempt, she warns him, that could lead to his disbarment. Overall, Becker, D’Amato, Reede and Massey are manipulative, materialistic and lusty, and these are the characteristics that dominate in the prototype of the pop cultural divorce lawyer. The prototype is largely negative, albeit in a merciful way. The portrayal of divorce lawyers is a joke,

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and divorce lawyers are the butt of the joke. Given widespread sentiments about divorce lawyers, viewers “get” the joke and, at least potentially, delight in it.

4. The Workings of the Culture Industry If one steps back from this discussion of divorce lawyers in television series and films, lessons are perhaps available regarding the workings of the culture industry. For starters, popular culture should not be taken to present pictures of the “real.” Accomplished legal scholars have used television series and movies to teach actual laws and the techniques of practicing law, but this is quite different from assuming that the products of the culture industry accurately portray social life.21 The culture industry does not take accuracy to be a primary goal. One reason for confusion on this score is that most prime-time television and movies are in the realist mode; that is, they employ a method of depiction in which people, scenes and events more or less look like what we take to be “the real world.”22 But realism is just one way of depicting life. Romanticism, by contrast, is more likely to be beautiful and dramatic, while naturalism, another mode of depiction, is known for its deterministic themes. The modes are not necessarily separate and distinct; they overlap. However, with realism being the dominant mode in television and the movies, critics, especially those in the law schools, often slip into treating what is presented in a pop cultural product as a picture of what is. Some might even assume that divorce lawyers are portrayed the way they are in television and the movies because that is the way they actually are. If the portrayal of divorce lawyers on television and in the movies is not accurate, it is also not simply brainwashing. The argument that popular culture attempts to change attitudes and beliefs is sometimes attributed to the so-called Frankfurt School, a body of thought generated primarily at the Institute of Social Research in Frankfurt in the 1920s and 1930s and often said to be the first body of serious criticism of the media and their impact on society.23 The Frankfurt School scholars deplored the demise of original, independently-created art and the rise of mass-produced products, most notably the movies. The latter, they thought, manipulated viewers and invited them to internalize the dominant ideology and to accept reigning popular ideas. Products of the culture industry, they worried, could prop up authoritarian regimes like the Nazis and also increase the power and profits of corporations.24 The Frankfurt School was certainly correct that television and the movies could have an impact on what people thought. Popular culture in gen-

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eral frequently tells viewers how to live their lives and how to make sense of the world. The film scholar Robert R. Ray has asserted that Hollywood cinema in particular is “one of the most potent ideological tools ever constructed.”25 But at the same time, popular culture is not as dangerous and nefarious as the Frankfurt School thought. The culture industry for the most part does not engage in conscious and politically biased brainwashing. For the purposes at hand, the culture industry is not attempting to convince viewers that that should dislike divorce lawyers, and is not attempting to entreat, persuade or dupe. How, then, does the culture industry operate? It is difficult to generalize regarding such a large and multi-faceted enterprise. Approaches can differ from one movie to another, and one studio or producer might have a different modus operandi than the next. However, it merits underscoring that the culture industry is a profit-seeking industry. Individual writers, directors and actors might honestly think of themselves as “artists” and approach their work with reference to the artistic standards of whatever their specialties might be. But the industry as a whole proceeds with ratings and the box office in mind first. Bottom-line assumptions are powerful, and the industry does things and shapes works in hopes of financial success.26 One reason an economic logic is so important involves the riskiness endemic in marketing pop cultural commodities and experiences. Nine out of every ten compact discs fail to turn a profit. The majority of prime-time network television series survive one year or less. Some large and expensive movies absolutely “tank.” As a result, the culture industry tries almost desperately to produce works it thinks will appeal to the public, will catch the public’s eye, will win its favor. The effort might be largely unreflective, but it is a given in the industry. Thinking of television series and movies regarding divorce lawyers, we should not be surprised that just about every contemporary portrayal of a pop cultural divorce lawyer is negative. This meshes with what the public thinks of divorce lawyers or, at least, with what the sector of the public that has contemplated divorce lawyers assumes. The implicit critique might be comedic, but it nevertheless resonates with what the industry takes public sentiment in general to be. This is not to say, meanwhile, that the specific portrayal of a divorce lawyer is predictable, or that the particular form of the pop cultural divorce lawyer prototype was predetermined. In conjunction with its profitseeking, the culture industry turns to its tool kit of forms and patterns. It uses character types, genres, sequels and a range of other constructs to put

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together its messages and generate its commodities and experiences. The industry “circulates meanings and pleasures” in distinctive ways.27 Hence, the culture industry portrays the divorce lawyer as manipulative, money-grubbing and lusty, and the industry also welds these characteristics together as a pop cultural prototype. The process, albeit with different assigned characteristics and prototypes, is similar with everything from the portrayal law professors to the portrayal of men and women awaiting their cruel fate on death row.28 The culture industry hopes that as viewers settle into their family room couches and Cineplex seats, they will find the portrayals and prototypes within their television series and movies to be engaging and copacetic.

Bibliography Abrams, M. H. A Glossary of Literary Terms. Seventh Edition. New York: Harcourt Brace, 1999. Adler, Warren. War of the Roses. New York: Stonehouse Press, 1992. Asimow, Michael. “Divorce in the Movies: From the Hays Code to Kramer vs. Kramer.” Legal Studies Forum 24 (2000): 223–67. Baldwin, Alec. A Promise to Ourselves: A Journey Through Fatherhood and Divorce. New York: St. Martin’s Press, 2008. Bell, Michael Davitt. The Problem of American Realism: Studies in the Cultural History of a Literary Idea. Chicago: University of Chicago Press, 1993. Bergman, Paul. “Teaching Evidence the ‘Reel’ Way.” Quinnipiac Law Review 21 (2003): 973–92. Corkin, Stanley. Realism and the Birth of the Modern United States: Cinema, Literature, and Culture. Athens: University of Georgia Press, 1996. Epstein, Michael M. “Law and the Supernatural: How One Film’s Truth Compulsion Conceit Critiques and Redeems the Post-O. J. Lawyer.” Vermont Law Review 28 (2004): 881–93. Fiske, John. Understanding Popular Culture. Boston: Unwin Hyman, 1989. Gil, Alexandra. “Great Expectations: Content Regulation in Film, Radio, and Television.” University of Denver Sports & Entertainment Law Journal 2009 (2009): 31–64. Gillers, Stephen. “Taking L.A. Law More Seriously.” Yale Law Journal 98 (1989): 1607–23. Gupta, Rajani. “Trial and Errors: Comedy’s Quest for the Truth.” UCLA Entertainment Law Review 9 (2001): 111–37.

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Jay, Martin. The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1929–1950. Berkeley: University of California Press, 1996. Labaton, Steven. “Are Divorce Lawyers Really the Sleaziest?” New York Times, September 5, 1993. Lurvey, Ira & Selise E. Eiseman. “Divorce Goes to the Movies.” University of San Francisco Law Review 30 (1996): 1209–20. Mezey, Naomi & Mark C. Niles. “Screening the Law: Ideology and Law in American Popular Culture.” Columbia Journal of Law & the Arts 28 (2005): 91–185. Meyer, Philip N. “Using Non-Fiction Films as Visual Texts in the FirstYear Criminal Law Course.” Vermont Law Review 28 (2004): 895– 914. Newman, Judith. “The Unbridled Shower: Celebrating Divorce.” New York Times, September 16, 2012. Papke, David Ray. “Crusading Hero, Devoted Teacher, and Sympathetic Failure: The Self-Image of the Law Professor in the Hollywood Cinema and in Real Life, Too.” Vermont Law Review 28 (2004): 957–73. —. “The Impact of Popular Culture on American Perceptions of the Courts.” Indiana Law Journal 82 (2007): 1225–34. —. “Muted Message: Capital Punishment in the Hollywood Cinema.” Journalism and Mass Communication 2 (2012): 1019–27. —. “Skepticism Bordering on Distrust: Family Law in the Hollywood Cinema.” Family Court Review 50 (2012): 13–22. Ray, Robert A. A Certain Tendency in the Hollywood Cinema, 1930– 1980. Princeton: Princeton University Press, 1985. Rosenberg, Charles B. “An L.A. Lawyer Replies.” Yale Law Journal 98 (1989): 1625–29.

Notes 1 “Information on Divorce Rate,” DivorceRate, http://www.divorcerate.org (accessed September 20, 2010). 2 Judith Newman, “The Unbridled Shower: Celebrating Divorce,” New York Times, September 16, 2012, ST8. 3 Michael Asimow, “Divorce in the Movies: From the Hays Code to Kramer vs. Kramer,” Legal Studies Forum 24 (2000): 267. 4 Alec Baldwin, A Promise to Ourselves: A Journey Through Fatherhood and Divorce (New York: St. Martin’s Press, 2008), 64. 5 Ibid. 6 Stephen Labaton, “Are Divorce Lawyers Really the Sleaziest?” New York Times, September 5, 1993, E5.

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ABA National Lawyer Regulatory Data Bank, ABA Center for Professional Responsibility, http://www.americanbar.org/groups (accessed July 5, 2013). 8 Labaton, “Are Divorce Lawyers Really the Sleaziest?” E5. 9 Alexandra Gil, “Great Expectations: Content Regulation in Film, Radio, and Television,” University of Denver Sports & Entertainment Law Journal 2009 (2009): 45. 10 Asimow, “Divorce in the Movies,” 235–36. 11 David Ray Papke, “Skepticism Bordering on Distrust: Family Law in the Hollywood Cinema,” Family Court Review 50 (2012): 16. 12 Stephen Gillers, “Taking L.A. Law More Seriously,” Yale Law Journal, 98 (1989): 1622. 13 Charles B. Rosenberg, “An L.A. Lawyer Replies,” Yale Law Journal, 98 (1989): 1626. 14 Warren Adler, War of the Roses (New York: Stonehouse Press, 1992). 15 M. H. Abrams, A Glossary of Literary Terms, Seventh Edition (New York: Harcourt Brace, 1999), 2. 16 Ira Lurvey and Selise E. Eiseman, “Divorce Goes to the Movies,” University of San Francisco Law Review 30 (1996): 1218. 17 Michael J. Epstein, “Law and the Supernatural: How One Film’s Truth Compulsion Conceit Critiques and Redeems the Post-O.J. Lawyer,” Vermont Law Review 28 (2004): 881. 18 Rajani Gupta, “Trial and Errors: Comedy’s Quest for the Truth,” UCLA Entertainment Law Review 9 (2001): 113. 19 Ibid. 20 Ibid. 21 Two thoughtful explanations of how movies might be used to teach the law or how to practice law are Paul Bergman, “Teaching Evidence the ‘Reel’ Way,” Quinnipiac Law Review 21 (2003): 973, and Philip N. Meyer, “Using Non-Fiction Films as Visual Texts in the First-Year Criminal Law Course,” Vermont Law Review 28 (2004): 895. 22 Michael Davitt Bell, The Problem of American Realism: Studies in the Cultural History of a Literary Idea (Chicago: University of Chicago Press, 1993); Stanley Corkin, Realism and Birth of the Modern United States: Cinema, Literature, and Culture (Athens: University of Georgia Press, 1996). 23 Martin Jay, The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1923–1950 (Berkeley: University of California Press, 1996). 24 Naomi Mezey & Mark C. Niles, “Screening the Law: Ideology and Law in American Popular Culture,” Columbia Journal of Law & the Arts 28 (2005): 101– 05. 25 Robert A. Ray, A Certain Tendency in the Hollywood Cinema, 1930–1980 (Princeton: Princeton University Press, 1985), 55. 26 David Ray Papke, “The Impact of Popular Culture on American Perceptions of the Courts,” Indiana Law Journal 82 (2007): 1225–28. 27 John Fiske, Understanding Popular Culture (Boston: Unwin Hyman, 1989), 26.

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Papke, “Crusading Hero, Devoted Teacher, and Sympathetic Failure: The SelfImage of the Law Professor in the Hollywood Cinema and in Real Life, Too,” Vermont Law Review 28 (2004): 957; David Ray Papke, “Muted Message: Capital Punishment in the Hollywood Cinema,” Journalism and Mass Communication 2 (2012): 1019–27.

CHAPTER THREE FAIRLY LEGAL: A CANADIAN PERSPECTIVE ON THE CREATION OF A PRIMETIME MEDIATOR JENNIFER L. SCHULZ

In this chapter I will examine Fairly Legal, the first North American prime-time television series focussed on mediation.1 Fairly Legal, an American show, was created by Michael Sardo and debuted on January 20, 2010. The one-hour dramedy starred Sarah Shahi as Kate Reed, a former lawyer now practicing as a mediator. My local Canadian newspaper described the show as follows: Fed up with the bureaucracy and injustices of the system, Reed decides to become a mediator, the ultimate anti-lawyer. The intuitive and knowledgeable young woman uses her unique skill set to resolve conflicts and find peaceful resolutions for everyone from divorcees to Fortune 500 companies.2

Fairly Legal was broadcast on the USA network in the United States and on Showcase in Canada. I watched the entire first season, which comprised ten episodes, beginning January 20, 2011. Fairly Legal did well enough in the ratings to be renewed, and its second season of thirteen episodes began March 16, 2012. The final episode aired June 15, 2012, and the show is now off the air. As the first North American TV show about mediation and mediators, Fairly Legal is important; merely by being on the air, it did something for mediation awareness. In previous work I highlighted a crucial difference between Canadian television law and American television law: Canadian legal television shows highlight the importance of alternative dispute resolution processes such as mediation.3 Canadian legal shows depict justice being obtained via adversarial and dispute resolution strategies. Therefore,

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despite the fact that Fairly Legal is not a Canadian show (though, like many American shows, it was filmed in Canada), its pro-mediation message is one that resonates in Canada, perhaps even better than in the more litigious United States. Peter Eastwood has noted that “ADR [alternative dispute resolution] is being increasingly employed in a variety of contexts without consistently being understood by, or represented in, popular culture.”4 In this chapter I will describe what Fairly Legal tells us about mediation. I will examine how Fairly Legal depicts the mediator and the process of mediation, and whether those depictions comport with or deviate from mediation literature and theory. Most dispute resolution scholars characterize mediation as a process whereby the mediator, who has no stake or power over the outcome, helps the parties identify and evaluate their interests and options as they proceed to design and craft their own agreement. The literature also tends to be in agreement regarding the hallmarks of mediation, which include the selfdetermination of the parties,5 the impartiality of the mediator,6 and the importance of voluntary participation.7 Scholars, law professors and mediators stress that mediation should be voluntary, mediators should be neutral, a facilitative approach to mediation is preferred, and deceptive practices are to be avoided at all times. However, until now no one has examined whether popular culture depictions of mediation echo these principles, and if they do not, what that might mean. In order to undertake this task I watched ten episodes of Fairly Legal online, in my home office, uninterrupted by any commercials. The advantage of this was that I could pause the episodes at any time to facilitate note-taking and dialogue-transcription. I took pages and pages of notes, and then, as suggested by Nafziger, Paterson and Renteln, I attempted to uncover and redescribe core features of the show.8 This, of course, is neither a scientific nor a coding process, but rather a drawing out of themes, images and ideas. Law and mediation are constituting and being constituted by culture;9 mediation and popular culture are mutually constructed. Naomi Mezey suggests we synthesize law and culture and points to the ways in which they are one and the same and always interdependent.10 Her method (borrowed from anthropology and semiotics) requires us to interpret law in cultural terms using anthropology’s ethnographic method of thick description, as does Cassandra Sharp’s, which recommends true ethnographic approaches in order to approach qualitative understandings of cultural activity in context.11 A true ethnographic approach toward a now off-the-air television program is impossible. But thick description does work, and that

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is the approach I employ. Through detailed description I explore the similarities and differences between the dispute resolution literature’s understanding of mediation and how mediation is portrayed on Fairly Legal.

1. Mediation As Seen on North American Television Fairly Legal, like any other legally-themed television show, makes mistakes when it comes to depicting processes accurately. The show did not portray what scholars would deem proper mediation practice, and as a result it clearly cannot stand in the place of a mediation training manual, especially because it was created for commercial entertainment purposes. However, when we go beyond forensic criticism,12 we can acknowledge that Fairly Legal, like other popular culture, has pedagogical insights to offer. Kate Reed’s deviations from proper mediation practice on Fairly Legal can be used to better understand, teach and practice mediation. The four most important deviations from classic mediation theory and practice demonstrated by Kate in her TV mediations are: x Kate intervenes when she has not been invited to do so, and therefore her mediations are sometimes involuntary. x Kate is not usually neutral. It is almost always clear which disputant she favors, and she often actively moves the parties in the direction she prefers. x Kate is more evaluative than the mediation literature endorses, occasionally even changing the process from mediation to arbitration by developing the final resolution for the parties. x Kate uses deceptive techniques in virtually every mediation she conducts, contrary to theory which stresses honesty and transparency in mediation. Kate, in keeping with the heroic persona of most leads in law or law-like shows, appears unconcerned with her unorthodox and unethical practices. Kate’s very first “mediation” is a dangerous, impromptu intervention showcased in the first three minutes of the pilot episode. It is a completely improbable scenario because Kate mediates a convenience store hold-up13 (the writers and producers likely felt the need to “juice up” the very first conflict to make the show appealing to viewers, and therefore, given the pro-gun culture of the United States, used a stick-up scene). It is also wholly unrealistic because Kate does not identify herself to the parties as mediator, ask their permission to intervene, nor obtain their consent to proceed. Kate is in the store, buying her morning coffee, when a man

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holds the owner at gunpoint and demands all the cash in the till. The owner hesitates, and Kate intervenes, asking the criminal what he really wants. When it becomes clear he actually wants beer and some beef jerky, she “mediates” the resolution—the criminal is allowed to leave with $50 worth of beer and $17.50 worth of beef jerky rather than the $1,000 in the cash register. No one is shot, the criminal exits, they call the police, and the dispute is resolved. As Kate saunters out of the store, she proclaims: “ADR, also known as mediation.” While the terms are not actually interchangeable, in common parlance, and in this episode, they are. Her intervention, however, was clearly not a mediation—the parties’ participation was involuntary, and they did not even know they were in a mediation session. Yet Kate hails it as a successful mediation session. This demonstrates the involuntary nature of the mediations Kate conducts. The second deviation from classic mediation theory and practice demonstrated on Fairly Legal is non-neutral mediation. Kate’s mediation in the convenience store also highlights her partiality; Kate was trying to protect the shopkeeper from the robber; she was not neutral. It was very clear that she was on the side of the shopkeeper and wanted to protect him and the other shoppers from being hurt. When a mediator is not neutral or is partial to one side’s position, and then acts on that bias, that mediator has gone beyond proper, facilitative mediation practice. Classic mediation endorses a facilitative orientation or approach wherein mediators facilitate disputants’ negotiations, attempting to help them reach a settlement on their own terms, based on the parties’ own sense of what works for them. The self-determination of the parties and their control over the final resolution are critical. Christopher Moore underlines this by noting that the mediator has no authoritative decision-making power but rather assists the parties in voluntarily reaching a mutually acceptable settlement.14 When the mediator goes beyond this and greatly influences and/or makes the final decision, that mediator is no longer neutral and has moved from the facilitative approach to an arbitral approach. The distinguishing feature between mediators and arbitrators is that arbitrators render decisions while mediators do not. Fairly Legal’s Kate Reed, in both her impromptu and court-connected mediations, tells the parties how to resolve their disputes, and often fashions a resolution for them. In other words, she is not only not neutral but also not practicing as a classic facilitative mediator would. Kate’s explicitly evaluative approach leads her to conduct hybrid mediation-arbitrations, which are known in the ADR field as “med/arb interventions.” For example, in the last episode of the first season, Kate performs a med/arb the behest of Judge Nicastro.15 Danny and Ralph Sabatino, two

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brothers who jointly own a dry-cleaning business, are fighting over their parking spaces. The older brother re-painted the parking lines so that his spot is bigger than his brother’s. They have been working out their relationship issues in court, and Judge Nicastro no longer wants them in his courtroom. Although their dispute has been going on for years, the judge only gives Kate one day to mediate it. In the Sabatino brothers’ “mediation,” Kate actually performs a coercive, med-arb intervention. Kate says, “Each of you will explain the problem and then each of you will propose a solution. If that solution is not mutually acceptable, I will propose a solution. If that solution is not acceptable, you will all go to jail for being in contempt of a court order to mediate.” While parties sometimes deliberately hire a med/arb professional so that if mediation fails, the mediator can immediately “change hats” and arbitrate the matter, Kate was judiciallymandated to mediate, not to arbitrate. Her television “mediation” was not actually mediation. In episode 106, “Believers,” Kate again demonstrates her lack of neutrality, her evaluative approach to dispute resolution, and her desire to fashion resolutions herself, like an arbitrator would. Kate is hired to assist with negotiations between a computer prototype designer named Marcus and Marsden Technologies, the corporation that fired Marcus. Marcus disputes his dismissal, so Kate is retained to help negotiate a fair termination agreement. In an unorthodox move, Kate dismantles the prototype Marcus designed and puts all the pieces in an envelope. Then, each time Marsden Technologies agrees to a fair termination clause, Kate hands them one piece of the prototype. This approach clearly demonstrates that Kate is on Marcus’ side; she is not neutral. She is actively engineering a process of resolution that will get Marcus a favorable deal. Marsden Technologies and Marcus do reach an agreement, but later, after Marsden’s engineers reassemble the prototype, they discover that it does not work. Ever the evaluative intervener, Kate convinces Marsden Technologies to rehire Marcus anyway, so that he can remove the bugs from his own invention. Kate intervenes in this case pursuant to an invitation to do so, so it is a voluntary mediation. However, Kate is not neutral; she acts as an advocate for the employee, Marcus, moving the parties in the direction she prefers, and developing the final resolution for them; all violations of proper mediation practice. The episode ends with Kate delivering a continuing legal education seminar to the assistant district attorney’s office on the benefits of mediation. Kate’s most serious departure from proper mediation practice is the deception that permeates the majority of her mediations. Mediation is designed to be an open and transparent process. By requiring honest, respect-

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ful communication between disputants, mediators are best able to assist with the facilitation of mutually beneficial agreements. Thus, it is a tenet of proper mediation practice that disputants negotiate openly and that mediators participate in good faith. Catherine MacKinnon has said, “Lies are the ultimate risk of storytelling as method.”16 Because mediation is so heavily dependent on storytelling, disputants and lawyers often fear lies: “What if the other side lies?” “What if they don’t reveal all of their assets?” “What if we are taken advantage of?” We are somewhat accustomed to worrying about deception on the part of the other disputant and their lawyer because rules of professional conduct do allow for bluffing and puffery (two euphemisms for lying) in negotiations and mediations. What we categorically should not be worried about, however, is a deceptive mediator. Yet Kate often deceives disputants on Fairly Legal. Kate Reed, like women filmic mediators before her, incorporates a deceptive style to great effect.17 For example, in episode 106 “Believers,” Kate tells multiple lies. The episode begins with tech employee Marcus standing on a ledge, threatening to jump to his death. He is pretending that he is carrying the prototype device he designed for his employer, Marsden Technologies, in his backpack. He would rather jump with the prototype than have it go to Marsden Technologies. Kate lies to everyone, telling them she is a negotiator for the District Attorney’s office because she wants to try to get Marcus to come down off the ledge herself. Everyone wants the would-be jumper to reveal where the real prototype is, and Kate is the one who ultimately convinces Marcus to say a false location out loud (putting the police and the corporation on the wrong track) while meanwhile writing the real location down on a piece of paper for her. Then Kate instructs her assistant Leo to call Marsden Technologies, where Marcus hid the prototype, and keep the receptionist busy on the telephone so that Kate can break and enter into a secure area of Marsden to steal the prototype. Obviously, this is deceptive, criminal and wildly inappropriate mediator behavior. Yet the Fairly Legal viewing audience is primed to applaud Kate for her ethical infractions (and crimes). We applaud Kate because she is the protagonist or hero of the show. Televisual techniques ensure that we identify with her and her opinions. As Johnson and Buchanan note: “We understand now, in a way we perhaps did not 50 or 75 years ago, the extent to which subject positions (not to mention lighting and camera angles) can shape the way an event is experienced and how a narrative (legal or otherwise) is received.”18 Kate Reed possesses the dominant gaze,19 which means that viewers of Fairly

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Legal adopt her perspective and reach the same conclusions that she does. As a result, we do not even blink when she uses deceptive techniques. For example, in episode 108, “Ultravinyl,” Kate uses deception to help resolve a dispute between former band members. Fifteen years ago they performed together as Ultravinyl but have since broken up. Their paths have now crossed because a car company wants to use one of their songs in a commercial. One member of the band, Paul, wants to allow it, but the other two band members, Mac and Sherry, will not sign off on the deal. Paul also wants to get together with Mac and Sherry (who are now a couple) and meet their boy, but they do not want to see him. Paul tells Kate, in confidence, that he is dying of cancer. Mac and Sherry tell Kate, also in confidence, that the boy is actually Paul’s son. Kate therefore has confidential information from each side that she is bound by mediator codes of professional conduct to not reveal. Mac and Sherry do not believe Paul just wants to see his son; they think he wants to license the song for fame. Kate is aware that Paul is dying and that he wants to give the rights to the song to his son to pay for his college tuition. Kate uses the confidential information, without informing the parties, to “trick” them into seeing each other. She advises Mac and Sherry not to make any decisions or to sign anything regarding the song license. She tells them she knows more, but that she cannot reveal it yet. Then Kate convinces Mac and Sherry to sign an engagement letter to enter into mediation with her, so that she can tell Mac and Sherry that Paul is dying, despite the fact that Paul has not authorized this disclosure. Kate further deceives the parties when she brings Mac, Sherry and the boy to a coffee shop where, unbeknownst to them, Paul is playing. The episode ends hopefully with everyone listening to Paul play. Fairly Legal shows viewers that Kate would not be a successful mediator without employing deceptive moves, and viewers are positioned to cheer when her deceptions meet with successful results. Canadian facilitative mediators are aghast by Kate’s deceptions.20 Unfortunately, American research supports the view that Kate is not the only lawyer behaving deceptively in dispute settlement initiatives. Hinshaw and Alberts surveyed more than seven hundred practicing American lawyers and asked whether they would agree with a client’s request to engage in a fraudulent negotiation scheme to settle a case, which is a violation of the Model Rules of Professional Conduct in the United States.21 An “unacceptably high number of lawyers” indicated they would be willing to engage in a fraudulent settlement negotiation scheme if asked to do so by their clients.22 Interestingly, the men in Hinshaw and Alberts’ study performed better than the women; in other words, the women lawyers were more likely to engage in

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unethical negotiations, which is contrary to other studies which have found women to be more ethical.23 Hinshaw and Alberts’ study does not provide a conclusive explanation for this difference. They do note that as situations become more ambiguous, lawyers rely more on their own personal morality for guidance, rather than professional codes. This could also explain Kate’s deceptive settlement schemes. Perhaps Kate, also a former lawyer, is guided more by her own intuitive sense of what the best resolution would be, rather than mediator codes of conduct.24

2. The Television Mediator as Trickster Kate Reed commits at least four crucial deviations from classic mediation theory and practice in her television mediations on Fairly Legal. First, she regularly mediates without obtaining disputant consent, and therefore her mediations are often involuntary. It is almost always clear which disputant she favors; she is not neutral and actively moves the parties in the direction she prefers. Kate performs evaluative med/arb interventions instead of mediations and develops the final resolution for the parties. Finally, Kate uses deceptive techniques in virtually every mediation she conducts. When taken together, Kate’s ethical infractions call to mind Denvir and Benjamin’s descriptions of the Trickster. The Trickster is an archetype of long standing, common throughout folklore, history and literature, generally admired for their skillful cunning. John Denvir argues that creativity, cunning, guile and outwitting adversaries—characteristics of the Trickster—are also the skills that make a great lawyer.25 Robert Benjamin argues that the Trickster figure offers great promise as a professional role model for mediators.26 Benjamin says the Trickster integrates both analytical skill and intuitive sensibilities in order to effectively manage conflict, and the Trickster, certainly as found throughout history and literature, is both a creative joker and a cunning sage.27 Kate Reed exemplifies these characteristics. Kate, like all mediators should be, is creative, clever, able to embrace ambiguity, analytical, intuitive and not searching for “the” or “one” truth. She embodies the positive characteristics of the Trickster as identified by Denvir and Benjamin. Problematically, however, Kate also embodies the negative characteristics of the Trickster. While creativity is important for mediators, being cunning and outwitting the disputant whose case you do not favor is not. Kate manipulates the disputants’ stories, she intervenes to direct mediation outcomes toward the party she favors, and she has no problem with deception. She shifts from one persona to another as circumstances require, has a flair for duplicity, and is a master in the art of misdi-

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rection.28 Kate, like the Trickster, thrives on conflict, “alternatively causing it or resolving it.”29 Clearly, mediators should not be causing conflict, and thus the Trickster figure describes Kate too well.30 The Trickster should not be the archetype we use to describe mediators, nor what we teach our mediation students to aspire to. Yet, the disputants, lawyers and judges on Fairly Legal, as well as the viewers of the show, understand Kate to be successful at what she does, despite her routine breaks with proper mediation practice. Why is that? Kate’s involuntary mediations, lack of neutrality and deceptions are sanctioned by viewers because we like her. Kate is smart and savvy. The sheer “‘gutsiness” of Trickster characters like Kate is part of why they are admired, as well as for their obvious intellect. As Benjamin notes: “The trickster figure is a beguiling contradiction in terms, simultaneously using both natural wit and calculated practiced skill.”31 This is undoubtedly why this personality was chosen by the creators of Fairly Legal for Kate. They wanted viewers to admire Kate, so they chose a familiar, stock legal character for her—the warm, likeable, rule-breaking Trickster. Producers of television programs want their shows to sell, and it may be that rulebreaking is “cool” and resonates with viewers who expect protagonists in law shows to deceive and use fancy tricks. Viewers are certainly used to this with respect to popular culture lawyers who often use deception to get ahead or win their cases. Kate, a recovering lawyer, has to engage in deception in order for Fairly Legal to be watched (ironically, it is when lawyers breach their ethics and commit deceptive acts that they are most often redeemed in the eyes of viewers).32 Popular culture routinely depicts lawyers acting in less than honorable ways, and Fairly Legal is almost a lawyer show, featuring a lawyermediator protagonist. As viewers of popular culture, we have come to enjoy lawyers’ desires to win and shrewd lawyerly maneuvers, so it makes sense to feature clever, deceptive moves in a lawyerly show like Fairly Legal. Quite simply, deception is part of what we have come to expect in negotiations. In law school it is called “allowable puffery,” and in popular culture, clients and lawyers routinely lie in negotiations. Since mediation is a form of assisted negotiation, we can therefore expect deception in mediation too. When the first television show about mediation depicts it as a process run by a deceptive lawyer-mediator, we, as viewers, are not surprised.

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3. Conclusion In this chapter I have provided detailed descriptions of some of the episodes of a now off-the-air American primetime television show titled Fairly Legal. Thick description enables the reader to “see” how the mediator and the process of mediation are depicted on North American television. My study of Fairly Legal reveals that television mediators do not comport with mediation literature and theory. In fact, Fairly Legal’s protagonist mediator, Kate Reed, breaches many ethical rules and deviates in at least four important ways from classic mediation theory and practice: she conducts involuntary mediations; she is not usually neutral; she often acts like an arbitrator instead of a mediator; and she routinely deceives the disputants in her mediations. Her deviations are so great that it is arguable she is not actually a mediator. Yet, despite Kate’s deviations from proper mediation practice, viewers do not condemn her. This may be, as Richard Sherwin suggests, because exposure to images of deviance allows for the displacement of viewers’ own illicit, subconscious urges.33 In other words, the reason we cheer Kate on might be because her deceptive moves meet with some kind of approval in our subconscious minds. More likely, we do not disapprove of Kate because we are used to the types of ethical infractions she commits. This is because, as viewers of popular culture, we have been fed a steady diet of lawyerly ethical breaches, and Kate, a lawyer-mediator, behaves no differently. If it is possible that North American viewers approve of Kate’s mediation methods on television, what about such methods in real mediation practice? I have previously noted that “anecdotal evidence suggests that many mediators have, from time to time, exaggerated disputants’ positions, focused on some facts to the exclusion of other relevant facts, and played upon parties’ desires to resolve the matter at hand.”34 All of these behaviors fall somewhere along on a continuum of improper mediator practice, and yet no North American mediator has ever been sanctioned for such behavior, neither in Canada nor in the more litigious United States of America.35 Kate’s improper behaviors in Fairly Legal force us to question whether the reality of mediation practice actually matches mediation theory. And, if not, how do we feel about that? Benjamin states that the means used by Tricksters and mediators to settle conflict are often less than noble, but that their purpose is the same: to help the disputants.36 If the disputants are happy with their final agreement, how much does it matter that the mediator breached the rules of proper mediation practice? Must a mediator be

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completely honest and transparent at all times? What is the duty of a mediator—to always do good or to avoid harm? What is harm? Fairly Legal requires us to acknowledge that it may be an open question whether it is appropriate to sidestep proper mediation practice to obtain a just, good result. An analysis of Fairly Legal highlights some important questions in the North American mediation field that must be addressed by further research and worked through in practice. Over 90% of all legal cases in Canada and the United States settle before going to trial, yet neither country’s current television broadcasting depicts this reality of settlement and mediation. The two countries share their television, their popular culture and their law and popular culture theory; scholars in Canada and the United States acknowledge that television represents the world and participates in the making of that world.37 Canadian and American scholars also agree that mediation is the future of legal practice.38 It is time that North American popular culture reflected this and that North American scholars more closely examine popular culture and what it can teach us about mediation. The author wishes to thank Birkbeck School of Law, University of London, the Association of Commonwealth Universities, and especially the Gordon and Jean Southam Fellowship for financial support.

Notes 1 When describing North American primetime television, I am referring to Canadian and American English language programming. I do not purport to report on Mexican television, nor French language programming from Québec, neither of which can be viewed in English-speaking Canada or in the United States. I do note, however, that there is a show called L’Arbitre, or “The Arbiter,” televised in Québec since 2011 on Québec’s V Télé network, in French. The decision-maker is a Montréal lawyer named Anne-France Goldwater. The show is described in this way: “The cases presented are real. The participants have chosen a rapid, free and final solution. They have chosen The Arbiter.” 2 Kyla Brewer, “Showcase Lawyers Up with Fairly Legal,” January 29, 2011, Winnipeg Free Press TV Plus, 2. 3 Jennifer L. Schulz, “Settlement and Mediation in Canadian Legal Television,” Journal of Arbitration and Mediation 1 (2) (2010–11): 87. 4 Peter Eastwood, “Great Expectations: Popular Culture and the Narration of Conflict in Litigation and Mediation,” Masks: The Online Journal of Law and Theatre 2 (2012): 3; http://www.masksjournal.com. 5 Canadian Bar Association—Ontario, Model Code of Conduct for Mediators, III Principle of Self-Determination: “Self-determination is the right of parties in a

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mediation to make their own voluntary and non-coerced decisions regarding the possible resolution of any issue in dispute. It is a fundamental principle of mediation which mediators shall respect and encourage.” 6 Laflin, Maureen E. (2000) “Preserving the Integrity of Mediation Through the Adoption of Ethical Rules for Lawyer-Mediators,” Notre Dame Journal of Law, Ethics & Public Policy 14 (2000): 483–484 and Canadian Bar Association— Ontario, Model Code of Conduct for Mediators, IV Impartiality: “Mediators shall serve only in those matters in which they can remain impartial.” 7 Andrew J. Pirie, Alternative Dispute Resolution: Skills, Science, and the Law (Toronto: Irwin Law, 2000), 208. 8 J. Nafziger, R. Paterson & A. Renteln, Cultural Law: International, Comparative and Indigenous (New York: Cambridge University Press, 2010), 129, note 12. 9 Naomi Mezey, “Law as Culture,” Yale Journal of Law & Humanities 13 (2001): 36. 10 Ibid., 48 and 55. See also Lon Fuller, “American Legal Realism,” Pennsylvania Law Review 82 (1934): 452: “We may picture Law and Society [Culture] as the two blades of a pair of scissors … We avoid all these difficulties by the simple expedient of recognizing that both blades cut, and that neither can cut without the other.” 11 Cassandra Sharp, “Let’s See How Far We’ve Come: The Role of Empirical Methodology in Exploring Television Audiences,” in Law and Justice on the Small Screen, eds. Peter Robson & Jessica Silbey (Oxford: Hart, 2012), 121. 12 David Black, Law in Film: Resonance and Representation (Urbana and Chicago: University of Illinois Press, 1999), 126 and 145. 13 “Pilot,” aired January 20, 2011, accessed online on January 24, 2011. 14 Christopher Moore, The Mediation Process, 2nd ed. (Jossey-Bass, 1996), 15. 15 Episode 110, “Bridges.” 16 Catherine A. MacKinnon, “Law’s Stories as Reality and Politics,” in Law’s Stories: Narrative and Rhetoric in the Law, eds. Peter Brooks & Paul Gewirtz (New Haven, Yale University Press, 1996), 232. 17 Jennifer L. Schulz, “Confectionery and Conflict Resolution? What Chocolat Reveals about Mediation,” Harvard Negotiation Journal 22 (2006): 251, notes that in Chocolat, mediator Vianne does not tell the villagers that the gypsies will be guests at her dinner party. As a result, the villagers attend, overcome their prejudices, and begin a relationship with the gypsies. In Jennifer L. Schulz, “The Mediator as Cook: Mediation Metaphors at the Movies,” Journal of Dispute Resolution 2 (20007): 455; Ahmad, the mediation trainee in Soul Food, secretly schedules a series of private meetings in order to get the entire family together for a soul food dinner. In Mostly Martha, Mario lies to Martha about his “dead” mother’s recipe to get her to eat. Using deceptive techniques is contrary to dispute resolution theory, yet filmic mediators use them often. 18 Rebecca Johnson & Ruth Buchanan, “Getting the Insider’s Story Out: What Popular Film Can Tell Us About Legal Method’s Dirty Secrets,” Windsor Yearbook of Access to Justice 20 (2001): 91.

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Margaret M. Russell, “Race and the Dominant Gaze: Narratives of Law and Inequality in Popular Film,” Legal Studies Forum 15 (1991): 244, building on the ovular work of Laura Mulvey, “Visual Pleasure and Narrative Cinema,” Screen 16 (3) (1975): 6–18. 20 Commercial Mediation Symposium, March 3, 2011, Manitoba Club, University of Manitoba, Winnipeg. 21 Art Hinshaw & Jess K. Alberts, “Gender and Attorney Negotiation Ethics,” Washington University Journal of Law and Policy 39 (2012): 145. 22 Ibid. 23 Ibid. 24 Hinshaw & Alberts’ study also asked lawyers whether they would commit lies of omission. In analyzing their results, the authors linked them with Carol Gilligan’s famous finding that women are more likely than men to employ an ethic of care in their ethical decision-making. Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge: Harvard University Press, 1982). Hinshaw & Alberts note: “In omission situations, the rules of play are more ambiguous, so that one’s professional morality may give way just enough to allow one’s personal morality to surface, perhaps leading women’s care orientation to reemerge and affect their responses.” 25 John Denvir, “Guile is Good: The Lawyer as Trickster” (2012), http://ssrn.com/abstract=2010074 26 Robert D. Benjamin, “The Mediator as Trickster: The Folkloric Figure as Professional Role Model,” Conflict Resolution Quarterly 13 (2) (1995): 131. 27 Ibid., 137. 28 Denvir, “Guile is Good” 11–12. 29 Benjamin, “The Mediator as Trickster,” 135. 30 More useful archetypes for mediators might include the Hero and the Helper. See E. G. Thornburg, “Metaphors Matter: How Images of Battle, Sports, and Sex Shape the Adversary System,” Wisconsin Women’s Law Journal 10 (1995): 267. Benjamin disagrees, arguing that “The folkloric trickster figure is never a hero; he or she is typically a marginal personage either by reasons of social status or force of circumstance.” The Mediator as Trickster, 141. 31 Ibid., 135. 32 Paul Bergman, “The Movie Lawyers’ Guide to Redemptive Legal Practice” UCLA Law Review 48 (2001): 1393. 33 Austin Sarat, “What Popular Culture Does For, and To, Law,” in Imagining Legality: Where Law Meets Popular Culture, ed. Austin Sarat (Tuscaloosa: The University of Alabama Press, 2011), 11–12. 34 Schulz, “The Mediator as Cook,” 469. 35 Jennifer L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence,” Ottawa Law Review 32 (2001): 269. The instance of suits launched against mediators is also extremely low in both the United States and Canada. 36 Benjamin, “The Mediator as Trickster,” 135.

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Rebecca Johnson, “Television, Pleasure and the Empire of Force: Interrogating Law and Affect in Deadwood,” in Law and Justice on the Small Screen, eds. Peter Robson & Jessica Silbey (Oxford: Hart, 2012): 37, and Michael Asimow & Shannon Mader, Law and Popular Culture: A Course Book, 2nd Ed. (New York: Peter Lang, 2013). 38 Julie Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice of Law (Vancouver: UBC Press, 2008), and R. H. Mnookin, S. Peppet & A. Tulumello, Beyond Winning: Negotiating To Create Value in Deals and Disputes (Cambridge: Harvard University Press 2000).

CHAPTER FOUR GRISHAM VS. SOLMSSEN RICHARD H. WEISBERG

1. An Introduction to Arthur G. Solmssen John Grisham and Arthur Solmssen, two writers about law who appeal to practitioners and broader lay audiences, may be profitably read together on a close textual level. The endeavor reveals that Solmssen is the superior writer but that Grisham’s greater money-making talent may entail choices he makes that almost willfully diminish the literary quality of his novels. We will see that, like most legal page turners, these stories move plots along with skill and occasional brilliance but that Solmssen also excels in character development and profundity. This is what separates the wheat from the chaff and makes many readers who are pleased, but not thrilled, to spend time on Grisham turn to something less well known but quite a bit more worthwhile. Solmssen has a following, particularly among Philadelphians. He practiced law there for many years, and his stories’ venues include addresses, buildings and suburban settings from the City of Brotherly Love. His novels are to the practice of law in Philadelphia what Louis Auchincloss’s were to the Big Apple. Solmssen is a finer craftsman even than Auchincloss, but just as New York City swallows up its culturally and socially junior partner ninety miles down the Turnpike, so Auchincloss (and Grisham) overshadow their perhaps more talented junior writing partner. Solmssen still lives, although he is retired from the practice of law, and this chapter intends to revive his literary reputation without overly condemning Grisham (and certainly not Auchincloss) to mere potboiler status. Solmssen’s three best known law novels are Rittenhouse Square (1968), The Comfort Letter (1975) and Takeover Time (1986). All three are largely centered upon transactional law at the mythical Philly firm of Conyers & Smith, and specifically the behavior of lawyers representing large corporate clients who are raising capital through securities offerings.

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His stories invigorate and dramatize the seemingly dull practice generated by the Securities Acts of 1933 and 1934; only a master craftsman can fascinate us with the detailed legalities of corporate wealth re-distribution. As we may recall, Tom Wolfe did the job in Bonfire of the Vanities, but he was writing about people on the higher end of the food chain—the business people themselves or their underwriters. The challenge heightens immeasurably when the focal point of the plot becomes the men and women with JD’s who merely facilitate these transactions. Solmssen always rises to the challenge. Everything you need to track the legalities of a “deal,” from its inception in the often feverish brains of corporate executives to the detailed differentiation of one deal from another (which is not so obvious even to lawyers who specialize in something else, like most of us), to the human and professional dilemmas connected to the closing of the deal—IF it in fact closes—is there in all three novels. But since the reader wants more than just to learn about statutes and how they must be maneuvered to do a client’s will, the novels double down Solmssen’s skills by teaching us universal lessons about human character, and that is what we almost never find in Grisham.

2. Clarity vs. Confusion in Narrative Voice: Lawyer and Client Represented Developing characters to the point of real profundity, while still keeping the pages of a pop culture story turning, is a rare skill. Aristotle demanded plot and character if something was to hold his interest; we usually ask for less—a good story line, primarily, perhaps buttressed by characters who can wait until computer, television or Hollywood versions can be made three-dimensionally (a lot easier than depicting character formation on the printed page!). Eventually, however, we will turn to those writers who satisfy our craving for knowledge as well as entertainment, and Solmssen fits the bill. He wanted to make the “back office” sexy, the ministrations under the ’33–’34 Acts barometers of human conflict, and the extrapolations from lawyer-client tensions somehow relevant to everybody. Nowhere is Solmssen’s goal made clearer than at the beginning of The Comfort Letter where, in an early chapter called “Working Group,” he displays in precise legalistic typeface a list of all the major players in a single deal that will provide perfect Aristotelian unity to the entire book. Each individual inscribed there takes on some kind of a role in the novel as a whole. Character conflicts are, at least in part, tied to their place in the proposed deal: “Issuer: Charles C. Conroy, Jr./President and Chief Execu-

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tive Officer, Chairman of the Board, Conway Concepts Corporation (‘CCC’)”1 will display consistently as an unpredictably brilliant innovator whose eccentricities especially come to plague “Counsel for Issuer/Ordway Smith, Esq./Conyers & Dean”2 but also “Counsel for Underwriters/Harry Hatch, Esq./Iselin Bros. & Deveraux”3 and, by the end, all of the twenty other minor players in this formalistically announced cast of characters. Beneath Ordway Smith are three more junior lawyers who play roles in this story and in some cases (Ben Butler, Esq.) show up more centrally in other novels. Solmssen will often vary the typeface as the proposed deal moves along, from the published advertisement or “tombstone” announcing it, until (via several required filings) the release of the Prospectus. The name in lights is actually no person at all but rather the subject of the offering: “$100,000,000 CONROY CONCEPTS CORPORATION ----% CONVERTIBLE SUBORDINATE DEBENTURES DUE 1984.”4 The fateful maturity date foreshadows for us the ups and downs of this deal, as the personal relationship of Ordway Smith to his client Charles Conroy parrots in its centrality for the story the obvious legal centrality of lead counsel to corporate CEO. Solmssen’s character-enhancing craftsmanship benefits from surehanded control over narrative technique. Of the three novels examined here, two (including The Comfort Letter) are narrated in the first person by that tale’s central lawyer. When, in Takeover Time, Solmssen switches to the third-person, we will find equal craftsmanship in merging plot with character development. Each component of law stories is conveyed best by the technique chosen: for example, Ordway Smith’s delicate relationship to CCC chieftain Charles Conroy develops best by hearing it in Ordway’s voice and enhances our understanding of both of those characters. Grisham, of course, also does famously well in depictions of the lawyer-client relationship. Perhaps his best known is the representation of lawyer Reggie Love’s commitment to the eleven-year-old title hero of The Client (1993), Mark Sway. As I will surmise in dealing with other themes, I believe Grisham was influenced by Solmssen in his handling of lawyerclient interactions. Like Ordway Smith in the face of the fully grown but increasingly childlike Charles Conroy, Reggie is shown protecting her childish client’s interests zealously, even when she knows she cannot control client behavior that is self-destructive and potentially suicidal. She does an admirable job over the novel’s 566 pages, nurturing Mark’s personality as much as she does the legal interests he has paid her a $1 retainer fee to safeguard. So, too, Ordway responds to the unpredictable shifts in Conroy’s moods, counseling and consoling, playing the role of shrink as

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much as securities lawyer, walking the fine line between adherence to the Securities Acts and real affection for an increasingly bizarre client’s aberrant mood shifts. If Solmssen does better than Grisham in providing us a fleshed out story that, long after the final page, contributes to our understanding of life, it is because his narrative technique works reliably. Despite the pleasure given us by Grisham’s plot-driven page turner, we learn almost nothing about human character that we did not know coming in. Looked at closely, we find that Grisham’s dialogues vie with omniscient interjections from the narrator, all the time in the service of moving the plot along while also (and often repetitiously) reminding the reader of what has already happened. In the process, insights into character are almost willfully avoided. Thus, in a prolonged pair of scenes providing data about Reggie Love, Grisham shifts uneasily from multiple information-providers to confusing third-person intervention. In a paradigmatic scene, minor characters add basic information to the reader’s grasp of Reggie’s “back story.” There is a sense of being forced to absorb data; instead of being “shown,” in the classic formulation, we are being TOLD. The omniscient narrator delegates Reggie’s story to a team of Memphis federal prosecutors, under the leadership of George Ord, all of whom are resentfully fielding the uninvited presence in their office of publicity hungry New Orleans D.A., Roy Foltrigg. Neither Reggie nor the narrator’s placeholders, artificially buttressed by omniscient interjection, are enriched as characters by the following paradigmatic scatter-shot dialogue: David Sharpinksi, one of Ord’s many assistants, presented himself at the office and explained he’d gone to law school at Memphis State with Reggie Love. He sat next to Foltrigg … and answered questions. He was busy and would rather have been working on a case. [How do we know this?] “We finished law school together four years ago,” Sharpinski said. “So she’s only practiced for four years,” Foltrigg surmised quickly. [Did the reader need this help?] “What kind of work does she do? Criminal law? Does she know the ropes”? … “A little criminal stuff,” Sharpinski replied. “We’re pretty good friends. I see her around from time to time. Most of her work is with abused children. She’s, well, she’s had a pretty rough time of it.” “What do you mean by that?” “It’s a long story, Mr. Foltrigg. She’s a very complex person. This is her second life.” “You know her well, don’t you?” [Foltrigg seems to be “providing a basis” for Sharpiniski, as though the reader otherwise might not believe

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what he says about Reggie, although he’s already told us, a few lines before, that “We’re pretty good friends.”] “I do. We were in law school together for three years, off and on.” “What do you mean, off and on?” [There follows Sharpinski’s description of Reggie’s former life. Nothing is gained by the data coming from Sharpinski, an utterly minor character, instead of from the omniscient narrator, who, as we have seen and will see again, otherwise comes and goes at will.] “What kind of law student was she?” “At times very astute. She was determined to prove to herself she could succeed as a lawyer. But she continued to battle depression. She struggled with booze and pills …” “What kind of lawyer is she?” [Here we are again. The style of the dialogue lacks verisimilitude.] “Is she still sober?” Foltrigg wanted the dirt, and this irritated Sharpinski. To McThune and Trumann, two special agents whom Reggie has tricked in a clever earlier scene, she appeared remarkably sober. [Too much continuing darting around between omniscience and selected data coming from individual characters.]5

Many scenes later, Grisham’s often repetitious and unrewarding approach of mixing and matching plot-driven omniscience with scattershot dialogues becomes quite confusing. Mark has found refuge through his lawyer [yes; her name is Reggie Love and she has been to law school] at the all-embracing dinner table of Reggie’s aptly named “Momma Love.” The two chat, with Mark just pleased to get a delicious and well balanced meal after a few days of dodging cops, journalists and the Mafia on a diet of vending machine fare that would give anybody a case of carbohydrate inebriation. There is a bigger game going on, though, as Mark senses Momma Love is fishing for the secret he has so far kept from everyone, including his lawyer. The problem with the scene goes beyond the obvious allegorical simplicity of her name. Multiple narrative perspectives—one of Grisham’s perennial weaknesses—diminish marginal advances in the reader’s understanding of Mark’s and Momma Love’s thought processes. We are robbed of the chance to figure out for ourselves what these figures mean in the world, how they display to others, and what they are contributing— through their presence as human characters—to the plot. In this scene, the appealingly childlike Mark relishes the succulent meal he finally receives after days of malnutrition on the run. Now, finally, Momma Love sets sumptuous pasta and green vegetables before him. What counts in the scene is that Mark—despite his recent diet and scary experience—seems to have developed the savvy to know that he must

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keep a piece of basic information even from the source of all this deliciousness. He must not tell Momma Love, any more than he has told her daughter, what he and his brother saw on that fateful day—that he knows the whereabouts of the body sought by cops, gangsters and the media. Craftily, and credibly given his recent confrontations with curious adversaries, he distracts Momma Love by parrying her questions with diverting inquiries about her cooking and then her extended family. Nice, so far! Without being told by the omniscient narrator, the reader associates Mark’s cleverness with his trajectory as a savvy fugitive, and it all adds up to someone who loves a good meal like most kids, but is also learning, way beyond his years, the art of subtle self-protection. We like being made part of the story-telling by deducing traits of character for ourselves. However, it turns out that Momma Love, who has had a very different kind of life and no particular reason to have learned Mark’s lessons after forty-eight hours of police grilling, thinks exactly the way Mark does! The helter-skelter narrative technique eliminates the chance we had to parse each character’s uniqueness, and instead we see two figures at the opposite end of the experiential and chronological scales simply moving the plot along by behaving identically: “What on earth did you boys see out there?” … Momma Love was now sipping her third glass of wine, and the tongue was loose. If she could talk about her family long enough, then maybe she’d get around to his. And once they’d covered the families, perhaps they might discuss exactly what on earth the boys saw out there.6

This is fairly typical Grisham in his third-person/direct citation narrative mode we saw in the earlier scene. The sentences jump around uneasily until we are no longer sure whose thoughts are being reported. My best guess is that Momma Love, exactly like her youthful interlocutor, is getting ready to move in on the secret even her daughter has not yet uncovered from her client. But if this is true (after all, the sentence could also be inside Mark’s mind!), then the narrator is injecting the interesting lesson about secrets recently learned by Mark into the mind of a totally different character, Momma Love. Either way, we emerge confused. Now in turning to Solmssen’s novel more textually, I am not stating that he never uses dialogue to bring basic data forward as the plot moves along. Nor am I suggesting that his skills approximate those of, say, a Dickens or Tolstoy in integrating character understanding to plot development. But he is much better at that than what we usually see from Grisham. In The Comfort Letter, for example, we find Ordway Smith just arrived in San Francisco as the CCC deal moves along; it has been com-

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plicated by the tempestuous Charlie Conroy’s newfound desire to purchase companies that catch his attention during the pendency of the $100,000,000 offering Ordway and his team are shepherding through to registration and the market. This is problematic, because any new purchase plan by CCC would require its own due diligence and incorporation into revised filings on the original offering with the Securities and Exchange Commission. So when Ordway lands, he is briefed on the new target and its own CEO, Bernard Bromberg.7 His associate, Tommy Sharp, provides him with information as they drive into town from the airport. Direct dialogue, as in the first episode I treated here from The Client, provides a back story that (in Grisham, anyway) would be dotted with omniscient fact accretion leaving nothing to—but also inspiring no collaboration from— the reader’s own imagination. Solmssen does it differently. The first benefit comes from the use of Tommy, who is no mere throwaway, such as Sharpinski, McThune and Trumann, but rather a lawyer on the team whose name was in the first set of lights when the deal was announced to us early in the novel. We learn about Tommy, and we are interested, as Ordway learns from Tommy about Bromberg. (Later, foreshadowed by this scene, it is Tommy who becomes—in Ordway’s words—“frightened, and Tommy isn’t easily frightened”8 when Charlie’s erratic search for new targets creates the plot’s operative ethical dilemma just hours before closing.) There is value added in the first-person narration technique, because Ordway—who, of course, is telling us the basic story in his voice—cannot artificially enhance Tommy’s data base about Bromberg. We emerge enlightened, like Ordway, about Bromberg but also about Tommy and about Ordway’s patient handling of younger associates (a major sub-theme in both writers to which we return in our next section). Second, the lawyer-client is at the heart even of these pages about the CEO of a target company. Ordway needs to ascertain why Charles Conroy is getting distracted right in the middle of a public offering. It turns out— and this we rarely see in Grisham—that an interweaving with the registration process of personal, non-legal detail starts to build towards a climax in this scene, and it all has to do with Charlie, Bromberg, and a dazzling woman named Karin Bromberg (no relation? you’ll have to read the novel yourself to find out!), who is depicted in a manner seen across several Grisham novels that, in fact, aspires to Tolstoy. The lawyer-client concern replicates Reggie Love’s for Mark when, having at least figured out how to mesh the Bromberg target into the deal’s prospectus, Ordway has the following conversation with Charlie: “I’ve got to talk to you about the Brombergs. They have the agreement ready, and they want to know when you want to sign.”

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Chapter Four Charlie looked at his watch, then shook his head. “No time now, got to catch a plane at three.” “Catch a plane? Where are you going?” “Home. Got another deal cooking, gut just called me, there’s a chance that Manayunk Steel might be for sale, right in our own back yard, what do you think of that? We’ve been trying to get our hands on them for years …” “Charlie, for God’s sake, what about the Bromberg’s?” “What about them?” “Well, you haven’t even signed the deal with them, you’ve been working for weeks and weeks and now that they’re ready to sign …” “All right, so let ‘em sign …” “But you can’t run off without signing the deal! Don’t you see, it’s an insult to them. [The Bromberg’s particular, Jewish/old world sensitivities have been well laid out by Tommy and others, and the narration does not feel the need to refresh, Grisham-like, the reader’s memory.] … Charlie, it doesn’t make any sense! You can’t make another deal now anyway. Are we supposed to amend the Prospectus again? You’ve got to sit still long enough to get the debentures sold.” … “I have trouble making up my mind these days,” said Charlie.9

This is a lawyer in deep trouble with a client whose mental gyrations mimic those of Reggie’s eleven-year-old charge, but far less appropriately. Somehow, we feel the breakdown in the more mature relationship more deeply. And it only gets more dramatic as legal ethics war with zealous client loyalty in our first-person narrator’s heart and mind. We are shown, not told, how to fathom law and character in Solmssen.

3. Senior Lawyers with Their Junior Partners and Associates As with lawyer-client relationships, both novelists depict many situations, usually within large law firms, where younger lawyers seek advice, or reject it, from their senior colleagues. This “inside baseball” peak at lawfirm internecine drama goes beyond the mere currying favor and buttering up that all junior lawyers are supposed to exhibit towards their seniors, along the lines of the somewhat clichéd new associate in Grisham’s The Firm, for example. Law firm senior-to-junior (and junior-to-senior) psychology is fascinating on many other levels than courting the talented law school graduate and then mentoring the highly malleable novice who would never dream of contradicting those who sign their paychecks. There is grit here, and even non-lawyers who experience some kind of hierarchical tensions with their co-workers will enjoy the less-remarked upon

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sub-theme of such novels as Grisham’s The Chamber (1994) and Solmssen’s Rittenhouse Square (1969). Grisham, typically, tells his story through third-person narration, and Solmssen through the first person voice of Ben Butler who, as you may recall, has already appeared in The Comfort Letter, the tale told by his senior partner Ordway Smith. Ben is just starting at the firm in Rittenhouse Square, whereas he was third on the CCC deal, already senior to Tommy Sharp, in The Comfort Letter. Like Grisham’s Adam Hall, Ben is already known to be very smart. But both young men, like many in these large firms, seek professional alternatives to the seventy-five-hour weeks and seemingly lifeless forms of big-firm practice. To get a peek at what appear to be more worthwhile careers, they need the help of often highly reluctant senior lawyers within their firms. The partners see these novices as investments, highly paid “brains,” usually right out of their law review editorial spots, whose work only really begins to pay off in their fourth or fifth year at the firm, when their thousands of annual hours can actually be billed and their slave-like efforts reap dividends to the partners, whose own workloads are diminished as they can delegate, knowing the now senior associates can get the job done and done well. They do not want these smart money-machines to take career detours, but that is exactly what Adam and Ben are seeking, the former from the firm’s lucrative white collar criminal practice, the latter from the kind of transactional work we saw examined so well in The Comfort Letter. Remarkable parallels in the storylines again allow us to make comparative evaluations of these novelists’ craftsmanship, especially in the domain of creating credible and fully developed major characters. In The Chamber, Adam Hall desperately needs the firm’s permission to represent his grandfather, a vicious racist who is finally nearing execution on Mississippi’s death row. He deliberately concealed that he even had this notorious relative from the partners when he was hired, much less that he intended to try saving his life by spending many months defending him, hundreds of miles away from the firm’s corporate practice. Meanwhile, Solmssen’s Ben Butler, a rising star in the transactional firmament with which The Comfort Letter has made us familiar, is being lured to the Philadelphia Public Defender’s office, for whom a brief stint as criminal defense counsel—pro bono so far—has indicated he has great talent trying to free or limit the hard time of the city’s riffraff, again away from the back office securities deals he has increasingly managed for the firm’s partners. Both young men need specific permission to alter their career paths; both rely

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on mentors to help them make difficult choices. Neither finds the pathway unimpeded. Solmssen’s fictional account has verisimilitude and depth. Each scene between Ben and his seniors at the firm resonates tonally and ends by enriching our understanding both of Ben and the older lawyer with whom he is dealing. Contrariwise, Adam bulldozes his way over hurdles, adopting a hostile tone with senior lawyers whose help he needs, and who, if opposed to his scheme to head down south, are caricatured by the narrator as megalomaniacal or just plain mean. All of this is, of course, possible. There are many personality types at all levels of any big firm’s hierarchy. Maybe Ben and Adam are just different—not all successful recent law school graduates who make the choice to earn the big bucks at major firms are just for those reasons alike. So what, relatively speaking, goes wrong with Grisham’s representation? First and foremost, doubling down on the problem of onedimensionality we have seen elsewhere in Grisham, Adam reveals himself to have a split personality, to be inconsistent in a manner probably unintended by his creator but unavoidably obvious to even the less than scrupulous reader. The 26-year-old, who has been at the Chicago firm of Kravitz & Bane less than a year, quite logically goes first to the firm’s pro bono partner, the sympathetic E. Garner Goodman, to work his way towards his imprisoned grandfather. Things look good at first because the firm had already represented the racist (Sam Cayhill) in earlier motions to save his life. So a file, although now closed, was available to Adam if he can also convince Cayhill to re-retain the firm. But at this stage, Cayhill has no idea that his grandson is even a lawyer, having lost touch with him years before. Still, while upset that the young man did not give full disclosure, while he was being interviewed for the job, of the relationship or the scheme to represent Cayhill, Goodman gives his OK; however, Adam will need the imprimatur both of the partner leading his white collar team, Emmitt Wycoff, and the managing partner, the redoubtable Daniel Rosen. Let’s scrutinize some dialogue, predictably buttressed by Grisham’s omniscient narrator where dialogue alone will not get the job done, relating first to Goodman, then to Wycoff and finally to Rosen. As we go into these closely linked questions and answers, keep in mind that Adam is the newest associate at the firm and that he has never previously met his interlocutor. Goodman asks him how much he is earning: “Sixty [thousand - this is the mid-1990s]. What are we paying you? [!]” This amused the old man, and he smiled for the first time. “They pay me four hundred thousand dollars a year to give away their time so they

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can pat themselves on the back and preach about lawyers and about social responsibility …” [Goodman now asks if Adam has as yet appeared at an actual trial for the firm:] “I argued a motion in court last week.” Adam said this with a touch of pride. Rookies were usually kept chained to their desks for the first twelve months. “A real motion?” Goodman asked, in awe. “Yes sir.” “Before a real judge?” “You got it.” “Who won?” “Judge ruled for the prosecution, but it was close. I really tied him in knots.” Goodman smiled at this, but the game was quickly over … [Goodman returns to Adam’s request.]10

Two things about this dialogue between senior and junior defy belief. In ascending order of improbability: The word “awe” imposed narratively on a chieftain in the face of something said by the lowest man on the totem pole is embarrassing; there is nothing at all to hint that Goodman is being sarcastic, and he seems really surprised by Adam’s having actually been on trial. No “awe” will be displayed, least of all in an exchange of this kind, by a scion of the firm who has heard it all to the firm’s newest associate. Even if big-firm litigation associates, as has been omnisciently and accurately conjured, almost never go to trial until many years after arrival (except to carry the briefcases of their seniors), no partner is ever going to exhibit any surprise, much less wonderment, not only towards someone like Adam but probably towards anyone else, except maybe in exaggerated open response to an answer by a hostile witness she may be crossexamining in front of a jury. Also, no partner, in no way, at no time, is going to reveal his salary to a novitiate. Worse, and chronic as we shall see, is Adam’s chutzpah in even asking Goodman such a question. Remember that Adam is leaping the first hurdle in his race to get the assignment down south he desperately craves, against the odds. Sure, the dialogue, especially Goodman’s smiling part in it, might lead Adam to believe he can test the waters of the confidential partnership financial policy, but this is an absurdly risky rejoinder to Goodman’s question about his starting salary, which Goodman asks not to find out what he already knows but to remind Adam he is a very lucky young lawyer to be at this firm. Later in what turns out to be a long and repetitious scene, Adam displays again a trait of aggressive indifference to the people he needs:

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Chapter Four Adam left the window and walked to the edge of the desk. He looked down at Goodman. “I am in the wrong place, and I want a transfer. Wycoff will agree to send me to our little [the adjective is for the reader, not for Mr. Goodman] office in Memphis for the next few months so I can work on the Cayhill case [again, “tmi”]. Sort of a leave of absence. With pay of course.” “You planned this, didn’t you? [duhhh] I mean, you picked this firm because it represented Sam Cayhill, and because it has an office in Memphis.” Adam nodded without a smile. [Master-servant reversal?] … “I’ll need to present this to Daniel Rosen, the managing partner. I think he’ll approve.” “He has a horrible reputation.”11

Nothing in the narrative has motivated the complete psychological reversal of this last passage. Grisham is not skillful enough to convey, in the manner of, say, Dostoyevsky (Smerdyakov in The Brothers Karamazov), Pinter (The Servant) or Solmssen, as we shall see, remarkable reversals of situational convention. Adam needlessly risks his professional dream by arrogantly propounding his request and literally usurping his employer’s hierarchical space. But then Grisham’s narrator is interested in keeping the reader on track with the plot. So Adam’s unmotivated chutzpah might be serving the purpose of preparing us for later challenges in the young man’s career. Yet Adam’s brashness makes only one last stand, and of course once again it is displayed towards people within his firm whom he needs. Aggressive to a fault in his interview with Goodman, Adam doubles down on nastiness when he meets with the executive committee led by Daniel Rosen. While it is true that law schools do not teach politeness, Adam’s brashness in front of people whose help he craves must be a narrative indication of an exaggerated trait that will characterize his behavior consistently and sometimes get him into needless trouble: [Rosen] deliberately took the seat directly across the small conference table from Adam, and held a thin file as if it possessed a deadly secret … “Why didn’t you tell us about your grandfather when we interviewed you last year? [note the unlikely last two words, just a needless reminder to the reader of a chronology that has already been made clear] he began with clipped words and a fierce stare. “Because you didn’t ask me,” Adam answered. Goodman had advised him the meeting might get tough, but he and Wyckoff would prevail.12

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Grisham has a way of telling us, not showing us, how things happen; Adam does, indeed, prevail. But once he gets his wish, the supreme selfconfidence that was his hallmark in the firm gives way to an equal but opposite insecurity, an almost jelly-like fear just when he needs, in fact, a touch of brashness. So the Adam we meet when his wish comes true could not be the same Adam who disses his employers and never flinches before authority, even when he probably should. Here is Adam on his first visit to death row to see his uncle: Adam stepped from his car, felt suddenly claustrophobic, and squeezed the handle of his thin briefcase as he glared through the chain link at the hot, flat little building where they killed people. He slowly removed his jacket, and noticed his shirt was already spotted and sticking to his chest. The knot in his stomach had returned with a vengeance. His first few steps toward the guard station were slow and awkward, primarily because his legs were unsteady and his knees were shivering … [A prison guard] eased forward an enormous black hand, and said, “Sergeant Packer … Just spread your legs a little” … Though he was dizzy and momentarily without the use of all his facilities, Adam could not at this horrible moment remember anyone ever asking him to spread his legs [this is pre 9/11 and airport searches], even just a little. But Packer was a pro. He patted expertly around the socks, moved up quite delicately to the knees, which were more than a little wobbly …13

There is nothing wrong with this jellyfish, but it cannot plausibly be the indomitable egotist of the earlier scenes! Seconds later, he of the brash verbal barbs directed at senior lawyers falls apart awaiting the mere entrance (in chains) of the man he has come to defend: He pulled a chair to the wooden counter, placed his jacket on another chair, removed his legal pad, unscrewed his pen, and began chewing his fingernails. He tried to stop chewing, but he couldn’t. His stomach flipped violently, and his heels twitched out of control … He waited nervously [OK, we get it!], telling himself to be calm, take it easy, relax, he could handle this.14

Who knows? Maybe if this view-from-above omniscient insight into the earlier Adam had trumped the dialogue method when he confronted lawyers at the firm, a similarly insecure Adam might have been revealed way beneath the early show of needless arrogance. As it stands, although both scenes may work well on their own, put together they will not stand. You can make sense of it if you feel you must do so (there are schizophrenic people out there, although rarely do they make it to law firms and capital

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cases, at least not as lawyers!), but your response with Grisham is likely to be “Let’s just turn the pages and plunk ourselves down inside characters who make no real sense but help the story-line towards its conclusion.” Later, of course, Adam develops other relationships. Those with his grandfather and the latter’s long-lost daughter reveal yet other Adams. All hold our interest for awhile, but for Grisham character is not worth the candle until Hollywood completes the job by putting a well-known actor’s face and persona behind those of the lawyers he leaves unfulfilled in his reader’s imagination. Plot is all, so the tension building towards either execution, stay or pardon easily trumps any real extension of our awareness of the way people think and feel. Solmssen does much better at dovetailing character portraits and plot advancement, and one example is the way he recounts Ben’s novel-long attraction to the public defender’s office and the counsel Ben seeks from such senior lawyers as Ordway Smith. In a series of nuanced conversations with members of the firm, Ben, unlike Adam, uses his junior position deftly and without either crass aggressiveness or unctuous subservience. Ben is always respectful of Ordway and other partners and saves his brash side for his adversaries in the criminal justice system to which he is increasingly drawn. It’s not necessarily that we prefer Ben to Adam (that is up to each reader) but rather that we are handed a fair chance at understanding him. His actions, and those of the people whose support he needs to strategize his career, make sense within a broad spectrum of behavior to which we can relate and hence help ourselves grow through the act of reading. We may never be junior associates at a big law firm, but we probably do have to make choices in our working lives. In the process we may need to weigh the words of those advising us, to assimilate them into our decisions. So Ben speaks out about his career conflict, at some risk (like Adam’s) to his well-being within the firm but in a much more realistic way than we saw with Grisham’s brash creation. Solmssen situates the main conversation between Ben and Ordway at a gym where they are engaged in a vigorous game of squash. Just prior to the scene, the suicide of one of Ordway’s partners (and a mentor of Ben’s) has been revealed. Pat Forrester’s eccentric behavior had been noted by both, and the very subtle narrative revelation of Forrester’s increasing doubts about the value of his entire professional life’s work provides a superb sub-plot of Rittenhouse Square and a troubling additional motivation for Ben’s own attraction to an alternative kind of law practice. Solmssen frequently interweaves one character progression with another, so that the death of Pat Forrester, after a seemingly successful life,

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tells its own story and dovetails with Ben’s increasing doubts about big firm practice. Ordway, at lunch with Ben after the squash game, also interweaves Pat Forrester’s death into a conversation that centrally involves his young colleague’s call to join the Philadelphia public defender’s office: I [remember, Ben is narrating] told him about Marvin Gold’s offer. Ordway nodded and bit into his sandwich again. “Um. Very good, Ben. We heard that you were doing a swell job over there, and this certainly proves it. Must make you feel very satisfied.”15

Already, the senior-junior lawyer dialogue is more revelatory of both men’s character—that much that we glean from much longer counterpoints in Grisham. Ordway flatters his talented colleague while always assuming there is no chance Ben that seeks a permanent place in the office for which he has been working pro bono. Ben then explains all his reasons for such a move: When I ended my speech, Ordway was slouched against the back of the sofa, carefully blowing smoke rings toward the distant ceiling. “What do you think?” I asked. “What do I think? A wretch who’s spent his life helping plutocrats hang on to their money?” He continued to look at the ceiling. “What difference does it make what I think? … Isn’t your mind made up?” “No, it’s not, Ordway. That’s why I’m asking your opinion.” He stretched his long legs and turned his face toward me. “You really want my opinion? All right, I’ll give it to you. In my opinion, this argument, which I assume is really Mr. Gold’s argument, is a lot of horseshit.”16

Ordway knows what buttons to push, but he probably would not have pushed any of them if Ben had not explicitly sought his advice. What follows is first an argument that what Ben finds exciting now, compared to “figuring out the best way for one corporation to acquire another,” but that will seem far less appealing when he faces “your hundreth rape, your six hundreth drunken assault, your thousandth prison interview.” Of course, this argument reveals much about Ordway, for better or worse, but that is the very point—Solmssen’s crucial dialogues do more than advance plot, they show, always, inner character. There is no omniscient narrator telling us what we must know (or, too often in Grisham, what we already know) to keep things moving.

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Chapter Four Meanwhile, it is Ben who observes his senior colleague. Another shoe is about to drop. He looked at his gold wristwatch. “Well, I’ve got to get going.” He walked over to the row of washbasins and, facing the mirror, began to tie his yellow foulard necktie. “Now let me tell you something else. In confidence. We really need you more than Marvin Gold does. Pat Forrester’s death has left a big hole in the firm. He built up that securities group of yours, and none of the other partners have enough background or enough time to run it properly … This business of replacing Pat is just a stopgap. In the long run, we’ll have to bring in someone from the outside, or—.” He examined his reflection once more. “Or promote one of the associates way ahead of schedule. Do you read me?” “I think so, Ordway” … “I’m as sorry as you about what happened, but if you think the firm’s at fault—Well, you’re just wrong, that’s all. Whatever it was that killed Pat grew inside him. I really mean that, Ben.” He gave my arm a friendly whack. “Thanks for the game. We’ll have another talk next week” … [His] taxi rattled away, and I walked slowly toward Rittenhouse Square.17

More goes on in these lines than we get in entire Grisham novels. It counts that Ordway Smith is Solmssen’s favorite lawyer across many novels, and that even if Rittenhouse Square is the only one you have read, you know enough about him to care and to fathom him. Ordway is to Solmssen what Gavin Stevens is to William Faulkner, a lawyer with human flaws but interesting enough to appear and re-appear across the decades. And this dialogue is Faulknerian in its subtle revelation of human depth and understanding. Ordway is not in “awe” of his junior colleague, and neither is Ben worshipful of his senior colleague. But unlike Adam with every senior lawyer he deals with early in The Chamber, Ben respects—realistically—his own junior position as he seeks a departure from it. More significantly, Ordway declines to give Ben a strictly adversarial, all or nothing, set of responses. He knows more about human nature than Ben, and he knows enough to resist, as he gets into his taxi, getting a “final answer” one way or another from his interlocutor. But there has been enough show (the watch, the foulard necktie) of what success in corporate law means, and, above all, there has been an answer to what Ordway knows is Ben’s deepest anxiety—that the practice of corporate law may lead him, eventually, to Pat Forrester’s fate. Ben and Adam: two lawyers demanding, at least temporarily, different career paths, with two approaches, that readers can appraise. Verisimilitude and maturity of vision have led me, again, to Solmssen.

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4. A Comparative Coda on the Finer Things in Life In two other novels, Grisham’s The Summons (2002) and Solmssen’s Takeover Time (1986), the novelists’ way of handling food, drink and the opposite sex are exhibited. Grisham seems to have benefited from reading Solmssen, although I have no proof of this, when it comes to the plot device of eliciting vital information over food and drink, often in luxury settings. In The Summons, law professor Ray Atlee has been trying to figure out how his just-deceased father, Judge Atlee, managed to come by and then hide millions of dollars in undeclared cash in his house. He needs to interview a shady, high-powered lawyer, a wealthy man who appeared before his father successfully and derived from that and other victories more than enough spare money to have purchased the aptly named yacht on which the interview takes place: “The King of Torts.” Patton French offers Ray a lavish meal served up by the yacht’s permanent staff. It remains to be seen, as quantities of delectables are presented to Ray, whether or not he or his host will be in any position to discuss serious matters and hence, perhaps, to get Ray information from the boisterous French. (Except for the huge difference in class and sumptuousness, the scene is not dissimilar to the one in The Client between Momma Love and Mark, as Grisham follows Solmssen’s example of interweaving information disclosure with the consumption of meals.) Seemingly endless gallons of vodka accompany each course, all described in great detail and to very good effect just on the level of sensory enjoyment for the reader. As Grisham’s reader becomes almost as inebriated on yacht-related detail as Ray and French are from the libations, Ray manages to absorb his host’s colorful stories about his many triumphs in tort-land. Ray closes in on the information he seeks, a potential key answer to his father’s ambiguous legacy, when the drunken French offers up: “I owe it all to Judge Atlee.” “How [Ray asked]?” “He had the guts to make the right call, to keep [wealthy defendants in the local Mississippi venue] instead of allowing them then to escape to federal court. He understood the issues, and he was unafraid to punish them. Timing is everything, Ray. Less than six months after he handed down his ruling, I had three million bucks in my hands.” “Did you keep all of it?” French had a bite on a fork close to his mouth. He hesitated for a second, then took the fish, chewed for awhile, then said, “I don’t understand the question.”18

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That fork next to the mouth, followed by that hesitation, speaks volumes, and it is Grisham at his best in the way of verisimilitude, which, as we have seen, can be a major problem for him! I will not give away the rest of the conversation, but it is nice that sumptuousness leads to human weakness, and that both contribute to what always counts, and sometimes only counts, for Grisham—plot development. Here too, however, Solmssen did it better in a scene also set on a yacht in Takeover Time. Significant information is similarly sought by the novel’s central lawyer, Graham Anders, who was second on Ordway’s listing of the firm’s participants in the $100,000,000 offering we discussed earlier. In this novel, the womanizing Graham uses his way with Solmssen’s always fascinating females to garner data about the threatened takeover by German investment banker of one of Conyers and Dean’s American client’s companies. The plot, always more complicated and far more interesting than most of Grisham’s, takes Anders to Hamburg both to bed the dazzling Karin Bromberg (who, as I foreshadowed, already had a steamy scene or two with Graham’s far less sexually adventurous partner, Ordway Smith, in The Comfort Letter) and to find out from or through her the shady link to the holocaust of German investor Gottfried Gesstler. Amorous excess leads to informational opportunities for Graham, as he gains an interview with Gesstler on the latter’s yacht, “The Seagull.” Graham is concerned that his client, who is Jewish, needs to know about any tint of wartime Nazi activity in this potential suitor or his suitor’s entourage, past or present. The scenes on the yacht, and then at Gesstler’s plush offices, are redolent with sherry, vintage wines and every kid of seafood available to sophisticated European hosts. The gradual revelation of data matches that in The Summons, but the experience is, again, richer for Solmssen’s reader. It helps that Solmssen did these kinds of interweaving of data and delicacy first, at least among prominent American popular culture novelists. More significant, he does what Grisham rarely even wants to do—he raises the stakes beyond mere plot advancement and sensual provocation to really serious background subjects. With great economy, Solmssen’s scenes evoke the darkest period of the twentieth century, while also unpacking the place of sexual passion in the seemingly vanilla world of corporate transactions. In the scenes between Graham and his mistress, and then on Gesstler’s yacht and in his company dining room, the stage is set for the human drama when Boris Fleischer, Graham’s client whose company may be implicated in the takeover, must learn (or be shielded from) the lurid trail to ill-gotten Nazi wealth. Solmssen consistently works things through better. If he were not isolated by a seemingly more “regional”

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presentation—if, to put it plainly, Solmssen were from New York or Los Angeles or even Chicago instead of Philadelphia—my modest attempt to make him more famous would have been unnecessary.

Bibliography Grisham, John. The Firm. New York: Random House, 1991. —. The Client. New York: Dell Publishing, 1993. —. The Chamber. New York: Doubleday, 1994. —. The Summons. New York: Doubleday, 2002. —. The Racketeer. New York: Doubleday, 2012. Solmssen, Arthur R. G. Rittenhouse Square. Boston: Little, Brown and Co., 1968. —. The Comfort Letter. Boston: Little, Brown and Co., 1975. —. Takeover Time. Boston: Little, Brown and Co., 1986.

Notes 1 Arthur R. G. Solmssen, Comfort Letter (Boston: Little, Brown and Co., 1975), 10. 2 Ibid. 3 Ibid. 4 Ibid. 5 John Grisham, The Client (New York: Dell Publishing, 1993), 144–47. 6 Ibid., 247–50. 7 Solmssen, Comfort Letter, 157–60. 8 Ibid., 283 9 Ibid., 216–17. 10 John Grisham, The Chamber, 26–27. 11 Ibid., 31–32. 12 Ibid., 37. 13 Ibid., 73–74. 14 Ibid., 75. 15 Arthur R. G. Solmssen, Rittenhouse Square (Boston: Little, Brown and Co.), 295. 16 Ibid., 295–96. 17 Ibid., 298–300. 18 John Grisham, The Summons (New York: Doubleday, 1994), 273.

PART TWO CRIME, CRIMINALS AND CRIMINAL JUSTICE

CHAPTER FIVE GENDER, HUMAN RIGHTS AND CYBERCRIME: ARE VIRTUAL WORLDS REALLY THAT DIFFERENT? KIM BARKER AND OLGA JURASZ

“… we continue to live in a real life culture that continues to be alarmingly misogynistic under the surface, but the hostility that many males feel towards females is suppressed by social forces (like mothers, law enforcement officers, etc.). In secondary virtual worlds … those controlling social forces are largely absent ….”1

Gaming was long considered to be a niche area because of both the narrow demographic sector involved and the entertainment purpose it served. In our current digital society of netizens, that is no longer the case. Massively Multiplayer Online Role-Playing Games (MMORPGs)2 and Virtual Worlds now constitute a significant part of our social relaxation activities. No longer are games dominated by social recluses or those who are little more than social gamers. The gaming market worldwide is now worth more than the global film industry.3 Some of these online interactive spaces are dominated by role-playing activities and challenges. Other spaces are more relaxed, allowing users to open businesses, build properties or generate a social place to which they can escape their real-world lives. However, as idyllic as this may sound, these are not problem-free areas. Just as in the real-world, these interactive spaces are locations of conflict, and property disputes, unacceptable behavior, sexual predation and violence are just some of the traits that are beginning to emerge from individuals’ behavior within these spaces. Virtual Worlds and MMORPGs pose challenges to accepted norms and perceptions of behavior in an online context. These online entities are a distinct subset of the gaming genre, with particular and distinctive characteristics setting them apart from other gaming categories.4 MMORPGs and Virtual Worlds differ from computer disc based games. While there is no

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readily agreed upon set of attributes that characterize MMORPGs,5 Bell suggests that the dominant distinctive factor is the persistency of these spaces—the games continue even whilst a particular user is not logged in.6 Another key characteristic concerns the multiplayer aspect of these games.7 “Multiplayer,” in this context, does not refer to games being played by one or two people in the same room or even four people in the same building. MMORPGs are games that are “massively” multiplayer, often involving hundreds of thousands of people, spread across the world, and connected to each other via the gaming platform. In these online spaces, players can choose what it is they seek to do and the behavior in which they wish to participate. This, in part, depends on the selected game environment. For example, players in World of Warcraft have to complete tasks and perform actions in a set order so that they are able to progress through the levels of the game. Contrastingly, users of Second Life are able to establish businesses, buy land and gain virtual employment should they wish to do so. Despite these differences, online games allow their users and residents to do just about anything from buying property to flying, establishing businesses, and slaying monsters. The former activities tend to be performed in virtual world environments, whereas MMORPGs typically encourage users to engage in violent game play. The gaming arena has attracted predominantly male users. Whilst for some female gamers this gender imbalance may not be problematic per se, issues do arise when there are “crude attempts to ‘addin’ female characters into games designed around the main character being a male.”8 This point is made by Wacjman in relation to technology more broadly conceived: “the very language of technology, its symbolism, is masculine … Therefore to enter this world, to learn its language, women have first to forsake their femininity.”9 Gaming spaces are dominated by role-playing entities and are now encountering challenges in a number of areas including online violence, gender issues and sexual predation. Despite the consideration given to property-focused criminality,10 little attention has been given to the legal aspects of violence, gender-based aggression and sexual deviance in these spaces. Discussion to date has focused on the proprietary constructs—property infringements within or relating to online interactive environments—or on the social or psychological impact of activity within such spaces. Furthermore, this discourse has also placed a significant emphasis on issues of child pornography and pedophilia in virtual worlds and online games. The Habbo11 environment, and issues arising within it, provide evidence of precisely this kind of problem and have drawn attention to the disturbing, hidden underbelly of social media and interactive online spaces. In Habbo,

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teenagers are encouraged to form social relationships and to engage with one another’s avatars in an online hotel environment. Seifert has investigated this and was surprised to find that there are explicit cybering activities occurring within rooms that have names such as “sexy stripclub.”12 In addition to the acts of avatars and kissing booths that shake when they are used for sex—which is reminiscent of the SexGen beds in Second Life13— the users of Habbo are subjected to unwanted explicit sex chat.14 There are other examples of the potential dangers of social interactive spaces. Anita Sarkeesian has first-hand experience of the power of games and social media. Sarkeesian is a feminist games critic and blogger and was involved in the creation of “Tropes v Women,” a “kickstarter project.”15 The project focused on the depiction of women in video games, and Sarkeesian sought donations to allow her to pursue research on this subject. A public backlash to the project emerged, consisting of abusive comments, threats and even depictions of the harm some internet users wished to inflict upon Sarkeesian. Lewis16 discusses this public reaction and describes examples of the abuse, including the hacking of Sarkeesian’s Wikipedia page and the replacement of her picture with a “sex act.” This harmful response was not to a game, but to the idea of someone examining in greater detail the depiction of women within video games. More alarmingly, the response includes a game that allows players to “beat up Anita Sarkeesian.”17 Jenson suggests that misogyny is a problematic issue in the culture of gaming because the gaming arena is so male dominated.18 To this end, the problem is not just a problem of gender depictions and the treatment of characters within a game, but also one of the responses surrounding these issues, and the discussion of these issues. Cybering,19 cyberviolence and other cybercrimes arise in Virtual Worlds and online games, as well as in other online environments. However, in our view the traditional—or accepted—concept of cybercrime does not deal with these issues adequately. This is partly due to the notion of what constitutes a “crime” and to the theory of play identified by Huizinga20 and developed into the “magic circle theorem” by Fairfield21 and Duranske.22 Smith, Graborsky and Urbas23 consider the meaning given to “cybercrime” in their assessment of cybercriminals. Firstly, they argue that cybercrime refers to crimes that are committed with the assistance of new technologies.24 The second definition they offer refers to offences that are not committed with computers, but that do affect the cyber environment in some way.25 Other commentators offer a definition of “cyber criminality” that differs from the interpretations offered by Smith, Graborsky and Urbas. Brenner, for instance, suggests that cybercrime is an intolerable social harm, yet is one which is distinct from traditional con-

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cepts of crime.26 Kerr advocates that criminal law cannot and will not recognize virtual offences.27 This suggests that another interpretation or construction of real-world criminality is required when considering equivalent acts in virtual spaces. Brenner mentions harm,28 while Williams considers there to be a distinction between cybercrime and cyberharm.29 Parti suggests that cybercrime is black letter criminal law that is prosecuted by geographical authorities, whereas cyberharm is committed in virtual reality and does not generally violate the morals of the wider community. This suggestion by Parti highlights the complexity of these issues, and questions whether Sarkeesian was subjected to cybercrime or cyberharm. Activities such as cybering, cybercrime, cyberviolence and genderbased cyberviolence challenge the regulatory positions adopted in online gaming environments that rely upon the regulatory relationship of contractual agreements, using copyright to provide a governance system. The traditional approaches to cybercrime seem to have created a gap through which these activities can occur, but not be caught. Traditional approaches to cybercrime have not, therefore, provided for the regulation of genderbased violence or sexual violence in online environments. Opinion relating to the regulation of such activities is divided between commentators, with Kerr indicating that the criminal law is of little use.30 Brenner31 and Williams32 meanwhile suggest that there are distinctions between “harms” and “crime” that ought to be recognized. Such recognition could perhaps encourage a system that deals with crimes and a separate support structure to deal with the harms arising out of the crime. This approach by Brenner and Williams, once again, contrasts with the categorizations of cybercrime advanced by Smith, Graborsky and Urbas,33 whose suggestions fail to deal adequately with gender-based cyberviolence. The construction of cyberviolence—whether it falls into the category of cybercrime or cyberharm—is one which is flawed. The predominant legal discourse considers proprietary wrongs rather than physical harms within virtual worlds and interactive spaces. Discourses from Lastowka,34 Fairfield35 and Marcus,36 for example, focus on the discussion of proprietary problems surrounding the concepts of intellectual property and virtual property. The body of case law that is emerging focuses almost exclusively upon issues relating to nerfing, real-money trading, kill-stealing, ganking and activities that involve proprietary harms (e.g. theft) or intellectual property harms (e.g. copyright infringement). There is very little, if any, legal discussion of issues relating to gender and cybercrime within virtual environments such as Second Life. That is not to suggest that gender-related crimes, wrongs or harms do not occur within these online environments. These acts have

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occurred, and displays of gender-based aggression and gender-based abuse are becoming increasingly common.

1. What Acts Are We Talking About? Examples of such violent behavior include virtual rape (LambdaMOO, rape in Second Life, RapeLay), sexual harassment and other forms of gender-based violence. The example of Anita Sarkeesian, amongst many others, demonstrates the “gender” element of harm directed at women in virtual worlds, which often take the form of acts of a sexual nature. One of the earliest examples of this type of behavior concerns the virtual rape of an avatar in the online community LambdaMOO.37 In this example, an individual operating under the name “Mr Bungle” deployed a powerful hack which allowed him to control avatars belonging to other individuals and force them to enjoy non-consensual relations with other avatars.38 Mr Bungle did not commit these attacks himself, but used another object within the community which was under his control to force others in the vicinity to perform sexual acts. This is an example which is often cited for the governance aspects of online spaces. However, the violent, gender-based aspect is frequently overlooked. It is not the sole example; in 2007 Belgian police were called upon to investigate allegations relating to the rape of an avatar.39 Another type of violence against women in cyberspace can be exemplified by RapeLay. RapeLay is a Japanese erotic game (also called “eroge”), where a player is a chikan (a Japanese term describing a person who commits acts of sexual molestation) who stalks and finally rapes the Kiryuu family, a mother and two daughters.40 During the course of a game, a player can choose from a variety of sex positions and can also group rape the female characters. Although the victims of these acts are not avatars belonging to individual female gamers, this type of game features women as purely sexual objects, as submissive bodies that are subjected to violent sexual acts. This seems to suggest that there is a distinction between the types of harm inflicted, but also the severity of them. There is, however, no clearly defined pattern of response to cyberviolence in online interactive spaces, and there is no real-world, legal recognition of gender-based cyberviolence as yet.

2. Second Life, AgePlay and RapeLay Bartle explains the constraints that a game code can put in place in order to prevent users and gamers from committing certain acts or behaving in certain ways.41 To this end, different online environments have different re-

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quirements, challenges and surroundings that provide contrasting experiences for the users. Games are scripted environments; users are required to complete an increasingly challenging set of tasks to progress to the higher and more rewarding levels. Each user essentially follows the script to complete the game or achieve the highest level. Conversely, in unscripted environments users benefit from greater freedom and less restrictions. In environments such as LambdaMOO or Second Life there are no set tasks to complete; users can do what they like rather than what the game requires. As a result, there are significantly less constraints in MMOLGs than in MMORPGs, and this is potentially why issues such as cybering and ageplay arise. Those in control of the game code are able to control aspects of existence in these online spaces. The construction of these online spaces is capable of partially explaining the problems that are emerging in terms of gendered violence and sexually inappropriate behavior. Duranske has considered explicit in-world content in Second Life, but the focus is predominantly on child porn rather than on violence against female characters.42 Prostitution has also been considered, but again the emphasis has not been on the gender elements associated with such activities. There are also very few rules about what can and cannot happen in Second Life, a fact closely related to the problems of imposing penalties on violence: “The act is legal if no government body has made it illegal.”43 This implies that even if there were limits within the game, they would not be complied with because breach of them would not lead to official sanction. However, as Johnson comments, our “offline” lives have limits and do not provide us with the same potential to explore undesirable aspects of our personalities as we might in a virtual world.44 Despite this, online games and virtual worlds are regulated—at least in theory—by End User License Agreements. These contractual agreements are designed to stipulate what is considered to be acceptable and unacceptable behavior. In the same way that each online interactive space is different and the behavior occurring is different, so too are the contractual behavioral clauses. Each of the spaces has some form of Code of Conduct or Terms of Use with which users are contractually bound to comply. However, this does not mean that the users obey such agreements. For example, Habbo has its own code of conduct—the Habbo Way—to which users are required to agree, but this has failed to protect the very users it was designed to shield. Second Life is another example of the failure of contractual terms and conditions and exposes their inadequacies when it comes to protecting those who have agreed to be bound by and follow them. In Second Life, it

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is not uncommon for avatars to engage in sexual acts or violent sexual activities. For instance, it is entirely possible for an avatar to voluntarily submit to violent sexual acts with another avatar. Some commentators refer to this as virtual rape whereas others consider the difficulties of using such a phrase, with the obvious difficulty being the penetration of an avatar by another avatar and a secondary consideration being the consent of the controlling gamer. Nevertheless, this activity is a recognized attribute of life in a virtual world, and avatars partake in it. However, it raises questions about the violence, and gender-based violence in particular, that such unpunished behavior could condone. The debate about whether an avatar can be raped is indicative of a wider problem arising in social media and online games—the social constructs that inform the behavior and activities of those who participate in such games.

3. Where are Women in the Context of this Debate? Women have become increasingly visible in what may appear to be a predominantly “male virtual world.” Women’s participation in virtual worlds is subject to the same terms as those of their male counterparts—there is no differentiation based on the gender of the user, both sexes enjoy the same rights and freedom of expression, and are subject to the same regulations (where they exist) and prohibitions. Therefore, it is even more striking that women’s existence and the activities which they undertake in virtual worlds are subject to attacks by male users. What is more, these attacks are far from the expression of a verbal disagreement with activities of female users. Instead, they take the form of gender-specific harms, including acts of sexual violence. “Fat, Ugly or Slutty,” a blog where female online gamers share insulting and degrading messages received from male players, features multiple examples of what, if occurring in the real world, would constitute (sexual) harassment. As the name of the blog suggests, the comments received by women broadly refer to three categories (i.e. fat, ugly or slutty), purporting to reflect either women’s physical features and/or their allegedly promiscuous conduct. These violent responses are not prompted by any particular behavior of female users, but by their mere active presence in the virtual space (a point demonstrated by the example of Anita Sarkeesian discussed above).

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4. Twitter Threats and Trolling Most recently, the UK news widely reported threats made on Twitter as a form of online abuse that, somewhat unsurprisingly, took a gender-specific form. Twitter threats included rape threats, direct descriptions of other forms of sexualized abuse as well as general violence, reaching as far as death and bomb threats.45 The threats were made by other users, most often male,46 who are commonly referred to as “trolls.” Hardaker defines a “troll” as a “user who constructs the identity of sincerely wishing to be part of the group in question, including professing, or conveying pseudosincere intentions, but whose real intention(s) is/are to cause disruption and/or to trigger or exacerbate conflict for the purposes of their own amusement.”47 While both women and men can become victims of online threats or trolling, this fairly new phenomenon appears to target predominantly female users. What is more, such behavior is usually directed at women who are feminists or are outspoken about their views or causes they support. The UK-based example of Twitter trolling concerned Caroline Criado-Perez who was campaigning for the proposed new £10 banknote to include an image of Jane Austen. In response to her campaign, Criado-Perez received hostile and aggressive tweets threatening to rape and kill her. Similar threats were received by other popular Tweeters, such as journalists Hadley Freeman, India Knight and Laurie Penny as well as historian Mary Beard. Examples of Twitter trolling, as well as the context in which it takes place, illustrate how common and substantive the problem of abuse of women is in online and virtual domains. Despite the fact that RapeLay was banned from sale in some countries,48 that female gamers on Fat, Ugly or Slutty often laugh off insulting messages from male gamers, and women who have been trolled have come to the attention of the UK police, the above examples nonetheless represent an increasingly common problem of the prevalence of sexualized cyberviolence and gender-based abuse directed against women in virtual worlds and online environments. Whether directed against female gamers in interaction with other users (e.g. rape in Second Life) or when picturing sexual violence against women in a virtual world (e.g. RapeLay) or when taking the form of Twitter trolls, violence against women online and in virtual worlds is an alarming phenomenon. Although it is a phenomenon that presents problems from both legal and ethical perspectives, it remains currently unregulated by laws relating to virtual and, more broadly, online environments.

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5. Where Does the Problem Lie? When considering the problem of violence against women in virtual environments, the debate typically poses the question—what is the reason behind this phenomenon? The social construction of online violence is flawed, as is the absence of appropriate regulation and enforcement. This is largely due to the social construction we adopt for the regulation of digital spaces. There is a conception that our “online” is very different from our “offline,” yet, even if this is the situation, the standard concepts that have been adopted are now in need of some pressing reconstruction. Despite the obvious differences between the real and virtual worlds, the two bear a significant resemblance in their “social” features. While the representation of bodies in virtual worlds takes a digital form, it can be argued that the social constitution of the virtual embodiment is heavily embedded in “real world” social constructs and norms. According to Green, “the virtual bodies produced through engagements with virtual reality technologies are embedded in ‘pre-virtual’ material social relations and, as such, necessarily incorporate social practices which categorize and standardize bodies, and also assume relations of difference and inequality between bodies.”49 In other words, although the bodies and their interaction are virtual, the social element of these relationships is rooted in a real world framework. In the real world, violence against women is often “socially accepted” and marginalized despite being a pressing social problem. Although there exist laws that punish acts of violence against women (e.g. domestic violence, marital rape, sexual harassment), such acts are often perceived to be matters of primarily private rather than public concern. Despite steps being taken on a supranational level to combat violence against women, the main problems concern enforcement and the need to change social attitudes towards women. For example, The Council of Europe Convention on preventing and combating violence against women and domestic violence (2011),50 the most recent international instrument aimed at the protection of women from violence and the prevention of it, has so far received only ten ratifications. This example shows the social reluctance, here emanating from the state, towards addressing this problem in an adequate, gender-sensitive and effective manner. Like its real life equivalent, gender-based violence in cyberspace reflects existing inequalities within modern society. It is representative of the (mis)treatment and marginalization of women throughout history, but also reflects the power relations between men and women— representatives of the “second sex.” What, at first, may appear to be a

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brave new (virtual) world is in fact a “virtualized real” where, as Wise notes, “the experience and dominant representations of women in the ‘real’ are transferred.”51 What calls for regulation is therefore not the sexualized representation of virtual female bodies themselves (e.g. the form of a female avatar), but rather the social construction of virtual corporeality and sexualized violence associated with it, “their meanings negotiated and renegotiated by those who use the technologies”52 and, most importantly, the social attitudes towards women.

6. The (Im)possibility of Regulation We have shown that the regulation of behavior in virtual worlds is fairly limited. The “real world” laws are primarily used in relation to cybercrimes which relate to proprietary wrongs rather than “physical” wrongs committed in a virtual space. To a certain extent, it can be argued that there are signs of attempted regulation of other forms of criminal behavior in cyberspace. There appears to be a consensus amongst commentators regarding the need for regulation of child pornography both online and in virtual worlds. Pornography (both child and adult) generally appears to be an issue prone to regulation, and there also appears to be an increasingly wider recognition of its allegedly harmful effects. Pornography is also an issue which has been not only scrutinized by feminist commentators,53 but also one that has been highly politicized54 and discussed in the public sphere, especially in the context of moral and ethical considerations. Finally, pornography has been criticized for contributing towards the maintenance of discrimination against women and the promotion of misogyny, both of which have a detrimental effect on advancing women’s rights and maintaining their equality.55 The Convention on Cybercrime, a first and so far leading supranational instrument aimed at the legal regulation of crime committed in cyberspace, explicitly prohibits “producing, offering, making available, distributing, transmitting or possessing child pornography via computer systems” (Article 9). No similar regulatory legal provisions exist in relation to other forms of online and virtual gender-based violence, sexualized abuse, or trolling.56 Questions should, therefore, be asked about the reasons for the selectiveness in attempts to regulate cybercrimes of a non-proprietary nature. Some relate to issues discussed above concerning the “invisibility” of women in the public sphere and the reluctance of regulators to recognize gender-specific harms suffered by them (for example, in the UK marital rape was legally recognized only in mid-1990s). This is exacerbated by

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societal indifference to gender-specific harm generally and that sustained by women in particular. Another difficulty regarding the legal regulation of cyberviolence is posed by the way in which harm is conceptualized. In real life, acts of violence (whether physical or psychological) cause harm to a victim’s body or severely affect their mental state. When violence takes place in the virtual world, the “injured party” is an avatar—a virtual embodiment created and directed by the “real life” individual. Consequently, the question arises about the harm that takes place as result of a wrongful virtual act. Does virtual harm even constitute a “harm”? If so, how should its meaning be constructed for purposes of regulating cyberviolence against women? Therefore, what needs to change in the context of the current debate about the regulation of cybercriminality (and cyberviolence in particular) is the understanding of the meaning of harm arising from the situations described in this chapter. It is necessary to shift this debate from the regulation of “obvious” harm, mostly related to property in virtual worlds, towards a broader understanding of the term. According to Wolfendale, the important element in understanding virtual harm can be found in the moral attachment and self-identification of the user with the avatar.57 Wolfendale focuses on the detrimental impact of virtual harm on the player (“controller”), which in her view sets a basis for establishing a moral wrong. The recognition of avatar attachment to its controller as morally legitimate (i.e. “linked to personal narratives, identity, self-conception … often located in a community of shared social expectations”58) also supports the claim for regulation and punishment of virtual harm. Powers also argues that the virtual harm done to characters in the virtual world constitutes a real harm to the controllers of these characters (players/users), a harm defined by the moral boundaries established in the context of a particular virtual community. He notes that “the strength of the character-controller identification and the moral boundaries set for the controllers by the practices of the virtual community lay out the basis for a moral judgment.”59 Aside from the discourse of attachment, the call for the reconceptualization and regulation of cyberviolence against women is supported by yet another concern—the social component that this behavior fosters. The debate about the benefits and potential harms caused by engaging in online/virtual violence is divided. Some commentators argue for the positive, even cathartic effects of committing acts of virtual violence and dismiss its seriousness by encouraging users to draw a clear lines between “real” and “virtual” violence.60 Others point towards the potential impact of engagement in sexualized cyberviolence on “real world” cases. A prime

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example is that of Ryan Chinnery, a 19-year-old who carried out late night violent sex attacks on women following long hours of playing Grand Theft Auto—a game in which players can steal cars and kill prostitutes as a part of the game. In the case against Chinnery, Judge Philip Statman pointed out “a worrying mirror of conduct between that which pornography presented [to the defendant] and that which [he] carried out.”61

7. What About Human Rights? Although it is difficult to establish a traditional human rights based approach towards the regulation of cyberviolence (due to the absence of the state-individual relationship), some commentators nevertheless use human rights discourse to support the call for regulation of behavior in cyberspace. For example, in the calling for regulation of cyber racism, Daniels notes that “[for other democratic nations] white supremacy online is viewed as a human rights issue, based on a collective awareness of historical inequality.”62 The argument presented by Daniels in this statement is embedded in the notion of historical inequality, which finds its roots in various aspects of “inequality” such as race and religion, but also gender. Therefore, the notion of inequality can be applied to situations involving cyberviolence against women examined in this chapter. Applying this reasoning to the problem at hand, one may conclude that if the notion of inequality is central to the justification for regulation of the undisputed wrongfulness of cyber racism, then gender inequality emanating from various forms of cyberviolence and abuse directed against women in online environments should arguably receive same regulatory treatment. Discrimination against women has been persistent throughout history and continues to persist within contemporary societies. Virtual and online environments appear to have created a haven within which gender discrimination and misogyny can flourish. Furthermore, as noted by Sarkeesian: whether it is a cyber mob or just a handful of hateful comments, the end result is maintaining and reinforcing and normalizing a culture of sexism, where men who harass are supported by their peers and rewarded for their sexist attitudes and behaviors and where women are silenced, marginalized and excluded from full participation.63

While human rights law does not provide an adequate framework for the regulation of online behavior, what is to be scrutinized and eliminated from online and virtual environments is discrimination—be it racial, religious64 or gender-based. To suggest that some bases on which discrimina-

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tion occurs are more susceptible to regulation than others is not only wrong, but also undermines the very notion of equality.

8. Conclusions The regulation of behavior in online and virtual environments, especially when it takes the form of gender-based violence and discrimination, is a pressing issue. With our lives becoming increasingly embedded in online or virtual environments, the call for regulation of online behavior is necessary. While the dichotomy of “offline” and “online” is distinctive, the human behavior and social constructs within which society operates do not mirror this distinction. Behavior in online and virtual worlds is arguably embedded in “real life” constructs that are re-enacted in online and virtual environments. What is more, the “unregulated” virtual world allows certain aspects of human behavior to escalate and flourish in an environment which, unlike the real world, in uncontrolled by laws, authority or social conventions and which provides a sense of anonymity and dissociative autonomy.65 While current “real life” laws are of little use in this context, this does not mean that regulation is impossible. Regulation needs to exist for discriminatory and misogynistic behavior to be publicized, shamed and eliminated. However, in order to be adequate and effective,66 any such regulation needs to be specific to the environment that it attempts to regulate.

Bibliography Barker, Kim. “MMORPGing, Law and Lingo,” in Current Legal Issues: Law and Language, edited by M. Freeman and F. Smith. Oxford University Press, 2013, 417–33. BBC News. “Chinese Gamer Sentenced to Life,” (June 8, 2005) http://news.bbc.co.uk/1/hi/4072704.stm (accessed June 20, 2012). BBC News. “Habbo investor pulls out after ‘explicit’ sex allegations,” (June 12, 2012) http://www.bbc.co.u/new/technology-18415763 (accessed June 20, 2012). BBC News. “‘Porn’ man jailed for attacks,” (November 6, 2008), http://news.bbc.co.uk/1/hi/england/kent/7713991.stm (accessed September 6, 2013). Bell, Mark. “Toward a Definition of Virtual Worlds.” JVW Research 1 (1) (2008): 2–5.

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Brenner Susan. “Fantasy: The Role of Criminal Law in Virtual Worlds.” Vanderbilt Journal of Entertainment and Technology Law 11 (1) (2008): 1–97. Cavalli, Earnest. “Police refuse to aid in virtual theft case,” (February 4, 2008), http://www.wired.com/gamelife/2008/02/police-refuse-t/ (accessed September 6, 2013). Chrisafis, Angelique. “Twitter Gives Data to French Authorities After Spate of Antisemitic Tweets,” The Guardian, July 12, 2013, http://www.theguardian.com/technology/2013/jul/12/twitter-datafrench-antisemitic-tweets. Daniels, Jessie. Cyber Racism. Lanham: Rowman & Littlefield Publishers, 2009. de Zwart, Melissa. “Virtually ethical,” (2008), cited in Cameron Boyd, “Virtual Violence,” (2009) ACSSA Newsletter 21 (7), http://www.aifs.gov.au/acssa/pubs/newsletter/n21pdf/n21c.pdf (accessed September 6, 2013). Department for Culture, Media and Sport. “Skills Review of Video Game and Visual Effects Industries, (DCMS News), February 1, 2011, available online: http://www.culture.gov.uk/news/news_stories/7754. (accessed June 20, 2012) Dibbell, Julian. My Tiny Life: Crime and Passion in a Virtual World. London: Fourth Estate Ltd, 1998. Dibbell, Julian. “A Rape in Cyberspace (Or TINYSOCIETY, and How To Make One),” http://www.juliandibbell.com/articles/a-rape-in-cyberspace/ (accessed July 20, 2012). Duranske, Benjamin Tyson. ‘“Virtual Rape’ Claims Bring Belgian Police to Second Life,” Virtually Blind (April 24, 2007) http://virtuallyblind.com/2007/04/24/open-roundtable-allegations-ofvirtual-rape-bring-belgian-police-to-second-life/ (accessed July 20, 2012). Duranske, Benjamin Tyson. Virtual Law: Navigating the Legal Landscape of Virtual Worlds. Chicago: ABA Publishing, 2008. Eisen, Andrew. “Feminist Frequency Kickstarter Successful Despite Internet Asshats,” (June 12, 2012) http://www.gamepolitics.com/2012/06/12/feminist-frequencykickstarter-successful-despite-internet-asshats (accessed June 20, 2012). Fairfield, Joshua. “The Magic Circle.” Vanderbilt Journal of Law & Technology 11 (4) (2009): 823–42.

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Fairfield, Joshua. “Virtual Property.” Boston U L Rev 85 (2005): 1047– 1104. Fernandez-Blance, Katherine. “Misogyny, Violence Highlighted in Online Video Game, Social Media Threats,” http://www.londoncommunitynews.com/2012/07/misogyny-violencehighlighted-in-online-video-game-social-media-threats/ (July 11, 2012). Green, Nicola. “Beyond Being Digital: Representation and Virtual Corporeality.” In Virtual Politics: Identity and Community in Cyberspace, edited by David Holmes. London: SAGE, 1997, 59–78. Hardaker, Claire. “Trolling in asynchronous computer-mediated communication: From User Discussions to Academic Definitions.” Journal of Politeness Research 6 (2010): 215–42. —. “What Is Turning So Many Young Men into Internet Trolls,” The Guardian, August 3, 2013, http://www.theguardian.com/media/2013/aug/03/how-to-stop-trollssocial-media (accessed September 6, 2013). Huizinga, Johan. Homo Ludens. London: Routledge, 1955. Suler, John. “The Online Disinhibition Effect.” CyberPsychology & Behaviour 7 (3) (2004): 321–26. Johnson, David & David Post. “Law and Borders—The Rise of Law in Cyberspace.” Stan L Rev 48 (1996): 1367–1404. Kennedy, Ronan. “Virtual Rights? Property in Online Game Objects and Characters.” Information & Communication Technology Law 17 (2) (June 2008): 95–106. Johnson, David. “How Online Games May Change the Law and Legally Significant Institutions.” N Y L Sch L Rev 49 (1) (2004): 51–62. Kerr, Aphra. “Girls / Women Just Want to Have Fun—A Study of Adult Female Players of Digital Games.” Level Up Conference Proceedings. University of Utrecht, Utrecht (2009): 270–85. Kerr, Orin. “Criminal Law in Virtual Worlds.” University of Chicago Law Forum (2008): 415–29. Lastowka, Greg & Hunter, Dan. “The Laws of Virtual Worlds.” Cal L Rev 92 (2004): 1–102. Lewis, Helen. “Dear The Internet, This is Why You Can’t Have Anything Nice,” (June 12, 2012). http://www.newstatesman.com/blogs/internet/2012/06/dear-internetwhy-you-cant-have-anything-nice (accessed June 20, 2012). Lewis, Helen. “This is What Online Harassment Looks Like,” (July 6, 2012) http://www.newstatesman.com/blogs/internet/2012/07/what-online harassment-looks (accessed July 10, 2012).

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Luck, Morgan. “The Gamer’s Dilemma: An Analysis of the Arguments for the Moral Distinction between Virtual Murder and Virtual Paedophilia.” Ethics and Information Technology 11 (2009): 31–6. MacKinnon, Catharine. Only Words. Cambridge Mass.: Harvard University Press, 1993. MacKinnon, Richard. “The Social Construction of Rape in Virtual Reality.” In Network and Netplay: Virtual Groups on the Internet, edited by M. McLaughlin et al. Menlo Park: AAAI Press, 1998: 147–72. Magnanti, Brooke. “Twitter’s ‘Report Abuse Button’ Has Already Hurt Some Good Guys,” Daily Telegraph, August 11, 2013, http://www.telegraph.co.uk/women/womens-life/10233715/Twittertrolls-The-report-abuse-button-has-already-hurt-some-good-guys.html (accessed September 6, 2013). Marcus, Todd. “Fostering Creativity in Virtual Worlds: Easing the Restrictiveness of Copyright for User-Created Content.” N Y L Sch L Rev 52 (2007–08): 67–94. Martin, Alan. “Online Disinhibition and Psychology of Trolling.” Wired, May 30, 2013, http://www.wired.co.uk/news/archive/2013-05/30/ online-aggression (accessed September 6, 2013). Moore, Matthew. “Rapelay Virtual Game Banned by Amazon.” Daily Telegraph, February 13, 2009, http://www.telegraph.co.uk/technology/4611161/Rapelay-virtual-rapegame-banned-by-Amazon.html (accessed September 6, 2013). Parti, Katalin. “Actual Policing in Virtual Reality—A Cause of Moral Panic or a Justified Need?” In Virtual Reality, ed. J. J. Kim (National Institute of Criminology, Hungary 2010). http://www.intechopen.com/books/virtual-reality/actual-policing-invirtual-reality-a-cause-of-moral-panic-or-a-justified-need(accessed September 6, 2013). Penny, Laurie. Cybersexism. Sex, Gender and Power on the Internet. London: Bloomsbury, 2013, Kindle edition. Pinchefsky, Carol. “Sexual Harassment in Video Game Culture,” Forbes (March 8, 2012) http://www.forbes.com/sites/carolpinchefsky/2012/08/03/sexualharassment-in-videogame-culture/3/ (accessed 12 July 2012). Powers, Thomas M. “Real Wrongs in Virtual Communities.” Ethics and Information Technology 5 (2003): 191–98. “RapeLay”, http://en.wikipedia.org/wiki/RapeLay (accessed September 6, 2013). Quinn, Ben. “Twitter Bomb Threats Made Against More Women in Public Eye,” The Guardian, August 5, 2013,

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http://www.theguardian.com/technology/2013/aug/05/twitter-bombthreats-women (accessed September 6, 2013). Seifert, Rachel. “Striptease and Cyber Sex: My Stay at Habbo Hotel,” Channel 4 News, June 12, 2012, http://www.channel4.com/news/striptease-and-cyber-sex-my-stay-athabbo-hotel (accessed 20 June 2012). Sarkeesian, Anita. TedXWomen Talk “Online Harassment and Cyber Mobs,” December 4, 2012, 07.35.–07.57., http://www.feministfrequency.com/2012/12/tedxwomen-talk-onsexist-harassment-cyber-mobs/ (accessed September 6, 2013). Smith, R., P. Graborsky & G. Urbas. Cyber Criminals on Trial. Cambridge: Cambridge University Press, 2004. Strikwerda, Litska “Theft of Virtual Items in Online Multiplayer Computer Games: An Ontological and Moral Analysis.” Ethics and Information Technology 14 (89) (2012): 89–97. Press Association. The Guardian, “David Cameron Parents Must Take Responsibility on Internet Pornography,” September 7, 2013, http://www.theguardian.com/education/2013/sep/07/david-cameronparents-internet-pornography (accessed September 6, 2013). Urban Dictionary, “Cybering,” http://www.urbandictionary.com/define.php?term=cybering (accessed July 12, 2012). Wacjman, J. Feminism Confronts Technology. London: John Wiley & Sons, 1991. Wikipedia. “A Rape in Cyberspace,” http://en.wikipedia.org/wiki/A_Rape_in_Cyberspace (accessed July 20, 2012). Williams, Matthew. Virtually Criminal. Crime, Deviance and Regulation Online. Routledge, London, 2006. Wise, Patricia. “Always Already Virtual: Feminist Politics in Cyberspace.” In Virtual Politics: Identity and Community in Cyberspace, edited by David Holmes. London: SAGE, 1997. Wolfendale, Jessica. “My Avatar, My Self: Virtual Harm and Attachment.” Ethics and Information Technology 9 (2007): 111–19.

Case Law Eros, LLC, v. John Doe, US Dist. Ct. Middle District of Florida, Case No: 8:07-cv-1158-T-24TG [2007].

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Legislation Council of Europe Convention on preventing and combating violence against women and domestic violence, CETS No.210 (2011), available at: www.coe.int/conventionviolence (accessed September 6, 2013).

Notes 1

C. Pinchefsky, “Sexual Harassment in Video Game Culture,” (Forbes, March 8, 2012) http://www.forbes.com/sites/carolpinchefsky/2012/08/03/sexual-harass ment-in-videogame-culture/3/ (accessed 12 July 2012). 2 Massively Multiplayer Online Role-Playing Games (hereafter “MMORPGs”). For example, World of Warcraft. 3 Department for Culture, Media and Sport, “Skills Review of Video Game and Visual Effects Industries,” (DCMS News) February 1, 2011, available online: http://www.culture.gov.uk/news/news_stories/7754.aspx (accessed June 20, 2012). 4 K. Barker, “MMORPGing, Law and Lingo,” in M. Freeman M and F. Smith (eds.), Current Legal Issues: Law and Language (vol. 13, OUP 2013), 433. 5 B. T. Duranske, Virtual Law: Navigating the Legal Landscape of Virtual Worlds (ABA Publishing 2008) 5. 6 M. Bell, “Toward a Definition of Virtual Worlds,” JVW Research 1(1) (2008): 2. 7 R. Kennedy, “Virtual Rights? Property in Online Game Objects and Characters,” Information & Communication Technology Law 17 (2) (June 2008): 95. 8 A. Kerr, “Girls / Women Just Want to Have Fun—A Study of Adult Female Players of Digital Games.” Level Up Conference Proceedings (University of Utrecht, Utrecht, 2009), 270. 9 J. Wacjman, Feminism Confronts Technology (London: John Wiley & Sons, 1991), 38. 10 See for example: M. Luck, “The Gamer’s Dilemma: An Analysis of the Arguments for the Moral Distinction Between Virtual Murder and Virtual Paedophilia,” Ethics and Information Technology 11 (31) (2009); L. Strikwerda, “Theft of Virtual Items in Online Multiplayer Computer Games: An Ontological and Moral Analysis,” Ethics and Information Technology 14 (89) (2012); O. S. Kerr, “Criminal Law in Virtual Worlds,” University of Chicago Legal Forum, GWU Law School Public Law Research Paper 391 (2008): 415. http://ssrn.com/abstract=1097392 (accessed December 12, 2010). 11 R. Seifert, “Striptease and Cyber Sex: My Stay at Habbo Hotel,” Channel 4 News, June 12, 2012, http://www.channel4.com/news/striptease-and-cyber-sexmy-stay-at-habbo-hotel (accessed 20 June 2012). 12 Seifert, “Striptease and Cyber Sex” http://www.channel4.com/news/stripteaseand-cyber-sex-my-stay-at-habbo-hotel. 13 It was the design and replication of the SexGen beds which were the issue in the case of Eros, LLC, v. John Doe, US Dist. Ct. Middle District of Florida, Case No: 8:07-cv-1158-T-24TG [2007].

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BBC News, “Habbo Investor Pulls Out After ‘Explicit’ Sex Allegations,” (June 12, 2012) http://www.bbc.co.u/new/technology-18415763 (accessed June 20, 2012). 15 A. Eisen, “Feminist Frequency Kickstarter Successful Despite Internet Asshats,” (June 12, 2012) http://www.gamepolitics.com/2012/06/12/feminist-frequencykickstarter-successful-despite-internet-asshats (accessed June 20, 2012). 16 H. Lewis, “Dear The Internet, This is Why You Can’t Have Anything Nice,” (June 12, 2012) http://www.newstatesman.com/blogs/internet/2012/06/dearinternet-why-you-cant-have-anything-nice (accessed June 20, 2012). 17 H. Lewis, “This is What Online Harassment Looks Like,” (July 6, 2012) http://www.newstatesman.com/blogs/internet/2012/07/what-online-harassmentlooks (accessed July 10, 2012). 18 K. Fernandez-Blance, “Misogyny, Violence Highlighted in Online Video Game, Social Media Threats,” (July 11, 2012) http://www.londoncommunitynews.com/2012/07/misogyny-violence-highlightedin-online-video-game-social-media-threats/ (accessed July 20, 2012). 19 Urban Dictionary, “Cybering,” http://www.urbandictionary.com/define.php?term=cybering (accessed July 12, 2012). 20 J. Huizinga, Homo Ludens (London: Routledge, 1955), 13. 21 J. Fairfield, “The Magic Circle,” Vanderbilt Journal of Law & Technology 11 (4) (2009): 823, 825. 22 Duranske, Virtual Law, 75. 23 R.G. Smith, P. Graborsky & G. Urbas, Cyber Criminals on Trial (Cambridge: Cambridge University Press, 2004), 5. 24 Smith, Graborsky & Urbas, Cyber Criminals on Trial, 5. 25 Ibid. 26 S. Brenner, “Fantasy: The Role of Criminal Law in Virtual Worlds,” Vanderbilt Journal of Entertainment and Technology Law 11 (1) (2008): 25. 27 O. S. Kerr, “Criminal Law in Virtual Worlds,” University of Chicago Law Forum (2008): 415, 416. 28 Brenner, “Fantasy: The Role of Criminal Law in Virtual Worlds,” 25. 29 M. Williams, Virtually Criminal. Crime, Deviance and Regulation Online (Routledge: London, 2006), 3. 30 Kerr, “Criminal Law in Virtual Worlds,” 415, 416. 31 S. Brenner, “Fantasy: The Role of Criminal Law in Virtual Worlds,” Vanderbilt Journal of Entertainment and Technology Law 11 (1) (2008): 25. 32 Williams, Virtually Criminal, 3. 33 Smith, Graborsky & Urbas, Cyber Criminals on Trial, 5. 34 F. G. Lastowka & D. Hunter, “The Laws of Virtual Worlds,” Cal L Rev 92 (2004): 1. 35 J. A. T. Fairfield, “Virtual Property,” Boston U L Rev 85 (2005): 1047. 36 T. D. Marcus, “Fostering Creativity in Virtual Worlds: Easing the Restrictiveness of Copyright for User-Created Content,” N Y L Sch L Rev 52 (2007–8): 67. 37 Wikipedia, “A Rape in Cyberspace,”

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http://en.wikipedia.org/wiki/A_Rape_in_Cyberspace (accessed July 20, 2012). 38 J. Dibbell, My Tiny Life: Crime and Passion in a Virtual World (Fourth Estate Ltd, London 1998); Dibbell J, “A Rape in Cyberspace (Or TINYSOCIETY, and How To Make one)” http://www.juliandibbell.com/articles/a-rape-in-cyberspace/ (accessed July 20, 2012). 39 B. T. Duranske, ‘“Virtual Rape’ Claims Bring Belgian Police to Second Life,” Virtually Blind (April 24, 2007) http://virtuallyblind.com/2007/04/24/openroundtable-allegations-of-virtual-rape-bring-belgian-police-to-second-life/ (accessed July 20, 2012). 40 “RapeLay,” accessed September 6, 2013, http://en.wikipedia.org/wiki/RapeLay 41 R. A. Bartle, Designing Virtual Worlds (New Riders Press, Indianapolis, 2003), 43. 42 Duranske, Virtual Law, 75. 43 D. R. Johnson and D. G. Post, “Law and Borders—The Rise of Law in Cyberspace,” Stan L Rev 48 (1996): 1367. 44 D. R. Johnson, “How Online Games May Change the Law and Legally Significant Institutions,” N Y L Sch L Rev 49 (2004): 51. 45 Ben Quinn, “Twitter Bomb Threats Made Against More Women in Public Eye,” The Guardian, August 5, 2013, http://www.theguardian.com/technology/2013/aug/05/twitter-bomb-threats-women (accessed September 6, 2013). 46 Hardaker explores, from the behavioral perspective, the reasons why young men turn into trolls: Claire Hardaker, “What Is Turning So Many Young Men into Internet Trolls,” The Guardian, August 3, 2013, http://www.theguardian.com/media/2013/aug/03/how-to-stop-trolls-social-media (accessed September 6, 2013). 47 Claire Hardaker, “Trolling in Asynchronous Computer-Mediated Communication: From User Discussions to Academic Definitions,” Journal of Politeness Research 6 (2010): 237. 48 Matthew Moore, “Rapelay Virtual Game Banned by Amazon,” Daily Telegraph, February 13, 2009, http://www.telegraph.co.uk/technology/4611161/Rapelayvirtual-rape-game-banned-by-Amazon.html (accessed September 6, 2013). 49 Nicola Green, “Beyond Being Digital: Representation and Virtual Corporeality,” in Virtual Politics: Identity and Community in Cyberspace, ed. David Holmes (London: SAGE, 1997), 59. 50 Council of Europe Convention on preventing and combating violence against women and domestic violence CETS No.210 (2011), available at: www.coe.int/conventionviolence (accessed September 6, 2013). 51 Patricia Wise, “Always Already Virtual: Feminist Politics in Cyberspace,” in Virtual Politics: Identity and Community in Cyberspace, ed. David Holmes (London: SAGE, 1997), 179. 52 Nicola Green, “Beyond Being Digital: Representation and Virtual Corporeality,” in Virtual Politics: Identity and Community in Cyberspace, ed. David Holmes (London: SAGE, 1997), 59.

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Laurie Penny notes, in relation to the effects of pornography, that “… sex is not a problem; sexism is the problem. Online misogyny, like any other misogyny, is about power, resentment and frustration, and not about sexual overstimulation, although it can be sexually expressed. Blaming the vicious woman-hatred of men using the Internet to attack women and girls on pornography is, to a very great extent, letting them off the hook,” in Laurie Penny, Cybersexism. Sex, Gender and Power on the Internet (London: Bloomsbury, 2013), Kindle edition. 54 “David Cameron: Parents Must Take Responsibility on Internet Porn,” The Guardian, September 7, 2013, http://www.theguardian.com/education/2013/sep/07/david-cameron-parentsinternet-pornography (accessed September 7, 2013). 55 Catharine MacKinnon, Only Words (Cambridge MA: Harvard University Press, 1993). 56 Statement correct at the time of writing (September 2013). 57 J. Wolfendale, “My Avatar, My Self: Virtual Harm and Attachment,” Ethics and Information Technology 9 (2007): 111–19. 58 Wolfendale, “My Avatar, My Self,” 118. 59 Thomas M. Powers, “Real Wrongs in Virtual Communities,” Ethics and Information Technology 5 (2003): 196. 60 Melissa de Zwart, Virtually Ethical (2008), cited in: Cameron Boyd, “Virtual Violence,” (2009) ACSSA Newsletter 21 (7), http://www.aifs.gov.au/acssa/pubs/newsletter/n21pdf/n21c.pdf (accessed 6 September 2013). Richard MacKinnon, “The Social Construction of Rape in Virtual Reality,” in Network and Netplay: Virtual Groups on the Internet, M. McLaughlin et al. (eds.) (Menlo Park: AAAI Press, 1998), 147–72. 61 BBC News, “‘Porn’ Man Jailed for Attacks,” November 6, 2008, http://news.bbc.co.uk/1/hi/england/kent/7713991.stm (accessed September 6, 2013). 62 Jessie Daniels, Cyber Racism, (Lanham: Rowman & Littlefield Publishers, 2009), 24. 63 Anita Sarkeesian, TedXWomen Talk “Online Harassment and Cyber Mobs,” December 4, 2012, 07.35.–07.57., http://www.feministfrequency.com/2012/12/tedxwomen-talk-on-sexistharassment-cyber-mobs/ (accessed September 6, 2013). 64 Antisemitic tweets posted under the French hashtags have been held to be in violation of French law. Twitter was compelled by the French civil court to provide data, which could enable finding the identity the author(s) of the tweets. Angelique Chrisafis, “Twitter Gives Data to French Authorities After Spate of Antisemitic Tweets,” The Guardian, July 12, 2013, http://www.theguardian.com/technology/2013/jul/12/twitter-data-frenchantisemitic-tweets (accessed September 6, 2013). 65 See generally: John Suler, “The Online Disinhibition Effect,” CyberPsychology & Behaviour 7 (3) (2004): 321–26. Alan Martin, “Online Disinhibition and Psychology of Trolling,” Wired, May 30, 2013,

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http://www.wired.co.uk/news/archive/2013-05/30/online-aggression (accessed 6 September 2013). 66 Dr. Brooke Magnanti, “Twitter’s ‘Report Abuse Button’ Has Already Hurt Some Good Guys,” Daily Telegraph, August 11, 2013, http://www.telegraph.co.uk/women/womens-life/10233715/Twitter-trolls-Thereport-abuse-button-has-already-hurt-some-good-guys.html (accessed September 6, 2013).

CHAPTER SIX HONOR MATTERS MOST: JUDGING LAW IN THE “SPENSER” NOVELS OF ROBERT B. PARKER ANTHONY BRADNEY

Introduction Robert B. Parker was a professor at Northeastern University in Boston in the USA. He obtained his doctorate from Boston University in 1971 with a dissertation entitled, “The Violent Hero, Wilderness Heritage and Urban Reality: A Study of the Private Eye in the Novels of Dashiell Hammett, Raymond Chandler and Ross MacDonald.” Three years later, in 1974, he published his first “Spenser” novel, The Godwulf Manuscript, a detective novel. He became a full-time writer in 1979. Parker died in 2010 having written, amongst other things, thirty-nine “Spenser” novels.1 The “Spenser” novels are written in the “hard-boiled detective” style which had been the subject-matter of Parker’s doctorate, with explicit allusions to the genre in the books. Thus, for example, in Sudden Mischief Spenser’s long-term lover, Susan Silverman, describes Spenser’s work as a detective as being “[n]ot a very fragrant business.”2 In The Simple Art of Murder, first published in 1934, Raymond Chandler wrote of the life of the hard-boiled detective: “[i]t’s not a fragrant world, but it is the world you live in.”3 Both Parker’s doctoral background and his references to the hard-boiled detective genre are important in reading the “Spenser” novels.4 Parker uses the genre’s structure in situating the characters in the “Spenser” novels. Thus, for example, it is commonplace that, as Cawelti writes, “knightly attitudes determine much of the hard-boiled detective’s behaviour.”5

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Chapter Six “What he [Spenser] won’t say,” Susan said, “what he may not admit even to himself is that he’d like to be Sir Gawain. He was born five hundred years too late …” [Spenser] “Six hundred years …”6

However, whilst the hard-boiled detective tradition, as Parker understood it, contributes to the development of Spenser and other characters in the “Spenser” novels, it does not determine them. For example, from Chandler onwards the marginal nature of the hard-boiled detective in society, exemplified by his economic status, has been noted.7 At the beginning of the novels, Spenser conforms to this stereotype, driving a car whose roof is mended with tape and which leaks.8 As the series develops Spenser’s economic status improves. In Chance, the twenty-third novel, a client pays Spenser “more money than anyone deserves, except Michael Jordan.”9 Because of this, he is free to continue his investigations even when he no longer has a client. Susan tells Spenser “[y]ou can take a little time off and pursue your hobbies if you wish to.”10 Many of the later novels, when he is more affluent, involve Spenser doing pro bono work. For him, comparative affluence contributes to his ability to be a knight. Parker was both loyal to the hard-boiled detective heritage and also an innovator in the genre.11 The hard-boiled detective style is just as much a conceit as the genteel style of detective fiction that preceded it,12 and it has its own conventions. Nevertheless, unlike the work that came before it, it is “increasingly realistic” in its portrayal of life.13 This realistic nature adds another dimension to the genre, making it possible to make the claim that, for example, “… a case can be made for Chandler as a painter of American life: not as a builder of those large-scale models of American experience which great literature offers, but rather in fragmentary pictures of setting and place.”14 The “Spenser” novels are detective novels; at the same time they are, like others of their type, also meditations on life.15 In an essay, Parker wrote that “Spenser is more and more interested in matters of the human behavior (such as honor and love) and steadily less interested in the conventional metier of detective fiction.”16 “Metaphors for life,” she [Susan] said. “Your profession and mine [Susan being a psychoanalyst].” I [Spenser] sat at the table beside her. “You be Simone de Beauvoir,” I said, “and I’ll be Sartre and we’ll consider defining life by living.”17

The questions Spenser asks about his life are general questions; the books are, amongst other things, “a quest for self-knowledge and self-

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transformation.”18 On the face of it the criminal behavior which is the routine feature of Spenser’s life is far-removed from quotidian reality. However, at their core the novels are simply about people making difficult choices. In the final “Spenser” novel, Sixkill, Susan and Spenser discuss what being tough means: [Susan] “Being tough means looking straight at something ugly, and saying, ‘That’s ugly; I’ll have to find a way to deal with it.’ And doing so.” “By that definition, most people in their lives have a chance to be tough,” I [Spenser] said. “And aren’t,” Susan said.19

The “Spenser” novels are, in part, an argument about why one should make tough choices and what those choices should be.

The Hard-Boiled Detective, Spenser and the Law One of the conventions of hard-boiled detective fiction is that “… the hard-boiled detective metes out the just punishment that the law is too mechanical, unwieldy, or corrupt to achieve.”20 Parker, in his PhD thesis, wrote that “[h]is [the hard-boiled detective’s] allegiance is not to law but justice.”21 The typical hard-boiled detective thus exists outside the law enacted by the state. In part, Spenser conforms to this convention. In Mortal Stakes, for example, Spenser kills a criminal, Frank Doerr, and his henchman, Wally Hogg, in an attempt to prevent somebody being blackmailed; an action which, in the circumstances, might legally constitute murder.22 A police officer, Lieutenant Martin Quirk, although not wholly disapproving of Spenser’s actions, describes him as acting as a vigilante.23 However, at other times Spenser works wholeheartedly with the police. Thus, for example, in Crimson Joy Spenser agrees to help the same police officer catch a serial killer.24 Notwithstanding the conventions of the genre, Spenser neither believes all law to be wrong nor all police officers to be venal.25 However he does believe the law to be wrong on occasion and does find that some police officers are inept or corrupt or both.26

Defining Values Whether or not to obey the law is, because of his occupation, a recurring problem for Spenser. Yet, for him it is neither the first nor the most important question to ask. The primary and overriding question for Spenser is always how to act or “how to define his values.”27 For Spenser there is

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never a single consideration that will determine this; there are, rather, a constellation of factors which have to be borne in mind.

1. Honor, Thoreau and Emerson Spenser’s concept of “living honourable” is of central importance to all the choices that he makes: “‘[Spenser] I don’t know if there is even a name for the system I’ve chosen, but it has to do with honor. And honor is behavior for its own reason.’”28 His particular notion of honor is rooted explicitly in the transcendental philosophy of Emerson and Thoreau.29 “‘[Spenser] I try to be honorable. I know that’s embarrassing to hear. It’s embarrassing to say. But I believe most of the nonsense that Thoreau was preaching.’”30 This notion of honor is thus linked with a particular idea of how to live life. In this, most importantly, things ought to be done for their own sake; something that the novels contend most people do not understand. Thus, Lieutenant Martin Quirk tells a group of “concerned citizens”: I try to solve every murder, and catch every murderer, because I am employed to do that, and I want to do that. I do that whether anyone is watching me or not, whether the victim is black or white, male or female; whether the commissioner wants me to or you want me to or God wants me to.31

As Emerson observes, “[w]hat I must do is all that concerns me, not what the people think.”32 Spenser sees a failure to observe this simple tenet as the default position within modern society. [Spenser] “There’s lots of kinds of prostitution. Metaphorically the kinds are almost limitless. Everyone who does things for money instead of pride, I suppose.” Susan smiled at me. “Didn’t I see you building a cabin out in Concord the other day?”33

As a result, most people live the lives they think other people think they ought to live and, thereby, live dishonorable lives. [Spenser] “Businessmen learn the way businessmen are supposed to be. Professors learn the way professors are supposed to be. Construction workers learn how construction workers are supposed to be. They spend their lives trying to be what they’re supposed to be and being scared they aren’t. Quiet desperation.”34

The explicit reference in Spenser’s last comment is to Thoreau.35 However, Emerson’s admonition “[t]rust thyself” is also latent in the passage.36

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Self-responsibility and self-reliance are motifs that run through the “Spenser” novels. “To Emerson, as to Thoreau … [t]he individual should somehow dominate his destiny, live so entirely from within himself that he, as it were, initiated each new occasion as it arrived.”37 For Spenser, the need to do this means being “‘[a]utonomous. Dependant on yourself. Not influenced unduly by things outside yourself.’”38 In Regeneration Though Violence, a book that Spenser reads in The Judas Goat, Slotkin argued that Thoreau himself tried to behave as a living example of the ethical theory implicit in the worship of wildness. The man of solitude does not consult custom or law to know if his actions are moral; he consults nature and his own nature or conscience, since these are the only guides man is ever given.39 One of the ways in which Spenser is not a typical hard-boiled detective is in his attitude to friends. One chapter of Moore’s study of the hardboiled detective is entitled “Friendship: The Absent Theme.”40 Spenser, however, does have both friends and those whom he loves.41 Nevertheless he still remains essentially a solitary man.42 “You care about other people [says Susan to Spenser] but they don’t dissuade you, or distract you.”43 Even in the case of Susan, who is Spenser’s “absolute,” there are, as Susan observes, “things you will not do, even for me.”44 Spenser’s sense of autonomy is, according to Susan, “pathological.”45

2. Integrity In “Self-Reliance,” Emerson wrote that “[n]othing at last is sacred but the integrity of your own mind.”46 Integrity takes a number of different forms in the “Spenser” novels. At its most straightforward it involves being truthful and doing what you say you will do.47 However, integrity encompasses honesty to self as well as to others.48 In turn, not lying to oneself involves, as Susan tells Spenser, an “ability to look at the world and see what’s there. Not what you’d like to see, or even what you need to see, but simply what’s there.”49

3. Feelings Emerson also wrote that, “[e]very man … knows that to his involuntary perceptions a perfect faith is due. He may err in the expression of them, but he knows that these things are so, like day and night, not to be disputed,” and that “[the] source, at once the essence of genius, of virtue, and of life, [is that] which we call Spontaneity or Instinct. We denote this primary wisdom as Intuition, whilst all later teachings are tuitions.”50 Emerson’s

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approach thus involves “trusting instinct more and reasoned judgement less.”51 Spenser similarly puts a premium on feelings or intuition rather than pure reason.52 “‘[Spenser] Feelings are real. They are hard to talk about so people sometimes pretend they’re abstractions, or they pretend that ideas, which are easy to talk about, are more important.’”53 “‘[Spenser] Good’s not what you do,’ I said. ‘It’s how you feel when you do it.’”54 Feelings and intuition have to be distinguished from whim and caprice. “[I]ntuition,” says Hawk, Spenser’s closest friend, “ain’t licking it off a stone. It what you know. What you’ve seen and heard and smelled.”55 As with Emerson, the feelings and instincts that Spenser is concerned with are visceral in their nature.56 For Spenser, a position that is intellectually compelling is still troubling if “it doesn’t feel right.”57 Yet Spenser also observes that one ought not to be “‘controlled by your feelings’.”58 One’s feelings are important when acting but they are not the only thing that are of consequence.59

4. Work Work is central in the “Spenser” novels. Given the importance of Thoreau and Emerson to the series, this might appear surprising. Thoreau once wrote that “[t]his world is a place of business … I think there is nothing, not even crime, more opposed to poetry, to philosophy, ay, to life itself, than this incessant business.”60 Similarly, Emerson noted approvingly that “many intelligent and religious persons withdraw themselves from the common labors and competitions of the market.”61 Yet in The Professional Spenser speaks of a “need” to work.62 In the novels this need arises not out of the prosaic necessity for sustaining life but because working, in itself, is seen as being central to being human. Susan’s work, Spenser observes, “[m]akes her feel good about herself.”63 Spenser’s work as a detective, Susan says, allows him “to exist where vocation and avocation meet.”64 She does not expect either of them ever to retire.65 Susan’s comment on vocation and avocation alludes to a source that Parker returns to repeatedly when writing about work, the final stanza of Robert Frost’s poem “Two Tramps in Mud Time.”66 In this Frost states: My object in living is to unite My avocation and my vocation As my two eyes make one in sight. Only where love and need are one, And the work is play for mortal stakes, Is the deed ever really done For Heaven and the future’s sakes.67

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Work should not, in Marx’s sense, be alienating.68 Work must be chosen because of the place that it can have in the life of the worker, not because it is valorized by others.69 Work of this kind has a character that marks it out from the normal manner of work that Thoreau and Emerson decried above. In the first “Spenser” novel, The Godwulf Manuscript, Spenser says, “I handle the problems that I choose to,” and much later in the series he says, “I only work for the people I want to.”70 Both statements exaggerate his position. Thus, for example, despite the fact that Spenser finds divorce work distasteful, in both Bad Business and Now and Then Spenser takes on divorce clients.71 Similarly, in Chance he agrees to look for Julius Ventura’s missing son-in-law even though he knows Ventura to be a major criminal and suspects that he is lying to him. “There was no reason to take the job … except that it was the kind of work I did. And there was no one waiting in the hall for the next appointment.”72 “Chance and choice” both play a part in deciding what work Spenser will do.73 Nevertheless, Spenser’s “self-regard” (“I try not to do things that make me think ill of myself”) means that he may either decline employment or resign it if the job begins to entail him doing things he thinks are inappropriate.74 Spenser will do what he is paid to do even when the person who benefits from his work has no moral worth; moreover, he is serious about his work.75 However, his notion of honor takes precedence: “Whatever the hell I am is based in part on not doing things I don’t think I should do. Or don’t want to do.”76 Thus, Spenser tells someone who employs his services: “‘I don’t do piecework, Tower. I take hold of one end of the thread and I keep on pulling it in till it’s all unravelled … The retainer does not include your telling me how to do my job.’”77 None of this means that Spenser is always successful in his work. His pragmatic conclusion is that “‘[y]ou do the best you can and you deal with the consequences. It’s all there is’.”78 Once again Spenser’s position finds a reference in the work of Emerson. “A man is relieved and gay when he has put his heart into his work and done his best.”79

5. Professionalism Professionalism in one’s work is highly valued in the “Spenser” novels.80 However, rather than it being associated with status, as it normally is, where professional occupations are those which have greater cultural value, it is linked with a specific manner of doing a job.81 Spenser is a professional, but a “meter maid” is seen as having professional pride, as does a

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self-declared “lowlife” who provides security in a brothel—the first because she puts a parking ticket on a car in precisely the correct way and the second because of his protective attitude towards the prostitutes in the brothel he guards.82 The attitude of the professional man to his client or his employer is painstaking and is characterized by an admirable sense of responsibility; it is one of pride in service rather than of interest in opportunity for personal profit.83 In his PhD thesis Parker commented that the world was random.84 Similarly, Spenser suggests that “being a person is a kind of random and arbitrary business.”85 In this context professionalism has a similar function to the notions of honor explored above; “the professional ethos imposed an orderly viewpoint upon an unruly world and gave its protagonists confidence in their own position.”86 Notions of professionalism also overlap with the chivalric impulse noted at the beginning of this chapter. Spenser believes that, in his work, he can make things better for people.87 Because he is able to do this, professionalism means that he ought to do it; the rise in the nineteenth century of notions of professionalism meant that “[a] new savoir oblige was superadded to the old noblesse oblige.”88

6. The Fragility of Rules On the face of it, Spenser’s life seems to be bounded by rules, references to which run through the novels. When Rugar, a professional killer and both a sometime confederate and sometime opponent of Spenser’s, contends that “[i]n what we do, there are no rules. We have to make some up for ourselves,” Spenser accepts his assessment.89 Spenser tells a professional baseball player’s wife “[m]y game has rules too.”90 Susan describes Spenser’s notion of honor as being “like a set of rules from a religion that no longer exists, the rules of a kingdom that disappeared before memory.”91 Also pertinent is Hawk’s observation about the problems that Spenser’s code causes him. “‘You’re fucked,’ Hawk said. ‘You got too many rules. Against the rules to blow Leo [a pimp] away cold-blooded like. And against the rules to let him burn those whores’.”92 However, although rules are pervasive within the “Spenser” novels, they have a fragile nature. Usually, Spenser sees rules as having an uncertain quality, sometimes even denying that rules are in fact rules. [Spenser] “Nothing’s absolute.” [Paul Giacomin] “What do you mean?”

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“I mean you make rules for yourself and know that you will have to break them because they won’t always work.”93

Rules that you always know that you are going to break do not seem, whatever they are called, to have a rule-like character. Equally, even if there are rules, Spenser professes not always to know what they are. “‘[Hawk] Just never figured out where you draw all them lines you draw.’ ‘[Spenser] I’m a little fuzzy on that myself’.”94 Susan tells Spenser that he lives his life ‘“Within a set of rules that you can’t even articulate’.”95 In Spenser’s code the mutable and uncertain nature of rules stands in contrast to his usual apodictic trust in his own feelings96: “You ever think about running for Pope?” Hawk asks Spenser. “Some,” he replies.97

Judging Law Panek observes that “the hard-boiled acts almost inevitably involve a conflict between statute law and natural law.”98 Given this, it is tempting to see Spenser’s life as being bounded by natural law. However, if natural law is to be understood as a series of rules of universal and determinant application arrived at by reason, there is much in the “Spenser” series to contradict such an assessment. Spenser’s aversion to rules, at least as rules are traditionally understood, has just been noted. It is the rigid character of rules that he rejects, not their source. Whether rules are promulgated by the state or are said to be natural is irrelevant for Spenser. For him, “[t]oo much positive is either scared or stupid or both. Reality is uncertain.”99 Rules are fixed conclusions about how to act but, for Spenser, reality precludes such conclusions. More than this, Spenser is averse to grand narratives of any sort. “I’m sick of movements. I’m sick of people who think a new system will take care of everything” he says in an early novel.100 “I have trouble with everyone’s politics” he says in a later novel.101 Arguments which have universal applicability and produce detailed, predetermined, precise answers about what to do in the future are not consistent with Spenser’s view of the world. Accepting that natural law has its dictates seems to fit Spenser’s condition no better than always adhering to the law of the state.102 Panek suggests that Spenser’s action “falls under the heading of vigilante justice,” although he goes on to add that that justice “serves higher ends.”103 The term “vigilante” arouses complex and contradictory connotations. The Oxford English Dictionary defines a “vigilante” in neutral terms as a member of a “vigilance committee,” and defines vigilance as being “alertness or closeness of observation.” However, Slotkin writes that, in the context of the development of the USA:

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To refer to Spenser as a vigilante, therefore, merely poses the question if he is a vigilante what kind of vigilante is he? On one level Spenser’s actions are distinguishable from the vigilantism to which both the Oxford English Dictionary and Slotkin refer because they are individual in their nature. Spenser does not work for or with any broader vigilante movement, and his actions can be seen as an assertion of privilege. However, that privilege is one that arises from the value of personal insight gained as a result of sustained meditation on the merits of various ways of living, not from a fortuitous accident of race, class or gender. A more useful way of characterizing Spenser’s attitude towards the law of the state than reference to either natural law or vigilantism lies in Parker’s PhD thesis, in which he wrote about the “private conviction of morality [that] was at the heart of the reformation and of Puritanism.”105 Elsewhere in the thesis, Parker referred to the “authenticity of his [Chandler’s Marlowe’s] private morality,” and argued that “[e]ach [hard-boiled detective] must impose his private value system upon the random and largely dishonorable world.”106 At heart this allegiance to private morality involves a straightforward rejection of the claims that law normally makes. Law, whether the law of the state or natural law, is not accepted as having dominion in a person’s life. Spenser’s decision-making is an example of this allegiance. For Spenser what he does is, in the end, validated purely by the fact that he finds it right.107 This is so whether he decides to work with or against the law. To act in any other way would be, for him, a moral error. But, in the case of his private morality, the concatenation described above is vital in making that decision right. It is not that Spenser is right, but that the steps that he takes in decision-making are right. Following any individual element is not, in itself, sufficient for appropriate decision-making. Thus, for example, Spenser’s desire to retain self-respect is an important matter when he is thinking about what he should do, but “[l]ots of real creeps have self-respect;” that does not make them anything more than creeps and does not mean that what they do can be regarded as correct.108 Similarly, Spenser’s insistence on living life on his own terms is also vital when he makes decisions.109 When Harvey, who tries to murder Spenser, dies in the failed attempt, in Spenser’s view he dies on his own terms.110 However, that does not make Harvey’s actions anything other than those

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of a sadistic killer.111 Spenser’s private morality is severe in the demands that it makes. Everything detailed above in this chapter is required. Living without law is an arduous matter.

Conclusion The pedagogic nature of the novel was noted early in this chapter. One argument that the “Spenser” series elaborates is that law arises from individual moral and social failure that can be avoided. Thus, to live your life under the thrall of law is not to live well. The genre conventions of hardboiled detective fiction mean that Spenser lives a life that is out of the ordinary within modern society. However, the essence of what he does lies within the compass of every person.112 What is crucial to the manner of Spenser’s life is not his skill with a gun or his fists, but his seriousness of purpose. Moreover how he behaves is relevant not just to extraordinary moments, but to the minutiae and trivia of everyday life. All choices always matter.113 What Spenser does is possible for each person in every moment of their lives. The things that Spenser values would be valued by most people. What makes his life difficult is the unrelenting nature of the effort required. As a police officer observes in Painted Ladies, obedience to law offers an easier alternative for those who are not “pure of heart.”114 Obedience to law makes a certain kind of social order possible. Yet how laudable are lives lived lawfully when that lawfulness arises because of laziness and moral inattention?

Bibliography Abbott, Andrew. The System of Professionals. Chicago: University of Chicago Press, 1988. Barzun, Jacques. “The Illusion of the Real.” In The World of Raymond Chandler, edited by Miriam Gross. London: Weidenfeld and Nicholson, 1977. Buell, Lawrence. Emerson. Cambridge, Massachusetts: The Belknap Press, 2003. Carr-Saunders, Alexander & Paul Wilson. The Professions. Oxford: Clarendon Press, 1933. Cawelti, John. Adventure, Mystery and Romance: Formula Stories as Art and Popular Culture. Chicago: University of Chicago Press, 1976. Chandler, Raymond. “The Simple Art of Murder.” In The Simple Art of Murder, Raymond Chandler. New York: Vintage Book, 1988.

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Cobley, Paul. The American Thriller: Generic Innovation and Social Change in the 1970s. Basingstoke: Palgrave, 2000. Corfield, Penelope. Power and the Professions: 1700–1850. London: Routledge, 1995. Corrigan, Maureen. “Robert B Parker.” In Mystery and Suspense Writers: The Literature of Crime, Detection and Espionage: Volume 2, edited by Robin Winks. New York: Charles Scribner’s Sons, 1998. Dacus, Chris. The Stoic Western Hero: Robert B. Parker’s Westerns Part 1 (Kindle version only: no date). —. The Stoic Western Hero: Robert B. Parker’s Westerns Part 2 (Kindle version only: no date). Emerson, Ralph Waldo. “Self-Reliance.” In Selected Essays, edited by Ralph Waldo Emerson. Harmondsworth, England: Penguin Books, 1982. —. “The Transcendentalist.” In Selected Essays, edited by Ralph Waldo Emerson. Harmondsworth, England: Penguin Books, 1982 Fackler, Herbert V. “Spenser’s New England Conscience.” Colby Quarterly 34 (1998): 253–260. Geherin, David. Sons of Sam Spade: The Private Eye Novel in the 70s. New York: Frederick Ungar, 1980. Golsan, James. “A Note on Parker’s Spenser: Hard-Boiled Detective Turned Super Hero.” South Central Review 27 (2010): 159–62. Greiner, Donald. “Robert B. Parker and the Jock of the Mean Streets.” Critique: Studies in Contemporary Fiction 36 (1984): 36–44. Hemingway, Ernest. Death in the Afternoon. London: Jonathan Cape, 1932. James, Dean & Elizabeth Foxwell. The Robert B. Parker Companion. New York: Berkley Prime Crime, 2005. Jameson, Frederic. “On Raymond Chandler.” The Southern Review 6 (1970): 624–50. Larson, Margali. The Rise of Professionalism. Berkley: University of California Press, 1977. Marx, Karl. Economic and Philosophic Manuscripts of 1844. London: Lawrence and Wishart, 1959. Moore, Lewis. Cracking the hard-Boiled Detective: A Critical History form the 1920s to the Present. Jefferson, North Carolina, McFarland and Company, 2006. Nitchie, George. Human Values in the Poetry of Robert Frost. Durham, North Carolina: Duke University Press, 1960. Panek, Leroy. New Hard-Boiled Writers: 1970s–1990s. Bowling Green, Ohio: Bowling Green State University Popular Press, 2000.

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Parker, Robert B. “The Violent Hero, Wilderness Heritage and Urban Reality: A Study of the Private Eye in the Novels of Dashiell Hammett, Raymond Chandler and Ross MacDonald.” PhD diss., Boston University, 1970. —. Mortal Stakes. New York: Dell Publishing, 1975. —. The Godwulf Manuscript. Harmondsworth: Penguin Books, 1976. —. Promised Land. Harmondsworth: Penguin Book, 1978. —. “Raymond Chandler.” In Twentieth-Century Crime and Mystery Writers, edited by John Reilly. London: Macmillan Press, 1980 —. The Judas Goat. Harmondsworth: Penguin Books, 1983. —. Valediction. Harmondsworth: Penguin Books, 1985. —. A Catskill Eagle. Harmondsworth: Penguin Books, 1986. —. Looking for Rachel Wallace. Harmondsworth: Penguin Books, 1987a. —. Ceremony. London: Penguin Books, 1987b. —. Early Autumn. New York: Dell, 1987c. —. The Widening Gyre. Harmondsworth: Penguin Books, 1987d. —. Pale Kings and Princes. New York: Dell, 1987e. —. Taming a Sea-Horse. New York: Dell, 1987f. —. A Savage Place. New York: Dell, 1987g —. Crimson Joy. Harmondsworth: Penguin Books, 1989. —. Double Deuce. London: Viking, 1992a. —. Pastime. New York: Berkley Books, 1992b. —. Paper Doll. Harmondsworth: Penguin Books, 1994 —. Thin Air. London: Viking, 1995. —. Chance. London: Viking, 1996. —. Small Vices. New York: G. P. Putnam’s Sons, 1997. —. Sudden Mischief. New York: G. P. Putnam’s Sons, 1998. —. Back Story. London: John Murray, 2003. —. School Days. New York: G. P. Putnam’s Sons, 2005a. —. Cold Service. New York: G. P. Putnam’s Sons, 2005b. —. Dreamgirl. Harpenden: No Exit Press, 2006. —. Rough Weather. London: Quercus, 2008. —. Painted Ladies. London: Quercus, 2010a. —. The Professional. London: Quercus, 2010b. —. Sixkill. London: Quercus, 2011. —. “Spenser: A Profile.” In In Pursuit of Spenser, edited by Otto Penzler. Dallas: Benbella Books, Inc., 2012. Parker, Robert B. & Ponder, Anne. “What I Know about Writing Spenser Novels.” In Colloquium on Crime, edited by Robin W. Winks. New York: Charles Scribner’s Sons, 1986.

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Penzler, Otto, ed., In Pursuit of Spenser. Dallas: Benbella Books, Inc., 2012. Perkin, Harold. The Rise of Professional Society. London: Routledge, 1989. Robinson, Doug. No Less a Man: Masculist Art in a Feminist Age. Bowling Green, Ohio: Bowling Green State University Popular Press, 1994. Sartre, Jean-Paul. Being and Nothingness. New York: Philosophical Library, n.d. Schmid, Georg. Profiling the American Detective. Frankfurt: Peter Lang, 2004. Slotkin, Richard. Regeneration Through Violence: The Mythology of the American Frontier, 1600–1860. Middletown, Connecticut: Wesleyan University Press, 1973. Slotkin, Richard. Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America. Norman: University of Oklahoma Press, 1998. Symmons, Julian. “An Aesthete Discovers the Pulps.” In The World of Raymond Chandler, edited by Miriam Gross. London: Weidenfeld and Nicholson, 1977. Thoreau, Henry. “Life Without Principle.” In Essays and Other Writings of Henry Thoreau, edited by Will Dirks. London: The Walter Scott Publishing Co. nd. —. Walden. New York: Holt, Rinehart and Winston, 1965. Trilling, Lionel. Sincerity and Authenticity. Cambridge: Harvard University Press, 1972. Whicher, Stephen E. Freedom and Fate: An Inner Life of Ralph Waldo Emerson. Philadelphia: University of Pennsylvania Press, 1953. Willis, Lonnie. “Henry David Thoreau & the Hard Boiled Dick.” Thoreau Society Bulletin 170 (1985), npn.

Notes 1 Otto Penzler, “Introduction,” in In Pursuit of Spenser, ed. Otto Penzler (Dallas: Benbella Books, Inc. 2012), 5; Robert B. Parker, “The Violent Hero, Wilderness Heritage and Urban Reality: A Study of the Private Eye in the Novels of Dashiell Hammett, Raymond Chandler and Ross MacDonald” (PhD diss, Boston University, 1970). Parker also wrote three other series of novels and a few stand-alone novels. For more information on this other work see Dean James and Elizabeth Foxwell, The Robert B. Parker Companion (New York: Berkley Prime Crime, 2005), 34–46, and Chris Dacus, The Stoic Western Hero: Robert B. Parker’s Westerns Part 1 and Part 2 (Kindle version only: no date). In addition to the “Spenser” novels Parker also wrote several short stories about Spenser and a novella about his childhood. Silent Night: A Spenser Holiday Novel, based on work that Parker

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had done at the time of his death, but completed by his editor, Helen Brann, is to be published in October 2013. 2 Robert B. Parker, Sudden Mischief (New York: G. P. Putnam’s Sons, 1998), 216. 3 Raymond Chandler, “The Simple Art of Murder,” in The Simple Art of Murder, Raymond Chandler (New York: Vintage Book, 1988), 17. Parker quotes this passage from Chandler in the abstract to his PhD thesis (Parker, 1970, npn). On Parker’s use of references to the hard-boiled detective genre see David Geherin, Sons of Sam Spade: The Private Eye Novel in the ‘70s, (New York: Frederick Ungar, 1980), 15–17. 4 Geherin, Sons of Sam Spade, 7; Leroy Panek, New Hard-Boiled Writers: 1970s– 1990s (Bowling Green, Ohio: Bowling Green State University Popular Press, 2000), 7. In a late “Spenser” novel Painted Ladies, Susan suggests that one of the characters, an academic Dr. Ashton Price, might have felt “some sort of need to confess … [i]n which case, where better than a [PhD] dissertation?”, a notion that Spenser later confirms. (Robert B. Parker, Painted Ladies [London: Quercus, 2010a], 187 and 245). Price went to Colby College and then obtained his PhD from Boston University, the same educational route that Parker followed (Parker, Painted Ladies, 119; Geherin, Sons of Sam Spade, 5). Price’s dissertation is 173 pages long, the same length as Parker’s actual thesis (Parker, Painted Ladies, 183; Parker “The Violent Hero”). 5 John Cawelti, Adventure, Mystery and Romance: Formula Stories as Art and Popular Culture (Chicago: University of Chicago Press, 1976), 151. See also Julian Symmons, “An Aesthete Discovers the Pulps,” in The World of Raymond Chandler, ed. Miriam Gross (London: Weidenfeld and Nicholson, 1977), 20. Parker referred to the connection between Chandler’s Marlowe and knights in his PhD thesis (Parker, “The Violent Hero,” 122 and 142). 6 Robert B. Parker, Looking for Rachel Wallace (Harmondsworth: Penguin Books, 1987a), 29. (References in this essay to “Spenser” novels are to the edition being cited. The book’s original publication date may therefore be different from the citation.) References to Spenser in the novels as being Lochinvar, Lancelot or Galahad are too numerous to detail. 7 “He [the hard-boiled detective] is a relatively poor man, or he would not be a detective at all” (Chandler, “The Simple Art of Muder,” 18). 8 Robert B. Parker, The Godwulf Manuscript (Harmondsworth: Penguin Books, 1976), 54. See also, Panek, New Hard-Boiled Writers, 10. 9 Robert B. Parker, Chance (London: Viking, 1996), 184. 10 Ibid. 11 Geherin, Sons of Sam Spade, 82. 12 Jacques Barzun, “The Illusion of the Real,” in Gross, The World of Raymond Chandler. 13 Moore, Lewis, Cracking the hard-Boiled Detective: A Critical History form the 1920s to the Present (Jefferson, North Carolina: McFarland and Company, 2006). 14 Fredric Jameson “On Raymond Chandler,” The Southern Review 6 (1970): 624 and 626

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Maureen Corrigan, “Robert B Parker,” in Mystery and Suspense Writers: The Literature of Crime, Detection and Espionage: Volume 2, ed. Robin Winks (New York: Charles Scribner’s Sons, 1998), 729. Doug Robinson, No Less a Man: Masculist Art in a Feminist Age (Bowling Green, Ohio: Bowling Green State University Popular Press, 1994), 40. In a note on Raymond Chandler, Parker described Chandler’s books as “serious work” and continued “Chandler was in earnest. Most of us are.” (Robert B. Parker, “Raymond Chandler” in Twentieth-Century Crime and Mystery Writers, ed. John Reilly (London: Macmillan Press, 1980), 286. More widely, “the novel, [is] the pedagogic genre par excellence” Lionel Trilling, Sincerity and Authenticity (Cambridge Mass.: Harvard University Press, 1972), 84. 16 Robert B. Parker & Anne Ponder, “What I Know about Writing Spenser Novels,” in Colloquium on Crime, ed. Robin W. Winks (New York: Charles Scribner’s Sons, 1986), 198. 17 Robert B. Parker Crimson Joy (Harmondsworth: Penguin Books, 1989), 62. 18 Robinson, No Less a Man, 40. 19 Robert B. Parker, Sixkill (London: Quercus, 2011), 89. 20 Cawelti, Adventure, Mystery and Romance, 143. In his PhD thesis, Parker described the hard-boiled detective as an “archetype” which is “an expression of values with which Americans deeply abide” (Parker, “The Violent Hero,” 2). 21 Parker, “The Violent Hero,” 7. 22 Robert B. Parker, Mortal Stakes (New York: Dell Publishing, 1975), 284. James Golsan, “A Note on Parker’s Spenser: Hard-Boiled Detective Turned Super Hero,” South Central Review 27(2010): 160. 23 Parker, Mortal Stakes, 294. 24 Parker, Crimson Joy, 5. 25 Police officers with whom Spenser works frequently with include Lieutenant (later Captain) Martin Quirk, Sergeant Frank Belson and Detective Lee Farrell of the Boston Police Force, Detective Lieutenant (later Captain and Commander) Healy of the Massachusetts State Police, and Nathan Epstein of the FBI. Cobley describes “[t]he credibility of the police” in the “Spenser” novels as being “a significant generic innovation.” Paul Cobley, The American Thriller: Generic Innovation and Social Change in the 1970s (Basingstoke: Palgrave, 2000), 63. 26 Corrupt police officers figure centrally in God Save the Child, A Catskill Eagle, Pale Kings and Horses, Walking Shadow, Thin Air, Small Vices, Potshot, Backstory and Cold Service. 27 Donald Greiner, “Robert B. Parker and the Jock of the Mean Streets,” Critique: Studies in Contemporary Fiction 36 (1984): 41. 28 Parker, Mortal Stakes, 325. 29 For a critical account of the work that Parker is referring to and the Spenser character that he created using this work see Robinson, No Less a Man, 66–75. 30 Robert B. Parker, Promised Land (Harmondsworth: Penguin Book, 1978), 97–8. 31 Parker, Crimson Joy, 48. 32 Ralph Waldo Emerson, “Self-Reliance,” in Selected Essays, Ralph Waldo Emerson (Harmondsworth: Penguin Books, 1982), 180.

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Robert B. Parker, Ceremony (London: Penguin Books, 1987b), 148–9. “Thoreau did not retreat to Walden Pond [in Concord] to build a sod house; he went to build his soul, and that is precisely what Spenser is doing with the dedication of a Thoreau and an aim at the breadth of Emerson.” Herbert V. Fackler, “Spenser’s New England Conscience,” Colby Quarterly 34 (1998): 258. See also Lonnie Willis, “Henry David Thoreau & the Hard Boiled Dick,” Thoreau Society Bulletin 170 (1985), npn. 34 Robert B. Parker, Early Autumn (New York: Dell, 1987c), 139–140. In The Widening Gyre Susan says of one of the protagonists “[s]he must be very desperate.” Spenser responds, “[m]ost people are” (Robert B. Parker, The Widening Gyre, (Harmondsworth: Penguin Books, 1987d), 91). 35 “The mass of men lead lives of quiet desperation …,” Henry Thoreau, Walden (New York: Holt, Rinehart and Winston, 1965), 5. 36 Emerson, “Self Reliance,” 177. In response to a question, “what makes you calm?”, Hawk, Spenser’s long-term confederate and friend, replies, “I know I can trust me” (Robert B. Parker, Double Deuce (London: Viking, 1992a), 160. 37 Stephen E. Whicher, Freedom and Fate: An Inner Life of Ralph Waldo Emerson (Philadelphia: University of Pennsylvania Press, 1953), 59. 38 Robert B. Parker, Early Autumn, New York: Dell, 1987, 123. 39 Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier, 1600–1860 (Middletown, Connecticut: Wesleyan University Press, 1973), 536–7. Robert B. Parker, The Judas Goat (Harmondsworth: Penguin Books, 1983), 22. 40 Moore, Cracking the Hard-Boiled Detective, chp. 8. Moore includes Spenser’s friendship with Hawk in a later chapter on what Moore calls “The Transitional Period” of the hard-boiled detective genre (Moore, op. cit. 159–60). 41 In addition to his relationship with his lover Susan Silverman, Spenser’s relationship with Hawk is also described in terms of love (Robert B. Parker, Rough Weather [London: Quercus, 2008], 191). Spenser also has an unofficially adopted son, Paul Giacomin (Robert B. Parker, Pastime [New York: Berkley Books, 1992b], 11). Schmid says of this development in the “Spenser” novels, “[t]he solitariness of the Atlantic detective is finally substituted by a gathering of close friends whose empathy for each other has solidified over the years to become a pattern in itself” (Georg Schmid, Profiling the American Detective [Frankfurt: Peter Lang, 2004], 112). 42 Susan and Spenser’s attempt at cohabitation in Double Deuce is a failure. Early on in the experiment Spenser tells Susan, “I have lived all my life, nearly, in circumstances where I went would and did what I did and accounted no one” (Parker, Double Deuce, 84). 43 Parker, Sixkill, 261. 44 Robert B. Parker, “Spenser: A Profile,” in In Pursuit of Spenser, ed. Otto Penzler (Dallas: Benbella Books, Inc. 2012), 234. Parker, Rough Weather, 252. 45 Parker, “Spenser: A Profile,” 235. 46 Emerson, “Self Reliance,” 178.

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Robert B. Parker, School Days (New York: G.P. Putnam’s Sons, 2005a), 128. Parker, Ceremony, 143. Lying to those who are themselves dishonorable is, however, acceptable (Parker, The Judas Goat, 82). 48 Robert B. Parker, Cold Service (New York: G.P. Putnam’s Sons, 2005b), 271. 49 Robert B. Parker, Taming a Sea-Horse (New York: Dell, 1987f), 271–2. 50 Emerson, “Self Reliance,” 188 and 187. 51 Lawrence Buell, Emerson (Cambridge, Massachusetts: The Belknap Press, 2003), 64. For a detailed examination of Emerson’s approach see 63–78. 52 Parker, Painted Ladies, 120–1. 53 Parker, Promised Land, 52. 54 Parker, Taming a Sea-Horse, 74 See also Parker, Looking for Rachel Wallace, 65. In both instances the allusion is to Hemingway (Ernest Hemingway, Death in the Afternoon [London: Jonathan Cape, 1932], 11. 55 Parker, Rough Weather, 216. 56 In Double Deuce Spenser explicitly rejects the notion that he acts on the basis of “emotional whim” (Parker, Double Deuce, 106). 57 Parker, Looking for Rachel Wallace, 96. 58 Robert B. Parker, Thin Air (London: Viking, 1995), 107. 59 Elsewhere Spenser says, “I’ve gotten to be over forty and done a lot of things, and I’ve learned to trust my instincts usually” (Parker, Promised Land, 76). The word “usually” is an important qualification. 60 Henry Thoreau, “Life Without Principle,” in Essays and Other Writings of Henry Thoreau, ed. Will Dirks (London: The Walter Scott Publishing Co. nd), 66. 61 Ralph Waldo Emerson, “The Transcendentalist,” in Selected Essays, Ralph Waldo Emerson (Harmondsworth, England: Penguin Books, 1982), 246. 62 Robert B. Parker, The Professional (London: Quercus, 2010b), 141. 63 Parker, The Widening Gyre, 107. 64 Robert B. Parker, Small Vices (New York: G.P. Putnam’s Sons, 1997), 151. 65 Parker, Pastime, 190. 66 Parker, Small Vices, 151. The title of the “Spenser” Novel Mortal Stakes is taken from the poem and the final stanza is quoted, at greater or lesser length, in Early Autumn (126), A Catskill Eagle (97), Pale Kings and Ceremonies (196), and Rough Weather (15). Parker also refers to the stanza in an essay he wrote on being a writer (Parker and Ponder, “What I Know about Writing Spenser Novels,” 198). 67 Fackler argues for a connection between Parker’s use of Emerson, Thoreau and Frost, both in general and this passage in particular, suggesting that it indicates a grounding of the Spenser character in a specific form of New England conscience (Fackler, “Spenser’s New England Conscience,” 258–9 and 253). 68 Karl Marx, Economic and Philosophic Manuscripts of 1844 (London: Lawrence and Wishart, 1959), 72. 69 Not every critic has been persuaded by Frost’s position. See, for example, George Nitchie, Human Values in the Poetry of Robert Frost (Durham, North Carolina: Duke University Press, 1960), 87–9 and 153–5. 70 Parker, The Godwulf Manuscript, 70. Robert B. Parker, Hush Money (New York: G.P. Putnam’s Sons, 1999), 32.

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Robert B. Parker, Now and Then (Harpenden: No Exit Press, 2007), 5, 9; Robert B. Parker, Bad Business (London: John Murray, 2004), 2. 72 Parker, Chance, 8. 73 Parker School Days, 281. 74 Parker, Painted Ladies, 325–326 . (See also “‘[Spenser] [w]hatever the hell I am is based on part on not doing things I don’t think I should do. Or want to do.’” [Parker, Mortal Stakes, 320]); Parker, Ceremony, 4; Robert B. Parker, A Savage Place (New York: Dell, 1987g), 122. 75 Parker, Small Vices, 251; Robert B. Parker, Pale Kings and Princes (New York: Dell, 1987e), 167. 76 Parker, Small Vices, 326. Although even here there is a qualification, “[Spenser] I might have to do something I don’t like in order to get to do something I like a lot” (Robert B. Parker, Looking for Rachel Wallace, 6). 77 Parker, The Godwulf Manuscript, 67. For similar comments see Robert B. Parker, Paper Doll (Harmondsworth: Penguin Books, 1994), 12. 78 Robert B. Parker, A Catskill Eagle (Harmondsworth: Penguin Books, 1986), 242. Similarly, in Promised Land Spenser says “I have done what I can. I try not to worry about things I can’t control” (Parker, Promised Land, 158). See also Susan’s comment to Spenser that, “you do what you can, and do not blame yourself for not doing more” (Parker, Rough Weather, 47). 79 Emerson, “Self Reliance,” 176. 80 For a different account of professionalism in the “Spenser” novels see Greiner, “Robert B. Parker and the Jock of the Mean Streets,” 37. 81 For classic accounts of the professions see Andrew Abbott, The System of Professionals (Chicago: University of Chicago Press, 1988); Magali Larson, The Rise of Professionalism (Berkley: University of California Press, 1977) and Harold Perkin, The Rise of Professional Society (London: Routledge, 1989). 82 Parker, Small Vices, 151; Parker, Mortal Stakes, 201. Robert B. Parker, Dreamgirl (Harpenden: No Exit Press, 2006), 219. Dreamgirl was published in the USA under the title Hundred-Dollar Baby. 83 Alexander Carr-Saunders & Paul Wilson, The Professions (Oxford: Clarendon Press, 1933), 471. 84 Parker, “The Violent Hero,” 114. 85 Parker, Mortal Stakes, 324–5. 86 Penelope Corfield, Power and the Professions: 1700–1850 (London: Routledge, 1995), 201. 87 Parker, The Professional, 15. 88 Corfield, Power and the Professions, 202. 89 Parker, Cold Service, 195 and 224. 90 Parker, Mortal Stakes 199. 91 Parker, Ceremony, 106. 92 Parker, A Catskill Eagle, 54. 93 Parker, Early Autumn, 76. 94 Parker, Pale Kings and Princes, 236. 95 Robert B. Parker, Back Story (London: John Murray, 2003), 260.

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The qualification “usual” is important. Spenser’s fundamental character does not change through the novels. However, the character does develop in reaction to things that Spenser experiences, in particular the temporary attenuation of his relationship with Susan Silverman in The Widening Gyre and Valediction. During this period he does question both the truth of his own instincts and his notion of what makes for a good life (Robert B. Parker, The Widening Gyre, 11 and Robert B. Parker, Valediction [Harmondsworth: Penguin Books, 1985], 17. 97 Parker, Chance, 108. In fact, Spenser’s reliance on the veracity of his feelings, rather than relating to the Catholic tradition, owes more to the “private conviction of morality … at the heart of the reformation and Puritanism” that Parker wrote about in his PhD thesis (Parker, “Violent Heroes,” 167). 98 Panek, New Hard-Boiled Writers, 208. 99 Parker, Early Autumn, 139. 100 Parker, Promised Land, 14. 101 Parker, The Widening Gyre, 5. 102 In his PhD thesis, in a chapter on Dashiell Hammett, Parker wrote that “order may be the dream of art, but chaos is the law of nature” (Parker, “The Violent Hero,” 114). 103 Panek, New Hard-Boiled Writers, 20. 104 Richard Slotkin, Gunfighter Nation: The Myth of the Frontier in TwentiethCentury America (Norman: University of Oklahoma Press, 1998), 173–4. 105 Parker, “The Violent Hero,” 167. 106 Parker, “The Violent Hero,” 151 and 169–70. 107 A police officer observes that Spenser’s opinion is the “[o]nly one that matters to him,” though Spenser responds by saying “Susan’s opinion matters” (Parker, Painted Ladies, 15). 108 Parker, A Savage Place, 124. 109 Parker, Looking for Rachel Wallace, 29. 110 Parker, Back Story, 258. 111 Ibid., 88. 112 Golsan has written about Spenser as a super hero (“A Note on Parker’s Spenser,” passim). However this does not seem to reflect Spenser as he is portrayed in the novels. He may exhibit “[u]ncomplicated virtue,” as Golsan suggests, and in that way be out of the ordinary, but he has no extraordinary powers (Ibid., 159). 113 “If bad faith is possible, it is because it is an immediate, permanent threat to every project of the human being; it is because consciousness conceals in its being a permanent risk of bad faith.” (Jean-Paul Sartre, Being and Nothingness [New York: Philosophical Library, nd], 70.) 114 Parker, Painted Ladies, 20.

CHAPTER SEVEN SEEING THE BIG PICTURE: WHY LAW FAILS IN THE WIRE JOHN DENVIR

Ultimately, the story that grapples with the basic realities and contradictions of our immediate world—these are stories that, in the end, have some chance of presenting a social, and even, political argument. David Simon1

The Wire shows how popular culture can have political impact. The series not only provides engrossing melodrama, it also tells us how and why the American criminal justice system fails us. Because The Wire reaches a much broader audience than standard political arguments and is able to transform abstract arguments into compelling stories with striking images, it can aid efforts to reform the system it criticizes. While the overall influence of television is to support the status quo, there has been a growing list of television shows that are exceptions to this rule of conservative bias. Television shows that take a more critical stance toward American society include The Sopranos, Deadwood, Breaking Bad and Mad Men.2 But one show, The Wire, stands out in its attempt to not only entertain but also provide a serious political critique of contemporary America. The series makes a powerful argument about how and why the American criminal justice system fails the citizens it pretends to protect, and it goes further to argue that the failure of the criminal justice system is itself a product of the larger failures of our political and economic systems. The Wire abandons the narrow narrative frame most “law” shows adopt to take into account the larger context in which police officers act and how that context impacts the decisions they make. That context includes a bureaucratic structure and a political system fueled by personal ambition and wealth, this broader narrative frame alerting us to systemic

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dysfunctions that we would otherwise miss. Here, television goes beyond entertainment to engage in social critique and political argument. Jon Hansen and David Yosifon have pointed out the human “proclivity to underestimate the role of situational influences, and to overestimate the influence of individual disposition in explaining people’s behavior.”3 By focusing on the actor, we tend to underestimate the influence the context has on how he or she acts. The result is a distorted picture of reality. Most television shows share this bias towards the actor rather than the system. The audience’s attention is usually focused on the challenges the hero experiences in pursuing his or her individual quest.4 But The Wire rejects this narrow framing. As co-creator David Simon put it, the show “is interested in what the whole story is about.”5 It consciously adopts a broader narrative frame to focus less on the criminals, police, lawyers and politicians who staff the criminal justice system and more on the larger bureaucratic, political and economic systems that drive their actions. The differences between the two approaches are easy to see if we compare The Wire with a more traditional law show, the long-running hit Law and Order. Both series take as their topic the criminal justice system in a large American city, but there the similarities end. Each week Law and Order describes the investigation and prosecution of a single crime. The following week’s show will deal with another crime unrelated to the first. Our attention is directed to how the police and prosecutors bring about a just result in this one case. In the first half of each hour-long show, we watch savvy detectives methodically follow the trail of evidence that leads to the guilty party. The second half then shows the trial of the accused. Here, tenacious prosecutors engage in withering cross-examinations and moving closing arguments in their attempt to see the culprit punished. The show ends with the conviction of the guilty individual. The Wire also deals with the American criminal legal system, but it tells a different story. Instead of featuring different unrelated crimes each week, The Wire spends an entire season on one crime or set of related crimes. Moreover, the crimes are often never solved, or at least properly punished. Like Law and Order, the primary characters are police detectives and lawyers, but the series also investigates the bureaucratic and political milieus in which they work. Often bureaucratic and political obstacles prevent them from doing their job and justice is not served. Law and Order and The Wire reach opposing conclusions about how well the criminal justice system operates. Law and Order supports the existing institutional system. It portrays the American criminal justice system as a well-oiled machine that consistently churns out justice. In con-

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trast, The Wire takes a more critical stance, showing a dysfunctional system that fails to protect the citizens most vulnerable to violent crime. But The Wire does more than condemn the criminal justice system; it also presents a political argument on why it fails. It goes beyond describing the individual legal decisions (whether to arrest, charge etc.) to study how larger systemic considerations influence individual decisions all the way down the line from investigation to prosecution to sentencing. And while Law and Order portrays the criminal justice system as an autonomous sanctuary beyond the influence of politics, The Wire argues that it is only a subset of the larger political system that determines which crimes are prosecuted and which are ignored, also suggesting that the political system itself reflects the values of the financial forces that fund it. The Wire adopts a wider frame and a darker view of the American criminal justice system than we have ever seen on television. We see linkages between criminal and police, police and politicians, and politicians and their financial supporters, some of whom turn out to be criminals. If series like Law and Order celebrate our criminal justice system, The Wire indicts it. It shows that the citizens of West Baltimore, mostly low income and African-American, are left vulnerable to drug-related violence and the social evils it promotes, while the legal system provides its managers—the police, the lawyers, the politicians—interesting work and comfortable incomes. This chapter attempts to extricate The Wire’s argument from the sixty hours of melodrama in which it is embedded in order to allow readers to evaluate it.6 The Wire is fiction, not fact. I do not suggest that readers accept its picture of the American legal system uncritically. I would welcome spirited discussions about whether its argument has intellectual as well as emotional strength. But I am confident that while The Wire (like all good fiction) sharpens reality for dramatic effect, it gets the big picture right. It shows us linkages between law and politics and politics and money that do in fact exist. Even readers who ultimately reject The Wire’s pessimistic conclusions will benefit from viewing the criminal justice system through the more inclusive frame it provides.

1. Baltimore—The Big Picture The Wire’s five seasons all take place in post 9/11 Baltimore, a former industrial giant slowly turning to rust. Both the unemployment and crime rates are high while the tax base continues to shrink. It’s not an easy place to make a living, especially if you are under-educated and/or African American.

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The criminal justice system in The Wire’s Baltimore reflects the interactions between various occupational groups or “tribes.” The criminals, the police, the politicians, the lawyers and the press are all playing the game according to their own peculiar rules. Each tribe attempts to advance its collective interests while maintaining discipline within its membership, and the most ambitious members of each tribe plot to rise to its top rank. While the series spends most of its time on the interaction between the Baltimore Police Department and the drug gangs of West Baltimore, we slowly recognize that this interaction itself is shaped by the actions of other tribes—the politicians, the lawyers, and the press. The Wire also features one more group affected by the criminal justice system—the lowincome residents of West Baltimore. Unfortunately, this tribe is neither well-organized nor well-financed like the others and therefore has little control over how the system treats them. The plots usually involve the jockeying of the various groups and individuals for dominance, but the show achieves much of its emotional power from its portrayal of how the system grinds down individual members of the various tribes who don’t follow the company line. Good intentions are frustrated by the situation in which they are acted upon. At the end of the day, careerists are rewarded while reformers are marginalized and mavericks punished. The system is always in the process of evolving but never seems to change. The tribes all work toward their individual goals under their own rules. But while each group has a distinctive mode of operation, we can see similarities they share with one another.

(a) The drug dealers The Barksdale drug gang sells heroin and cocaine from street corner venues in West Baltimore to customers from all over the metropolitan region. This business nets its leaders Avon Barksdale and Stringer Bell over a million dollars a month after expenses. And, of course, they pay no taxes. Below Barksdale and Bell on the gang’s organizational structure come the “muscle”—the trusted associates who are charged with using force to impose the gang’s will. Wee Bay, Stinkum, and later Slim Charles all play this enforcer role, an essential one in a business that prefers not to use the courts to resolve disputes. Next come the lieutenants who run individual retail operations on the street. The lieutenant we get to know best is D’Angelo Barksdale. D’Angelo is Avon’s nephew, and Avon is training him for a leadership role. However, “D” feels uncomfortable in his uncle’s world of violence and dreams of breaking free.

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At the base of the organizational structure are the “soldiers,” the youngsters who actually take the money and deliver the drugs to customers. One of the series’ dramatic strengths is its ability to give each of these minor characters a distinctive personality. In the first season we get to know two of them especially well. Bodie is a tough, loyal kid who is more than willing to do whatever it takes to succeed in “the game.” He is suspicious of the more middle-class D’Angelo Barksdale’s “softness.” Bodie sees inflicting and receiving violence as part of his job. On the other hand, Wallace is a more sensitive soul. He acts as a stand-in parent for a group of homeless children who share an apartment with him. And like D’Angelo, Wallace is troubled by the violence he sees the gang inflict in their neighborhood wars. The Barksdale gang maintains discipline by a system of rewards and punishments. For instance, Wee Bay is taken off salary and given a percentage of the sales at his own “corner” in gratitude for his violent service to the gang. D’Angelo, on the other hand, is demoted to a less prestigious location because his panic resulted in the unnecessary murder of a civilian. But the gang is also willing to use force and, indeed, lethal force to maintain discipline. In fact, at the end of season one Bodie stoically kills his friend Wallace on orders from Stringer Bell, who fears that Wallace might connect him to a murder. The Barksdale gang faces two forms of opposition. One is the threat that other drug gangs will invade their territory. There is disagreement within the leadership on how to handle this problem. The protean capitalist Stringer Bell wants to bargain with the gang’s adversaries in hope of creating a large drug consortium that will share revenues without the need for violence. The more proletarian Avon Barksdale prefers to “tool up” and fight anyone who invades the gang’s turf. The other major threat to the gang’s success is the Baltimore police department. Here, the gang employs what might be termed a “welfare state” strategy. Besides high pay, gang members arrested for violating criminal laws are provided high-quality legal representation by the gang’s legal counsel, Maurice Levy. The gang also makes it a practice to intimidate witnesses who might testify against Barksdale employees. And if gang members are convicted, the gang provides income to their families when they are in prison and employment when they come out.

(b) The police The structure of the Baltimore Police Department is in many ways similar to that of the Barksdale gang. It, too, has hierarchal lines of authority and

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effective tools to ensure that subordinates follow company policy. And while it is not, like the Barksdale gang, a profit-making enterprise, the leadership is very much aware of the financial consequences of its actions. While the official goal of the department is to protect and serve the citizens of Baltimore, other less publicized organizational goals include securing the largest operations budget possible and frustrating attempts to interfere with the department’s autonomy. At the beginning of the series, top management is comprised of Deputy Commissioner Ervin Burrell and his hardline assistant Major William Rawls. Later, Burrell becomes Commissioner and Rawls becomes his deputy. They run a tight bureaucratic ship stressing the importance of the chain of command and the need to follow established procedures. They prefer to handle one crime at a time in the hope of disposing of cases quickly in order to bolster the department’s statistics. This approach does not result in many departmental resources being directed towards curtailing the retail drug trade in Baltimore. The sale of drugs is a victimless crime and therefore no crime is reported. And while there is a good deal of inter-gang violence, these “black on black” crimes attract little press attention and therefore do not reflect poorly on the department’s reputation. This means there is little incentive to allocate major resources to stop the drug trade, even though it wreaks havoc with the lives of the residents of West Baltimore. Below Burrell and Rawls we find Lieutenant Cedric Daniels, an ambitious African American officer who is one of the show’s primary characters. Daniels accepts the chain of command but also wants to bring the drug lords to justice, a goal the command does not embrace. Throughout the series, Daniels tries to reconcile institutional loyalty with his desire to do good police work, and is consistently frustrated in his attempts. Daniels supervises a team of detectives the series presents as “good police,” a term Simon and Burns use to describe men and women who are ready, willing and able to devote long hours to bringing violent criminals to justice but who resent the lack of support they receive from their more politically motivated superiors. The primary “good police” character is the charismatic but personally troubled Detective Jimmy McNulty. McNulty is dedicated to good police work, but is also instinctively suspicious of all authority figures, including Daniels. Both charming and angry, intelligent and devious, idealistic and self-destructive, McNulty sets the first season’s plot in motion by going outside the chain of command to force the department to more openly confront the Barksdale operation. And the police department, like the drug dealers, has its “soldiers,” young officers just out the police academy. These young men are neither

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much older nor necessarily more mature than the Barksdale soldiers. Officers “Herc” Hauk and Ellis Carver engage in an off-duty drinking spree that terminates in them shooting up a housing project. Later, Herc and Carver both become involved in a vendetta with Bodie that resembles a fraternity feud more than serious police work. Yet, later in the series, both Herc and Carver demonstrate abilities we had not originally noticed. Like the Barksdale gang, the Baltimore police department puts a premium on internal discipline. Burrell and Rawls have a variety of bureaucratic carrots and sticks to keep their personnel in line. Mavericks like McNulty are demoted or dismissed. More manageable officers, like Carver, are promoted. Also like the drug gangs, the police department faces external threats. But interestingly, the department’s leadership does not view criminals as the primary threat. A city without crime would need no police. It is the politicians and the press that the police fear. The politicians control the department’s budget and make the appointments to high level positions the department leaders covet. The politicians in turn are influenced by how the department is portrayed in the press. Therefore, the police leadership does not worry much about crimes not reported, but works hard to encourage press coverage of big arrests.

(c) The lawyers The Wire shows us a wide variety of lawyers, none of whom remind us of Perry Mason or Atticus Finch. And while certainly competent, they are seldom the smartest guy in the room. The prosecutor who gets the most screen time is Assistant State’s Attorney Rhonda Pearlman, who advises the “good police” on the showing necessary to obtain authorization for a “wire” and sets the acceptable parameters for various plea bargains. Pearlman is portrayed as bright, but not brainy. If there is a need for a novel legal theory to justify a “wire” it usually comes from the police, not their lawyer. On the other hand, Pearlman shows the talents of a good bureaucrat; she’s a good team player and a savvy organizational politician. The one lawyer who is the smartest guy in the room is the Barksdale gang’s counsel Maurice Levy. Levy is one of the show’s few true villains, but that makes him no less brilliant as a counselor and negotiator. He shows an uncanny ability to see how events will play out down the line and also to intuit weaknesses in his adversary’s case. But The Wire makes clear that Levy’s impressive professional skills are always employed in finding ways to earn large fees by helping his clients elude the punishment they deserve.

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The only judge who has a continuing role is Daniel Phelan, who makes a stink when he sees a prosecution witness recant a prior identification of D’Angelo Barksdale in a murder trial in his courtroom. Phelan is also the judge the prosecutors go to to authorize wiretaps. Like Pearlman, he is bright and pragmatic, but he is also an elected official; his zeal to protect the Barksdale investigation quickly evaporates when he discovers it might jeopardize his chances for a place on the Democratic ticket for re-election. Even though Pearlman, Levy and Phelan play different (and sometimes opposing) roles throughout the series, Simon and Burns see them as belonging to a single “tribe”—the lawyers. They speak a special arcane language and are better paid than the police. And even though prosecutor Pearlman and defense attorney Levy are usually adversaries, they also show a tribal loyalty to one another. Pearlman starts as an Assistant States’ Attorney, but ends, like Phelan, a Superior Court Judge. In pursuit of that judgeship, she knows better than to cross Levy who, as a former Bar Association officer, can block her career hopes.

(d) The politicians The Wire in the first two seasons is mostly about criminals, cops and lawyers, but as it progresses, politicians play an increasingly visible role. Like the queen on the chess board, politicians can make things happen. The politician most important to the plot is Tommy Carcetti, who we first meet as an idealistic but ambitious city council member who wants to run for mayor. Carcetti’s weakness (or is it a strength?) is that his ambition always seems to trump his ideals. Time and again, there is a choice between what he knows he should do and what will get him elected, and he chooses getting elected. Carcetti’s nemesis is sitting Mayor Clarence Royce. Carcetti and Royce are very much alike in most ways. Unlike the gangs and the police, they prefer to operate within a loose organizational structure, surrounded by a small coterie of aides and consultants who advise them on how to deal with political allies and financial supporters. Alliances are always evolving and financial support conditional, so a successful politician must be both cynical and opportunistic, rewarding friends and punishing enemies with the recognition that today’s friends may well be tomorrow’s enemies. But politics is more than the art of governing; it also is the conduit through which money influences policy. This influence can be achieved by an outright bribe of a public official or by means of the more sophisticated “legal” methods favored by high-priced public relations experts. And there

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are always legitimate contributions to a candidate’s campaign. Tommy Carcetti knows that in his business an hour a day must be reserved for “dialing for dollars” if he hopes to succeed.

(e) The press The politicians have influence over how the police leaders act, but the politicians in turn react to pressures from other sources. The dominant pressure comes from the desires of political allies and financial supporters, but another influence is the press. The press provides a distorted mirror to the society it covers. Stories not covered remain unknown and therefore can be ignored, but headlines cause a stir the politicians notice. The press in The Wire is primarily represented by Baltimore’s daily newspaper, the Baltimore Sun. Once locally owned, the Sun is now run by a large news organization located in Chicago. In response to the financial pressures created by the growth of the internet, the ownership wants to downsize staff at the same time it increases revenue. This influences the type of stories the paper prints. Less stress is placed on informing the public and more on entertaining them. A heart-warming vignette or a sensational scandal is preferred to serious investigations about how the government actually operates. Baltimore gets the news it is willing to pay for.

(f) The civilians The Wire shows us one additional “tribe”—the residents of West Baltimore, who are mostly poor and African-American. These are the people who pay the concrete price for the system’s dysfunctions. This includes not only the witness who is murdered for testifying against D’Angelo Barskdale, but also the other witness who recanted her testimony but is still gunned down as a precautionary measure. We also see Herc bust into an apartment in search of the delinquent Bodie, only to discover a dignified elderly lady, Bodie’s grandmother, sitting quietly in the living room. These are the true victims of the Baltimore drug trade. The show also shows how hard it is to earn a living in West Baltimore outside the drug trade. When former Barksdale soldier Cutty Wise attempts to earn an honest living after his release from prison, he finds the only non-drug jobs available are in yard labor. But the most poignant “civilian” characters are the kids enduring long school days studying subjects that are meaningless to them because the educational system offers them no viable path to enjoyment of the American dream. Their only real hope is to be to be tapped for a low level posi-

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tion in one of the drug gangs. Unfortunately, the civilians are the one tribe that has neither the money nor the organization to adequately defend its interests.

2. Why Law Fails It is tempting for us to view The Wire solely as melodrama, rooting for the heroes and hissing the villains. But David Simon has made clear that its creators had little interest in heroes and villains as such. They were aiming higher than melodrama, hoping to craft a narrative that presents a political argument about why the Baltimore political system fails the citizens of West Baltimore. The Wire argues that the Baltimore criminal justice system fails because it is driven by bureaucratic, political and economic forces that are aimed at private gain rather than the public good. Each of the tribes described above is too concerned with achieving its own internal goals to give serious attention to how the system serves the public. The reason the police pay little attention to drug-related violence is because, from the police department’s leadership’s perspective, an effective effort to control drugs is a lose/lose proposition. It requires a lot of resources with little chance of success and does not address the needs of any of the department’s major constituencies. When a drug lord is prosecuted, it is difficult to get a conviction. If one is convicted, another takes his place. A lot of the department’s scarce resources would be necessary, and there would be little to show for their expenditure. The group that would most benefit from a more aggressive approach— the law-abiding residents of West Baltimore—has little influence over the police’s actions. They lack the money and organization to make their voices heard. Instead the police look to the politicians for their cues, and the politicians are primarily interested in satisfying the corporations and wealthy individuals who finance their campaigns. Individuals like McNulty and Daniels try to make the legal system work, but eventually they realize that the political system that drives the law has little interest in the people of West Baltimore. This theme plays out throughout the series, but let me give three examples.

(a) The Barksdale gang prosecution Season one describes the attempt by the “good police” to hold Avon Barksdale and Stringer Bell responsible for a series of murders in West Baltimore. The story begins when Jimmy McNulty drops into the trial of

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D’Angelo Barksdale for the murder of a civilian. Under the steely gaze of Stringer Bell, one of the two eyewitnesses to the killing suddenly recants her prior identification of Barksdale as the shooter. When the jury soon thereafter acquits D’Angelo, the trial judge Daniel Phelan calls McNulty into his chambers to ask if he can explain the surprising turn of events. McNulty explains that D’Angelo is the nephew of the drug lord Avon Barksdale and that witness intimidation and bribery are common Barksdale tactics. In fact, there have been several unsuccessful prosecutions of Barksdale associates in recent months that have failed for similar reasons. When the judge asks what the police department is doing about all these drug killings, the maverick McNulty replies that nothing is being done. Outraged that this travesty of justice has transpired in his court, Phelan immediately calls Deputy Commissioner Burrell to complain. Burrell’s reaction to the judge’s complaint is typical of how the system responds to criticism. First, he sees the Phelan complaint primarily as a public relations problem. It’s not good that a judge is angry, so some action must be taken. But it will be cosmetic in nature. Burrell and his aide Rawls decide the best public relations move is to create a special detail to handle drug crime. This will show that the department takes the problem seriously. But they also decide to underfund the detail and staff it with the dregs of the department so that it will fail in its mission and merit early discontinuance. And when Burrell has solved the external problem with the judge, he plans to punish McNulty for having discussed “police business” with an outsider. Lieutenant Cedric Daniels is appointed to head the unit and instructed to keep it low key. McNulty is taken off his regular prestigious work as a homicide detective and sent to the new detail as punishment for going outside departmental channels in talking with Phelan. The other members are has-beens waiting for retirement or rookies like Herc and Carver with little experience. At first it seems the department’s cynical strategy will work, but then there are some surprises. Daniels decides to push back against a leadership that has given him a mission designed to fail. McNulty decides that the detail, properly implemented, really could take down the Barksdale organization, and one of the “losers” assigned to the detail, Lester Freamon, turns out to be a wizard in conducting the type of sophisticated investigations needed to convict Barksdale and his associates. So we have a standoff between the reluctant police leadership and their reform-minded subordinates. The reformers get a lucky break. The Barksdale gang assassinates the witness in the Barksdale trial who did not recant her testimony and someone (McNulty, Phelan?) “leaks” the fact to the

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Sun. A headline story appears that embarrasses the department and convinces Burrell and Rawls that they cannot disband the Daniels detail anytime soon. For a time it appears that the Daniels unit might take down the Barksdale cartel. The unit engages in two types of police work. One, favored by the department leadership, is the “buy and bust” prosecution where a lowlevel drug dealer is arrested and prosecuted to show that the department is fighting the drug problem. The “good police” members of the detail like McNulty see this as no more than a public relations tactic, since the street corner contacts are quickly replaced and it leaves the leaders of the drug organization unaffected. McNulty and Freamon favor a more sophisticated long-term approach. It includes electronic surveillance (“the wire”) and the use of confidential informants to develop evidence that will support prosecutions of the gang’s leaders Avon Barksdale and Stringer Bell for murder.7 This approach starts to pay off; Freamon slowly compiles evidence leading the investigation up the organizational ladder to Barksdale and Bell. He also starts to uncover evidence that shows how Barksdale and Bell have funneled their illegal profits into various legal entities that allow them to buy up properties all over the West Side of Baltimore, an area designated for lucrative government development grants. In a legal system independent of the politics there would be hope of success, but Baltimore is not that system. The investigation accidently stumbles on some politically explosive information. Using information heard over the wire, the Daniels detail stops a car leaving a Barksdale drug location and confiscates $20,000 in small bills. The car is registered to State Senator Clay Davis. The detail quickly realizes that the Barksdale organization is diverting some of its drug revenues to politicians. Daniels and McNulty are at first excited about this discovery since it opens up the possibility of the exposing the political corruption that allows the drug gangs to thrive. But their discovery soon turns sour; in fact, it effectively ends their chances of a major success. They had failed to realize that the fact that drug dealers are making contributions to politicians is not one politicians want publicized. And the politicians’ need for privacy about the source of campaign funds is a matter the police leadership takes very seriously; it effectively trumps their interest in seeing the law enforced. After fielding several angry phone calls from his political superiors, Burrell orders Daniels not only to meekly return the money to Senator Davis, but also to shut down the wiretap that is leading to the discovery of such politically embarrassing information.

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When this order is countermanded by Judge Phelan, who tells Burrell bluntly that if the authorized wire is shut down before its authorization runs out, he will be in contempt of court, Burrell decides on a new strategy, one that will garner good publicity for the department at the same time it provides him an opportunity to shut down the troublesome Daniels unit. Burrell’s plan is to use information that the wire has already intercepted that implicates D’Angelo Barksdale and, more importantly, his uncle Avon in a drug sale. Burrell orders that these two be prosecuted and sent to jail. This will serve the department’s interests by showing that the department is fighting drug crime, and a successful prosecution will also satisfy the politicians by providing a justification for shutting the Daniels unit down on the grounds that it has successfully completed its mission. McNulty and Daniels vociferously object to Burrell’s plan. They believe that the charge against Avon is minor and will not result in a long sentence, but the prosecution will alert Barksdale and Bell to the existence of the wire and undermine the larger investigation that might link Barksdale and Stringer Bell to the murders. In addition, putting Barksdale in jail for a few years will not materially affect the Barksdale drug business because Stringer Bell would still be free to continue business as usual. But, the “good police” have no influence on the ambitious Burrell’s future and therefore can be safely ignored. The arrests are made, but there is no trial. While trials are common in Law and Order, trials are a rarity on The Wire. Barksdale attorney Maurice Levy negotiates a deal in which Avon Barksdale is given a seven-year sentence that means he will soon be paroled. As we listen to Assistant State’s Attorney Pearlman dramatically announce the plea bargain to the court, the camera cuts to Stringer Bell setting up his new offices to run the drug operation in Avon’s absence. The final resolution serves the interests of all major players. The police department can claim a victory (as can their lawyer Pearlman). The Barksdale gang has paid a price, but not one that in any way threatens its business, and the story about politicians receiving money from drug dealers remains untold. It’s business as usual in Baltimore. The plea bargain also has consequences within the department. It is time for the leadership to settle some scores. Burrell uses the convictions as a justification for closing down the special drug detail and its dangerous proclivity for discovering facts the politicians would rather remain secret. He also rewards the employees who demonstrated loyalty and punishes those who challenged its leadership. Ellis Carver, who acted as his “spy” within Daniels’ unit, is promoted; McNulty, who went to Judge Phelan, is demoted to riding a police boat around Baltimore harbor, inhaling diesel

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fumes. Taking your job seriously is a professionally dangerous activity in Baltimore.

(b) Hamsterdam Season three shows us another failed attempt to effectively fight the toxic effects that the illegal drug trade has on the lives of residents of West Baltimore. This time, the “reformer” is police Major Howard “Bunny” Colvin, who is in charge of the West Baltimore division. Colvin is tired of the department’s failure to address the deterioration in the quality of life of the residents of West Baltimore caused by the drug trade. His bold idea is to tolerate the sale of drugs in a few approved locations in return for the dealers’ agreement not to sell in the rest of West Baltimore. In the designated areas, drug sales will be tolerated, but anywhere else in West Baltimore they will be severely punished. Colvin’s hope is that tolerating sales in a small area will result in a major decrease in criminal activity everywhere else. He knows that his experiment (called “Hamsterdam” by the drug dealers) will be very controversial since it tolerates illegal activity in the approved zones, but he thinks that tolerating drug sales in a small area will permit normal lives to be lived in the rest of West Baltimore. He decides not to notify the downtown brass of the new policy’s existence until he has some good results to report. His personal “ace in the hole” is that since he only has a couple of months to retirement, he feels he is immune to retaliation if things do not work out. It turns out that “Hamsterdam” is a great success. Violent crime drops dramatically in West Baltimore. Colvin’s superiors are impressed by his statistics but still unaware of his tactics, but the press enters the picture when a disgruntled officer alerts them to the existence of the program. A headline story appears in the Sun about the police department’s toleration of drug sales. Where the press goes, the politicians soon follow. Now Simon and Burns widen their frame to show us the dynamics of Baltimore politics. The primary protagonist in this story of political intrigue is Council Member Tommy Carcetti. Carcetti’s basic political problem is that he is a white politician who wants to be mayor of a mostly African-American city. Worse yet, he has to run against the well-financed African-American incumbent, Clarence Royce. Carcetti decides he needs both a winning issue and a second African-American candidate to siphon off black votes from Royce in the democratic primary. He decides that “crime” will be his winning issue and that he will use his AfricanAmerican colleague Tony West as his stealth weapon against Royce. He

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will blast Royce for his inability to stop drug violence and also encourage his friend West to enter the race, knowing he will siphon off votes from Royce. Of course, Carcetti neglects to tell West that he too will be a candidate. When the newspapers publish the story about “Hamsterdam,” Carcetti finds himself in a quandary. On one hand, Colvin has reduced violent crime in West Baltimore, something that no one else has been able to do. On the other hand, the Hamsterdam experiment can easily be portrayed by a clever politician as coddling criminals. It fits nicely into his argument that the Royce administration is “soft” on crime. Despite his personal admiration for Colvin, Carcetti decides that this is the issue he needs to ignite his long-shot campaign. Therefore, he makes a fiery speech charging that “Hamsterdam” shows that the mayor has surrendered to the drug dealers. Once Carcetti portrays “Hamsterdam” as condoning criminal activity, a chain reaction of opportunism kicks into gear. Mayor Royce, who had hoped to ignore Hamsterdam until its effectiveness and political impact were better known, now decides he has to distance himself from it. He orders Burrell not only to shut the experiment down, but also provide him a shield from the bad publicity it has created. Burrell agrees to take responsibility for the debacle, but in turn asks for compensation. In return for taking the heat, Royce promises Burrell, currently the acting police commissioner, a full term as commissioner. Burrell also decides to punish Colvin who has committed the grave bureaucratic sin of violating the chain of command. Colvin is not only made the scapegoat for an experiment that many insiders thought had merit, the department also retroactively demotes him in rank to reduce his pension. It is tempting to portray the plot lines of The Wire in the language of heroes and villains. There is no doubt that Simon and Burns are more sympathetic to some characters than to others. They empathize with the mavericks like McNulty and Colvin and satirize their bureaucratic superiors and the politicians. However, a thoughtful viewing of the series reveals that Simon and Burns are (like Hansen and Yosifon) less interested in the intentions of individuals than in the situation in which they find themselves. Burrell, Rawls, Carcetti and Royce, after all, did not make up the rules they play by; they just follow the script their institutional role has provided them. The problems of Baltimore go deeper than the bureaucrats and politicians who run the system. The real problem is the system itself and the cues it gives its participants.

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(c) A city of bad schools and no jobs Most of the screen time in The Wire is spent tracing the relationships between the drug crime and the police/judicial system, and politicians and their contributors. But Simon and Burns also extend their argument into the related areas of education and employment. Perhaps The Wire’s most affecting story is told in season four, when the series looks at the failure of the public schools in West Baltimore. The schools in West Baltimore are housed in antiquated, poorly maintained buildings. The teachers are, for the most part, dedicated professionals, but are not given the resources necessary to effectively teach their young, lower-class African-American pupils who start school with abundant energy but little faith that the required curriculum will either interest them intellectually or improve their life chances. It turns out that the students’ skepticism is well-founded, as the public schools do fail to do their job. There are several reasons for this failure. Some of the problems are bureaucratic dysfunctions similar to those we witnessed in the Baltimore police department. Administrators are more interested in following established procedures than promoting effective teaching. For instance, innovative teachers are told that they must dedicate weeks of class time to mind-numbing drills that are aimed at improving performance on standardized tests. But most of the problems find their source outside the schools. One major problem is financial; the politicians refuse to allocate the funds necessary to provide a first-class education to the poor children of West Baltimore. Generous funding for public schools is not an attractive issue for politicians who know that their own financial supporters no longer send their children to public schools. The school system, like the criminal justice system, is not a high priority for the people who control the political system that finances it. Bureaucratic lethargy and fiscal stinginess are well-known problems for American public schools, but Simon and Burns also add two less publicized causes of failure. The public schools are negatively impacted by things that take place before the students start school and after they leave. Poverty and the drug culture in West Baltimore have created a situation in which larger numbers of students are not ready to learn. Some are so poor that they arrive at school hungry and dirty. Others must attempt to harmonize homework with avoiding the domestic violence that stalks their home lives. These kids have a lot on their minds besides class assignments, and their home problems affect the learning curves of their classmates.

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A second external problem facing the Baltimore school system is the employment prospects of its graduates. The traditional curriculum has no connection with the lives the students are fated to live. Simon and Burns ironically underline this social fact by showing a neophyte math teacher finally interesting his class in statistics by showing how it will improve their performance in dice games. Here we see how yet one more large system comes into play. The success of the school system depends on the ability of the larger economic system to produce jobs for its graduates, but the only well-paying jobs in West Baltimore are in the drug trade. The Wire discusses the disastrous social effects of a failing economy from another angle in season two, in which Simon and Burns highlight other consequences of our economy’s failure to produce the jobs necessary to provide middle-class incomes for working people and to fund the social services (like police protection and good schools) they need to prosper. They make clear that the economic system itself is not a natural force like fire or flood; it’s the product of legislative decisions made by a political system that is geared to give disproportionate weight to the interests of the top ten percent of the population, a demographic that does not include the students in the Baltimore school system. The Wire tells the story of Baltimore’s economic decline through the story of the travails of the local longshoreman’s union. As little as fifty years ago, Baltimore had been a prosperous East Coast port city. It boasted factories of giant corporations like Westinghouse and Bethlehem Steel, and tons of goods flowed through its busy port. But “globalization” changed all this. The factories and the good working-class jobs they provided disappeared. Tonnage at the port also shrank, and there are fewer jobs for dock workers, including the longshoremen. Their economic plight was further aggravated by the introduction of machines and computers to load the ships, labor-saving devices that cut employment numbers and decreased wages. Frank Sobotka, the head of the checkers local of the longshoreman’s union, has a dream of reviving the port and economic hopes of his shrinking membership. He is in many ways just like the leaders of the other “tribes,” attempting to improve the incomes of his membership as well as his own prestige. He can also be viewed as a would-be reformer, believing that if he can persuade the politicians to rebuild the Port of Baltimore’s grain pier and to dredge and widen the canal, the port will thrive again and his membership will prosper with it. But Frank faces a problem. The union needs the money the new public improvements will produce, but the political system will not build improvements unless it is fed large amounts of campaign contributions, funds the beleaguered union does not have.

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Sobotka’s solution to this riddle is to expand the longstanding longshoreman practice of petty theft (e.g. disappearing cartons of liquor) to a more serious criminal enterprise. The union leadership, in return for a payoff, will help drug dealers to import large cargo containers containing drugs into the port without clearing customs. To Sobotka’s mind, his actions may be illegal but they are not immoral. Drugs, after all, are a “victimless crime” where no one gets hurt. What he does not know is that the drug dealers are also importing young women for prostitution in those containers. When a container air duct gets bent shut, thirteen young women are found dead on the Baltimore docks. Sobotka ends a loser on every count. His role in the drug trafficking becomes known, and he himself is assassinated by the drug dealers who fear he will cooperate with the police. His under-employed son turns to crime and is jailed for murder. His nephew gets involved in the drug trade and ends up in witness protection. Moreover, the campaign contributions he makes never turn out to be large enough to persuade the politicians to support the public improvements the union needs. Of course, Frank Sobotka is the author of his own fate. No one forced him to conspire to smuggle drugs into the country, but Simon and Burns show that more is at work here than Sobotka’s “disposition” towards crime. In Hansen and Yosifon’s terminology, he was operating within a “situation” that influenced his decision. The criminal justice system’s failure to stop the drug trade made smuggling drugs a viable economic option, and a political system that only allows access to those who can make large campaign contributions acts as an incentive to find some way to secure large amounts of money.

3. Taking The Wire Seriously The Wire’s political argument uses the criminal justice system as its point of entry for a critique of Baltimore’s political system and beyond. We see that the criminal justice system reflects the group interests of the professionals who run it—the police, the prosecutors and the judges. These groups’ goals are in turn shaped by the electoral needs of the politicians who oversee the bureaucracies’ budgets and their leaders’ career trajectories. The politicians, in turn, listen closely to the views of the affluent citizens and corporations who fund their campaigns. The press goads the system from time to time with stories that show its failures, but never questions its basic structure or allocation of power. And hovering over this picture of life in Baltimore is the failure of its economy to produce enough good-paying jobs to support working families

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and the social services they need like police and good schools. The series makes clear that the economy is not a phenomenon of nature like a forest fire or flood, but itself the product of economic policies chosen by a national political system skewed toward wealth which favors policies like a low minimum wage and reduced tax rates for corporations. That’s the argument, but is it true? The Wire is fiction, and fiction by its very nature is neither true nor false in a literal sense. It’s just a story someone made up. But since we tend to accept fictional narratives as “real,” even knowing that they are not,8 it is important that we scrutinize them carefully before accepting their portrayal of reality. We can perform this scrutiny by asking some common-sense questions of the fictional work that claims to portray reality. Do the authors know what they are talking about? Are they sincere in attempting to portray reality or is entertainment their only goal? Does their fictional picture coincide with reliable reports from other sources about the situation they describe? And do their assumptions about human psychology reflect our own experiences with how people think and act? I think when we ask ourselves these questions with regard to The Wire, we will find it deserves our respectful attention. Its creators know the world they describe. Simon covered Baltimore politics as newspaper man, and Burns was a Baltimore police detective. There is no reason to doubt their sincerity. They are clearly attempting to show us what they see as the situation in Baltimore. Their portrait of Baltimore coheres with what we know from other sources. No one doubts the existence of the drug trade, the impoverished lives of the urban poor, the failure of the public school systems, or the influence money gives campaign contributors over policy decisions. And The Wire’s characters’ tendency to consciously or unconsciously favor personal or group interests over the public good is a reality we all experience in our own lives. That does not mean that The Wire does not shade reality to both improve its entertainment value and sharpen its political message, but I think Simon and Burns get the big picture right. While I have tried to set out The Wire’s argument persuasively, my efforts are limited by the nature of rational argument. My argument is abstract; The Wire’s narrative is concrete. Stories awaken our emotions, and movies and television add the magic of images that invite us to accept pictures of actors as representations of reality. The magic of visual narrative can translate abstract ideas into concrete reality. I do not think that my summary of The Wire’s argument in nonfiction prose will ever, in itself, persuade readers of its truth, but I hope it will encourage people to watch (or re-watch) the series with attention to its political argument. The Wire itself will do the job of persuasion.

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I wish to thank my son Michael, who introduced me to both The Wire and the writings of John Hansen. I also wish to thank my colleagues at the University of San Francisco and in particular Manuel Vargas of the Philosophy Department for helpful suggestions offered at a scholarship lunch.

Notes 1

David Simon, “Introduction,” in Rafael Alvarez, The Wire: Truth be Told (New York: Grove Press, 2009), 3. 2 See generally, Alan Sepinwall, The Revolution Was Televised: The Cops, The Crooks, Slingers and Slayers Who Changed TV Dramas Forever (npa: Alan Sepinwall, 2012). 3 Jon Hansen & David Yosifon, “The Situation: An Introduction to the Situational Character: Critical Realism, Power Economics, and Deep Capture,” University of Pennsylvania Law Review 152 (2003): 129; Jon Hansen & David Yosifon, “The Situational Character: A Critical Realist Perspective on the Human Animal,” Georgetown Law Review 93 (2004): 1. 4 See Jonathon Gottschall, The Storytelling Animal: How Stories Make Us Human (Boston: Houghton, Mifflin, Harcourt, 2012), 55. 5 Alan Sepinwall, The Revolution Was Televised, 76. 6 The Wire is a rich, complex narrative that could support a multiplicity of different approaches. See The Wire: Urban Decay and American Television, eds. Tiffany Potter and C. W. Marshall (New York: Continuum Publishing, 2009). 7 It is interesting to note that although the series has a left of center slant on American politics, it takes a stance towards police tactics like electronic surveillance that many civil libertarians question. 8 See Jonathan Gottschall, The Storytelling Animal, 150–52.

CHAPTER EIGHT LEGAL TRANSPLANTS AND LEGAL DRAMA: A COMPARISON BETWEEN THE US AND ITALY ELENA FALLETTI

1. Introduction A wide debate persists about the meaning of the expression “legal transplant.”1 According to the majority of scholars, “legal transplants” are related to the export of a legal model from one country to another implemented by, for example, military force, emulation or cultural influence. The enforcement of the Code Napoléon, the French Civil Code, in lands conquered by the French army during the nineteenth and twentieth centuries is one of the most potent examples of the military export of a legal model in history. Similarly, emulation (arising from the impact of cultural “prestige”) can operate as a dissemination tool and consists in the recognition by one country of the efficiency of a particular juridical model used by another country. This chapter considers the intersection of emulation and cultural influence in a recent example of a “legal transplant” from the United States to Italy. Cultural elements are often disseminated through, for example, literature and visual images (pictures, videos, movies, television). In this chapter I focus on the role of television in the dissemination of legal culture, in particular as related to Italy. Television has always had a leading role in the Italian cultural landscape. For instance, a program called Non è mai troppo tardi (It’s Never Too Late), broadcast during the 1960s, taught the Italian language to many non-literate Italians who spoke only local dialects.2 It could be asked whether television has a similar role in the shaping of Italian legal culture in the popular imagination. Some areas of Italian law have also been affected by procedural and legislative US legal transplants and include, for example, the reform of criminal trials, the introduction of consumer bankruptcy legislation, the reorganization of the legal market and the management of law firms, the

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introduction of class actions, the introduction of derivative contracts in banking law, the study of court cases in law schools, and the introduction of mandatory forms of alternative dispute resolution. It can be argued that some of these developments (e.g. criminal law reform and the reorganization and management of the legal market and law firms) are also connected to, and sometimes clash with, the phenomenon of cultural transmission made possible by the broadcast of popular legal drama. The most popular American legal drama, Perry Mason, was broadcast by the “Programma Nazionale” (the historical name of “Rai Uno,” the most important television channel in Italy) from 1959, and rerun on public and then private television channels thereafter. The broadcast of legal drama and detective TV serials increased with the liberalization of television frequencies, which took place between the mid-seventies and eighties through several judgments of the Italian Constitutional Court. The most famous and influential American legal dramas have been3: Judd for the Defense (Al banco della difesa, 1967–1969), The Trials of Rosie O’Neill (I casi di Rosie O’Neill, 1992–1994), L. A. Law (Avvocati a Los Angeles, 1986–1994), Raising the Bar (Avvocati a New York, 2008– 2009), Boston Legal (Boston Legal, 2004–2008), Owen Marshall: Counselor at Law (Difesa ad oltranza, 1971–1974), Equal Justice (E giustizia per tutti, 1990–1991), Judging Amy (Giudice Amy, 1999–2005 ), The Young Lawyers (Giovani avvocati, 1969–1971), The Good Wife (The Good Wife, 2009–present), JAG (JAG—Avvocati in divisa, 1995–2005), Law & Order (Law & Order—I due volti della giustizia, 1990–2010) and its spin-off: Law & Order: Special Victims Unit (Law & Order: Unità vittime speciali: 1999–present); Law & Order: Criminal Intent (Law & Order: Criminal Intent: 2001–2011); Law & Order: Trial by Jury (Law & Order: Il verdetto: 2005–2006); Conviction (Conviction: 2006); Law & Order: LA (Law & Order: LA, 2010–2011), Matlock (Matlock, 1986–1995), Murder One (Murder One, 1995–1997); The Associates (I novellini, 1979–1982), Sweet Justice (Per amore della legge—Nel cuore della giustizia, 1994– 1995), The Practice (The Practice—Professione avvocati, 1997–2004), Shark (Shark—Giustizia a tutti i costi, 2006–2008), Storefront Lawyers (Uomini di legge—Dalla parte del più debole, 1970–1971). It can be argued that legal dramas have five specific characteristics that influence public opinion and popular culture: seriality, repetition, captivating storylines, simplicity, and the power to attract audience loyalty. A program’s ability to provoke cultural shifts is generated, in part, by its serial nature. In contrast to cinema, the repetition of a formula accustoms the public to the proposed model. Usually, legal dramas attract their fans not only with good-looking actors but also with captivating plots that, alt-

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hough sometimes surprising, are often repetitious. For instance, an innocent person accused of the murder of his or her friend or relative is arrested, investigations are carried out negligently, a hopeless trial is held, but at the end of the episode a sudden twist changes the suspect’s destiny; typically, this involves the cross-examination of the principal witness. While this formula is also used in other genres, such as medical drama and comedy, the culmination of legal drama in a trial scene typically captures the imagination of a wider television audience. It should, however, also be noted that there is a new development in much legal drama: television series are no longer just a series of episodes linked by the presence of the same subject or characters. Instead, stories are allowed to develop gradually and are often connected with matters that arise at the pre-trial stage, such as the police investigation.

2. An Example of “Legal Transplant”: The Italian Code of Criminal Procedure An analysis of recent developments in the Italian Code of Criminal Procedure (hereinafter “CCP”) is a good way of explaining some of the superficial, and sometimes even harmful, effects of “legal transplants” that are produced by emulation and cultural influence. The former CCP was enforced in 1930 under the fascist regime, but its roots were deeply and historically connected to the Catholic Inquisition and Canon Law, shaped by French tradition,4 and inherited from the Kingdom of Sardinia. Although it was partially reformed after World War II, the CCP remained in force until 1989 when the new code came into force. The old CCP was characterized by the central role of what was called the giudice istruttore (“investigating judge”), who could investigate cases and cross-examine witnesses on the basis of little evidence. According to some scholars, the reform of the CCP in the 1980s allowed Italy “to reflect its status as a modern democratic society,” and make a “dramatic break with past practice.”5 The country’s legislators took their inspiration from the US legal model (a case of emulation as described above), which they “associated with the strength of the United States’ political and economic structure,” as well as with its history of strong legal scholarship.6 Similarly, there was a belief that the Italian system was not properly protecting the individual. This served to push Italian reform further towards the US adversarial system, a system strongly associated with “Lockean liberal values, distrust of the state, [and] restraint of state power,” and which appeared “to best safeguard the individual against state abuses.”7 Moreover, prior to reform, Italy was “repeatedly con-

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demned by the European Court of Human Rights for the excessive delay of its criminal justice procedure—a delay that routinely amounted to an astonishing ten years, or longer.”8 The new CCP radically changed Italian criminal trial procedure through the implementation of an adversarial model based on the US system. A brief comparison between the two models clarifies the strong impact of this change on Italian legal culture. The classical distinction between the adversarial and inquisitorial models is based on two ideal types of process: on the one hand, the inquisitorial system (in which the judge uses the power granted him or her by the law [ex officio] to collect evidence) brings together the functions of judge and prosecutor and creates a relation of inequality to the suspect. In this case, the accused cannot collect evidence on his or her own behalf. The actions of the inquisitorial process are secret, and the defendant remains at the disposal of the court in “preventive detention” during the investigation.9 By contrast, in the adversarial system the prosecution is not initiated by the judge but by the prosecutor, and evidence is collected by the parties themselves. The pieces of evidence are discussed and examined in court by the parties in positions of equality. The judge has a role of moderator, while the decision on the facts, the verdict, is up to a jury of ordinary people. If the suspect is found guilty, the penalty is determined by the judge. The adversarial process is public, and the accused, except in cases of felonies, remains at liberty.10 From juridical, theoretical and philosophical perspectives, the inquisitorial system pursues the “unveiling” of truth, while the adversarial system seeks an impartial adjudication on two versions of events. The procedural consequences of this distinction are important because the former assumes that a truth exists and that the task of the trial is to reveal it,11 thus giving primacy to the investigation. The latter, however, pursues the exclusion of “reasonable doubt” through the reconstruction of events based on the comparison of two narratives; in consequence, the focus is on debate.12 In Italy, various “myths” have developed about the US adversarial system; some of these are influenced by elements found in popular culture, but they often do not have any basis in legal reality. First, in US television legal drama, criminal trials are typically represented as effective, efficient and fair. Unlike the Italian legal system, however, the prosecutor has no obligation to prosecute and can proceed according to evidence found during the investigation. If a conviction seems unlikely the prosecutor can drop the charges. While this aspect of US criminal procedure seems efficient, it actually allows the prosecutor to choose the most pragmatic solution.

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The complete transposition of the model of a jury comprised of ordinary citizens with no legal background would be unacceptable in the Italian system. However, in Italy, persons charged with murder are judged by a “mixed jury” composed of both magistrates and common people. In accordance with the continental tradition, the inquisitorial structure requires the presence of the judge as a representative of the state, specifically because “it is expected that the professional judges will properly guide discussion and explain the weight that ought to be given to each piece of evidence.”13 After its implementation, the new Italian CCP faced significant problems. Critics regarded the new legislation as a “legal transplant” and, hence, as an intrusion of common law structures into a civil law tradition. The most significant criticism related to the new role of the public prosecutor, who remains a party to the proceedings, but is deprived of the judicial powers he or she had at the preliminary inquiry stage under the old legislation.14 Judges are formally separated from the prosecutors even though both professional figures are selected through the same professional examination and are members of the same professional group (magistratura).15 According to Italian scholars the principle of “impartiality” of the judge has a fundamental role in the trial and has to be interpreted in a strict sense. Now, during the “new” trial, the judge receives only selected evidence produced by the investigation16 in order to preserve his or her impartiality.17 As some scholars have noted: “[T]he judge is the fact-finder, and under the reformed system receives only results of proceedings that cannot be reproduced at trial (such as the results of property seizures, inspections or wiretaps).”18 This means that each phase of the trial needs a different judge to decide each procedural step. The Italian Constitutional Court, therefore, made a large number of objections to many of the new provisions on the grounds that they were unconstitutional. Their main objection was to Article 34 (“Incompatibility determined by acts committed in the proceedings”) which, it was argued, broke the relationship between jurisdiction and proper administration of the trial. Some other problems deriving from this transplant include, for example, the organization of the judiciary. In the US, public prosecutors are lawyers with the same status and functions as the lawyers of the defendant, while judges are either elected or appointed politically. In Italy, the structure of judges and prosecutors has not changed with respect to the administration of criminal trials—they belong to a single structure, which is an independent order (according to Montesquieu’s theory of separation of powers) and they are appointed by public competition. After the appoint-

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ment, the candidate decides whether to exercise the function of prosecutor or judge. However, the main conflict concerns the relationship between the accused and the truth. In the US, the accused has a right to silence and is not required to testify against him or herself. In Italy, defendants have a similar right, but they can also make “spontaneous declarations” of any nature without the risk of penalty. Unlike many other countries, defendants are not required to take an oath in court (since they are not technically witnesses) and can therefore lie without committing perjury. This is strictly connected with the cultural tradition of Canon law and the inquisitorial trial, in which the accused was obliged to cooperate (even while subject to torture) for the salvation of his or her soul.19 This sits uneasily with the “legal transplants” of the new CCP; it is connected to both the former criminal code, which had an inquisitorial structure, and to Italy’s religious heritage, particularly its Catholic culture of mercy and forgiveness. It might be added that, in Italy, the fact that it is possible for a defendant to lie with impunity erodes public confidence in justice. The legal transplant of various US procedures and ideas into the Italian legal system has produced contradictory results and is questionable in light of the deep differences between the two legal traditions. However, I would argue that, in Italy, the continued dissemination of the American model— including optimistic images of its effectiveness—through the broadcast of legal dramas has stimulated a lack of public confidence in the Italian administration of justice.

3. A Clash of Legal Cultures: The Amanda Knox Case The Italian criminal procedure was recently brought to the attention of international audiences in the trial of US student, Amanda Knox. The trial demonstrates how the implementation of certain aspects of the US model in Italian criminal procedure has puzzled many Italians and Americans, because “the Italian system failed to fully transplant the adversarial model”20 and did not achieve many of the protections the new CCP sought to guarantee. The case shocked Italian, British and American audiences and was followed by the principal newspapers and television broadcasting media of the three countries. Amanda Knox, an American student from Seattle, was continuing her studies in Perugia, Italy21 when she was convicted of the brutal murder of her British roommate, Meredith Kercher. The investigation and the long trial of Knox and her Italian boyfriend, Raffaele Sollecito, were widely followed by both the Italian and American media.22 Publicly available

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evidence, namely the materials published by Amanda, Raffaele and Meredith on their Facebook pages, were used by the prosecutor to portray the personalities of both the accused and the victim. However, the media also used this material to keep the curiosity of public opinion alive, transforming the trial into broadcast gossip. It was, therefore, difficult for the judges—both magistrates and common people—to be neutral and to give an impartial opinion during the trials of first instance and appeal.23 According to some scholars, Knox and her boyfriend were found guilty without proof of clear motive, murder weapon or certainty about the time of death of the victim. Knox and Sollecito’s conviction hinged on DNA evidence found on Sollecito’s kitchen knife and the victim’s bra clasp.24 Although she was inconsistent in her alibi and made many contradictions in her testimony, Knox maintained that she did not kill her roommate. The DNA evidence at the center of the trial was of such small amounts that it was only available after numerous enhancements in testing.25 Knox was convicted by the First Instance Trial Court and then acquitted by the Italian Appellate Court in early October 2011 based on lack of reliable evidence. In February 2012, the prosecution filed an appeal in the Italian Supreme Court asking that the original verdict be reinstated,26 but in March 2013 the Corte di Cassazione, the Italian Supreme Court, nullified the Appeal Court’s acquittal of Knox and her boyfriend and ordered a retrial27 because of the “manifest unreasonableness of the Appeal decision, which ignored 70 per cent of the elements of accusation.”28 However, the Court confirmed the sentence for slander, because during the investigations, Knox accused an innocent party of being implicated in Kercher’s murder.29 Freed after acquittal, Knox returned to the United States where she is fast becoming a celebrity because of her legal case. My conclusion does not concern the merits of the criminal trial of Knox, but rather its cultural impact. In this regard, an important difference between US and Italy should be noted. In Italy, the Court of Cassation quashed the acquittal of Knox and Sollecito for mistakes in the reasoning of the judgment, so the appeal process must be undertaken again. The prosecutor appealed the appeal decision before it became definitive according the rules of the Italian CCP. US observers might note that the revision of the appeal decision could fall under the prohibition of double jeopardy, but according to civil law principles it does not fall under the equivalent principle of the “ne bis in idem.” As mentioned above, a key difference between the two legal systems resides in the fact that according to the Civil Law tradition a “judgment,” in particular the opinion expressed by Civil Law Courts, is different from a “verdict.” The jury in a US trial delivers—without giving reasons—a verdict of guilt or innocence.

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By contrast, the Italian “Corte d’Assise” (Assembly Court) is made up of two professional judges and five citizens and, according to Article 111 of the Italian Constitution, it must give reasons for it decisions. In the Knox case the court opinion was expressed in 427 pages of detailed legal reasoning.30 In the US legal system, the jury is derived from a cross-section of the community31 (strictly related to the expression of the sovereign will of the people) and does not need to justify its decisions. What is remarkable is that despite the “transplant” of various US criminal procedures into the new Italian CCP, the principles underlying the trial process have remained those of the inquisitorial process. The rite of the adversarial system, modeled following the American-style, has failed to diminish the prevailing cultural impact of the traditional system. Furthermore, the procedural rules related to civil and administrative trials has not been affected by the implementation of the adversarial system in the CCP, so theoretically, the Italian procedural system (criminal, civil and administrative) is diverging in its concrete enforcement of the law. It can be argued that the impact of US legal culture transmitted through legal drama, literature and films led to a spurious imitation of US legal institutions and customs that, when adapted to the Italian culture, distorted their original meaning and function. The American-style criminal trial transplant in the Italian system has remained superficial and partial and, more importantly, has failed to have a significant impact on Italian legal culture despite its cultural prestige. The results of comparative and cultural methodologies show that an approximate “legal transplant” does not work. Nevertheless, legal concepts continue to be “transplanted” from one legal culture to another through legislative reform and the impact of popular culture. This process of juridical translation of legal categories transforms them into hybrids. The transplant of the US system into the Italian one cannot be said to be complete because the legal language and legal mindset adopted in the two legal systems were, and remain, very different.32 Recently, a disturbing crime took place in Caserta (a large municipality close to Napoli) in which a twenty-year-old girl, locally famous for participating in beauty contests, was seriously injured by her jealous boyfriend. As a result of the attack, she underwent major surgery. Upon awakening, she asked her lawyer how to seek money for paying her attacker’s bail because she pardoned her attacker and wanted him to be set free. Her lawyer explained to her that the Italian system, unlike in the American legal dramas watched by her on television, does not allow the release of the accused on bail.33 This minor anecdote is just one example of how popular culture can sow confusion about legal procedure, because the purpose of

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legal dramas is not to influence a complex cultural shift, but to secure the largest possible television audience.

Bibliography Damele, Giovanni. “Il processo come spettacolo. Rito, dramma, competizione.” In In nome della legge. La giustizia nel cinema italiano, edited by Guido Vitiello, 35–48. Soveria Mannelli: Edizioni Rubettino, 2013. Friedland, Steven I. “The Competency and Responsibility of Jurors in Deciding Cases.” Northwestern University Law Review 85 (1990): 190– 220. Grande, Elisabetta. “Italian Criminal Justice: Borrowing and Resistance.” American Journal of Comparative Law 48 (2000): 227–260. Grasso, Aldo. Storia della televisione italiana. Milan: Garzanti, 2000. Hampson, Noah C. N. “The Internet Is Not a Lawless Prairie: Data Protection and Privacy in Italy.” Boston College International and Comparative Law Review 34 (2011): 477–489. Illuminati, Giulio. “The Frustrated Turn to Adversarial Procedure in Italy (Italian Criminal Procedure Code of 1988).” Washington University Global Studies Law Review 4 (2005): 567–581. —. “The Accusatorial Process from the Italian Point of View.” North Carolina Journal of International Law and Commercial Regulation 35 (2010): 297–318. Jimeno-Bulnes, Mar. “American Criminal Procedure in an European Context.” Cardozo Journal of International and Comparative Law 21 (2013): 410–459. Langer, Maximo. “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure.” Harvard International Law Journal (2004): 1– 64. Mirabella, Julia G. “Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial.” Boston University International Law Journal 30 (2012): 230–260. Panzavolta, Michele. “Reforms and Counter-Reforms in the Italian Struggle for an Accusatorial Criminal Law System.” North Carolina Journal of International Law and Commercial Regulation 30 (2005): 578– 623. Pisa, Paolo. “Il naufragio della Costa Concordia: i profili di responsabilità penale.” Diritto penale e processo (2012): 367–371.

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Pugiotto, Andrea. “Fuori Dalla Regola e Dalla Regolarità: La Grazia e il Quirinale al Colonnello USA, Rivista dell’Associazione Italiana dei Costituzionalisti” (2013) http://www.associazionedeicostituzionalisti.it/articolorivista/fuoridalla-regola-e-dalla-regolarit-la-grazia-del-quirinale-al-colonnello-usa (accessed September 22, 2013). Rosenfeld, Adina. “Admissibility Of DNA Evidence: Italy Under Attack.” Southern University Law Review 40 (2012): 197–241. Siegel, David. “Training the Hybrid Lawyer and Implementing the Hybrid System: Two Tasks for Italian Legal Education.” Syracuse Journal of International Law and Commerce 33 (2006): 445–465. Watson, Alan. Legal Transplants: An Approach to Comparative Law. Charlottesville: University Press of Virginia, 1974. —. “Aspects of Reception of Law.” American Journal of Comparative Law (1996): 335–351. —. “Legal Transplants and Law Reform.” Law Quaterly Review 92 (1976): 79–96.

Notes 1

Alan Watson, Legal Transplants: An Approach to Comparative Law (University Press of Virginia, Charlottesville, 1974), 95; Alan Watson, “Legal Transplants and Law Reform,” Law Quaterly Review 92 (1976): 79; Alan Watson, “Aspects of Reception of Law,” American Journal of Comparative Law (1996): 335. 2 Aldo Grasso, Storia della televisione italiana (Milano: Garzanti, 2000): 93–4. 3 Wikipedia, Italian Version, Serie Televisive, http://it.wikipedia.org/wiki/Categoria:Serie_televisive_giudiziarie (accessed October 24, 2013). 4 Mar Jimeno-Bulnes, “American Criminal Procedure in a European Context,” Cardozo Journal of International and Comparative Law 21 (2013): 412. 5 Julia G. Mirabella, “Scales of Justice: Assessing Italian Criminal Procedure through the Amanda Knox Trial,” Boston University International Law Journal 30 (2012): 231. 6 Supra Julia G. Mirabella, 232. 7 Supra, Julia G. Mirabella, 232; Elisabetta Grande, “Italian Criminal Justice: Borrowing and Resistance,” American Journal of Comparative Law 48 (2000): 228; Maximo Langer, “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure,” Harvard International Law Journal (2004): 47. 8 Supra Elisabetta Grande, 230. 9 Giovanni Damele, “Il processo come spettacolo. Rito, dramma, competizione,” in In nome della legge. La giustizia nel cinema italiano, ed. Guido Vitiello (Soveria Mannelli: Edizioni Rubettino, 2013), 38.

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Supra Giovanni Damele, 38. Supra Grace Mirabella, 238; Giulio Illuminati, “The Frustrated Turn to Adversarial Procedure in Italy (Italian Criminal Procedure Code of 1988),” Washington University Global Studies Law Review 4 (2005): 573. 12 Supra Giovanni Damele, 38. 13 Supra Grace Mirabella, 251. 14 David Siegel, “Training the Hybrid Lawyer and Implementing the Hybrid System: Two Tasks for Italian Legal Education,” Syracuse Journal of International Law and Commerce 33 (2006): 449. 15 Supra, Elisabetta Grande, 235. 16 Michele Panzavolta, “Reforms and Counter-Reforms in the Italian Struggle for an Accusatorial Criminal Law System,” North Carolina Journal of International Law and Commercial Regulation 30 (2005): 622. 17 Supra David Siegel, 449. 18 Ibid. 19 Giulio Illuminati, “The Accusatorial Process from the Italian Point of View,” North Carolina Journal of International Law and Commercial Regulation, 35 (2010): 302. 20 Supra Grace Mirabella, 232. 21 Adina Rosenfeld, “Admissibility Of DNA Evidence: Italy Under Attack,” Southern University Law Review 40 (2012): 197. 22 Supra Grace Mirabella, 239. 23 Ibid. 24 Supra Adina Rosenfeld. 25 Ibid. 26 Ibid. 27 “Delitto Meredith, annullata l’assoluzione. La Cassazione, processo da rifare.” http://www.corriere.it/cronache/13_marzo_26/meredith-amanda-perugia-sentenzacassazione_f031c0e6-95f3-11e2-9784-de425c5dfce0.shtml (accessed October 24, 2013). 28 “Meredith, processo da rifare. Cassazione annulla assoluzione Knox-Sollecito,” http://www.ilfattoquotidiano.it/2013/03/26/meredith-cassazione-annullaassoluzione-sollecito-knox/542351/ (accessed October 24, 2013). 29 Supra Adina Rosenfeld, 234. 30 Supra Grace Mirabella, 239. 31 Thiel v. Southern Pac. Co., 328 U.S. 217, 220 (1946); Glasser v. United States, 315 U.S. 60, 86 (1942); Smith v. Texas, 311 U.S. 128 (1940). Steven I. Friedland, “The Competency and Responsibility of Jurors in Deciding Cases,” Northwestern University Law Review 85 (1990): 193. 32 Supra Grace Mirabella, 255. 33 Fulvio Bufi, “La miss cerca i soldi per la cauzione del compagno,” Corriere della Sera, May 28, 2013, 27; Dario Ferri, “Rosaria Aprea e le interviste a pagamento per la cauzione del fidanzato,” May 28, 2013, http://www.giornalettismo.com/archives/953553/rosaria-aprea-e-le-interviste-apagamento-per-la-cauzione-del-fidanzato/#/_-_ (accessed October 24, 2013). 11

CHAPTER NINE JUSTICE WITH A VENGEANCE: RETRIBUTIVE DESIRE IN THE POPULAR IMAGINATION CASSANDRA SHARP

The punishment of criminal behavior has always been a hot topic in popular culture. Whether in fictional crime dramas or in mainstream news coverage, issues of law, justice, and punishment are constantly being refracted and reframed in a myriad of ways. We seem to like watching criminals not only being caught but also receiving the punishment they deserve. We love it when Sherlock Holmes or Patrick Jayne1 solves the crime on fictional television, and too often we hear stories in the media of a victim’s family that is indignant and angry that the perpetrator is seemingly “getting away” with a light sentence. We seem to have such a desire for justice to be done that we cry out for it when it seems lacking. This cry for justice, I argue, comes from a desire to hold individuals responsible for their actions, and it is the major reason for a contemporary suggestion in Australia that the criminal justice system is experiencing a “crisis of confidence.”2 In the last five years or so, Australian quantitative research has demonstrated that public attitudes are punitive and “built on widely held misconceptions about crime and sentencing.”3 Furthermore, this statistical data indicates that mainstream media and popular culture heavily contribute to the “public having a ‘grossly inaccurate’ picture of crime and justice.”4 Yet there has been little qualitative research that seeks to explore what this “picture” actually looks like, and through which sources it might originate or be constructed. The Australian Institute of Criminology has argued that although frequently used cross-sectional survey instruments are valuable for criminal justice policy makers, these methodologies need to be augmented by qualitative in-depth analysis “to ensure we have a better understanding of the factors that influence perceptions and attitudes in the gen-

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eral community.”5 It seems prudent therefore for researchers to attend to the interpretive expectations of the public, and to begin an exploration into the role popular stories and images might have to play in public (re)imaginings of “justice.” Of course, attempting to connect popular culture and public opinion is no mean feat. Eschholz has argued that this issue of causality remains unresolved in the literature, and that: [d]espite strong arguments and circumstantial evidence about [this] link between media and public perceptions … empirical tests of the relationship between television viewing and perceptions such as crime, punitive attitudes and [ideas of justice] have proven to be a difficult challenge … Researchers have long grappled with the question of whether or not watching television broadcasts has a causal link with public perceptions.6

This chapter therefore seeks to lay the groundwork for projects which could pursue the symbiotic connection between popular fiction and the transformation and (re)construction of popular understandings of law and justice. The chapter will describe the first step in my recent project that has been designed to provide some meaningful dialogue about causality and more information about the form and substance of public rhetoric surrounding issues of law and justice. The project discussed in this chapter essentially seeks to explore the nature of a desire for retributive justice that is manifested within contemporary popular imagination. In particular, it explores whether a conception of justice which pre-occupies both the public imagination and texts of media and popular fiction is one of retribution, and whether as a result this has a mediated effect on public expectations of the law itself. The project has incorporated a number of theoretical musings, including an evaluation of the superhero genre as an antidote to law’s perceived failings,7 but it also involves an empirical intention to get to the heart of what members of the public really think about what “justice” is and how it (dis)connects with law, especially from the point of view of punishment. In this chapter I want first to describe my exploration into the way justice is publicly imagined by contextualizing the pilot study; and second, to showcase some analysis from focus group research that will demonstrate a public retributive desire that is uncomfortable with the disconnect between law and justice, and concomitantly illuminate the slippery construct of public “perception.”

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1. Cries for Justice in the Public Imagination We increasingly live in an era where the public is extremely active in the process of consuming stories of popular culture as one stimulant to the production, transformation and perpetuation of meaning and desire in relation to law and justice. With its diverse offering of symbols, artefacts and objects that can be interpreted by each individual,8 popular culture provides an opportunity for a reflectively active response in the exchange of meaning, and this is what makes audiences such an interesting focus of study. That law and culture are intimately entwined through the popular images and stories transformed by individuals is not a new argument. Sherwin has demonstrated the “highly porous”9 nature of the boundaries between law, culture and images, and I have consistently argued that popular stories help individuals to frame and contextualize normative expectations of the legal system.10 Indeed, legal scholars have been encouraged for years to “be attentive to the imaginative life of the law and the way law lives in our imagination,”11 and so it is of real importance to recognize that the intersection of law and popular culture is an active “shared social space wherein our perceptions, attitudes, and beliefs [about law] are developed and negotiated.”12 Certainly, by exploring the discursive constructions of experience, it is possible to appreciate the nuanced ways in which members of the public see criminal punishment and the value of retribution. Within this context, this chapter shines the spotlight on the cultural understandings of justice that are socially constructed and transformed in the public imagination. This work of the public imagination is one aspect of what Cover has conceptualized in his idea of the “nomos” (the cultural world of law). Cover recognized that law is more than just formal institutions and rules; law includes what people believe law is and the stories they tell about it.13 In this way the nomos can be viewed as the discourses that bring the law into being as something meaningful. Taking this even further, as law is a quotidian aspect of the social experience and “is inseparable from the interests, goals, and understandings that deeply shape or comprise social life,”14 it seems entirely appropriate to appreciate how individuals produce, interpret, transform and exchange meanings about law through popular stories (both fictional and those circulating within news media). This chapter outlines a project that conceptually explores this public transformation of meaning specifically in relation to issues of justice, and it proceeds on the basis that it is through everyday stories that perceptions of law and justice are formed and maintained. This can be effectively illustrated with reference to the background of the project.

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“Outrage of a nation” The genesis of the project was a small-scale study that sprang from a series of news stories on the “gang rape” of a young girl in the remote Australian indigenous community of Cape York, Queensland.15 These stories harshly criticized the sentencing of a District Court Judge in which the nine offenders were given non-custodial sentences. The media stories bemoaned the lack of justice for the victim and expressed the “outrage” of the nation that the legal system had seemingly abandoned the notion of justice altogether.16 The news reports repeatedly illuminated the salacious details of the case, focusing on the victim’s personal encounter with the law.17 In using storytelling conventions, rhetoric and the use of news as framing devices, the media weaved the (re)telling of this story into an evaluation of the efficacy of the justice system. So much of the media narrative surrounding this case was an emotive evaluation that there must be something wrong with the justice system if a decision like this could be handed down.18 The media frenzy surrounding the decision seemed to provoke a public backlash against both the Judge and the criminal justice system. The then Premier of Queensland was so alarmed that “the nature of these sentences in this case are so far from community expectation”19 that she kick-started a chain of events. This chain culminated in the resignation of the public prosecutor, an appeal by the Queensland Government of the sentences, and an investigation into all criminal sentences handed down in Cape York communities in the previous two years. But what was the “community expectation” in this case? In one letter to the paper a reader says: The nine men all pleaded guilty to raping a little girl. That’s sufficient evidence to indicate a severe sentence should be handed down … When a judge hears a man say he raped a child, that judge is duty bound to administer justice appropriate to the offence.20

In this quotation, and in other media reports about this particular sentence, it appeared that the “community expectation” was punishment—for the offenders to get what they deserve as the only way to ensure that “justice” would be done. The reader’s comment reflects the very nature of public imagination at work, stimulated by stories that evoke an instinctive retributive response. It represents a subjective desire to see the offenders getting what they deserve, spurred on by emotional storytelling, absent of any contextualization or awareness of procedural fairness. It is an intuitive first response to dealing with criminal behavior, and this is what the media uses to its advantage. Take, for example, the concluding paragraph to an

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article from the Adelaide Advertiser, which makes this story a foreground for a not so subtle attack on the processes and practices of our justice system: The justice system is established to protect every Australian. It has a special responsibility to protect children and to punish those who commit particularly repugnant crimes against children. It is difficult to comprehend how something like this case could happen in modern Australian society.21

This paragraph followed the facts of the sentencing and a recounting of the rape itself. Embodied in this reframing of the story is an assessment that a young girl’s tragic encounter with the law reflects a deep-seated problem with the way law is currently operating in Australia. In focusing on the victim in this narrative, this little girl’s story becomes a personalized news event,22 one that contains a seemingly “truthful” judgment on the legal system. Yet, this is simply an example of Posner’s “conversational objectivity,” where “a critique of institutions such as the justice system, is negotiated through narrative, through the public telling of stories”23 and through a framing of facts that describe sentencing purely in terms of whether they appropriately redress elements of moral culpability. Implicit in this last paragraph of the Adelaide Advertiser article is a misleading concern for the protection of “every” Australian, which belies an undercurrent of penal populism. It is misleading in the sense that it is completely unbalanced—it actually provokes a desire for the public to only be concerned with “justice” for a portion of Australia (the victims), rather than every Australian; as a result, it exposes a latent desire for retributive justice. Unsurprisingly, upon researching the transcript of the decision and completing an in-depth content analysis of these media reports, it became clear that the mass media coverage of the sentencing in this case focussed disproportionately on the dramatic and emotional aspects of the case, while selectively ignoring relevant information that actually informed the judge’s decision-making process.24 As recent studies have shown, once individuals have been given “the facts” or further information about sentencing, their perspectives on leniency alter.25 With more information, many Australians might have softened their critique of this particular sentence. The context of this case included a long-term systemic dysfunction among remote indigenous communities where prison terms were proving ineffectual, as well as the judge’s knowledge that the offenders themselves had long suffered from various forms of institutional abuse.26 Yet, while media reporting is generally driven by emotion rather than information, we can expect that an instinctive penal populist reaction, which does not care

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for context or procedural fairness, will continue. Stories like this capture the public imagination because they resonate emotionally with a public desire to hold others responsible for their actions, and the clear message portrayed is that Australians should (if they don’t already) instinctively view retribution as justice. Doubtless, public attitudes to crime and justice are much more nuanced than this one news story demonstrates. As a result, the current larger project was conceived to problematize this notion of penal populism as a cultural construct that is contingent upon a perceived need for “just deserts.” Upon reflection of this small-scale media study, it seemed that the public imagination was only concerned with a perception of retribution as substantive justice for the victim, and so the empirical pilot study was conducted to test this hypothesis further. The next section of the chapter highlights analysis from this empirical study, which provided members of the public an opportunity to explain and discuss their perception of how justice works.

2. Public Desire for Just Deserts Deploying the qualitative method of focus groups, the project sought to explore the nuanced ways that individuals interpret and use images to make sense of law and justice and to transform meaning into motivations, values and expectations. To this end, in 2010, discussion was facilitated around a series of open-ended questions in a pilot study of four different demographics—young adults, retirees, academics and mothers. The central aim of the focus groups was to present opportunities for individuals to talk informally about issues of justice and to explore from their perspective what role the law plays in maintaining justice. As a way of gaining insight into the transformed and shared meanings of individuals, I have previously found focus group discussions to be a fruitful mechanism for the articulation of ideas in a mutually stimulative and spontaneously reactive environment.27 When individuals make comments on the activity and competence of the legal system in relation to justice, the group is then able to explore together the ideas that inform their views on the efficacy of the law. Methodologically then, this research has a basis in cultural studies theory, which advocates the interpretive fluidity of making meaning and contends that individuals are active producers of meaning from within a cultural context of their own.28 The stories of justice in news media reports and popular culture contribute to an individual’s subconscious expectations and attitudes in relation to the role of law in society. Conceptually,

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the project provided an opportunity to explore the production and transformation of these perceptions. As the group members articulated personal views (in response to general questions concerning the concept of justice),29 their discussion became a fertile ground of analysis. The transcripts were therefore analyzed using an interpretive literary method, where the discussion or “talk” became the text from which to unpack participant understandings, and the goal was to acknowledge that what is important is not what people know about the law, but how they use it to construct and transform meaning. Conceptually, this research adopted a constitutive perspective about the nomos that Gies recognizes as a legal consciousness, “which firmly situates the law at the heart of everyday life.”30 As part of the cultural legal studies approach explained in part one, this constitutive perspective is therefore key to recognizing the interpretive nature of reading news media reports and watching pop cultural texts. This approach: is not simply a summary of a person’s attitudes and opinions about law and the legal system. Instead, legal consciousness is reflected in the stories people tell about their everyday lives and in their social practices—going to court, talking about problems, engaging in disputes, and avoiding conflict.31

I have previously argued that legal scholars should become increasingly aware of this legal consciousness in the deployment of more “ethnographic” projects in this field.32 Interestingly, several scholars have recently argued that “viewers are attracted to media sources that contain justice-oriented themes.”33 They point out that news media and fictional dramas not only reflect social reality, but also negotiate, develop and shape the way we respond to issues of justice.34 By constructing meaning about law through stories, both heard in the media and then retold, individuals imagine what they believe the law should be and how law should function in society. Using participant comments from the pilot study, this section of the chapter will describe two connected themes that emerged from the discussions: (i) the failure of law to live up to expectations of providing “justice,” and (ii) the creation of a false dichotomy between procedural and substantive justice.

Law does not deliver “justice” As I have described elsewhere, the initial analysis from these discussions was unsurprising in relation to the difficulty participants expressed at defining and explaining their understanding of “justice,” and how it actually

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“works” with law.35 Yet, despite their definitional uncertainty, one clearly recurrent theme was that participants shared a strong belief that the function of law actually is to provide justice,36 and thus believing this to be the promise of law they were often quick to criticize its success in fulfilling it. That is, the participants regularly suggested that the law in fact does not deliver or live up to this promise of retributive provision or “just deserts.” Retributivism as a retrospective justification for punishment links justice with desert—offenders deserve to be punished in proportion to the severity of the offending conduct. It is retribution’s underlying lex talionis philosophy of an “eye for an eye” that is prominent in the public imagination where the stories (re)told by participants reflect a strong tendency towards penal populism. The focus group participants consistently articulated this shared retributive perspective, which was clearly seen in several comments from participants who describe that substantive justice is the imperative for a truly effective legal system. Take, for example, this comment from Justin where he describes the innate “feeling” we have when we feel there has been an “injustice”: I think … there’s a lack of punishment really, so you think, OK, the guy who raped somebody needs, has to, you know, go to gaol, or there has to be some kind of … punishment paid for him to have met justice … I think we still have this inbuilt capacity to go, yeah, that’s not just, there’s a lack there.37

This comment resonates clearly with the retributive rhetoric associated with the media reports surrounding the rape story discussed in part one; that is, to demand punishment as the only form of acceptable justice in response to the crime. Interestingly, the participants often described their awareness of “justice” by adopting this Kantian-like philosophy of concluding that punishment equates with justice.38 They frequently stated that we have a natural, hardwired sense of what is just, such that an absence of punishment will signify a corresponding absence of justice.39 Certainly, in the focus groups, the participants indicated that it is only when the guilty are actually punished that justice is seen to be done, and these comments correlate nicely with the research of Gromet and Darley who “suggest that the desire for retribution is people’s initial, intuitive response to crimes.”40 In one focus group discussion, Chris suggests that when confronted with intentional wrong-doing, our default is to focus on the justice goal of retribution:41

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I think we have this capacity to go, there’s been wrong done here and the guy hasn’t paid for it, hasn’t been punished enough for it, so I think … [injustice] is when we see there hasn’t been an equal opposite reaction for an action.42

Grommet and Darley suggest that “people’s intuition that the offender deserves punishment will be strong,”43 and this certainly rings true for the participants in these focus groups. And again, this matches what was evident in the media report study discussed in part one, yet this should not come as a surprise to us. Theories of human behavior in psychology have long “identified justice as a core need for people,” because we have a “strong desire to live in a fair world where people get what they deserve and deserve what they get.”44 Indeed, this intuitive public desire for retributive justice is what seemed to be at the heart of these participant discussions. They consistently expressed the view that not only are retributive measures the primary focal point for determining the achievement of justice in any given case, but also that it is a way of delineating the efficacy of the law. At a fairly simplistic level, the participants explicitly articulated that if the law doesn’t do its job properly (i.e. punish the offender), then there is no justice. They regularly expressed a lack of confidence in the ability of the legal system to actually achieve justice through various comments that indicated a perception of the law as “weak” or “soft” or lacking in consistency. Yet, on a more sophisticated level, the participants also use their discussion to piece together a more implicit critique; that is, that the law and justice are often at odds with one another. In this next example, the participants of one group discuss the societal consequences of being too soft in sentencing discretion, and you can see them working together to understand the purpose of criminal justice: Stuart: Like when they just get a slap on the wrist, like some of our youths. But then you really get to that stage where the judge just keeps letting them off and they keep getting worse …. Wal: See there was a case not that long ago. A young fellow, I forget what age … but he was on a bond for a crime and he committed another crime and he was put on a further bond. Now, that should have been an automatic revoking of the bond and straight into jail (and) that would have been just what he deserved, but letting them out again and letting them wreak more havoc is being more unjust on the community.

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Chapter Nine Patricia: But I wonder what we want from justice though. Do we want rehabilitation or do we want retaliation and punishment? Jonathon: Well, we’ve got the greatest rate of recidivism anywhere in the country in our state …. Bill: I mean the court hasn’t obviously … obviously the law hasn’t dealt with them severely enough in the first place.45

The implication of this conversation is that if the legal system actually dealt with offenders effectively (that is provided appropriate punishment) then there would be less recidivism and more confidence in the law to provide substantive justice. But as it stands the participants don’t have any confidence that the law is able to achieve that with any consistency, especially as they recognize the need for an escalating punitiveness as the crimes increase in severity.46 This is further evident in the next example where the group critiques the law as being soft on crime in relation to capital punishment: Stuart: However you feel about capital punishment they must … I think everyone would think … feel when somebody’s charged with horrendous crimes against another person that we think that person is not worth anything, they’ve done a really bad thing and maybe they shouldn’t be alive … to do it again …. Wal: Well that’s where the inequality comes in, a life is taken and if it’s a manslaughter charge, then they’re probably only going to get 2 or 3 years maybe and they might even be out quicker than that. So their life is back on track but the other person is devastated by it …. Stuart: I don’t think there’s many people in NSW or Australia for that matter who wouldn’t have liked to have seen Ivan Milat … go to the gallows.47

Ivan Milat was an Australian serial killer who perpetrated the infamous “backpacker murders” in NSW during the 1990s. The bodies of seven young people aged between 19 and 22 were found in the Belanglo State Forest, five of whom were international backpackers. Milat was convicted and is currently serving seven consecutive life sentences plus 18 years without parole. Interestingly, as this conversation continued nobody disagreed with Stuart that Ivan Milat should have been executed as an appropriate punishment for his crimes. There is an interesting connection here between the just deserts theory and the idea that the penalty should be proportionately

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severe to appropriately punish for this particularly heinous wrongdoing. It seems to represent a biblical retributive notion of an eye for an eye that is so familiarly embedded within populist notions of justice that it is difficult for the public to conceive of justice as anything other than substantive retribution.

3. False Dichotomy Connected with this first theme that the law does not adequately deliver justice is a second connected theme. The participants implicitly identify a dichotomy of procedural and substantive justice as played out in the law. While there was a recognized need for procedural justice (“[d]oing what’s right for the person charged—really finding out whether they were guilty or not”),48 participants expressed concern that ensuring procedural justice is often at the expense of substantive justice. That is, those elements of procedural fairness and rules of evidence that exist to reflect the belief that all human beings matter equally sometimes actually prevent “true justice” from being achieved. Chris: We also have this inbuilt capacity to recognize, OK there hasn’t been enough punishment or consequence for that person’s actions so, I mean, look at the case of that serial paedophile from Queensland um, the police totally mucked up one of his cases and he was thrown out of court. And he was convicted but because of the way the police did the case, it was thrown out and he got off scot free for paedophilia, which I mean in our society is one of the most taboo crimes you could ever commit.49 Justin: I think when we also see cases where there’s no possible way he didn’t do what he did, it was just through an error in the way it was investigated that he got off … he didn’t get what he deserved, and so I think that’s a big thing when we see that there’s a lack of justice there … he didn’t get what he deserved.50

By creating this false dichotomy where procedural justice is not actually “justice” at all, the participants are legitimating a view of “justice” that the law can never fully achieve. And this is one of the difficulties with the public imagination being consumed with the notion of justice as desert— that it is essentially a subjective enterprise that can achieve at best an approximation of “justice,” or at least a glimpse of what ought to be. As I have argued previously, the audience is therefore caught up in the trap of desire, thriving in the aporia “that forever separates the obtained satisfaction from the sought-for satisfaction.”51 And so, this puts law at odds with justice in the minds of the public. It is the law’s procedure and its imple-

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mentation (or at least its procedural aspects) that for the audience jeopardizes the achievement of any justice at all. Part of the perpetuation of this false dichotomy is that the participants aligned procedural justice and efficacy only if it was able to satisfy the greater need of substantive justice or just deserts. Evident in the previous and next examples is the utilization of the evocative descriptor “getting off” to the outcome for an accused who has been released on what the participants feel is a lesser sentence than is deserved. This language indicates the passing of legal and moral judgment on the accused in contradistinction to the sentence passed down by the judge. For instance, look at these comments: Jonathon: You only have to look at decisions where somebody gets off on a technicality or something isn’t applied or something hasn’t been done quite right …. Patricia: Yeah, but if they follow and do it properly in the beginning, then that’s how some people get off because the law hasn’t been followed properly. And that’s why you’ve gotta make … they have to do the right thing in the beginning, all the policeman, whoever arrests them, because they do get off ….52 Chris: I think they’re the ones that do sort of stand out in the media because they’re the ones people go “this is ridiculous, like, it was absolutely clear that he did stuff, how terrible is the justice system that he got off.”53

In these examples, the participants’ legal evaluation of the accused provokes an attitude that there is no room for procedural justice if the guilty are treated to a decision that is less than they deserve. You can see in the language that the participants’ concessional attitude to procedural justice belies not only their absolute belief in the guilt of the accused despite what the court has decided, but also the nature of their retributive desire. The infliction of intentional harm seems to provoke “moral outrage leading to a desire to inflict a just deserts punishment on the offender.”54 As stated above, the only measure of “true” justice according to participants is the achievement of just deserts (the guilty get what they deserve and the innocent are set free) and procedural justice will thus only be important if a guilty party is appropriately punished as a result of its implementation. It is the creation of this false dichotomy by participants that ensures they will never be fully satisfied with what the law can provide, and at the same time shows they implicitly acknowledge the futility of solely seeking substantive justice. While participants are on the one hand clearly trying to understand the function of law and apply it within a social context that is

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bounded by community morality, they are at the same time inadvertently expressing the very tension that exists between the implementation of law and the goal of justice. Yet it is this single-minded preoccupation of the public imagination to seek retribution over and above anything else that popular culture uses to great effect. A quick survey of popular fiction currently on Australian television in any given week shows a high level of preoccupation with bringing offenders to retributive justice. For example, in series currently being aired in Australia, such as NCIS, Arrow, Elementary, Blacklist, CSI, Revenge and The Mentalist, the singular emphasis is to ensure offenders are caught and punished so that “justice” can be done. While this pilot study (with its primary goal of simply exploring the generic public “idea” of justice) did not establish a direct influence of television and film (as distinct from news media) on participant attitudes, it is clear that a retributive trend in popular television fiction is equally matched in public retributive desire. Research has indeed shown that “viewers exhibit a preference for narrative structures that equate punishment or retribution with justice,”55 and it is suggested that such crime stories function as a stimulant to the transformation and perpetuation of retributive desire that is evident in these participants.56 Indeed, one might argue that “[v]engeance and punishment for wrongdoings and their association with justice, are common narrative themes in television and film”57precisely because they tap into our individual emotive evaluation of what deserves punishment. In addition, embodied in the reframing of crime stories is an emotional association with the victim. In using familiar storytelling conventions that particularly focus on the victim’s encounters with crime, these popular stories depend on the viewer/reader’s emotional identification with the victim to convert responses into a critique of the law’s ability to provide an appropriate retributive measure against crime. This again resonates with the retributive narrative present in the rape news story discussed in part one, where the moral outrage leading to retributive desire is heightened all the more by a shared identification with the victim. Popular stories therefore capture the public imagination not only because of an assumed verisimilitude, but also because viewers place themselves in the shoes of the victim. If we were the victim, or a relative of the victim, we would want the offender to pay, to be caught and to be appropriately punished. Take, for example, these two comments from participants who imagine themselves as the victim:

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As mentioned earlier, it is this instinctive human reaction that prompts Justin and Lauren to desire retribution as payback for intentional harm, almost as though it is a natural right that exists outside of law. Perhaps this is why we automatically find ourselves cheering on the hero or protagonist in popular fictions like Law & Order, Elementary, Arrow and The Mentalist to solve the crime and find the killer—because we want justice for the victims, in the same way we would for ourselves, and this is why news media reports frame stories from the victim’s perspective. Individuals will endorse a retributive response to justice because they see themselves as sharing identity with the victim.60 When crime stories are told in popular fictions or in news media, the public imagination is affected, and retribution as a “unilaterally determined punishment” becomes the dual goal of law and justice.61

4. Justice with a Vengeance? These few examples of the retributive desire for justice held by these participants provide a starting point for further discussion about the exploration of what may be (in)visible in both popular culture and public narrative. It has been argued that the participants’ desire for justice is one that fully incorporates the idea of just deserts. Using popular fiction and crime stories, they are transforming and maintaining ideas of the way in which they perceive justice, and the way in which they believe the law should operate. It is important to continue to explore the public imaginative life in relation to issues of justice, crime and punishment so that we can make more meaningful connections between popular cultural resources and the types of public desire and expectations that this research demonstrates exist. Popular fiction, media reports and public conversation each deploy the power of storytelling to provoke, engage and animate our imagination in relation to what we expect of the law. This chapter therefore seeks to commend the further utilization of these stories as a dynamic window into the complexities inherent in the public perception of “justice.”

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New South Wales Law Reform Commission. “Report 118—Role of Juries in Sentencing.” Sydney: New South Wales Law Reform Commission, 2007. Rafter, Nicole Hahn. Shots in the Mirror: Crime Films and Society. New York: Oxford University Press, 2006. Robertson, J. M. “Are the Courts too Soft on Crime? How Media Reports Distort the Realities of Sentencing.” Proctor 25 (9) (2005), 15. Robertson, Michael, Lillian Corbin, Kieran Tranter & Francesca Bartlett (eds.). The Ethics Project in Legal Education. London: Routledge, 2011. Robson, Peter & Jessica Silbey (eds.). Law and Justice on the Small Screen. Oxford: Hart Publishing, 2012. Sarat, Austin, ed., Imagining Legality: Where Law Meets Popular Culture. Tuscaloosa: University of Alabama Press, 2011. Sarat, Austin & Thomas R. Kearns. Law in the Domains of Culture. Ann Arbor: University of Michigan Press, 1998. Sharp, Cassandra. “Changing the Channel: What to Do with the Critical Abilities of Law Students as Viewers?” Griffith Law Review 13 (2) (2004): 185–199. —. “‘Represent a Murderer … I’d never do that!’ How Students use Stories to Link Ethical Development and Identity Construction.” In The Ethics Project in Legal Education, edited by Michael Robertson, Lillian Corbin, Kieran Tranter & Francesca Bartlett, 33–51. London: Routledge, 2011. —. “Atonement as Justice in Western Law.” In Law and Religion in Public Life: The Contemporary Debate, edited by Nadirsyah Hosen & Richard Mohr, 151–64. London: Routledge, 2011. —. “Let’s See How Far We’ve Come: The Role of Empirical Methodology in Exploring Television Audiences.” In Law and Justice on the Small Screen, edited by Peter Robson & Jessica Silbey, 111–32. Oxford: Hart publishing, 2012. Sherwin, Richard K. “Law’s Enchantment: The Cinematic Jurisprudence of Krzysztof Kieslowski.” In Law and Popular Culture (Current Legal Issues Vol. 7), edited by Michael Freeman, 87–108. Oxford: Oxford University Press, 2004. —. “Law in the Age of Images.” In Visual Literacy, edited by James Elkins. New York: Routledge, 2007. Taslitz, Andrew E. “Daredevil and the Death Penalty.” Ohio State Journal of Criminal Law 1 (2004): 699–717. Warner, Kate, Julia Davis, Maggie Walter, Rebecca Bradfield & Rachel Vermey “Public Judgment on Sentencing: Final results from the Tas-

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manian Jury Sentencing Study.” Trends & Issues in Crime and Criminal Justice 407 (2011). Welsh, Andrew, Thomas Fleming & Kenneth Dowler. “Constructing Crime and Justice on Film: Meaning and Message in Cinema.” Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice 14 (4) (2011): 457–476. Wilson, Shaun, Gabrielle Meagher, Rachel Gibson, David Denemark & Mark Western (eds.). Australian Social Attitudes: The First Report. Sydney: UNSW Press, 2005. Zelizer, Barbie. “Achieving Journalistic Authority through Narrative.” Critical Studies in Mass Communication 7 (1990): 366. Žižek, Slavoj. On Belief. New York: Routledge, 2001.

Notes 1

Sherlock Holmes is the main detective character in a number of films and television series based on Arthur Conan Doyle’s book series, including the most recent iteration, Elementary, airing currently on Australian Network Channel 10. Patrick Jayne is the main protagonist in the television series The Mentalist which airs on Australian Network Channel 9. 2 Hon. Thomas F. Bathurst, Chief Justice NSW, “Community Participation in Criminal Justice” (paper presented at the NSW Law Society Opening of Law Term Dinner 3, January 30, 2012). 3 Austin Lovegrove, “Public Opinion, Sentencing and Lenience: An Empirical Study Involving Judges Consulting the Community,” Criminal Law Review October (2007): 769–781. This is not unique to Australia. Indermaur and Roberts report that research conducted in Canada, the US and the UK has found a high incidence of respondents who believe courts are too lenient. David Indermaur & Lynne Roberts, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes—Research and Public Policy Series no. 101 (Canberra: Australian Institute of Criminology, 2009), 1. 4 Karen Gelb, More Myths and Misconceptions (Melbourne: Sentencing Advisory Council of Victoria, 2008), 4. 5 Judy Putt GM Research AIC, foreword to Indermaur and Roberts, What Australians think About Crime and Justice. 6 Sarah Eschholz, “Crime on Television—Issues in Criminal Justice,” Journal of the Institute of Justice and International Studies 2 (2003): 13. 7 Cassandra Sharp, “Riddle Me This …? Would the World Need Superheroes if the Law Could Actually Deliver ‘Justice’?” Law Text Culture 16 (2012): 353. 8 Dominic Strinati, An Introduction to Theories of Popular Culture (London: Routledge, 1995).35. 9 Richard K Sherwin, introduction to Law, Culture and Visual Studies, ed. Anne Wagner & Richard K Sherwin (Springer 2014): xxxv.

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Cassandra Sharp “‘Represent a Murderer … I’d Never do That!’ How Students Use Stories to Link Ethical Development and Identity Construction,” in The Ethics Project in Legal Education, ed. Michael Robertson et al. (London: Routledge, 2011), 33–51; Cassandra Sharp “The ‘Extreme Makeover’ Effect of Law School: Students Being Transformed by Stories,” Texas Wesleyan Law Review 12 (2005): 233. 11 Austin Sarat & Thomas R. Kearns, Law in the Domains of Culture (Ann Arbor: University of Michigan Press, 1998), 6. 12 Andrew Welsh, Thomas Fleming & Kenneth Dowler, “Constructing Crime and Justice on Film: Meaning and Message in Cinema,” Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice 14 (4) (2011): 458. 13 Robert M. Cover, “Nomos and Narrative,” Harvard Law Review 97 (1983): 4. 14 Sarat and Kearns, Law in the Domains of Culture, 6. 15 See e.g.: “The Justice System Fails a Little Girl,” Adelaide Advertiser, December 11, 2007; and “World Aghast at ‘Appalling’ Aurukun Case,” The Australian, December 14, 2007. 16 See e.g., “Academic Calls for Judge to Step Aside,” Australian Associated Press General News, December 10, 2007; “When is Justice for the Victim?,” Townsville Bulletin, December 11, 2007. 17 See e.g. headlines such as: “No Charges Laid in Another Vile Rape,” The Courier Mail December 12, 2007; and “No Justice in Laws Clinging to Savagery” The Gold Coast Bulletin, December 11, 2007. 18 Ironically, before the Australian public had an opportunity to react “naturally” to the sentence as the story broke, the media emotively reported that the nation was already “outraged.” Immediately, the Australian public is “informed” by the media that based on the facts as being reported, we should be outraged at such a decision. Such a desire for “justice” was seemingly universal too, with international outrage at this case further adding fuel to an already blazing fire of anger and shock. The New York Times, CNN, the British Press, Russian newspaper Pravda and the Arabic News Service Al-Jazeera, all reporting on the issue, contributed to the emotive evaluation that with such a sentence, the Australia legal system has failed a young girl. See “World Aghast at ‘Appalling’ Aurukun Case,” The Australian, December 14, 2007. The New York Times reported that heads were rolling as “outrage and disbelief continued to spread across Australia over the decision of (Sarah Bradley),” December 12, 2007. 19 “Queensland: Govt. to Review Cape Sentences after Rape Case,” Australian Associated Press General News, December 10, 2007. 20 “Legal System is Part of the Problem,” Talking point, The Courier Mail, December 21, 2007 (emphasis added). 21 “The Justice System Fails a Little Girl,” Adelaide Advertiser, December 11, 2007. 22 Barbie Zelizer, “Achieving Journalistic Authority Through Narrative,” Critical Studies in Mass Communication 7 (4) (1990): 366. 23 Judge Richard A. Posner, The Problems of Jurisprudence (Harvard University Press, 1990), 7.

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For the vast majority of the public, the media is the major source of information about what happens in court cases, and much research has shown that the media distorts the realities of sentencing. “The media reports only a very small proportion of sentencing outcomes, focusing almost exclusively on ‘soft’ sentences. This creates a public perception that the courts are generally too soft on criminals, which in turn has the potential to reduce public confidence in the courts.” J. M. Robertson, “Are the Courts Too Soft on Crime? How Media Reports Distort the Realities of Sentencing,” Proctor 25 (9) (2005), 15. 25 Kate Warner et al., “Public Judgment on Sentencing: Final Results from the Tasmanian Jury Sentencing Study,” Trends and Issues in Crime and Criminal Justice 407 (2011): 1; Austin Lovegrove, “Public Opinion, Sentencing and Lenience.” 26 The public is not made aware that in sentencing judges are often legislatively directed to take into account certain factors. In fact, the court transcripts reveal that the defendants’ lawyer argued that “the families are in such crisis that they create a negative environment (and) place additional pressures upon my young clients to move out, to move away, to involve themselves in nefarious activities, drinking or smoking or sniffing or stealing.” “Aurukun Rapists Thought Behaviour ‘Normal’” The Age, December 14, 2007. 27 Cassandra Sharp “Changing the Channel: What to Do with the Critical Abilities of Law Students as Viewers?” Griffith Law Review 13 (2) (2004): 185–1.99; Cassandra Sharp “‘Represent a Murderer … I’d Never do That!’ How Students Use Stories to Link Ethical Development and Identity Construction,” in The Ethics Project in Legal Education, ed. Michael Robertson et al. (London: Routledge, 2011): 33–51; Cassandra Sharp “Let’s See How Far We’ve Come: The Role of Empirical Methodology in Exploring Television Audiences,” in Law and Justice on the Small Screen, ed. Peter Robson & Jessica Silbey (Oxford: Hart Publishing, 2012): 111–132. For other focus group methodology, see Chris Barker & Julie Andre, “Did You See? Soaps, Teenage Talk and Gendered Identity,” Young: Nordic Journal of Youth Research 4 (4) (1996), 23. 28 David Morley, Television, Audiences and Cultural Studies (London: Routledge, 1992). 29 Questions of the focus group on file with the author. 30 Lieve Gies, “The Media and Public Understanding of the Law,” in Readings in Law and Popular Culture, ed. Steve Greenfield & Guy Osborn (Oxon: RoutledgeCavendish, 2008), 74. 31 Anna-Maria Marshall & Scott Barclay, “Symposium: In Their Own Words: How Ordinary People Construct the Legal World,” Law and Social Inquiry 28 (3) (2003): 618. 32 Sharp, “Let’s See How Far We’ve Come,” 111–132. 33 Welsh, Fleming & Dowler, “Constructing Crime and Justice on Film,” 460. 34 “The role of media in public perceptions and understandings of crime and justice issues cannot be underestimated. Far from the objective lens of events, the media are platforms wherein our social reality is not only reflected but to some extent

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negotiated and developed.” Ibid., 471. Nicole Hahn Rafter, Shots in the Mirror: Crime Films and Society (Oxford University Press, 2006), 3. 35 For some early analysis of this research which demonstrates a public dissatisfaction with the law, see Sharp, “Riddle Me This …,” 353. 36 Focus Group 2, 8, Emily: “[T]the justice system is upholding the law because then you say look you’ve broken this law and so then you face these consequences.” Hereafter Focus Groups are referred to by number of group (FG #) and then the corresponding page number of the quote. Transcripts on file with the author. 37 FG 2, 2. 38 Research has shown that people often equate punishment with justice. Welsh, Fleming & Dowler, “Constructing Crime and Justice on Film,” 460. 39 Phoebe: “So, if justice is done we might not necessarily think yes, that was good and just but if justice isn’t done, we’re more likely to notice.” FG 2, 2. Welsh, Fleming & Dowler, “Constructing Crime and Justice on Film,” 460. 40 Dena M. Gromet & John M. Darley, “Retributive and Restorative Justice: Importance of Crime Severity and Shared Identity in People’s Justice Responses,” Australian Journal of Psychology 61 (1) (2009): 51. 41 Gromet & Darley argue that: “[W]hen people are initially confronted with wrongdoing, their default orientation is to focus on the offender and be retributive.” Gromet & Darley, “Retributive and Restorative Justice,” 51. 42 FG 2, 7–8. 43 Gromet & Darley, “Retributive and Restorative Justice,” 51. 44 Ibid. 45 FG 4, 6–7. 46 Dena M. Gromet & John M. Darley, “Restoration and Retribution: How Including Retributive Components Affects the Acceptability of Restorative Justice Procedures,” Social Justice Research 19 (4) (2006): 399. 47 FG 4, 11–12. 48 FG 4, 2 and FG 4, 3, “You’ve got to be fair when you listen to people and get all the evidence.” 49 FG 2, 7. 50 FG 2, 14. 51 Sharp, “Riddle me this …,” 353; Slavoj Žižek, On Belief (New York: Routledge, 2001), 90. 52 FG 4, 9. 53 FG 2, 12–13. 54 John M. Darley & Thane S. Pittman, “The Psychology of Compensatory and Retributive Justice,” Personality and Social Psychology Review 7 (2003): 329. 55 Welsh, Fleming & Dowler “Constructing Crime and Justice on Film,” 458. 56 To test the hypothesis of a direct correlation between television/film and public retributive desire is the natural progression of this particular research project. I am currently undertaking research that attempts to achieve this, and encourage other researchers to take up a similar challenge. 57 Welsh, Fleming & Dowler “Constructing Crime and Justice on Film,” 460. 58 FG 2, 6.

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FG 3, 1 & 2. Gromet & Darley, “Retributive and Restorative Justice,” 52. 61 Ibid. 60

PART THREE PORTRAYING THE COURTROOM

CHAPTER TEN A MOBILE JUDGE: AN ANALYSIS OF A DUTCH TELEVISION HIT ODILE HEYNDERS AND PHILIP PAIEMENT

1. Introduction The Dutch program De Rijdende Rechter1 is a television reality series about Judge Frank Visser. The program has experienced a tremendous following among Dutch audiences since its initial airing in 1995. It serves as an excellent example of reality legal television that contrasts with the more prominent accounts of American television programs. As a judgecentered program, it has very little in common with programs like Ally McBeal, Boston Legal, and The West Wing that place “lawyers in your living room”;2 in fact, lawyers are never present. It is more comparable to American shows such as Judge Judy, Judge Joe Brown or The People’s Court that focus on the work of judges. However, even here the similarities are minimal, as De Rijdende Rechter does not include the symbols of a court (gowns, bench, gavel, gallery, etc.) that are apparent in its American counterparts. It presents a unique opportunity to see a different representation of judges and the law, this time from a Dutch perspective. 3 Each episode begins with a brief introduction of the conflict from the perspectives of each party in the case—usually two, although there are occasionally three parties—which leads to the statement of their demands. The second phase of the episode revolves around a “site visit,” in which the judge, Mr. Visser (b. 1951), visits the site of conflict. These sites are often the homes of disputing neighbors, as territorial disputes are among the most common in the show, but doctors’ offices, intersections, stores, public spaces, etc. have also been settings for this second phase. During his visit, Mr. Visser allows each party to provide a narrative of the conflict from his or her own perspective. Also, during site visits an “expert” is almost always involved. Surveyors often measure property lines, or inspectors may make damage evaluations. By the end of this phase in the epi-

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sode, the substantive dimensions of the conflict have been largely established. In the third phase, a hearing is held at a venue within the locality of the site, often a city or town hall, historic site, or even a restaurant or inn. At the hearing, an audience of local community members listens to Mr. Visser, who for the first time takes the lead in discussing and evaluating the facts of the case. This brings us to the fourth and final phase of the episode, when the parties and Mr. Visser return to the television studio to hear the judgment of the case. Mr. Visser enters at a brisk pace and quickly reads out a pre-written judgment, sometimes referring to a specific piece of legislation that guides the judgment while other times remaining only within the facts and considerations of the particular case. After the judgment, the hostess, Jetske van den Elsen (b. 1972), briefly asks for the parties’ reaction, stimulating them to overcome their differences and shake hands. Lastly, it should be noted that between the second and third phases, as well as between the third and fourth, the studio audience is invited to debate the issues arising in the conflict and give their own opinions as to how the dispute should be settled, more often resulting in a judgment of what is considered “normal” behavior than a systematic analysis of the situation. Following Peter Dahlgren’s study in Television and the Public Sphere, the program can be categorized as a “public knowledge project” as well as a “popular culture project.”4 Without putting too much emphasis on the distinction between information and entertainment, it is clear that the primary aim of the program is to present knowledge concerning the common rules of citizenship. However, the program can also be viewed as a popular culture program in the sense of foregrounding conflicts as entertainment and enjoyment. The public knowledge issue, obviously, fits in the pragmatic objectives of the Dutch public service broadcasting, which is sometimes perceived as paternalistic.5 As Dahlgren observes, television is simultaneously an industry, a set of audio-visual texts, and a social-cultural experience.6 This program, broadcasted for nearly twenty years, viewed by more than a million viewers each episode, and supported by a website with information on the legal cases, with blogs, replays and responses from the viewers, is definitely an industry and has both a media-institutional and a socio-cultural dimension. In this chapter we are particularly interested in the latter, and therefore will analyze the legal, rhetorical, social and ideological aspects of the program. We start with an analysis of one of the episodes as narrative structure. In the following section, we will discuss the legal perspective and argue that judgments are based more on common sensitivity than on civil law.

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Subsequently, we will discuss the representation of community. After a final section on ideology and the contemporary Dutch conjuncture, we will conclude that in the program justitia is a less important notion than authoritas.

II. Narrative Structure De Rijdende Rechter brings mundane topics to the fore, as the titles of the following episodes make clear (quoting from the Spring 2013 season): “Who pays the charges of a broken engine?”, “Ugly fence causes trouble”, “Pruning forbidden”, “Bus stop in front of main door causes trouble.”7 These announcements certainly have ironic connotations, since it is obvious that these are minor issues in the current context of major societal and political tensions and conflicts, such as the Euro crisis in the EU or the Syrian civil war. This observation brings us to the first frame that we would like to place on the program—the potential for reading it as an example of “the human comedy,” meaning the “social dramas taking place in everyday life.” French writer Honoré de Balzac’s famous literary project, the Comédie Humaine series, is taken as the point of reference here. At the beginning of the nineteenth century, Balzac (1799–1850), the “creator of modern realism,”8 worked on an impressive fictional project of more than one hundred interlocking novels and stories. Balzac tried to describe French society as a whole, making sense of the individual differences, exploring values and explaining human behavior. To Balzac, the novel was an inclusive social record, a coherent analysis of French society. The novelist focussed on everyday codes. He described people in their milieu—their houses, clothes, social negotiations and conversations. Balzac showed social beings in comparison to the world of nature,9 and it is exactly the representation of a particular (lower) middle class social sphere and trivial everyday scenes in which people are actors that we encounter when watching De Rijdende Rechter. In the details of housing, clothing, talking and presenting one’s case, common people are recognizable in enacting interests and moral values. The program is actively involved in ideologically defining and shaping perspectives on the world, and thus in pre-structuring the viewer’s understanding of it. De Rijdende Rechter can be interpreted as a contemporary Balzacian story. In each mini-episode a narrative is constructed, according to a very basic structural pattern: there is a protagonist and an opponent, and both are striving for their own case or social position. Obviously, there is a specific interaction between power and counterpower.10 Let’s focus on this narrative structure when “close reading” the televisual text in the episode entitled “Fierce conflict about an

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electric bike.”11 The scene takes place in the provincial town of Zoetermeer, with typical apartment buildings from the 1970s underlining that these are people living on a modest budget. The camera work underpins the documentary-like character—the Balzacian realist style—of the program. The protagonist is Mr. Peter Keijnemans, who has bought a secondhand electric bike for 450 euros from his neighbor, Mrs. Erica van den Berg. The battery broke down after Keijnemans had used the bike for a few months and now he wants his money back. His demand is obviously disproportionate as he used the bike for some months; however, he is unreasonable, very emotional, and has even started to intimidate his neighbors. The conflict as such doesn’t seem complicated, but the makers of the program are deliberately zooming in on Keijnemans’s anger and clumsy body language. We see him struggling with the non-functioning bike, and on the screen we can read the title “doortrapt,” which is very ambiguous in Dutch, meaning both the adjective “crafty” and third-person present conjugation of the verb “to continue pedalling.” The interview emphasizes the man’s eccentricity by showing him in his living room fulminating that he has given the bike “a title”— “Mortuary HEMA [the department store where the bike was first purchased] Bike.” The camera zooms in on a very childish written note, on which “crematorium,” instead of “mortuary,” is actually written. In a very high voice, Keijnemans subsequently declares that this constitutes a “civil war” between him and his neighbors. These moments show how the man’s identity is determined by how he is represented. Due to a lack of “aesthetic” camera work, the ordinariness of the man, the Balzacian complementary relation between the person and milieu, is emphasized. The defendant, Mrs. van den Berg, does not really say more than that the bike was sold, after having made a clear agreement on the risk of buying a second hand HEMA bike. She is portrayed as much more reasonable, dressed up in elegant blue and with a stern self-conscious look on her face. Subsequently, the hearing in an “official” [restaurant] venue in town leaves the impression of a comic opera. Keijnemans seems to have constructed his own debt-collection agency “No Risk” in an attempt to get his money back. Community members in the live audience join in the discussion on the case. For example, a woman from next door, Mrs. Ooms, whose boyfriend, while smoking in the garden, heard Keijnemans threatening the Van den Bergs. She supports the defendant, as does Keijnemans’s ex-wife, Annie Grandia, who explains that her former husband can become very angry if he does not get what he wants. After this interruption, Keijnemans shouts that people are imagining things about him, for instance that he murdered his second wife. Judge Visser remains relatively

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calm throughout these interactions, taking notes and inviting the disputing parties to the studio for the announcement of his judgment. At the end of the episode, his decision is as follows: The conclusion is that it does not seem that the bike sold to Keijnemans was malfunctioning, so there is no reason to dissolve the agreement. Neither can there be a reason to ask for financial compensation.12

The judgment is binding on the parties and is best characterized as binding arbitration. However, it is not clear how the judge’s decision has been constructed, and as such it seems more a case of rational deliberation than one of civil law. The program makers seem to be more interested in the social circumstances of the conflict than the pursuit of law and justice. From the start, the viewers know who has the weak argument in this episode. By showing the title “doortrapt,” the producers made it clear that Keijnemans is in the subordinated position as far as his case is concerned, though he is the leading man in regard to the televisual text as narrative. Keijnemans is unpersuasive in his argumentation but sincere in his emotion. This is not an actor playing a weird character, rather this man definitely is strange, and therefore his behavior is unpredictable. The episode emerges into fascinating reality television, even more so since the viewer sees the people in their real neighborhood and common life, in their everyday networks (women supporting the other woman against the agitated man), and in what we might call their extreme ordinariness. Watching this episode brings to mind the words from Balzac: “Man is neither good nor bad; he is born with instincts and capabilities; society, far from depraving him, as Rousseau asserts, improves him, makes him better; but self-interest also develops his evil tendencies.”13 Both Peter Keijnemans and Erica van den Berg have common sense and are citizens in a small community, yet, a conflict about a consumer item gets out of hand and turns neighbors into opponents. The social setting or harmony is destroyed when money is involved.

3. Informality of the Representation of Law In terms of the legal procedure in De Rijdende Rechter, the viewer sees a form of law-in-the-field, meaning that most of each episode takes place at the sites of conflict and amongst the community in which the conflict occurred. Within this context, Visser incorporates the testimony of the parties, experts and community members without regard to formal rules or explicit formulas for balancing opportunities to participate. Instead, the

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different perspectives are largely discovered in the process of conversation, at first only passively steered by the judge, and later, during the hearing, with more explicit direction. “Turns” are not taken any more structurally or formally than one takes a turn in a conversation with a colleague. This also holds for the inclusion of community members in the trial, who are never invited formally to take their “turn” at providing testimony, but if they take the initiative are listened to and even engaged with to provide further details or clarifications. Thus the procedures employed by Judge Visser are highly informal. Throughout the phases of the episode, legal references are only briefly made, with the more substantial applications of law only being conducted during the pronouncement of the judge’s decision. Occasionally, parties have pre-existing knowledge of applicable laws, especially if their conflict has been ongoing for a lengthy period of time. Examples of such preexisting legal knowledge include limitations to the grandfathering of property boundaries, the extension of repair service warranties to future automobile owners, funding arrangements for property line fences, etc. References to these legal issues are sometimes brought up during the site visits, although they are never introduced by Mr. Visser himself—they are only introduced by the initiative of the parties. In fact, Mr. Visser usually attempts to move away from the legal framing of the issue, instead seeking to uncover and resolve the more fundamental social conflict at stake rather than a legal interpretation of the conflict. During site visits and hearings, he sets the legal considerations aside to get a more contextual understanding of the origins of the problem, and more importantly why it cannot be settled without his help. As the episode progresses, however, Mr. Visser’s position changes and he sometimes refers to relevant statutes in his judgments. Despite introducing formal legal texts into the case at this point, Mr. Visser feels free to depart from what he acknowledges as the correct legal solution if it will not solve the particular conflict in the case, or if it seems to only bring further conflict between the parties in the future. For instance, if two neighbors are at an impasse in their ability to communicate with one another, Mr. Visser has, at times, diverged from ordering the neighbors to cooperate in the shared payment for a property line fence, whose style would need to be agreed upon by both parties.14 Although that is what the legal code prescribes for such a situation, Mr. Visser instead argues that this would only result in future conflict—and “another visit by the Rijdende Rechter”—and thus is not a feasible solution. Instead, in one exemplary case he ordered one party to arrange and pay for the fence with the proviso that if the other party refuses to participate in payment, he or

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she loses the right to be involved in determining the style of the fence. In short, the judge does not feel the need to follow the civil code if it would not appropriately solve the greater communicative and social conflict at stake. Rather than strictly applying the applicable law, his judgments instead use legal principles as a starting point. His ruling is based more on his own considerations as to what would effectively settle the dispute in a broad, durable and foundational manner. As such, the series is less involved in the application of formal law in resolving legal disputes than it is in the use of informal norms and general principles to solve social conflict. The treatment of precedent provides yet a third area in which legal informality is represented. Given that the show is based in the context of Dutch civil law tradition, this consideration may at first appear to be out of place. It is clear that Mr. Visser’s background in civil law would not facilitate or promote the incorporation of precedent in the series. Indeed, he never mentions preceding judgments. However, and perhaps to the surprise of civil law lawyers, the website of De Rijdende Rechter includes a comments or blog section beneath each episode. In these areas, viewers are free to comment on the dispute and the judgment in each episode, and a recurring conversation between viewers is whether or not the judgment is consistent with similar cases seen on De Rijdende Rechter. These blog postings constitute a sort of viewer-based construction of the “jurisprudence constant” of the series. They include references to specific previous episodes in which similar disputes arose, and the subsequent decision of Mr. Visser in comparison to the present decision. From the viewer-constructed accounts of the court’s jurisprudence, it is clear that Mr. Visser does not necessarily adhere to his own precedents. As previously noted, the determining factor of his decisions tends to favor the particular foundational elements of the conflict and how they can be solved in a long-term perspective, rather than a simplification of the case into categories or formulas of past episodes. Within the 2012–2013 season, Mr. Visser never referred to past cases in his judgments. In this observation one sees a lack of legal formalism and instead a largely pragmatic and informal approach to legal argumentation and procedure.

4. Community Studies of the representation of law in popular culture often examine the relationship between law and community. Michael Bohnke, in an analysis of John Ford’s films, described a distinction between law and social norms.15 That analysis suggests that there is a difference between regulation through law and regulation through enforcement of community

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norms. In other words, we might describe two narratives on the origin of law, one describing law as the construction of bottom-up, spontaneously generated communal norms and informal rules, and the other being the top-down, authoritative voice of moral idealism and natural law. Peter Drexler argues that Nazi film propaganda depicting legal institutions would frequently illustrate the need, and ability, for law to rein straying individuals back into their community.16 Both of these studies focus on historical representations of law, while De Rijdende Rechter can be considered a representation of law in the contemporary context. As such, it provides a very different perspective from which to depict the law and community relationship. Today, there has been a breakdown of community due to forces of globalization, world society, network society, risk society, transnational migration and trade, digitalization, etc. The Netherlands has been highly affected by these forces; indeed, it has been the site in which many originate.17 For these reasons, the representation of community in this series is of particular interest. Community members make their main appearance during the hearing phase of the episodes, in which they participate as the audience in a local meeting place. The site of the hearing holds significant symbolism. Holding the hearings within the community of the conflicting parties reemphasizes the desire to contextualize the conflict, which also appears in the site visits and the judge’s focus on foundational origins of conflicts rather than the legal characterizations of them. Instead of abstracting the conflict into a legal formula, the legal perspective is disembedded from the courtroom and recontextualized, and the community is a central part of this contextualization. More important than the community-as-audience is the nature of the majority of the conflicts that De Rijdende Rechter deals with—often between neighbors, but almost always between inhabitants of the same town or neighborhood with common histories, common acquaintances, etc. They are, to some extent, community members themselves, but community members who have been thrown into a communicative dilemma. Frequently these conflicts paralyze the parties’ ability to communicate. In effect, it is a communal paralysis, a breakdown of the essential aspects of a community based on reciprocal relationships, and it is up to Mr. Visser to sweep in and dissolve the unresolvable conflict between the two neighbors. He cannot do this by extracting the conflict from its communal context. Instead, he himself needs to be immersed in the community—his hearing must be made among the others in the community rather than in the television studio, a mock courtroom, or a judge’s chambers.

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Following Mr. Visser’s lead, the audience is brought into the community of a conflict and exposed to the underlying disagreements, histories, and conflicts that constitute the root of the surface-level legal disputes. “Community” is portrayed, as Zygmunt Bauman describes, as a “warm place, a cozy and comfortable place,”18 in which the judge is invited to reinstate its proper order. In the series it retains an elusiveness—the dreaminess—that Bauman notes as arising from its perpetual unavailability. As an ideal state of security and stability, “community” thrives in ideals and desires, but is unrecognizable in its reality as an oppressive force in which freedom is stifled. Both sides of this coin are visible in De Rijdende Rechter, in which the community is, on the one hand, the primary site of interaction in which the law needs to become embedded, and yet, on the other hand, a perpetual site of conflict (episode after episode) that paralyzes the ability for community members to interact with each other on any meaningful basis of reciprocity. Even after the judgment, the audience is often left questioning the viability of any sense of order being re-established among the disputing parties, or whether it wouldn’t have been better for one of the parties to leave the community (neighborhood, town, apartment building, etc.). Yet, it is reinforced in every episode that the community is the only place in which the conflict can, and should, be resolved—that it is more important to resolve this communal conflict than it is to address its growth as a legal dispute. The law is demanded to become informal, to dislocate itself into the site of communal conflict and to address the parties in their own territory, yet one cannot help but question whether an informal kind of law can really solve what seems to be irresolvable tensions.

5. Rhetoric and Ideology This brings us to the observation that the program not only strives for community building, structure and citizenship, but also expresses an ideological message in response to the current conjuncture19 in the Netherlands. In this section we argue that De Rijdende Rechter functions in a society losing grip on its former, Enlightenment inspired ideals of tolerance, freedom and democracy. In a way, Mr. Visser fits in a nostalgic longing for charismatic authority, and takes up the role of the former village vicar. This last section presents an elaboration on these rhetorical and ideological dimensions of the show. Part of the popularity of De Rijdende Rechter is that the program gives voice to the judge—always concluding his judgment with the words: “This is my judgement, and you must act accordingly.”20 Mr. Visser has the final

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word, and everyone accepts this, even more, so it seems, after having heard the opinions of the ordinary community members represented in what is called “the tribune.”21 The “tribune” consists of twelve people in the studio who discuss various perspectives in regard to the case. As such, the program fits more or less in the format of the “vox-pop talk shows” described by Peter Dahlgren, who notes that these shows often: with a media personality [Mr. Visser] heading the program … centre on audiences in the studio and even at home expressing their views. They may take up current political affairs, but more often focus on themes having to do with controversial social topics and emotional issues from personal life. The juxtaposition of lay and professional perspectives is a common ingredient.22

In the vox-pop talk show, ordinary people share personal experiences and opinions. This can be monitored in regard to “the tribune”’ consisting of common people talking over the case, when the program is halfway (usually at 15 minutes). Though different, their opinions are all based on what we might consider “common sense.” The members of the tribune establish bonds of familiarity with the television audience by using arguments that would seamlessly fit in a private conversation on the topic. This debating strategy, based on common sense, can be characterized as a particular form of rhetoric. American rhetorician Kenneth Burke has pointed at two main aspects: rhetoric as the art of persuasion, as Aristotle said, or rhetoric as art of identification. The latter is based on the idea that language shapes values and beliefs in ways people are not always aware of.23 In the unawareness of expressions and of the use of language, identification becomes clear, and is often achieved without rational assent. The common sense opinions and solutions as expressed by the ordinary people in the studio, and emphasized in the judgment of Mr. Visser, fit in a process of (implicit) identification with the “protestant-Christian” tradition of the broadcaster NCRV (Dutch Christian Radio Company, founded in 1924) transmitting the program. This broadcaster strives for “tolerance and care” in the community, and, as declared on their website, emphasizes that Dutch society is becoming more individualistic and indifferent.24 Therefore, they want to “bind” people together and enter into a dialogue. The NCRV strives for resolutions, not for questioning and problematizing, and this is what the ordinary people discussing the conflict and the audiences watching the program identify with. Today, the NCRV still represents a “protestant inspired” vision, although pillarization—the division of Dutch society into denominational (protestant and catholic) and secular pillars (liberal and socialist)—in the

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Dutch media system has almost vanished completely in recent decades. Media personality Mr. Visser fits in perfectly to this NCRV format, since the typical figure of the judge refers to the vicar in smaller villages, supporting the inhabitants. In a way, the program represents a nostalgic passion for clarity and maintenance in a local community that can solve its own problems quickly and effectively. Most of the “claiming” parties are not very well educated; these are people who easily get in trouble, often with a financial motive. The defendants are relatively strong, smart, often men, and frequently civil servants representing the municipality. As such, all cases are about “power and empowerment.” The rhetoric used by Mr. Visser is paternalistic. Ethos is much more relevant than logos, as becomes clear from his biographical statement on the NCRV website: “People say that judgments are about rules. That is not true. Then you could let computers do the work. No, judgments are about feelings. There are rules, but in the end it is about: who do you believe? And what is reasonable.” 25 This explains why there is almost no information given either in the program or on the website on civil law and on interpretations of laws. Mr. Visser is the representation of authority, in whose company the claimants as well as defendants are glad to be seen. That their private problems are shown to more than a million viewers every week does not seem to bother them at all. The program format is one of intimacy and trust, and the public is prepared to believe in this. To Bas Heijne, one of the leading public intellectuals in the Netherlands today, De Rijdende Rechter shows the state of affairs in Holland. On the one hand people are frustrated because of all the rules they have to obey; on the other hand these rules are fundamental for the organized, structured society they like to live in. The rules of the legal system are important to minorities who can feel protected and do not have to fear discrimination, as former mayor of Amsterdam, Job Cohen, has said. Ordinary citizens, however, often complain about the fact that they are not even allowed to put a small shed in their garden. Civil dissatisfaction, according to Heijne, has to do with “individuals longing for a sense of community,” but who are not really prepared to give up their own space. However, they accept the authority of the television judge, since Mr. Visser is personal, an authority in between the people, someone who gives one the impression that “one is seen.”26 For nearly two decades, De Rijdende Rechter has shown the provincialism and stability of Dutch society by stressing the community and the authority of the friendly father figure. What it does not show, and is as interesting when discussing the current conjuncture, is the political changes that have been going on. It does not reveal the move to the right, to a

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more conservative discourse on crime and safety, the troubles caused by young immigrants, etc. We could state from an optimistic perspective that De Rijdende Rechter is typically Dutch, in the sense of underlining the former protestant community, with people striving for practical solutions. More critically, we could point to the absence on the program of real societal problems, of cases of elderly people afraid to take the bus because of “Moroccan scum,”27 of gay spouses harassed out of their city quarter. One part of Dutch society is characterized by the fierce aggressive discourse of “Geen Stijl” [No Decency] journalism,28 and the other part wants to share its small talk and problems with others, convinced that Mr. Visser will find a solution.

6. Conclusion The elusive relationship between law and justice has been a common theme among those studying law and film. Steven Greenfield and Guy Osborn describe the effects of dramatized accounts of well-known miscarriages of justice in the British Isles.29 Likewise, Charles Musser illustrates the role that documentary film can have in re-telling, or problematizing, the “truth” of criminal cases, and the condemnation of justice that can result from these films.30 Richard Sherwin, drawing on Jacques Derrida’s description of law and justice,31 describes the two-sided image of law that can be found in two variations of Cape Fear, in which the law’s pursuit of justice requires the viewer to consider the role of its “dark side.”32 Here, it was argued that De Rijdende Rechter portrays an image of justice that requires the law to venture beyond its formal institutions, exposing itself to sites of social conflicts.33 Justice has been frequently portrayed as an elusive concept in relation to the law, and one that captures the complex situation of law in its social environment.34 Drawing on the observations made about the informality and the role of community in De Rijdende Rechter, it becomes possible to construct an image of the notion of justice that is implied. Unlike an ideal of justice based on the outcome of formal-rational legal procedures and argumentation, De Rijdende Rechter embraces an explicitly informal approach to solving conflicts. Mr. Visser is constantly on the search for the deeper problem at stake in a conflict—the problem that makes the legal problem irresolvable between the parties, a sort of second-order problem of communication and reciprocity. Even when provided with the factual basis on which to apply a rather straightforward legal decision, he is unsatisfied unless he can be sure that his decision will prevent future disputes from growing out of the neighbors’ conflict. He attempts to use his pres-

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tige of authority and knowledge of the conflict to create a judgment that is enduring and deep reaching. Law’s relationship to justice starts with exposing itself to its social surroundings in the way that Mr. Visser leaves the courtroom and television studio behind and places his fact-finding mission and his initial hearing among the site of conflict and the surrounding community. In order to begin its pursuit of justice, law must leave its own institutional identity behind. This is a key step in making the difference between a superficial solution to a legal problem and a comprehensive solution to a social problem, the latter of which is the goal of justice. Law’s pursuit of justice entails a journey into its surroundings, made possible only when law sets aside its formalism and embraces the unordered sites of social conflicts, and at this distance from its institutions constructs an informal solution to the conflict that has a chance of being durable. Mr. Visser, in turn, makes these judgments back in his television studio —in the judge’s own location—thus invoking a sense of movement from law to society and back again. It is the willingness of the judge to make this movement that allows for the possibility of justice to arise in his later decision. Without it, the essence of the social conflict would never be understood and their decision would be futile. However, without the return to the court, or alternatively, without the entrance of a foreign legal mind into the social conflict, the privileged position from which to pronounce a decision would not exist and the conflict would continue. And thus, both sides require each other, and justice requires a delicate movement between them in which the judge turns his back on the law only to later find himself back at the bench. Peter Dahlgren’s study on television culture shows the capability for democracy, due to its status as a mass medium with a focus on citizen’s communication and participation. Democracy requires mechanisms of representation which operate in the public sphere. The democratization of communication is both established by the media, in information technologies, and through the media, e.g. by various social movements groups. What is represented, and how, are thus the relevant questions we have tried to answer in this chapter. Television talk is public talk, and it is worth noting that for almost twenty years talking about ordinary issues and conflicts has been considered interesting by over a million viewers watching the program weekly. The program shows that protestant-Christian roots are still relevant in the complex social political structures of Dutch society, and maybe even more so as a response to ongoing populist tendencies. Restoration of a confidence in citizenship seems an aim of the program, in which civil servants are frequently placed in the role of defendant. De

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Rijdende Rechter shows that authoritative and responsible decisions come from the people, not from “above,” or, in populist discourse, the political centers of The Hague or Brussels. In this light we cherish the particular role of Mr. Frank Visser. As said, he is a media celebrity, a friendly father figure, and at the same time a charismatic authority, whose words and decisions are taken seriously. And yet, we never see or hear him elsewhere in the public debate. Though for over two decades he has examined, analyzed and judged issues of ordinary white people, and thus must have a fine-tuned insight into the changes of Dutch society, he never promotes himself as an authoritative figure on other floors than the one of his own program. We like to believe that he prefers a role as friendly judge to a role as critical discussant. Trust is based on a community served, not criticized.

Bibliography Asimow, Michael. Lawyers in Your Living Room! Law on Television. Chicago: American Bar Association Press, 2009. Auerbach, Erich. Mimesis, The Representation of Reality in Western Literature. Translated by William R. Trask. Princeton: Princeton University Press, 1991 [1953]. de Balzac, Honoré. La Comédie Humaine. 1965; Project Gutenberg, 1999. http://www.gutenberg.org/files/1968/1968.txt (accessed May 28, 2013). Bauman, Zygmunt. Community: Seeking Safety in an Insecure World. Cambridge: Polity, 2001. Böhnke, Michael. “Myth and Law in the Films of John Ford.” Journal of Law and Society 28 (2001): 47–63. Castells, Manuel. “A Network Theory of Power.” International Journal of Communication 5 (2011): 773–87. Dahlgren, Peter. Television and the Public Sphere: Citizenship, Democracy, and the Media. London: SAGE, 1995. Derrida, Jacques. “The Force of Law: The ‘Mystical Foundation of Authority’.” Cardozo Law Review 11 (1990): 919–1045. Drexler, Peter. “The German Courtroom Film During the Nazi Period: Ideology, Aesthetics, Historical Context.” Journal of Law and Society 28 (2001): 64–78. GeenStijl. “Homepage.” http://www.geenstijl.nl/ (accessed July 23, 2013). Greenfield, Steven & Guy Osborn. “Pulped Fiction? Cinematic Parables of (In)Justice.” University of San Francisco Law Review 30 (1996): 1181–98.

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Grossberg, Lawrence. “Does Cultural Studies Have a Future? Should it? (or What’s the Matter with New York?): Cultural studies, contexts and conjunctures.” Cultural Studies 20 (2006): 1–32. Hall, Stewart. The Hard Road to Renewal: Thatcherism and the Crisis of the Left. London: Verso, 1988. Heijne, Bas. Moeten wij van elkaar houden? Het populisme ontleed. Amsterdam: De Bezige Bij, 2011. Musser, Charles. “Film Truth, Documentary, and the Law: Justice at the Margins.” University of San Francisco Law Review 30 (1996): 963–84. NCRV De Rijdende Rechter. “Uitzendingen van De Rijdende Rechter.” http://www.eerstehulpbijrecht.nl/uitzendingen/rijdenderechter (accessed July 23, 2013). NCRV De Rijdende Rechter. “Heftige conflict over een electrische fiets” [Fierce conflict over electronic bike]. An episode in De Rijdende Rechter. March 26, 2013. http://www.eerstehulpbijrecht.nl/uitzending/rijdenderechter/elektrische-fiets-gekocht-buren (accessed June 2, 2013). NCRV De Rijdende Rechter. “Zaaknummer: S20-09 Bindend Advies.” March 4, 2013. http://www.eerstehulpbijrecht.nl/data/files/20130325_doortrapt.pdf (accessed June 2, 2013). NCRV De Rijdende Rechter. “Grote ergernissen over gezamenlijke oprit” [Major annoyances over shared driveway]. An episode in De Rijdende Rechter. April 16, 2013. http://www.eerstehulpbijrecht.nl/uitzending/rijdende-rechter/groteergernissen-over-gezamenlijke-oprit (accessed July 23, 2012). NCRV. “Over de NCRV [About the NCRV].” http://www.ncrv.nl/overdencrv (accessed June 4, 2013). NCRV. “Frank Visser.” http://www.ncrv.nl/overdencrv/presentatoren/frank-visser (accessed June 4, 2013). Oxford English Dictionary. Oxford: Oxford University Press, 2013. http://www.oed.com/ (accessed September 21, 2013). Philippopoulos-Mihalopoulos, Andreas. Niklas Luhmann: Law, Justice, Society. Abingdon: Routledge, 2010. Rechtspraak. “Burenrechter smoort ruzies in de kiem.” September 2013, 8. Rechtspraak. “Na uitspraak rechter verstomt de discussie.” September 2013, 25. Richards, Jennifer. Rhetoric. London and New York: Routledge, 2008. Sherwin, Richard K. “Cape Fear: Law’s Inversion and Cathartic Justice.” University of San Francisco Law Review 30 (1996): 1023–1050.

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Stichting KijkOnderzoek. “Jaar top 100 exclusief sport: 2012.” http://www.kijkonderzoek.nl/component/Itemid,45/option,com_kijkcijf ers/file,n1 (accessed May 28, 2013). Teubner, Gunther. “Alienating Justice: On the Surplus Value of the Twelfth Camel.” In Law’s New Boundaries: The Consequences of Legal Autopoiesis, edited by JiĜí PĜibáĖ & David Nelkin, 21–44. Aldershot: Ashgate Dartmouth, 2001.

Notes 1 The program was developed by Erik Latour and produced by IDTV, broadcast by the (formerly protestant) public television channel NCRV. The title translates as The Driving Judge. 2 Michael Asimow, ed., Lawyers in Your Living Room! Law on Television (Chicago: American Bar Association Press, 2009). 3 Episodes are generally watched by more than 1.5 million people with a high in 2012 on May 15 of 2,061,000 viewers. “Jaar top 100 exclusief sport: 2012,” Stichting KijkOnderzoek. http://www.kijkonderzoek.nl/component/Itemid,45/option,com_kijkcijfers/file,n10-1-p (accessed May 28, 2013). 4 Peter Dahlgren, Television and the Public Sphere: Citizenship, Democracy, and the Media (London: SAGE, 1995). 5 Ibid., 13. 6 Ibid., 25. 7 “Uitzendingen van De Rijdende Rechter,” NCRV Eerste Hulp Bij Recht, http://www.eerstehulpbijrecht.nl/uitzendingen/rijdenderechter (accessed July 23, 2013). 8 Erich Auerbach, Mimesis, The Representation of Reality in Western Literature (Princeton: Princeton University Press) 1953, 468. 9 This is what Balzac wrote in the introduction to his massive project: “For does not society modify Man, according to the conditions in which he lives and acts, into men as manifold as the species in Zoology? The differences between a soldier, an artisan, a man of business, a lawyer, an idler, a student, a statesman, a merchant, a sailor, a poet, a beggar, a priest, are as great, though not so easy to define, as those between the wolf, the lion, the ass, the crow, the shark, the seal, the sheep, etc. Thus, social species have always existed, and will always exist, just as there are zoological species.” From the author’s introduction, Honoré de Balzac, La Comédie Humaine (1965; Project Gutenberg, 1999) http://www.gutenberg.org/files/1968/1968.txt (accessed May 28, 2013). 10 Manuel Castells, “A Network Theory of Power.” International Journal of Communication 5 (2011): 773–787. 11 “Heftige conflict over een elektrische fiets” [Fierce conflict over electronic bike], NCRV, an episode in De Rijdende Rechter (March 26, 2013), http://www.eerstehulpbijrecht.nl/uitzending/rijdende-rechter/elektrische-fiets-

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gekocht-buren (accessed June 2, 2013). 12 “Zaaknummer: S20-09 Bindend Advies,” NCRV De Rijdende Rechter (March 4, 2013), http://www.eerstehulpbijrecht.nl/data/files/20130325_doortrapt.pdf (accessed June 2, 2013). 13 de Balzac, The 1842 introduction to the Human Comedy. See: http://www.gutenberg.org/files/1968/1968-h/1968-h.htm. 14 “Grote ergernissen over gezamenlijke oprit” [Major annoyances over shared driveway], NCRV De Rijdende Rechter, an episode in De Rijdende Rechter (April 16, 2013), http://www.eerstehulpbijrecht.nl/uitzending/rijdende-rechter/groteergernissen-over-gezamenlijke-oprit (accessed July 23, 2012). 15 Michael Böhnke, “Myth and Law in the Films of John Ford,” Journal of Law and Society 28 (2001): 47–63. 16 Peter Drexler, “The German Courtroom Film During the Nazi Period: Ideology, Aesthetics, Historical Context,” Journal of Law and Society 28 (2001): 64–78. 17 The breakdown of community and the inability for neighbors to solve their disputes have recently led to the suggestion of installing “Neighborhood Judges” (Burenrechters) in the Netherlands, whose work would resemble that of Mr. Visser. “Burenrechter smoort ruzies in de keim,” Rechtspraak, September 2013, 8. 18 Zygmunt Bauman, Community: Seeking Safety in an Insecure World (Cambridge: Polity, 2001). 19 As defined by Grossberg, a conjuncture is a description of a social formation as fractured and conflictual, along multiple axes, planes and scales, constantly in search of temporary balances or structural stabilities through a variety of practices and processes of struggle and negotiation. Lawrence Grossberg, “Does Cultural Studies Have Futures? Should it? (or What’s the Matter with New York?): Cultural Studies, Contexts and Conjunctures,” Cultural Studies 20 (2006): 1–32. According to Stewart Hall, the concept of a conjuncture describes “the complex historically specific terrain of a crisis which affects—but in uneven ways—a specific nationalsocial formation as a whole.” It is not a slice of time or a period but a moment defined by an accumulation/condensation of contradictions, a fusion of different currents or circumstances. Stewart Hall, The Hard Road to Renewal: Thatcherism and the Crisis of the Left (London: Verso, 1988), 127. 20 “Dit is mijn uitspraak en hier moet u het mee doen.” In other words, no room for discussion anymore. Case closed. This closing statement has recently been the subject of attention elsewhere. “Na uitspraak rechter verstomt de discussie,” Rechtspraak, September 2013, 25. 21 In ancient Rome, a “Tribune” of the people was an official chosen by the plebeians to protect their interests. Oxford English Dictionary (Oxford: Oxford University Press, 2013), http://www.oed.com/ (accessed September 21, 2013). 22 Dahlgren, Television and the Public Sphere, 54–55. 23 Jennifer Richards, Rhetoric (London and New York: Routledge, 2008), 162. 24 De NCRV staat voor ‘onze protestants-christelijke traditie, van waaruit we ons richten op verdraagzaamheid en de zorg voor elkaar … Het individualisme en de groeiende intolerantie en onverschilligheid in de samenleving baren ons zorgen. Volgens ons is het noodzakelijk om op zoek te gaan naar verbinding en dus kiezen

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we voor de dialoog. See: “Over de NCRV” [About the NCRV], NCRV, http://www.ncrv.nl/overdencrv (accessed June 4, 2013). 25 “Mensen zeggen wel eens dat rechtspreken alleen over regels gaat. Maar dat is niet zo. Anders zou je dit werk ook wel door computers kunnen laten doen. Nee, rechtspreken is een gevoelskwestie. Natuurlijk zijn er regels, maar uiteindelijk gaat het erom: wie geloof je. En: wat is redelijk.” See “Frank Visser,” NCRV, http://www.ncrv.nl/overdencrv/presentatoren/frank-visser (accessed June 4, 2013). 26 Bas Heijne, Moeten wij van elkaar houden? Het populisme ontleed (Amsterdam: De Bezige Bij, 2011), 70. 27 The word “Marokkaans tuig” was used more than once by populist politician Geert Wilders. See: http://politiek.thepostonline.nl/2013/04/09/wilders-het-is-tijdvoor-repressie-van-marokkaans-tuig/. However, this negative rhetoric started when Amsterdam alderman Rob Oudkerk spoke in 2002 public of “kut-Marokkanen” See: http://pauwenwitteman.vara.nl/Artikel.4215.0.html?tx_ttnews%5Btt_news%5D=1 8027&tx_ttnews%5BbackPid%5D=116&cHash=9296f92042dbdb071ad1b152358 0beb1 (accessed August 26, 2013). 28 “Homepage,” GeenStijl. http://www.geenstijl.nl/ (accessed July 23, 2013). 29 Steven Greenfield & Guy Osborn, “Pulped Fiction? Cinematic Parables of (In)Justice,” University of San Francisco Law Review 30 (1996): 1181–1198. 30 Charles Musser, “Film Truth, Documentary, and the Law: Justice at the Margins,” University of San Francisco Law Review 30 (1996): 963–984. 31 Jacques Derrida, “The Force of Law: The ‘Mystical Foundation of Authority’,” Cardozo Law Review 11 (1990): 919-1045. 32 Richard K. Sherwin, “Cape Fear: Law’s Inversion and Cathartic Justice,” University of San Francisco Law Review 30 (1996): 1023–1050. 33 Concerning movement in the relationship between law and justice see Andreas Philipopoulos-Mihalopoulos, Niklas Luhmann: Law, Justice, Society (Abingdon: Routledge, 2010), 87–104. 34 See, for instance, Gunther Teubner, “Alienating Justice: On the Surplus Value of the Twelfth Camel,” in Law’s New Boundaries: The Consequences of Legal Autopoiesis, eds. JiĜí PĜibáĖ and David Nelkin (Aldershot: Ashgate Dartmouth, 2001), 21–44.

CHAPTER ELEVEN MANAGING THE “CRITICAL INDEPENDENCIES” OF THE MEDIA AND JUDICIARY IN THE UNITED KINGDOM LESLIE J. MORAN

1. Introduction Within the space of less than ten years, the judiciaries in the various jurisdictions that make up the UK have gone through many significant changes. One of the changes, that to date has attracted little scholarly attention, is the development of new communications initiatives. Judicial communication with the media is a key part of these initiatives. These developments come almost a hundred years after the first communications initiatives were created to facilitate, improve and better manage relationships between the media and other branches of the state, first the executive1 and later the legislature.2 Despite the fact that the judiciary appears to be one of the last branches of the state in the UK to develop specialist media communications initiatives, other justice sector institutions were amongst the first to develop them. London’s Metropolitan Police established a “press room” in 1919.3 Since that date it has taken on a variety of forms and developed a wide range of initiatives.4 It currently operates as the Directorate of Media and Communications, with almost a hundred staff members.5 Although the judiciary only recently developed media communication initiatives, it has always been concerned with making and managing its image.6 Likewise, the media have long been preoccupied with the courts.7 Rule of law democracy incorporates two ideas and ideals—an “independent judiciary” and “open justice.” These ideas and ideals, in turn, contain a set of assumptions and expectations that recognize connections between the judiciary and mass media but also demand their institutional separation. Lord Judge, Lord Chief Justice of England and Wales from

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2008 to 2013, described these connections as their “critical independencies.”8 On one side is judicial image-making through “live” performances in court and related institutional locations and the delivery of reasoned decisions ex tempore or as published written texts, such as reports of sentencing decisions and judgments. Baum suggests the audiences for these particular representations of the judicial image are other judges,9 people in the wider “legal family,”10 and the parties to the litigation. On the other side are journalists from both the established media and now lay or “citizen journalists” acting as “the eyes and ears of the public.”11 Their primary audience is the news-consuming public. The handbook “Media Guidance for the Judiciary,” produced for judges by the Press team of the Judicial Communications Office for England and Wales, illustrates the role of a specialist judicial communications function in this context. It has two dimensions. The first is directed to judges and is “a specialist, dedicated facility to support judicial office holders.”12 It provides advice and support on a wide variety of media issues ranging from responding to an invitation for a media interview to dealing with misreporting and handling potentially controversial issues. The second dimension of the work is directed to media—responding to media, anticipating media interest, drawing media’s attention to judicial activity, and reporting “significant judgments, speeches and statements.”13 Judicial communication initiatives service these “critical independencies” and play a role in the management of their interaction. The aim of this chapter is to identify and explore the factors that have shaped the formation and establishment of this judicial communications role in the UK, drawing upon existing research and data. It also makes use of new empirical data generated by way of semi-structured interviews undertaken with judicial and court communications office holders in the UK and other common law jurisdictions and senior members of the judiciary.

2. Judicial Media Communications Initiatives (a) History of judicial communication offices First, some background to put UK developments in context might be helpful. The development of judicial media communications offices first emerged in the US. The Press Office of the US Supreme Court dates from the 1930s14 and coincides with the Court’s move to the new Supreme Court building.15 By 1998 “media officers” were attached to seventy-five US courts.16 The first court media office in Australia was established in 1973, attached to the Family Court in Melbourne.17 By the end of the

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1990s most courts in Australia had public information officers.18 Similar developments were taking place in New Zealand and Canada.19 Nor are judicial communications initiatives specific to common law jurisdictions. Gies’s research on the Dutch judiciary noted that judicial communications specialists began to operate in the 1970s.20 At the end of the twentieth century a number of communication developments were taking place in the UK. The Lord Chancellor’s Press Office and in particular the chief press officer, Mike Wicksteed, had undertaken some “excellent work” and developed “extensive experience in assisting judges.”21 Initiatives included a “media kit” for the judiciary, press kits for high profile cases, seminars on media relations for court managers, and a “check list” for local court officers providing advice on how to manage relations with the media.22 There were limits to this form of judicial support. Prue Innes noted: “There seems to be no formal structures in the English court system for the media.”23 Some years later, Lord Mackay used the phrase, “as and when” to describe the nature of the support the press office provided to the judiciary at this time.24 Malleson described the situation as being one in which the judiciary had “barely begun to develop the tools which professional users of the press, television and radio require, let alone those appropriate for the new electronic media such as the internet.”25 Both Innes and Malleson noted the lack of court and judicial media/press officers specifically working on behalf of the judiciary to engage and facilitate relations between the judiciary and media and to improve and promote media coverage of court and judicial activity.26 While they were commenting on the situation in England and Wales, similar comments about the limits of judicial communications expertise and support could have been made about the other jurisdictions in the UK. By the end of the first decade of the twenty-first century a very different institutional picture had emerged. The first dedicated communications post attached to the judiciary in the UK was established in Scotland in 2004. The Judicial Communications Office (JCO) for England and Wales was formally established a year later.27 The Northern Irish post dates from 2007.28 The most recent is the communications office of the Supreme Court of the United Kingdom (SCUK) that began operations on October 1, 2009. What were the drivers generating these changes?

(b) Drivers generating change A variety of factors associated with these judicial communications developments can be identified. They fall into two broad types: institutional

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change and changes in attitudes and perception. Two major institutional changes will be considered, one affecting the judiciary and the other relating to the media. With respect to attitudes and perception, I will explore loss of respect and a growing deference deficit, media criticism of the judiciary, and perceptions that the accuracy of news has been in decline. In each case, consideration will be given to how these various factors are linked to the development and institutionalisation of a judicial communication function incorporating a media specialism. (i) Institutional reform: judicial institutional change I begin with judicial institutional change. The Constitutional Reform Act 2005 introduced two reforms that have significance here. A key objective of the legislation was to enhance the separation between the executive and the judiciary in England and Wales and Northern Ireland. In pursuit of that goal, the act brought to an end the Lord Chancellor’s role as head of the judiciary in these two jurisdictions. This function was transferred to the Lord Chief Justice.29 The connection between the separation of powers and relations between the judiciary and the media was explained during the course of an investigation into the impact of this reform conducted by the House of Lords Select Committee on the Constitution. The Chair of the Committee, Lord Holme of Cheltenham, described it in the following way: The logic of a greater separation of powers is that the judiciary, like other important bodies in our society, has in a sense to make a case for itself. It has to constantly be validating what it does, the value of what it does and how well it does it to various stakeholders, notably the British public.30

The separation of powers reforms are linked here to new demands on the judiciary to communicate about the judicial role. The specific connection between these new communication demands and a specialist judicial communications function is made in a later comment, again by the Chairman: “The Judicial Communications Office is obviously in this greater separation of powers, quite an important hinge on the door ….”31 Despite the rather odd metaphor of a “hinge on the door,” what is clear from this comment is the close and necessary connection between constitutional and institutional changes affecting the judiciary, and more specifically their impact upon the image of the judiciary and the link with a specialist judicial communications office. A judicial communications office has an important role to play in assisting the judges to respond to these new challenges and more specifically to improve, if not make, connections between the judiciary and the key stakeholders, most notably the public.

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A second relevant constitutional and institutional reform is part three of the act, creating a new court for the whole of the UK: the Supreme Court. Separation of powers is again a central theme, this time separating the judiciary from Parliament and more specifically from the House of Lords. The logic of the argument presented by Lord Holmes above in relation to separating the judiciary from the executive applies equally to the separation of the judiciary from the legislature. An example of this effect appears in a comment made by Lord Hope, a judge in both the UK’s final appeal court when it sat as the Appellate Committee of the House of Lords and in the new free-standing SCUK. Lord Hope noted that there were cheaper alternatives to a new court, such as separating out the judicial function of the House of Lords but keeping the new court within its fabric. This was considered but rejected. His explanation for this was, “Public perception is everything.”32 Making and managing representations of the newly separated judicial institution, this suggests, is the whole thing. A slightly different twist on the relationship between greater separation and new communication needs is to be found in a comment made by Cornes who, in his study of the operation of the SCUK’s communications office, suggests that one of the effects of separation upon the new court was a new “self-awareness.” The court, he concludes, is “a new institution staking out its position within the constitutional firmament. Its new communications capacity has helped spur this awakening.”33 Here the link between the institutional reforms and a new communications facility is one of both effect and cause. Staking out its new place in the constitution calls for the skills and expertise of a communications office to better represent the separation and this in turn “awakens” a new self-awareness which a communications office further supports. The SCUK opened for business on October 1, 2009, with a communications team in place. This dimension of the new court’s structure and operation is not something dictated by the 2005 Constitutional Reform Act. There is only one explicit legislative reference to communications and the new court in the Act. Section 47 exempts the court from the statutory prohibition on cameras in courts, then in operation in all other courts in England and Wales. Sian Lewis, the court’s first Head of Communications, suggested the origins of the communications team lay in discussions that followed the enactment of the 2005 Act about the support staff the court would require. During the course of an interview she explained, “I’m sure it was identified very early that they needed a communications officer.”34 When asked about the reasons for the creation of the communications office she responded:

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Two things are of note here. The first is the phrase “just recognition” which suggests that the establishment of a communications team was, by the time the organizational structure of the court was being put into place, an unremarkable rather than a novel or exceptional initiative. Second, the communications function is connected to the goals of openness, transparency and accessibility. Currently, two of the six members of the communications team have media responsibilities. Openness, transparency and accessibility are not only examples of the second general category, of attitudes and perceptions, but also point to the second institutional theme I want to consider here—the media. A comment by Lord Judge, Lord Chief Justice of England and Wales from 2008 to 2013, explains the link: [I]t is an essential requisite of the … justice system that it should be administered in public and open to public scrutiny. And for these purposes the representatives of the media reflect the public interest and provide and embody public scrutiny.36

Openness, transparency and accessibility are characteristics associated with public access to and public scrutiny of the judiciary, which is a wellestablished goal of rule of law liberal democracies. As Lord Judge notes, the media plays a key role in the performance of this scrutiny and in the representation of the judiciary’s openness, transparency and accessibility. (ii) Institutional reform: changes to the media Changes to the media are the other institutional changes relevant to the development of judicial communication expertise. The first change relates not so much to the media itself but the context of its operations. During the twentieth century, attendance at court by the public has gone into steep decline.37 This has elevated the importance of the media. In court, “journalists are … the eyes and ears of the public.”38 The “presence” of the “public” is now primarily the presence of the media—people working for the established media, to which one might now add members of the unestablished media, “citizen journalists.” In the place of “live” scrutiny, public engagement now takes the form of “mediated quasi-interaction.”39

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Under these conditions the relationship between the judiciary and media, and the management of that relationship, has particular importance. The other changes relate to the media. In general, these are the effects of economic and technological developments impacting upon the organization and operation of media. A variety of major changes having a negative effect on the news-making capacity of the media and its ability to report court and judicial activity have been noted. One is the decline in the number of journalists. In an interview with Elizabeth Cutting, judicial communications officer for Scotland, the scale of the change is captured in the following comment: Since I started working here eight years ago [2004] I would say 50% of the journalists are gone. They have been made redundant. Their posts have gone. They have had to cut back hugely on their budgets because the print media are not selling their newspapers anymore ….40

Specialist court reporters are almost an extinct subgroup.41 At the same time the labor force of news workers is shrinking, the demand for news stories is increasing. The 24/7 rolling news environment increases demand for news, and there is more news space to fill. New media platforms create new competition for stories and audiences. The change to screen media generates new demands for more visuals. In addition, scholars have suggested that cut-throat competition for new stories impacts on the way news is reported, tending toward what media scholars describe as the “tabloidization of news.”42 This means elevating the importance of conflict, lurid detail and personalization to enhance “dramatization” and “titillation,” which are longstanding news values.43 All are affecting the way journalists work in general, and the way they make representations of courts and the judiciary in particular. The growing need for shocking and sensational stories, together with a well-recognized potential for daily legal proceedings to provide the same, keep and potentially escalate the profile of court and judicial activity in the news. To meet the demand, news has to be produced more quickly, and deadlines are shortened. Gerry Curran, media relations officer for the Irish Courts Service, described a change in the way journalists work. There is a shift from what he called “fresh air” journalism to “cut and paste” journalism.44 Journalists are now less likely to generate a news story through their own observation and investigations; now, more reliance is placed on making a story from other published sources—editing a syndicated story, or cutting and pasting from a press release, blog, or other social media source.

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Under these conditions, the relationship between the judiciary and media, and the management of that relationship, is subject to new pressures. Declining journalistic expertise and lack of resources are a potentially dangerous combination, and heightened drama may not sit easy with accurate reporting. As Elizabeth Cutting notes: “If [the judiciary] want cases covered then we have to do something extra to get them out.”45 The establishment of judicial media communications personnel and initiatives is an institutional “something extra” that may facilitate new and improved opportunities to communicate in and through the news media. (iii) Changing attitudes and perceptions “Openness,” “transparency” and “accessibility” are terms that fall under the second category of factors I want to consider—attitudes and perceptions. More specifically, these terms are all associated with the requirement of publicity and public scrutiny. Their appearance in Lewis’s comment above is an instance in which their deployment is linked to the image required by the newly enhanced separation of powers. Cornes notes that “open, transparent and accessible” have become embedded in the institutional fabric of the Supreme Court, appearing as named strategic objectives in the court’s “Mission Statement.”46 They are also used in the court’s annual reports to organize and frame reports of the work of the court’s communications team. These references to “openness,” “transparency” and “accessibility” are instances of the new court responding to the challenges that flow from the separation of powers—making a case for itself, validating what it does, demonstrating the value of what it does and showing how well it does it. “Respect” and “deference” are other attitudes and perceptions that have been linked to change and the need for new and additional expertise in judicial communications. Loss of respect, described by the Chairman of the House of Lords Select Committee on the Constitution as the “deference deficit,” is one such change. Journalist Francis Gibb linked loss of respect to changes in “public confidence” in the judiciary.47 Its link to and impact upon judicial communications is described by another journalist, Joshua Rozenberg, in the following passage: I think the judges have to work for [respect]. I do not think they can assume, as perhaps they used to, that it comes automatically with the role and with the knighthood. That is why public relations is so important and that is why perhaps it is in the judges’ interests for them to be doing more in order to retain—and even regain—the public’s confidence.48

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I want to highlight two matters here. The first is the connection between changes to the perceived status of the judiciary and the need for more work to be done to better manage the judicial image in order to maintain, if not reestablish, its status. The second is the connection made between “respect” and debates about “confidence.” Confidence has become an organizing principle against which the operations of institutions of the state in general and the institutions of justice in particular are now measured.49 Evidence of the institutionalization of a link between confidence and judicial communications can be found in successive business plans of the Judicial Office for England and Wales beginning in 2009, that make reference to the need to secure confidence in the judiciary through the work of the judicial communications team.50 Media criticism of the judiciary, which is said to be increasing, is another attitude associated with changing perceptions. An example of this argument is to be found in a response to a question posed by the Chairman of the House of Lords Select Committee on the Constitution. Paul Dacre, editor of the right-of-center tabloid, the Daily Mail, commented: [M]y instinct is that, for years, judges have enjoyed immunity from criticism in the press but, in a changing age, a 24-hour media age, an age of instant news, an age in which there is generally a lack of reverence, judges must learn to expect more criticism and will need to think through how they are going to respond to that.51

Changes in levels of criticism are linked here to changes in the structure and operation of the media, which in turn affect the way news is reported. However, such claims are problematic, being based, as above, on anecdote. Members of the judiciary are another source of anecdotal evidence that media criticism is ever present and on the increase. Lord Phillips, the UK Supreme Court’s first President, commented, “There is a regular diet of express or implied criticism of sentencing in particular.”52 Lord Judge commented: “We have had to confront this year … the increased number of critical attacks on individual judges and the judiciary as a whole. This year there has been a steady flow ….”53 Other sources of evidence suffer from being based on an idiosyncratic data set of selected critical media reports.54 More systematic or robust evidence is in short supply.55 For some, increased media criticism is linked to and is a response to other constitutional changes. Paul Dacre explained: [I]t seems to me that if the judges—and this is a matter of opinion—are making political judgments, then, I am afraid, if they are making political

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Various commentators have suggested that a variety of changes in the law have impacted on the actual and perceived role of the judiciary in the UK, thus making the role more political.57 Vernon Bogdanor offered a neat summary of these changes: We are now … looking increasingly to judges and not to Parliament to guarantee our rights. We are looking increasingly to judges and not to Parliament to check the executive. We are looking increasingly to judges and not to Parliament to determine the division of power between Parliament and the European Union, and between Parliament and the devolved bodies. The judiciary therefore is becoming a more important part of our constitution. We are engaged, it seems to me, in a quiet but nevertheless profound constitutional revolution … It follows from this, however, that judges are increasingly making decisions, which used to be made by politicians, and which many will characterise as political.58

The political nature of the judicial decisions in these areas Bogdanor noted is in the way they limit the options available to government and Parliament. Controversy might be at its most acute when the judiciary is seen to be defending “the rights of unpopular minorities, such as suspected terrorists, prisoners and asylum seekers.”59 Dacre’s comment about the rise of more critical reporting brings together two institutional changes. One is the constitutional institutional changes which facilitate the characterization of judicial decision making as “political.” The second is institutional changes within the media that limit capacity to report and at the same time create new demands for news. But there is a need for some caution here. Criticism is not necessarily problematic for the judiciary and thereby is not necessarily a driver of change. Some forms of criticism are a necessary dimension of the media’s role in a democracy and thereby an inevitable aspect of relations between the judiciary and the media. As Lord Judge explained: [T]he crucial issue is that an independent media is an essential element in a free society. They must be free to criticise the judges. They must be free to criticise the process and we have to accept their criticisms even if we disagree with them. Sometimes indeed their criticisms are justified and judges make mistakes. So I have absolutely no wish for the judiciary to be treated any differently from anybody else in that sense. Occasionally when criticism is unfair, yes that smarts. But that too must be true for everybody.60

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In an earlier lecture Lord Judge drew a distinction between appropriate and inappropriate media criticism of the judiciary by way of a contrast between criticism directed at the “legal principles” that bind the judge and the manner in which they are applied by the judge, which is fair criticism, and “vituperative” and “unjust” personal criticism which is “unfair.” Such personal criticism is inappropriate for a variety of reasons. First because: [I]t is unfair; second, that it is difficult if not impossible for the judge to answer, because inevitably it would mean commenting on a case which he had tried or decided, when everything that needs to be said about the decision should have been dealt with in the judgment, so that for the judge that must be the end of it; and finally, and perhaps in the end most importantly … because of its corrosive long term effect on the public’s view of the judiciary and the exercise of its functions.61

There is a link here to changes in judicial communications. In the same speech Lord Judge notes the potential for judges to go further in their relations with the media to address these problems. Closely related to these other changes is a perception that the quality of news reports is changing, more specifically that the accuracy of news reports is in decline. Reporting of sentencing decisions is a recurring context in which these concerns arise. An example is provided by Elizabeth Cutting. She begins by explaining that these concerns were a driver behind an initiative for change, “[the judges] felt that they needed someone …” to deal with this problem. She continues: I say they, one or two judges felt that they were having a very difficult time with the media and having cases reported very badly. There was one particular case involving a judge who got quite a bad press, unfairly, because the media didn’t understand what he was doing and what he had done in court in a particular case. That was a trigger for one of the judges pushing to have somebody trying to make that relationship work a little bit better.62

The “particular case” in question was a criminal case and the reports of the sentencing decision were the primary cause for judicial concern. In England and Wales news reports about sentencing decisions have also been of particular concern. A high profile example of this is news reports about the sentencing of Craig Sweeney. The House of Lords Select Committee on the Constitution described this case and the news reports surrounding it as “the first big test of whether the new relationship between the Lord Chancellor and the judiciary was working properly and it is clear that there was a systemic failure.”63

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The media reports of this sentencing decision were inaccurate. In addition, there was concern about criticism of the sentence not only by the media but by government ministers and about the management of such criticism by the Lord Chancellor and the Lord Chief Justice.64 Relations between the judiciary and the media were identified as one of the problems exposed by this “systemic failure,” and “the senior judiciary could also have acted more quickly to head off the inflammatory and unfair press coverage which followed the sentencing decision.”65 The Judicial Communications Office was identified as one of the mechanisms through which this “systematic failure” might be addressed and corrected. One of the recommendations for change proposed that “the judges should consider making the Judicial Communications Office more active and assertive in its dealings with the media in order to represent the judiciary effectively.”66 Due to a lack of empirical research it is difficult to establish with any certainty whether the quantity of news reports that focus on sentencing decisions is on the rise. There is certainly evidence supporting the perception that news media tends to be preoccupied with particular moments of judicial decision making, and US scholarship has identified sentencing as one of those moments.67 There appear to be a variety of reasons for this. Fishman describes sentencing decisions (and also verdicts) as ultimate dispositions in what is likely to have been a long and complex process.68 The verdict is the ultimate disposition of the facts and of guilt or innocence, and of justice and punishment. These particular moments in the process are, Fishman argues, critical for reporters. They are moments that appear to fix the otherwise contested meaning of social relationships that make up the conflict. They are also moments in a complex process that are relatively easy to identify. Last but not least, they provide final opportunities to report. For all these reasons they are moments that have great utility for news workers. Fishman describes them as “a readymade scheme of relevance.”69 My own research is based on an analysis of 181 newspaper reports of court and judicial activity in England and Wales from a one-day sample of 24 daily newspapers, 10 national newspapers, and 14 from the regions. It found a similar preoccupation with criminal proceedings and with verdicts, and sentencing decisions in particular.70 A majority of the press reports, 69%, covered criminal court activity. The percentage was higher, 80%, in the regional press. Verdicts (mainly but not exclusively of guilt) and sentencing decisions dominate these reports. For example, 78% of the reports dealing with the Crown Court in the national press sample dealt with ultimate decisions—verdicts (33%) and sentencing (45%). Almost

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half the equivalent press reports in the regional sample covered these decisions—35% sentencing and 12% verdict. Without further research, it is difficult to say if the economic and resulting institutional pressures on journalists have further elevated the importance of “ultimate dispositions” as the easiest and thereby the only opportunity to report. The significance of this preoccupation with ultimate decisions in criminal trials for the development of judicial communications expertise is twofold. First, the over-representation of courts and judicial activity in the daily diet of news reports makes them particularly important for judicial communications; they become a preoccupation. In turn, their dominance has generated calls for judiciaries to work harder to shift focus away from these particular moments of court and judicial activity. This is a call for the judiciary and judicial communications officers to be more creative and proactive in their communications strategies to ensure that the wider range of judicial work is better represented in news reports.71 For the purposes of presentation and clarity, institutional change and changes relating to assumptions and perceptions have been separated out. As cases such as that of Craig Sweeny illustrate, they may operate simultaneously. From an exploration of various changes associated with the emergence of judicial communications initiatives and institutions, I now want to turn attention to the offices and officers that have been created.

3. Where We Are Now In institutional terms, the scale of judicial communications operations in the UK is small. In England and Wales, the JCO is made up of the equivalent of six full-time staff. Only two of those posts deal with the media.72 One, Stephen Ward, is the current Head of News. In Scotland, for the first eight years of operation, Elizabeth Cutting was the only judicial communications worker dealing with communications between members of the judiciary as well as media related judicial communications work. A second fractional post was added in 2012. In Northern Ireland the role of judicial communications office is carried out by three people whose media-related judicial communication work is part of a wider portfolio of activities.73 Six people make up the communications and customer services team of the SCUK. The “Press Office” is made up of the Head of Communications, Ben Wilson, and his deputy, Anthony Myers. The individuals who do the media-related work of judicial communications offices do so to support the primary communicators, the judges themselves. The size of the judicial community served and supported by the various judicial communication offices varies considerably. England

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and Wales has the largest judicial family with over forty thousand members, with just over half being lay magistrates sitting in the lower courts. Just over 5,500 are judges sitting in tribunals.74 In Scotland, the judicial body that works with the communications office is much smaller at approximately three hundred middle and high-ranking members of the Scottish judiciary.75 Next in line is Northern Ireland with seventy-one full-time members of the judiciary.76 The communications team of the SCUK works with just twelve Justices. The judicial focus of these specialist media communication initiatives is marked by the name of the offices—“judicial communications”—their institutional location, and the nature of their “core business.” In England and Wales, Scotland and Northern Ireland, all the offices come under the Judicial Offices that support the respective heads of the judiciary, namely the Lord Chief Justices of England and Wales, Northern Ireland and Lord President in Scotland. The only exception to this is the SCUK. There, the communications team is formally attached to the court. Judgments and sentencing decisions, the “ultimate dispositions” of often long and complex adjudicative processes,77 comprise the core image business of these offices. As noted earlier, the handbook “Media Guidance for the Judiciary,” produced for judges in England and Wales, identifies two dimensions of the role of the Judicial Press Office—one judicial facing and one media facing.78 Offices dedicated to judicial media communications join together the judiciary and the media and facilitate their smooth interaction. The variation in the scale and size of the operation of the justice institutions served by these various communications initiatives will impact upon the nature of their media related work. For example, Stephen Ward, Head of News in the JCO for England and Wales, explained: There are vast numbers of cases. In the vast, vast majority, and that must be the case given the small size of the press office and routine nature of most cases, the press office is not involved at all … The Press Office will only be involved in the exceptional cases and to a large extent the bigger cases or the higher court cases which are the ones with the senior judges. They are sometimes going to be newsworthy because they are important rather than quirky or of human interest.79

In combination, these two observations suggest that the Judicial Press Office’s (JPO) involvement is highly selective, and necessarily so.80 In sharp contrast to this, the Press Office of the Supreme Court is integrated into the routine that surrounds every judgment delivered by the twelve justices of the court, currently over seventy per year. Wednesday is judgment day. On that day a selection of judges comes into court and the

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designated judge reads out a summary of the judgment in open court. Several judgments may be delivered on the same day, each summary by a different judge.81 Immediately after the courtroom delivery, a copy of the full text of each judgment is made available on the court’s website. This is accompanied by a press summary which is also the basis for the judge’s courtroom speech, and a video of the judge delivering the summary of the judgment is available via YouTube.com. The Press Office is involved in every press summary and every video. The press summary, drafted initially by judicial assistants and approved by the relevant judges, is then made available to Ben Wilson and his deputy: [M]yself and my colleague Anthony, who is deputy head of communications, will probably spend some time on Monday clearing the press summaries which come in from the judicial assistants. They will have been drafting them on Friday and over the weekend. By Monday we usually want to be in a position to have them finalised for the Wednesday judgment hand down. We look at those to make sure that they are as jargon free as they might reasonably be. It is always a difficult balancing act … On Tuesday we are preparing the material to send out on Wednesday morning; so getting final versions of the press summaries and the judgments, checking that Anthony and I understand the outcomes, and looking ahead for the obvious questions we might get.82

But not all of the decisions of the SCUK are reported in the mass media. Ben Wilson suggested that between a quarter and a fifth of the Court’s decisions get reported, but only in a small number of the “quality press.” Wider coverage in the national press is limited to “one in every 8 or 9 cases.”83 Last but by no means least, the media-related work of the judicial communications staff needs to be put into the context of the day-to-day operation of the courts and judiciary. In the context of England and Wales, Stephen Ward explained: There are many thousands of [the judiciary] and very few of us. Most of them have no contact with the communications office in any form and certainly the Press Office in particular from one year to the next. They won’t have a need for a specialist or individual attention. They are rank and file members of the judiciary doing their job.84

With regard to the media, “If they are doing their job within reasonable circumstances, that won’t involve the Press Office.”85 These comments draw attention to the fact that judicial media communications initiatives work with an assumption and expectation that the “critical independences”

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operate with little or no intervention by the judicial communications media workers in the vast majority of cases.

4. Conclusion The point of departure for this chapter is the sea change within the judiciary which has seen the establishment of specialist judicial communications offices that incorporate media communications in all the jurisdictions that make up the UK. The objective has been to identify some of the main drivers behind the establishment of these new communication initiatives and offices. A more detailed history of the changing relations between the judicial branch of the state and the media still needs to be written. In many respects, the small institutional scale of the changes explored here poorly reflects their importance. The various activities they perform, be it providing press and media guidance and support to members of their respective judicial families, functioning as a one-stop shop for press and broadcast journalists, or developing educational resources for present and future citizens, are all of great importance. They are intimately connected to the ideal of open justice and respect for an independent judiciary as fundamental goals of a successful rule of law democracy. It has only been possible in this chapter to touch briefly on the impact of institutional location and funding upon the day-to-day operations of judicial media communication initiatives. As with many aspects of judicial image making, image management, and image use in the UK, much research still needs to be done. This chapter seeks to make a small but meaningful contribution to changing that state of affairs.

Bibliography Baum, Lawrence. Judges and their Audiences: A Perspective on Judicial Behavior. Princeton: Princeton University Press, 2006. Blumler, Jay G. “The Sound of Parliament.” Parliamentary Affairs 37 (1984): 250–66. Bybee, Keith. J., ed., Bench Press: The Collision of Courts, Politics and the Media. Stanford: Stanford Law and Politics, 2007. Chadwick, Andrew. “Britain’s First Live Televised Party Leaders debate: From News Cycle to the Political Information Cycle.” Parliamentary Affairs 64 (2011): 24–44. Cohen, Yoel. “News Media and the News Department of the Foreign Office.” Review of International Studies 14 (1988): 117–31.

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Cornes, Richard. “A Constitutional Disaster in The Making? The Communications Challenge Facing the United Kingdom’s Supreme Court.” Public Law (2013): 266–91. Davis, Richard. Justices and Journalists: The US Supreme Court and the Media. New York: Cambridge University Press, 2011. Drechel, Robert E. News Making in the Trial Courts. New York: Longman, 1983. Fishman, Mark. Manufacturing the News. Austin: University of Texas: 1980. Fox, Richard L., Robert W. Van Sickel & Thomas L. Steiger. Tabloid Justice: Criminal Justice in an Age of Media Frenzy. Boulder: Lynne Rienner, 2010. Gies, Lieve. Law and the Media: The Future of an Uneasy Relationship. Abingdon: Routledge, 2008. —. “A Villains Charter? The Press and the Human Rights Act.” Crime Media Culture 7 (2011): 167–83. Greer, Chris & Robert Reiner. “Mediated Mayhem: Media, Crime and Criminal Justice.” In The Oxford Handbook of Criminology, 5th Edition, edited by Mike Maguire, Rod Morgan & Robert Reiners, 245–78. Oxford: Oxford University Press, 2012. Haltom, William. Reporting on the Courts: How the Mass Media Cover Judicial Actions. Chicago: Nelson Hall, 1998. Hough, Mike & Roberts, Julian V. “Confidence in Justice: an International Review.” ICRP Research Paper No 3. London: Kings College, 2004. Johnston, Jane. “Public Relations in the Courts.” Australian Journal of Communications 28 (2001): 108–22. —. “Communicating Courts: A Decade of Practice in the Third Arm of Government.” Australian Journal of Communications 32 (2005): 77– 91. Judicial Office. Judicial Office Business Plan 2009–2010. London: Judicial Office, 2009. —. Judicial Office Business Plan 2010–2011. London: Judicial Office, 2010. —. Judicial Office Business Plan 2011–2012. London: Judicial Office, 2011. —. Judicial Office Business Plan 2012–2013. London: Judicial Office, 2012. —. Media Guidance for the Judiciary. London: Judicial Office, 2012. Leveson, Brian, Lord Justice. An Inquiry into the Culture Practices and Ethics of the Press. London: The Stationary Office, 2012.

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Malleson, Kate. The New Judiciary: The Effects of Expansion and Activism. Aldershot: Ashgate Dartmouth, 1999. Mawby, Rob C. Policing Images: Policing, Communication and Legitimacy. Cullompton: Willan Publishing, 2002. Moran, Leslie J. “Managing the News Image of the Judiciary: The Role of Judicial Communications Officers.” SORTUZ: Oñati Journal of Emergent Socio-legal Studies, forthcoming. —. “Mass Mediated ‘Open Justice’: Court and Judicial Reports in the Press in England and Wales.” Legal Studies (2013): 1–24. —. “Forming Sexualities as Judicial Virtues.” Sexualities 14 (2011): 273– 89. Mulcahy, Linda. Legal Architecture: Justice, Due Process and the Place of Law. Abingdon: Routledge, 2011. Page, Ben, Rhonda Wake & Ashley Ames. Public Confidence in the Criminal Justice System, Home Office Findings. London: Home Office, 2004: 221. Schultz, Pamela D. Courts and Judges on Trial: Analysing and Managing the Discourses of Disapproval. Berlin: Lit Verlag, 2010. Starks, Michael. “The Sound Broadcasting of Parliament.” The Political Quarterly 49 (1978): 208–16. Thompson, John B. Political Scandal: Power and Visibility in the Media Age. Cambridge: Polity Press, 2000. Tulloch, John. “Policing the Public Sphere—The British Machinery of News Management.” Media Culture Society 15 (1993): 363–84. Wilson, Keith. “The Foreign Office and the ‘Education’ of Public Opinion before the First World War.” The Historical Journal 26 (1983): 403– 11.

Notes 1

Yoel Cohen, “News Media and the News Department of the Foreign Office,” Review of International Studies 14 (1988): 117–31; Lord Justice Brian Leveson, An Inquiry into the Culture Practices and Ethics of the Press (London: The Stationary Office, 2012); John Tulloch, “Policing the Public Sphere—the British Machinery of News Management,” Media Culture Society 15 (1993): 363–84; Keith Wilson, “The Foreign Office and the ‘Education’ of Public Opinion before the First World War,” The Historical Journal 26 (1983): 403–11. 2 Jay G. Blumler, “The Sound of Parliament,” Parliamentary Affairs 37 (1984): 250–66; Andrew Chadwick, “Britain’s First Live Televised Party Leaders Debate: From News Cycle to the Political Information Cycle,” Parliamentary Affairs, 64 (2011): 24–44; Michael Starks, “The Sound Broadcasting of Parliament,” The Political Quarterly 49 (1978): 208–16.

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Rob C. Mawby, Policing Images: Policing, Communication and Legitimacy (Cullompton: Willan Publishing, 2002). 4 Leveson, An Inquiry into the Culture Practices and Ethics of the Press, Vol. 2, Ch. 2.3 (London: The Stationary Office, 2012). 5 Kate Magee, “Met Police Due to Cut 50 Jobs Due to Budget Cuts,” PR Week April 5, 2013, http://www.prweek.com/uk/news/1176905/ (accessed July 11, 2013). 6 Lawrence Baum, Judges and their Audiences: A Perspective on Judicial Behavior (Princeton: Princeton University Press, 2006); Keith Bybee, ed., Bench Press: The Collision of Courts, Politics and the Media (Stanford: Stanford Law and Politics, 2007). 7 Robert E. Drechel, News Making in the Trial Courts (New York: Longman, 1983); Chris Greer & Robert Reiner, “Mediated Mayhem: Media, Crime and Criminal Justice,” in The Oxford Handbook of Criminology (5th edition), ed. Mike Maguire, Rod Morgan & Robert Reiner (Oxford: Oxford University Press, 2012), 245–78. 8 Lord Justice Igor Judge, The Judiciary and the Media. London, Judiciary of England and Wales and Tribunal Judiciary, 2011: 1, http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj-speechjudiciary-and-the-media-100406.pdf (accessed July 22, 2013). 9 Baum, Judges and their Audiences: A Perspective on Judicial Behavior. 10 Leslie J. Moran, “Forming Sexualities as Judicial Virtues,” Sexualities 14 (2011): 273–89. 11 Lord Justice Igor Judge, Broadcasting Justice. London, Judiciary of England and Wales and Tribunal Judiciary, 2005, http://www.judiciary.gov.uk/media/speeches/2005/broadcasting-justice (accessed July 19, 2013). 12 Judicial Press Office, Media Guidance for the Judiciary (London: Judicial Office, 2012), 3. 13 Ibid., 3. 14 Prue Innes, The Courts and the Media: Report of 1998 Churchill Fellowship, 1998: 14, http://churchilltrust.com.au/site_media/fellows/Innes_Prue_1998.pdf (accessed July 12, 2013). 15 Richard Davis, Justices and Journalists: The US Supreme Court and the Media (New York: Cambridge University Press, 2011), 195. 16 Innes, The Courts and the Media: Report of 1998 Churchill Fellowship, 13. 17 Jane Johnston, “Public Relations in the Courts,” Australian Journal of Communications 28 (2001): 111. 18 Jane Johnston, “Communicating Courts: A Decade of Practice in the Third Arm of Government,” Australian Journal of Communications 32 (2005): 77–91; Innes, The Courts and the Media: Report of 1998 Churchill Fellowship. 19 Innes, The Courts and the Media: Report of 1998 Churchill Fellowship; Johnston, “Public Relations in the Courts,” 108–22. 20 Lieve Gies, Law and the Media: The Future of an Uneasy Relationship (Abingdon: Routledge, 2008): Ch. 7.

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Innes, The Courts and the Media: Report of 1998 Churchill Fellowship, 10–11. Innes, The Courts and the Media: Report of 1998 Churchill Fellowship, 9–11. 23 Innes, The Courts and the Media: Report of 1998 Churchill Fellowship, 10. 24 House of Lords Select Committee on the Constitution. Minutes of Evidence. London: House of Lord, 2006–7: January 24 2007, Question 179, http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.ht m (accessed July 17, 2013). 25 Kate Malleson, The New Judiciary: The Effects of Expansion and Activism (Aldershot: Ashgate Dartmouth, 1999), 193. 26 Innes, The Courts and the Media Report of 1998 Churchill Fellowship, 10; Malleson, The New Judiciary: The Effects of Expansion and Activism, 193–94. 27 Lord Chief Justice Lord Phillips, The Lord Chief Justice’s Review of the Administration of Justice in the Courts. London: The Stationary Office, 2008: 55, http://www.official-documents.gov.uk/document/hc0708/hc04/0448/0448.pdf (accessed July 11, 2013). 28 Alison Houston, Transcript of an Interview with Alison Houston. September 9, 2013, 1. Copy on file with the author. 29 The Judiciary and Courts (Scotland) Act 2008 is a law of the Scottish Parliament with a similar separation of powers agenda. It establishes the Lord President as Head of the Judiciary and places a number of responsibilities on the Lord President. There is no reference in the Act to the judicial communications office. 30 House of Lords Select Committee on the Constitution. Minutes of Evidence. London: House of Lords, 2006–7: January 24, 2007 response to question 88. 31 House of Lords Select Committee on the Constitution. Minutes of Evidence. London: House of Lords, 2006–7: January 21, 2007, response to question 213. 32 Lord Hope, “Taking the Case to London—Maybe It’s Not Over After All,” March 12, 2010, 4. London: Supreme Court of United Kingdom, http://www.supremecourt.gov.uk/docs/speech_100312.pdf (accessed July 22, 2013). 33 Richard Cornes, “A Constitutional Disaster in the Making? The Communications Challenge Facing the United Kingdom’s Supreme Court.” Public Law (2013), 268. 34 Sian Lewis, Transcript of an Interview with Sian Lewis, Head of Communications, UK Supreme Court. November 24, 2009, 8. On file with the author. 35 Ibid. 36 Lord Chief Justice Igor Judge, Speech by Lord Judge Lord Chief Justice of England and Wales: Society of Editors Annual Conference. London, Judiciary of England and Wales and Tribunal Judiciary, 2009, 2; http://www.judiciary.gov.uk/media/speeches/2009/speech-lord-judge-17112009 (accessed May 29, 2013). 37 Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Abingdon: Routledge, 2011), Ch. 5. 38 Lord Justice Igor Judge, Broadcasting Justice. London, Judiciary of England and Wales and Tribunal Judiciary, 2005, 1–2.; accessed July 19, 2013. http://www.judiciary.gov.uk/media/speeches/2005/broadcasting-justice. 22

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John B. Thompson, Political Scandal: Power and Visibility in the Media Age (Cambridge: Polity Press, 2000), 35. 40 These changes are far from being a unique or peculiar development impacting the UK. See Innes, The Courts and the Media. Report of 1998 Churchill Fellowship. 41 Marcel Berlins, “Loss of Court Reporters is a Blow to Open Justice,” Guardian, December 7, 2009; http://www.guardian.co.uk/commentisfree/2009/dec/06/berlins-writ-large-courtreporters (accessed September 3, 2013); David Banks, “Court Reporting is a Dying Art—and Lawyers Should be Worried,” The Guardian, October 19, 2010 (accessed September 3, 2012). http://www.guardian.co.uk/law/2010/oct/19/courtreporting-dying-art-lawyers; David Banks, “Trial by Twitter,” The Guardian, August 14, 2012 http://www.guardian.co.uk/law/2012/aug/14/court-reporters-twitter (accessed September 9, 2012). 42 Richard L. Fox, Robert W. Van Sickel & Thomas L Steiger, Tabloid Justice: Criminal Justice in an Age of Media Frenzy (Boulder: Lynne Rienner, 2010). 43 Leslie J Moran, “Mass Mediated ‘Open Justice:’ Court and Judicial Reports in the Press in England and Wales,” Legal Studies (2013): 1–24. 44 Gerry Curran, Transcript of an Interview with Gerry Curran. June 11, 2012, 15. Copy on file with the author. 45 Elizabeth Cutting, Transcript of an Interview with Elizabeth Cutting. August 30, 2012. Copy on file with the author. 46 Cornes, “A Constitutional Disaster in the Making?”, 268. 47 House of Lords Select Committee on the Constitution. Minutes of Evidence. London: House of Lords, 2006–07: December 6, 2006, response to question 101. 48 House of Lords Select Committee on the Constitution. Minutes of Evidence. London: House of Lords, 2006-7: December 6, 2006, response to question 101. 49 Ben Page, Rhonda Wake & Ashley Ames. Public Confidence in the Criminal Justice System, Home Office Findings (London: Home Office, 2004), 221; Mike Hough and Julian V. Roberts, Confidence in Justice: An International Review, ICRP Research Paper No 3. (London: Kings College, 2004); Richard Moorhead, Mark Sefton & Lesley Scanlan, Just Satisfaction? What Drives Public and Participant Satisfaction with Courts and Tribunals, Research Series 5/08. London: Ministry of Justice, 2008; https://www.law.cf.ac.uk/research/pubs/repository/1854.pdf (accessed July 18, 2013). 50 Judicial Office, Judicial Office Business Plan 2009–2010 (London: Judicial Office, 2009); Judicial Office, Judicial Office Business Plan 2010–2011 (London: Judicial Office, 2010); Judicial Office, Judicial Office Business Plan 2011–2012 (London: Judicial Office, 2011); Judicial Office, Judicial Office Business Plan 2012–2013 (London: Judicial Office, 2012). 51 House of Lords Select Committee on the Constitution. Minutes of Evidence. London: House of Lords, 2006–07: March 7, 2007, response to Q 340; http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.ht m (accessed July 17, 2013).

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Lord Phillips, Transcript of an Interview with Lord Phillips President of Supreme Court. November 22, 2011, 3. Copy on file with the author . 53 Lord Chief Justice Igor Judge, The Judiciary and the Media. London, Judiciary of England and Wales and Tribunal Judiciary, 2011, 2; http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj-speechjudiciary-and-the-media-100406.pdf (accessed July 22 2013). 54 Pamela D. Schultz, Courts and Judges on Trial: Analysing and Managing the Discourses of Disapproval (Berlin: Lit Verlag, 2010). 55 Moran, “Mass Mediated ‘Open Justice’: Court and Judicial Reports in the Press in England and Wales,” 1–24. 56 House of Lords Select Committee on the Constitution. Minutes of Evidence. London: House of Lords, 2006–07.: March 7, 2007, response to Q 340. 57 Malleson, The New Judiciary: the Effects of Expansion and Activism. 58 Vernon Bogdanor, “Accountability and the Media: Parliament and the Judiciary: The Problem of Accountability,” Speech, February 9, 2006: unpaginated. UK Public Administration Consortium; http://ukpac.wordpress.com/bogdanor-speech/ (accessed July 27, 2013). 59 Vernon Bogdanor, “Accountability and the Media: Parliament and the Judiciary: The Problem of Accountability.” Cf. Lieve Gies, “A Villains Charter? The Press and the Human Rights Act,” Crime Media Culture 7 (2011): 167–83. 60 Lord Chief Justice Igor Judge, Transcript of an Interview with Lord Judge, Lord Chief Justice, September 27, 2012, 5. Copy on file with the author. 61 Lord Justice Igor Judge, The Judiciary and the Media. London, Judiciary of England and Wales and Tribunal Judiciary, 2011, 5–6; http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj-speechjudiciary-and-the-media-100406.pdf (accessed July 22, 2013). 62 Elizabeth Cutting, Transcript of an Interview with Elizabeth Cutting, August 30 2012, 2. 63 House of Lords Select Committee on the Constitution. Sixth report. London, House of Lords, 2006–07. Ch. 1, para 49; http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.ht m (accessed July 17, 2013). 64 House of Lords Select Committee on the Constitution. Sixth report. London, House of Lords, 2006–7, Ch. 1, Table 1. 65 Ibid., Ch. 1, para 49. 66 Ibid., Ch. 5, para 194. 67 William Haltom, Reporting on the Courts: How the Mass Media Cover Judicial Actions (Chicago: Nelson Hall, 1998); Mark Fishman, Manufacturing the News (Austin: University of Texas, 1980). 68 Fishman, Manufacturing the News, 74. 69 Ibid., 70. 70 Moran, “Mass Mediated ‘Open Justice:’ Court and Judicial Reports in the Press in England and Wales.” 71 European Network of Councils for the Judiciary. Justice, Society and the Media. Report 2011–2012: Ch 6;

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http://www.csm.it/ENCJ/pdf/Report%20on%20Justice%20Society&Media.pdf (accessed July 22, 2013). 72 Other staff come under “Corporate communications” dealing with the judicial intranet and web-related work. There is a similar division amongst staff in the UK Supreme Court communications office. 73 Houston, Transcript of an interview with Alison Huston Chief Judicial Communications Officer, Lord Chief Justice Northern Ireland Office, 20. 74 The judicial statistics for England and Wales are available at http://www.judiciary.gov.uk/publications-and-reports/statistics (accessed September 27, 2013). 75 Elizabeth Cutting, Experiences of the Scottish Judiciary. Video, Conference on Perceptions of Law in Society, Ljubljana, 2007; http://videolectures.net/elizabeth_cutting/ (accessed July 10, 2013). 76 Houston, Transcript of an Interview with Alison Huston Chief Judicial Communications Officer, Lord Chief Justice Northern Ireland Office, 7. 77 Fishman, Manufacturing the News, 74. 78 Judicial Press Office, Media Guidance for the Judiciary (London: Judicial Office, 2012), 3. 79 Stephen Ward, Transcript of an Interview with Stephen Ward, Head of News, and Andrew Tuff, Head of Corporate Communications, Judicial Communications Office for England and Wales. November 6, 2012, 6. Copy on file with the author. 80 Other factors are explored in Leslie J. Moran, “Managing the News Image of the Judiciary: The Role of Judicial Communications Officers,” SORTUZ: Oñati Journal of Emergent Socio-legal Studies, forthcoming. 81 As of January 2013 a video recording of these events is available via YouTube http://www.youtube.com/uksupremecourt (accessed October 9, 2013). 82 Ben Wilson, Transcript of an Interview with Ben Wilson Head of Communications UK Supreme Court, May 29, 2013,7. Copy on file with the author. 83 Wilson, Transcript of an Interview with Ben Wilson Head of Communications UK Supreme Court, 10. 84 Ward, Transcript of an Interview with Stephen Ward, Head of News, and Andrew Tuff Head of Corporate Communications, Judicial Communications Office for England and Wales, 4. 85 Ibid., 5.

CHAPTER TWELVE POPULAR CULTURE AND THE EUROPEAN COURT OF JUSTICE: THE ANONYMOUS ENGINE OF THE EUROPEAN INTEGRATION PROCESS STEFANO MONTALDO

1. Judicial Activism and Popular Images of the Court of Justice In Jean Monnet’s prophetic view of Europe,1 former enemy peoples had to develop common policies for their own economic and social benefit under the guidance of a shared set of institutions. From both an institutional and a functional point of view, the European Court of Justice (ECJ) reflects this early vision of a unified Europe, where national differences would no longer provide grounds for wars or harsh controversies. In this context, the court was designed as an essential gear of the overall mechanism, being asked to strive for a balanced transition between the recent past and the future evolution of the European Union (EU) legal order. The Luxembourg Court has taken its task very seriously. In fact, it has often been compared to a silent but powerful engine, boosting the European integration process through its proactive interpretative activity.2 Indeed, many of the founding advances of the European path have been led or fostered by the EU judiciary, thereby helping to resolve political hesitations and controversies. One of the key factors that allowed the court to play such an essential role has been identified as the “preference for Europe” enshrined in its genetic code.3 The court has been entrusted with the task of reconciling the diversities and complexities of the entangled EU legal scenario in order to reach the primary and superior objective of an ever closer union among the peoples of Europe.4 Also, thanks to the geographical enlargements of the

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Union and the advances of the substantive integration process, this judicially-driven reconciliation has gradually given shape to a truly complex legal phenomenon in which a common constellation of different principles, values, traditions and rules draws the observers’ gazes to the sky.5 Moreover, while performing its fundamental duty of ensuring the uniform and coherent interpretation and application of EU formal rules at the national level,6 the ECJ has shaped the informal and popular image of Europe as well as the Europeans. The shift from its main institutional tasks to the slow molding of a “united in diversity” Europe has proven to be extremely rapid. The ECJ, therefore, by means of its judgments, has been offering its own view of the common European identity and its implications for individuals.7 Almost paradoxically, however, these wider consequences of the activity of the Luxembourg Court have not been generally acknowledged, especially at the popular level. As some scholars have highlighted, the ECJ has been treated with “benign neglect by the powers that be and the mass media.”8 The court publishes its judgments on its official website (www.curia.europa.eu) on the same day of the ruling and often translates them in each of the twenty-four official languages of the EU. The website has been recently renewed and includes a web-pressroom collecting a summary of the most relevant judgments. At the same time, each citizen can have access to a brief personal presentation of the judges, together with their pictures. However, the ECJ is totally absent from the media and has an extremely limited internet coverage, usually confined within the walls of universities and law firms. Especially in times of economic crisis, European affairs generally do not attract the attention of the public, so that any news from Brussels or Luxembourg is carefully handled by the media and usually considered less important and eye-catching. Therefore, despite having established the “Tables of the Law” of the EU,9 the court enjoys quite an anonymous image and, in general, the public is barely aware of its influence on their daily lives. This situation is even more surprising if we take into account that, according to data provided by the European Commission, almost 80% of national legislation is directly modeled or indirectly influenced by EU law and the activity of EU institutions. The deep dividing line between the role of the court and the image perceived from the outside is actually the key premise of the present chapter. The analysis tries to consider this dichotomy from two different perspectives by first taking into consideration some institutional elements characterizing the court and influencing both its anonymous image and its impressive contribution to the development of the European legal order. Sec-

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ondly, the analysis focuses on the main ways through which the ECJ has formally or informally shaped the image of Europe and its peoples. The chapter identifies possible explanations for the current image of the Court and points out some of the problems this causes. Moreover, from an opposite point of view the proposed arguments describe the relationship between the activity of the court and the shaping of European identity, as far as some selected and specific fields of EU law are concerned, such as citizenship and fundamental rights.

2. An Institutional Approach: The Anonymous Image of the Court and Its Multicultural Essence (a) At the origins of the ECJ: factors influencing the anonymous image Several authors have tried to provide explanations for the phenomenon of the court’s being cut off from the core of the public debate in Europe, despite its increasing institutional relevance. Some historians, for instance, tend to find the roots of the anonymous image of the court in its origins. The ECJ was conceived during a period of transitional justice after the Second World War.10 Because of the delicacy of the subject, there was little debate on its establishment and the subsequent institutional arrangements. Such debate was generally silenced in favor of a wide consensus among the founding states on compromise solutions. The French proposal for a court, modeled upon the Conseil d’Etat and flanked by Advocates General, was laid down in the 1951 Treaty of Paris on the Coal and Steel Community, but was mixed up with some elements of the German view of a permanent court.11 The location of the Court was the subject of intense disagreement and exhausted negotiations deep into the night, until it was finally decided to place it in Luxembourg, which in part explains its anonymous image.12 Other scholars added that, during its first decades, the court mainly dealt with highly technical matters, which could hardly be of any direct interest to the public. Although the cases brought to the ECJ often concerned questions that could sharply influence the lives of the citizens, these cases did not raise ethical issues or questions of right or wrong. The economic orientation of the European integration process appeared to confine the role of the court to a merely legal and technical role. These perceptions were also strengthened by a sort of European institutional attitude to the judiciary. The founding member states all belonged to a strict civil law tradition and considered the judiciary as a third and super-

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partes constitutional power, endowed with the duty to enforce and apply written laws and to scrutinize private and public conduct from above, but not to function in an activist or creative manner that would draw unnecessary attention to itself. The idea of a judge whose “independence is beyond doubt” is expressly enshrined in the provisions of the Treaties regarding the ECJ13 and has helped to maintain an anonymous image of the whole court.14 In other words, the public self-restraint of the court descended from the attitude of European continental states toward the constitutional role of the judiciary. Besides this, according to some authors15 the anonymity of the ECJ is in stark contrast to the American public’s perception of its distant relative —the United States Supreme Court. The political sensitivity of many questions brought before the American court and the direct institutional link between the justices and the President, who appoints them, in part explain the sacred vision of justice cultivated in the United States by the powerful institutional role of the Supreme Court.16

(b) Re-shaping the image of the court: the deepening and widening of the European integration process and its influences on the role of the court The previously mentioned institutional considerations describe the atmosphere that influenced the establishment of the ECJ at its origins, but do not describe the subsequent evolution of the court and the current scenario. As a matter of fact, several factors contributed to a sharp enhancement of the role of the court. On the one hand, these factors can be linked to the increased speed and complexity of the European integration process. On the other, they involve the approach the court took to its own tasks. As to the first category, the subsequent geographical enlargement of the EU has slowly transformed the composition of the ECJ. Since every member state is entitled to appoint its own judge, the court is enriched by the mingling of twenty-eight different legal cultures. The convergence of these legal backgrounds is mirrored in some functional aspects of the activity of the ECJ, such as the style and the wording of the judgments, multilingualism, the interpretative criteria the court resorts to, and the attention paid to national legal traditions in the court’s reasoning.17 As far as the latter questions are concerned, the ECJ has constantly held that its points of reference for the interpretation of EU law provisions are “the spirit, the general scheme and the wording.”18 As a consequence, the court primarily resorts to literal, teleological and contextual interpretation. In order to support its views, the court sometimes makes reference to

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a set of further concurring criteria, such as subjective or historical interpretation, through which it seeks to ascertain the drafters' intention, for instance by means of the analysis of the legislative history.19 Among these ancillary interpretative methods, the resort to the analysis of rules, principles or rooted legal traditions of the member states provides the court with useful legal arguments. This approach is usually referred to as comparative interpretation,20 even if this qualification is highly controversial. In fact, this specific form of judicial reasoning could be considered an intrinsic part of the European system that intertwines national legal orders and EU law.21 Moreover, the ECJ has traditionally assumed the autonomy and completeness of the EU legal order, claiming that the European system is able to determine its own criteria of validity and to provide for normative responses to any legal question emerging within its jurisdiction. Nonetheless, these claims have faced several challenges, first of all due to the fact that the mandate of the EU legal order itself rests upon member states and that its constitutive powers have to be balanced with national legal orders. In light of the intrinsic peculiarities of the integration process, the wording of many EU law provisions is general or incomplete, thereby compelling the ECJ to refer to national rules and principles in order to elaborate autonomous concepts of EU law. The “appeal” to the principles common to the member states can be read as an expression of the need to fill the gaps or to clarify the ambiguities of EU legal texts. It can also be considered as an affirmation of the autonomy of the European legal order. At the same time, however, the comparative method appears to be an outcome of the multi-cultural composition of the court. In this perspective, it is also a powerful source of legitimacy and credibility of the activity of the court and the EU as a whole. Interpretative solutions grounded on national legal traditions or taken after a comprehensive analysis of the national legal background might produce a higher degree of institutional and social acceptance. This strategy could raise interest in the court’s activity, especially in case highly debated issues are at stake.22 Increased political legitimacy could secure a smoother and more uniform application of EU law by national authorities, and in particular by national judges. In this regard, the main factors leading the court to the assessment of the national legal landscape are the overall degree of uniformity, the institutional, political or moral importance of the question and the possibility to identify a true interest of the European legal order. The different combinations of these elements of analysis would eventually lead the court to embrace rules and principles known at national level to bridge gaps in the

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European system or to support a certain interpretation of an existing concept. For instance, the court borrowed from national legal orders, and in particular from the German one, the principle of proportionality and the protection of legitimate expectations, which are now listed among the general principles of the EU legal order.23 On the contrary, when national laws sharply differ, especially in the case of highly controversial or debated ethical or political issues, the court often steps back to avoid the imposition of a specific solution on the member states. This situation is exemplified by the Grant case,24 where a claim of discrimination against a same-sex cohabiting couple was at stake. Ms. Grant’s employer refused to provide a travel concession for partners that was usually afforded to married couples or heterosexual partners with a stable relationship. Despite the adverse opinion of Advocate General Elmer, the court stated that no breaches of the principle of equality had occurred. The ECJ reached this conclusion after having considered the rules in force in several member states, thus acknowledging an extreme variety of positions and a general limitation on the rights conferred to same-sex unmarried couples. According to the Luxembourg Court, therefore, the benefit invoked by the claimant could not be granted under EU law. Instead, it was for the national legislature alone to adopt national measures affecting the situation. A further relevant institutional consideration pertains to the widening and deepening of the jurisdiction of the court, which mirrors the analogous path walked by the process of integration among the member states. Thanks to the subsequent treaty reforms and the daily legislative activity of the European Parliament and the Council, the EU has been acquiring increasingly extensive fields of exclusive or shared competence, thereby enlarging the sphere of intervention of the court. This progressive phenomenon has been particularly evident after the recent Lisbon reform, through which the member states tried to better identify and enshrine in the treaties the competences conferred to the European institutions.25 Moreover, after the Lisbon Treaty the former three pillars of the EU have been unified26 so that the jurisdiction of the court has been generalized to all the policies ruled by the treaties, with the exception of the common security and defense policy.27 In particular, the ECJ is now entitled to rule in the field of judicial cooperation in criminal matters, a very sensitive subject previously removed from its jurisdiction to a large extent.28 Moreover, the express acknowledgement of the primary legal effects of the Charter of Fundamental Rights of the EU offers new tools to the ECJ to intervene in cases concerning the rights of individuals.29

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The enlargement of the EU to new member states also helped to strengthen the role of the court as a guarantor of the coherent and uniform development of the EU legal order, despite extremely varied national (not only legal) backgrounds. The court has been playing a catalyst role essential to the application of EU law, especially after the 2004 enlargement of ten new states, most of which were situated in Eastern Europe.30 At the same time, another possible explanation of the anonymous image of the court lies in the relationship between the EU legal order and the national ones. In fact, due to the particular features of the European system, where acts adopted in Brussels have to be applied at the local level all around Europe, it is for national authorities to ensure the daily functioning of the system. Therefore, even if the court states that the treaties are the founding texts of a community based on the rule of law,31 thereby enhancing its role as a meta-constitutional court of this newly shaped legal system,32 the stage must be shared with national judges. Taking into account the structure of the European legal order, the ECJ has constantly and consistently affirmed that national judges are the natural judges of the European legal order. In fact, they are essential branches of the EU judiciary, as they are in the best position to effectively apply EU law. Being national judges bound by the duty to apply EU law at the local level, they function as institutional filters between the ECJ and the perception of its activity among the public. Litigants before a national judge are seldom aware that their case falls under the field of application of EU law and would consequently ignore the key programmatic and interpretative role of the Court of Justice.

(c) The court modelling the image of Europe and of its peoples The court has always felt itself an essential component of the EU political project. The image the court has elaborated for itself is reflected in the landmark judgments it has delivered over the years, which have clearly shaped the EU legal order, and also in the judicial activism that has traditionally characterized the attitude of the court. Such approach is enthusiastically expressed in Advocate General Jarabo Colomer’s words in Morgan and Bucher joined cases: According to a Latin American jurist, there are three kinds of judge: the artisan, a veritable automaton who, using only his hands, produces mass judgments in industrial quantities, without lowering himself to consider the human aspects or the social order; the craftsman, who uses his hands and his brain, using traditional interpretative methods, which inevitably lead him merely to represent the legislature’s intention; and the artist, who, us-

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There are many examples of how the court contributed to the development of the EU legal order and shaped the image of Europe. In fact, many cornerstone principles of the EU derive from its judgments, such as the primacy of EU law, the direct effect doctrine, state liability for breach of EU law, the duty of consistent interpretation, the multidirectional interpretation of the principle of sincere cooperation, and the paramount role of fundamental rights.34 The judicial saga on the recognition of fundamental rights as legal sources inherent to the system of the treaties is particularly interesting in this regard. As a matter of fact, until the Maastricht reform, the Treaty on the European Community contained no express references to the protection of fundamental rights, so that some national constitutional courts—the German one in particular—wanted to reserve their right to have the last word on this issue, even in case EU law provisions would be at stake.35 For its part the court held that, despite the text of the treaty, fundamental rights were to be considered essential components of the EU legal order and could be derived from external sources of inspiration such as the European Convention of Fundamental Rights of the Council of Europe,36 other international legal instruments on the subject,37 and the shared constitutional traditions of the member states.38 The efforts put in place by the ECJ eventually led to the proclamation of the Charter of Fundamental Rights of the European Union which, after the Lisbon reform, has the same legal value as the treaties. As a consequence, fundamental rights are the lens through which the court addresses EU law and defines the image of Europe as a main actor in the promotion and protection of the rights of individuals on the global stage,39 as testified by the Kadi cases.40 Indeed, the court has been trying to push its conquests a step further. In fact, according to established case law, the member states are bound by duty to respect the general principles of the European legal order and the fundamental rights, even when they are derogating from EU law. Moreover, even if the charter applies to member states only when they act within the scope of the EU legal order, the recent case law of the ECJ shows that national situations involving indirect links to the supranational dimension can suffice to make them fall under the jurisdiction of the court.41 There-

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fore, the court has given a decisive contribution to the establishment of a fundamental rights-based EU, where the rights of individuals are the guiding light for European institutions and member states and where these rights can be enforced before EU and national jurisdictions, in order to be effectively applied and protected. The court walked a similar path with regard to the implications of European citizenship, provided by Articles 20–24 of the TFEU. The court has gradually strengthened the status of EU citizens, avoiding any attempt to limit the prerogatives recognized by the treaties. The safeguard of the effective implementation of the provisions on the EU citizenship was at stake in Micheletti,42 when the court held that member states cannot jeopardize the effects of the attribution of the national citizenship by another member state. According to the court, EU citizenship has enriched the national one to such an extent that this solution also applies in case national citizenship was obtained instrumentally, for instance in order to benefit from prerogatives that would otherwise be refused.43 More recently, the court also stated that national measures negatively affecting the rights conferred by the treaties on the basis of the European citizenship are contrary to EU law.44 In fact, the European citizenship is at the core of the constellation of rights and freedoms provided by the treaties. With an exception made for purely internal situations, no limitation to its effects can be accepted. The court, in conclusion, has reached unexplored shores, helping to build up a fundamental rights-centered Europe. In this regard, the contribution of the court to an increasingly true European identity is properly summed up by Advocate General Francis Jacobs' proud words in the Konstantinidis case in 1993—any European citizen is “entitled to say ‘civis europaeus sum,’ and to invoke that status in order to oppose any violation of his fundamental rights.”45

3. Conclusion As this brief analysis has tried to underline, the ECJ has proven to be capable of walking and evolving with society, avoiding the legal conservatism that often affects national jurisdictions. The whole EU has developed together with the court, facing the challenge to ground the European integration process on the rights of individuals as well as political and economic concerns. In this way, the court has also concurred to shape and strengthen a truly European culture, or at least a common image of the Europeans. The Nobel Prize for Peace recently awarded to the EU in 2012

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is just one of the outcomes of the legal and popular European culture of the last sixty years. Despite this, as already stated, the Court of Justice is usually excluded from the public arena and enjoys a somewhat anonymous popular image. Indeed, as a technical institution it is usually listed among the many powerful bodies comprising what has been called “the European megabureaucracy,” whose functioning is criticized because of the lack of transparency and democratic legitimacy. What is more, the court is often confused with the Strasbourg European Court of Human Rights, the latter being considered the true and sole guardian of fundamental rights in the European continent. I believe that the spread of popular consciousness on the role of the ECJ would be quite desirable. The knowledge of the legal remedies it provides and of the principles it has been affirming could produce a higher degree of compliance with EU law to the benefit of its uniform and coherent implementation and interpretation at national level. Indeed, an increase in popular awareness of the court’s contributions and powers could encourage individuals to challenge the inconsistency of their national legal orders with EU law, especially when their rights are at risk. Depending on the situation, they could invoke before a national judge the primacy of EU law, the duty of consistent interpretation of national law with EU provisions, or even the liability of the member state for its failure to comply with the duties imposed by EU law.

Notes 1 Frances Lynch, “The Role of Jean Monnet in Setting up the Coal and Steel Community,” in Die Anfänge des Schuman-Plans 1950–51, ed. Klaus Schwabe (Hanover: Baden Baden, 1988), 117. 2 Antonio Tizzano, “Qualche riflessione sul contributo della Corte di giustizia allo sviluppo del sistema comunitario,” Il Diritto dell’Unione Europea 14 (2009), 142; Mark Dawson, Bruno de Witte & Elise Muir, Judicial Activism at the European Court of Justice (Cheltenham: Elgar Publishing, 2013). 3 “The preference for Europe is determined by the genetic code transmitted to the Court by the founding fathers.” See Federico G. Mancini & David T. Keeling, “Democracy and the European Court of Justice,” Modern Law Review 57 (1994), 175. 4 In this regard, the EU motto “united in diversity” metaphorically encapsulates the main features and objectives of the European legal order. 5 For the purposes of the present chapter the focus is on the legal perspective, but the theoretical elaboration of the idea of national diversity within the EU has been widely scrutinized on the basis of various interdisciplinary approaches. The idea of

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the constellation itself derives from Habermas’s political reflections on the ways in which national sovereignty is shaped and transformed by the globalization process. See Jürgen R. Habermas, The Postnational Constellation (Cambridge: MIT Press, 2001). 6 Article 19 TFEU, former article 220 TCE, generally addressing the functions of the ECJ, states that the latter has to “ensure that in the interpretation and application of the treaties the law is observed.” 7 See Joseph H. H. Weiler, “The Transformation of Europe,” Yale Law Journal 100 (1991): 2403. 8 Eric Stein, “Lawyers, Judges and the Making of a Transnational Constitution,” American Journal of International Law 75 (1981), 1. 9 Tamm compares the solemn wording of some leading judgments of the Court to the Biblical image of the delivery of the Tables of the Law on Mount Sinai. In particular, referring to the Van Gend en Loos case, the author underlines the importance of the principles there affirmed: “[S]o the judges on Mount Kirchberg told the ‘peoples’ of Europe that the era of a new legal order had begun.” See Ditlev Tamm, “The History of the European Court of Justice since its Origin,” in The Court of Justice and the Construction of Europe. Analyses and Perspectives on Sixty years of Case Law, ed. Allan Rosas, Egils Levits & Yves Bot (The Hague: Asser Press, 2013), 24. 10 To this extent, the establishment of the ECJ and other international courts can be related to the reforms of many national judicial systems carried out after the Second World War. See Ditlev Tamm, Comparative Supreme Justice, Oñati SocioLegal Series, n. 9/201, 8 http://opo.iisj.net/index.php/osls/article/viewFile/173/132 (accessed August 5, 2013). 11 Maurice Lagrange, “The Court of Justice of the European Communities from the Schumann Plan to the European Union,” in Mélanges Fernand Dehousse, ed. Fernand Nathan (Paris: Editions Labor, 1979), 127. 12 See Donald G. Valentine, The Court of Justice of the European Communities: Jurisdiction and Procedure (London: Stevens & Sons, 1965), 23. 13 See article 253(1) TFEU, former article 223 TEC. The provision also adds that judges must possess the qualifications required for appointment to the highest judicial offices in their respective countries or be jurisconsults of recognized competence. 14 Hjalte Rasmussen, On Law and Policy in the European Court of Justice (Dordrecht: Martinus Nijhoff Publishers, 1986), 45. 15 See, among others, Mauro Cappelletti, Monica Seccombe & Joseph H. H. Weiler, Integration through Law: Europe and the American Federal Experience (Berlin: Walter de Gruyter, 1986); more recently, Richard L. Pacelle, Brett W. Curry & Brian W. Marshall, Decision Making by the Modern Supreme Court (Cambridge: Cambridge University Press, 2011). 16 This vision could be evoked by the palais of the Supreme Court of the United States, whose facade is a copy of the ancient Greece Doric temple of Artemis, in Epheso. The pediment of the temple quotes “Equal Justice Under Law.” Even if this comparison seems picturesque, it has to be borne in mind that the differences

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between these two courts are noteworthy. In general terms, the Supreme Court is responsible for deciding major questions of federal law and the overall management of the judiciary. On the contrary, the mandate of the ECJ is narrower, since the court is asked to ensure the correct and coherent application and interpretation of EU law to allow for the objectives set by the treaties to be achieved. 17 See Mattias Derlén, Multilingual Interpretation of European Union Law (Alphen aan den Rijn: Wolters Kluwer International, 2009), 32. 18 See the judgment of the Court of February 5, 1963, case 26/62, Van Gend & Loos v. Netherlands Inland Revenue Administration, ECR 3. Grainne de Burca & Joseph H. H. Weiler, The European Court of Justice (Oxford: Oxford University Press, 2001); Hanneke Senden, Interpretation of Fundamental Rights in a Multilevel Legal System. An Analysis of the European Court of Human Rights and the Court of Justice of the European Union (Antwerp: Intersentia, 2011). 19 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Oxford: Hart Publishing, 2013), 56. 20 In general see J. Mertens de Wilmars, “Le droit comparé dans la jurisprudence de la Cour de justice des Communautés européennes,” Journal des Tribunaux 110 (1991), 37; Koen Lenaerts, “Interlocking Legal Orders in the European Union and Comparative Law,” International Comparative Law Quarterly 52 (2003): 873. 21 Pierre Pescatore, “Le recours, dans la jurisprudence de la Cour de justice des Communautés européennes, a des normes déduites de la comparaison des droits des Etats membres,” Revue Internationale de Droit Comparé 31 (1980): 352. In this field, the court usually refers to some legal basis of the treaties, such as article 6 TEU and articles 19 and 340 TFEU, which mention the principles common to the member states or the different legal traditions of the member states. Moreover, article 4(2) TEU states that “the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local selfgovernment.” See Armin von Bogdandy & Stephan Schill, “Overcoming Absolute Primacy: Respect for National Identity in the Lisbon Treaty,” Common Market Law Review 48 (2011): 1419. 22 See the Opinion of Advocate General Lagrange in the Koninklijke case, according to which the comparative method “should select from all the member countries those of the various national solutions which appear as the better ones or, if one wants to use the word, the most progressive. This is also the spirit which has guided the Court till now.” Judgment of the Court of July 12, 1962, case 14/61, Koninklijke, ECR 485. 23 See Francesca Ippolito, Fondamento, attuazione e controllo del principio di sussidiarietà nel diritto della Comunità e dell’Unione europea (Milano: Giuffré, 2007), 20. For discussion of legitimate expectations, see Judgment of the Court of September 21, 1983, joined cases from 205 to 215/82, Deutsche Milchkontor, ECR 2633; Paul Craig, EU Administrative Law (Oxford: Oxford University Press, 2006), 445. 24 Judgment of the Court of February 17, 1998, case C-249/96, Grant, ECR I-621.

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See Articles 3-6 TFEU. Roberto Baratta, “Le competenze interne dell’Unione tra evoluzione e principio di reversibilità,” Il Diritto dell’Unione Europea 15 (2010): 518. 26 Before the entry in force of the Treaty of Lisbon, the structure of the EU was compared to an ancient Greek temple, supported by three pillars. The first represented the economic policies of the European Community, a field in which the cooperation between the Member States was highly advanced. The second and the third pillars included the common foreign policy and cooperation in criminal matters, subjects that had usually been left out of the integration process. As a consequence, the second and the third pillars were characterized by a peculiar institutional background, since member states wanted to maintain their control over such strategic fields. In particular, the role of the European parliament was ancillary and the jurisdiction of the Court of Justice suffered from significant limitations. See, among many, Paul Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (Oxford: Oxford University Press, 2010), 25. 27 Marise Cremona, “Defining Competence in EU External Relations: Lessons from the Treaty Reform Process,” in Law and Practice of EU External Relations: Salient Features of a Changing Landscape, ed. Alan Dashwood & Marc Maresceau (Cambridge: Cambridge University Press, 2008), 34. 28 Henri Labayle, “Architecte ou spectatrice? La Cour de justice de l’Union dans l’Espace de liberté, securité et justice,” Revue Trimestrelle de Droit Européen 41 (2006): 1. 29 This aspect deserves much more attention due to the increasing influence of fundamental rights in the activity of the court. On this point see Tony P. Marguery, “The Protection of Fundamental Rights in European Criminal Law after Lisbon: What Role for the Charter of Fundamental Rights?” European Law Review 37 (2012): 444. The jurisdiction of the court still suffers from some limitations which can be reduced to two categories: on the one hand, article 72 and 276 TFEU rule out any judicial scrutiny of national acts referring to essential state functions, public order and public security. Moreover, some protocols annexed to the treaties put limits on the field of application to some states of EU provisions concerning highly debated matters, such as immigration law or cooperation in criminal matters, thereby indirectly fragmenting the jurisdiction of the court. See Catherine Kessedjian, “Public order in European Law,” Erasmus Law Review 1 (2007): 25, and, as far as the position of the United Kingdom is concerned, Maria Fletcher, “Schengen, the European Court of Justice and Flexibility under the Lisbon Treaty: Balancing the United Kingdom ‘Ins’ and ‘Outs’,” European Constitutional Law Review 5 (2009): 75. 30 See Michal Bobek, “Learning to Talk: Preliminary Rulings, the Courts of the New Member States and the Court of Justice,” Common Market Law Review 45 (2008): 1611; Oreste Pollicino, L’allargamento ad est dell’Europa e rapporti tra Corti costituzionali e Corti europee. Verso una teoria generale dell’impatto interordinamentale del diritto sovranazionale? (Milano: Giuffrè, 2010). 31 See the opinion of the Court of December 14, 1991, n. 1/91, on the draft agreement between the community, on the one hand, and the countries of the European

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Free Trade Association, on the other, relating to the creation of the European Economic Area, ECR I-6079, par. 21. 32 According to the court, “The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.” See judgment of the Court of February 5, 1963, Van Gend & Loos, footnote 19. 33 Advocate General Jarabo Colomer, opinion of March 20, 2007, joined cases C11/06 and C-12/06, Morgan and Bucher, ECR I-9161, pars. 1-2. 34 These principles are carefully analyzed by Ornella Porchia, “La dinamica dei rapporti tra norme interne e dell'Unione nel dialogo tra giudici nazionali e Corte di giustizia,” Studi Sull'Integrazione Europea 8 (2013): 71. 35 In general see Jan Wouters, “National Constitutions and the European Union,” Legal Issues of Economic Integration 27 (2000): 68. 36 See judgment of the Court of May 14, 1974, case 4–73, Nold, ECR 491. 37 Judgments of the Court of December 13, 1979, case 44/79, Hauer v. Land Rheinland-Pfalz, ECR 3727; of July 13, 1989, case 5/88, Wachauf v. Germany, ECR 2609, as far as the International Covenant on civil and political rights and the International Covenant on economic, social and cultural rights are concerned. 38 Judgment of the Court of December 17, 1970, case 11–70, Internationale Handelsgesellschaft, ECR 1125 39 See the judgment of the Court of November 9, 2010, joined cases C-92/09 and 93/09, Schecke and Eifert, ECR I-11063. 40 See the judgments of the Court of September 3, 2008, joined cases C-402/05 and 415/05, Kadi and Al Baraakat International Foundation v. Commission and Council, ECR I-6351; July 18, 2013, joined cases C-584/10 P, 592/10 P and 595/10 P, Commission v. Kadi, not yet in ECR. Martin O’Neill, The Evolving EU CounterTerrorism Legal Framework, Oxford: Routledge, 2011. 41 Judgments of the Court of May 20, 2003, joined cases C-465/00, 138/01 and 139/01, Rundfunk, ECR I-4989; of June 5, 2012, case C-489/10, Bonda, not yet in ECR. 42 Judgment of the Court of July 7, 1992, Micheletti, case C-369/90, ECR I-4239. 43 Judgment of the Court of October 19, 2004, Zhu and Chen, case C-200/02, ECR I-9925. 44 See judgment of the Court of March 8, 2011, case C-34/09, Gerardo Ruiz Zambrano, ECR I-1177. The court later specified and limited the assumptions it had supported in the Zambrano case on the occasion of the judgment November 15, 2011, case C-256/11, Dereci and others, not yet in ECR. On these judgments see Stanislas Adam & Peter van Elsuwege, “Citizenship rights and the federal balance between the European Union and its Member States,” European Law Review 37 (2012): 176. 45 Judgment of the Court of March 30, 1993, Konstantinidis, case C-168/91, ECR I-1191. .

CHAPTER THIRTEEN THE LAW THROUGH THE EYE OF COURTROOM COMEDY: THE LIGHT LEGAL PROCEDURAL IN CONTEXT PETER ROBSON

1. Introduction This chapter’s original conception stemmed from a concern that the bland and reassuring image of law encountered in British fiction has led to a view of the legal system as cozy and unthreatening and has helped to contribute to the system’s ideological power as a delivery system for a kind of shambling but benevolent justice. In contrast to the gritty and realist portrayals of injustice and naked power encountered in American legal fiction, the British equivalent seemed to have been content to portray a world of bumbling lawyers and odd and eccentric people in disputes over trifling matters. There are no villains, only rogues and scallywags. Crime is of a minor nature and never involves anything by way of murder, rape or even assault. In the end, though, things work out. There is a discussion of the social and political issues raised in the writings of some post-war legal writers in their novels about the law as practiced in England in this era. These writings have been largely overlooked by scholars of law and literature and law and popular culture. Hitherto, some attention has been paid to the portrayal of English lawyers in film during this period. This can be seen in the Second Edition of Greenfield, Osborn and Robson’s Film and the Law: The Cinema of Justice (2010),1 in which a chapter is devoted to the justice system in British films. More recently, there has been some coverage of law and legal practice as it has appeared on television in essays by Robson2 and Moran.3 These include surveys of the history of British TV lawyers as well as a detailed analysis of the television series Rumpole, from the pen of the barrister/author John Mortimer.

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Attention to the literature of the period, however, has been confined to a number of conference presentations on the work in film, theatre, radio and television of the legal author Henry Cecil, the pseudonym of the judge Henry Leon. Cecil’s work was published between 1949 and 1977 and is set in the same period. Whilst Cecil’s work is worthy of further research (forthcoming from this writer), it would be a mistake to imagine that Cecil is the only author who has sought to cover the life of the legal profession. He took up the kind of approach encountered in the short stories and essays of A. P. Herbert, who wrote between 1927 and 1966. Contemporary writers who were also trained lawyers wrote under pseudonyms and provide the possibility of different perspectives from Cecil’s. This chapter looks principally at the themes raised in the works of Hastings Draper. Draper, the pseudonym of one-time practicing barrister Roderic Jeffries, wrote three novels focused on barristers working in the English legal system: Wiggery Pokery (1956), Wigged and Gowned (1958) and Brief Help (1961). This chapter explores this brief foray into legal fiction. The novels are broadly in the style of Henry Cecil. They have, however, been only a part of Jeffries’ writing on law and legal life. In addition, the work of Michael Underwood, the pseudonym of the barrister John Evelyn, is worth noting. Underwood’s work is rather more extensive than that of Draper and stretches from the 1950s to the 1980s. It prefigures the unusual approach taken in the twenty-first century television series Law and Order and Law and Order UK by focusing not simply on the courtroom or the police work in crime detection but sometimes fusing the two. It is, however, much more clearly within the thriller/whodunnit genre, with only limited coverage of legal life and practice. The works of Draper, in particular, provide an interesting contrast to those of Cecil and allow us to gain a deeper understanding of the significance of this work to provide social and legal commentary as well as the potential of the light novel to add depth to the image of the legal profession and nature of the justice system which they portray. Behind the bland and unthreatening world of wigs and gowns some serious social issues lurk. These are not searing social indictments of injustice in the style of Hugo, Balzac or Dickens, but they offer an oblique window into how some social issues have been debated and portrayed in the media. Given the deferential and hierarchical nature of the immediate post-war British legal world and the very limited and guarded nature of academic critiques of the judiciary and their work, these books seem to have provided practicing lawyers with a discreet critical outlet. The notion of criticism amounting to the crime of “murmuring judges” still dominated academic discourse until the 1970s,4 and critiques were of the development of the dis-

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embodied “common law” rather than on decisions made by humans with frailties and prejudices.5

2. Background Authors, and lawyer authors in particular, have written about the legal profession and the justice system for many years. The largely unappealing roster of lawyers from the pages of Dickens reflects Dickens’ social criticism at its sharpest.6 The opening montage of Bleak House would not cause lawyers proud of the history and achievements of their profession to swell with pride, nor would the subsequent narrative. In the context of a family saga the portrayal of lawyers by John Galsworthy is no paean to the legal profession in his work on the Forsythes. There is, however, also a strain of writing about the legal profession which focuses on the fun and foibles of individual lawyers and the practice of law in full-length novels. The reviews of Henry Cecil’s work use phrases like “fun and frolic at the Bar, Bench and Solicitor’s Office”7 and “ingenious, sprightly and immensely amusing comedies of criminal life,”8 as well as receiving the commendations of P. G. Wodehouse in 19549 and 1956.10 The novels of Hastings Draper, for their part, were sold at the time as “light-hearted burlesque,”11 “a humorous and pardonably irreverent side-glance at the Law”12 and a “comedy of the law,”13 and they are the principal subject of this essay. As indicated, part of the interest in looking at these cultural products is their ability to shine a light on the texture and undercurrents of legal culture and to supplement the “official” self-image of this culture available by examining Royal Commission Reports and texts focusing on the operation of the system and elements of law reform. This draws on the notion, expressed in 2012 by cultural commentator Mark Lawson, as to the power of fiction to provide an insight into the national psyche: Future historians considering why Sweden holds the improbable distinction of being the only Western democracy to have both its prime minister and foreign minister assassinated in modern times—or why a racist gunman killed 77 people in Norway in 2011—will find clues behind these events in crime novels written at least a decade earlier.14

This current study seeks to explore the nature and development of this form of fiction which I term the “light legal procedural.” In 1991, Jon Breen noted that there did not seem to be an equivalent sub-genre of writing in the United States: “American playwrights and novelists … have long recognized the drama inherent in the courtroom (but) … the humor-

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ous potential of the courtroom has not been as fully exploited by American writers as by their British counterparts.”15 He suggests cultural differences with England adhering to archaic wigs and gowns as well as racial tension and violence figuring less in the British experience as possible reasons. He concludes that “for whatever reason, and regrettably, there is no American Henry Cecil.”16 He suggested that American humorists regard muckraking and satire as more the American way and cites the early work of Arthur Train from the 1940s17 as well as 1990s writer Winston Schoonover.18 These are, indeed, a far cry from the style and themes of Henry Cecil and other English writers of light legal literature. Even in the explosion of American lawyer legal fiction in the wake of the success of John Grisham and Scott Turow in the late-twentieth and early twenty-first centuries, the light comic novel does not seem to be in evidence. The nearest one comes, perhaps, is the work of William Bernhardt and the progress of his character Ben Kincaid in the strings of novels whose titles begin with either “Justice” or “Capitol.” However, the themes of murder and corruption encountered in these novels are treated as deadly serious. The main difference between Bernhardt and the myriad other fictional lawyers in post-Grisham America is that Ben Kincaid is a hapless victim and idealist—a bit of a klutz rather than a square-jawed, allAmerican hero like John Grisham’s Jake Brigance19 or even Scott Turow’s more complex Rudy Sabich.20 In the films, Kincaid would be played by Ben Stiller rather than Matthew McConaughey and Harrison Ford.21 In Britain, the light legal procedural seems to have started in earnest the 1930s with A. P. Herbert and, in the view of Breen, had its heyday in the 1960s with the work of Henry Cecil. One might want to add to the mix the work of John Mortimer between 1974 and 2003, despite his somewhat controversial contribution. In the view of legal commentator Marcel Berlins, Horace Rumpole’s creator: … has a lot to answer for … marvellously entertaining though he has been for so long, Horace Rumpole has performed one great disservice. Millions of readers and television viewers all over the world believe that our lawyers, our judges and our legal system have been accurately portrayed in the Rumpole series. Alas the reality is not as cosy or comic.22

Nonetheless, despite what Breen suggested, the comic British legal tradition has been kept alive on television. There were initially portrayals of the characters of Herbert and Cecil 23 as well as Rumpole.24 More recently we have the broad farces Law and Disorder (1994), Is It Legal? (1997–8), Chambers (2000) and, in an ironic twenty-first century way, Phil Daniels’ Outlaws (2004). It is also encountered in Tim Kevan’s books about anoth-

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er ingénue barrister, BabyBarista, in Law and Disorder (2010) and Law and Peace (2011). The comic, or perhaps more accurately light approach, is a wellestablished trope in British legal culture, then. In a form recognizable to contemporary readers, it seems to have started with the polymath writer and politician Sir Alan Herbert.25 The full range Herbert’s legal comedy sketches and stories ranged from the 1920s to the 1960s and is most fondly remembered for his character, the perpetual nit-picking litigant Albert Haddock. These provide a jumping-off point for gaining a picture of themes of concern to those involved in the legal system. The same kind of opportunity was taken later by comic writer John Mortimer in relation to channeling his ideals through Horace Rumpole: [H]e does say a good many of the things I think and if I said them they might sound rather leftish and off-putting, but when given voice by Rumpole they become crusty, conservative and much more appealing.26

The most extended and consistent portrayal of the English legal profession came between 1954 and 1977 in the writings, plays, radio scripts and TV work of the barrister and county court judge Henry Cecil Leon, writing under his pseudonym Henry Cecil. The present author is currently assessing the nature and extent of Cecil’s legacy. Originally dismissed as involving only “slapstick routines and broad characters,”27 closer reading, however, reveals rather more. There are many indications throughout Cecil’s work, both fiction and non-fiction, that he always retained a strong pedagogic strain. Whilst the book covers of his original works and the various reprints may indicate a legal P. G. Wodehouse between the covers, the central themes of some of Cecil’s work cover such serious matters as vigilantism and murder. In addition, Cecil frequently takes the opportunity to editorialize on the ills or good points of the English legal system. Whilst it could not be suggested that a rounded legal education can be obtained from the novels of Henry Cecil, it is not going too far to say that the version of the major controversies, stresses and strains of post-war legal practice in England can be divined from such reading. These include the problematic nature of legal education, the fallibility of the jury system, and the prejudices of judges. Some crucial issues like race, class and gender are, however, missing. Looking at the themes which recur with other writers in this genre of light legal procedurals allows some kind of triangulation. A start in the process of assessing the extent to which the dominant and enduring perspective of Cecil provides a partial and limited view of the system can be achieved by going beyond Cecil and assessing the work of an-

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other writer who seems to have taken up the model and produced a similar series on a young barrister in post-war Britain. The three phases of Henry Cecil’s Roger Thursby—ingénue barrister, respected Q.C., and finally High Court judge—are mapped out in novels published in 1954, 1956 and 1958.28 The books were produced close to one another, but the action moves on from our first meeting with the newly qualifying barrister in 1954 some twelve years to his second appearance as a recently appointed Q.C., and then a further thirteen years to his post as a new High Court judge. Given the success of the film, stage, radio and television versions of the early life of Roger Thursby, perhaps Henry Cecil might, with hindsight, have provided him with a rather slower progression through the legal ladder of success. Just such a thought was expressed by John Mortimer in relation to his fictional creation Horace Rumpole.29 We first encounter Rumpole when he is aged 64 in 197430 as the buzzards are circling and speculation is rife as to who will fall heir to his room in chambers with his retirement imminent. Rumpole managed to extend his slide into retirement from active legal life for over 30 years until his final book appearance in 2009.31 Hastings Draper, the pen name of barrister Roderic Jeffries, appears, at first blush, to be a mini-Cecil. Cecil was, of course, worth copying in commercial terms, and Jon Breen suggests that the 1976 book Menaces, Menaces by Michael Underwood, is “so Cecil-like it probably could have been published under his name and accepted as the real thing.”32 Jeffries takes us through the early professional life of a young barrister, Alan Pace. Disarmingly, Breen, in his review of British comic fiction, draws our attention to the work of Hastings Draper/Roderic Jeffries with the admission: I haven’t read the books signed by Hastings Draper (Roderic Jeffries), but from their titles—Wiggery Pokery (1956), Wigged and Gowned (1958) and Brief Help (1961)—they certainly sound like courtroom comedy.33

The three Pace novels are, as Breen suspected, courtroom comedies. They proceed, though, at a rather more leisurely pace. They would certainly have allowed the spawning of further works of fiction, TV and radio series, and films without too much effort. Between his first appearance in Wiggery Pokery in 1956 and his final appearance five years later in Brief Help, Alan Pace has gone from being a struggling young barrister with financial and marital problems to being a struggling young barrister with financial and marital problems. There has been no change in his status as a very junior barrister. He and his wife have produced no children. They inhabit the same cottage in the same suburb of London. Like the time lock

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in 1940 in Walmington-on-Sea34 and in many radio soaps,35 the events and encounters of Alan Pace are firmly preserved in aspic in about 1955. Lots of clients may have married and divorced, but time has more or less stood still. He is, however, gradually building a practice, and, like the fans of Henry Cecil, one might reasonably expected a few further entries from the Pace curriculum vitae in due course. In his first novel, Wiggery Pokery (1956), we see Alan Pace as a freshly qualified barrister, without connections within the legal profession, struggling to gain any work at all in post-war London. The context is a legal profession split into office-based solicitors and barristers appearing as advocates in court. In order for barristers to work on behalf of an individual, they must be referred by a solicitor. The solicitor then supervises contact with the barrister. It is made clear that work is at a premium and that many fall by the wayside. As a barrister, then, to obtain work representing clients a barrister must be instructed by a solicitor. Until he has experience no-one is likely to provide him with work, and without work he cannot gain experience. He and his wife have just had to leave London to rent a decrepit cottage in the country suburbs to save money. Jeffries sets the scene in the barristers’ Chambers with the other individuals at various stages in their legal careers/non-careers. These loose amalgams of lawyers share clerks who arrange fees and liaise with instructing solicitors. The clerks also recommend a member of Chambers if the barrister sought by the solicitor is unavailable. Most of the junior barristers in Chambers find work in short supply, lacking either brilliance or, more importantly, family connections. Amongst the other characters we encounter are pompous overweening QCs, manipulative barristers’ clerks, and grumpy judges. There are also litigants with quirky cases with very limited prospects in the style of A. P. Herbert. It is also reminiscent of the world of Horace Rumpole some twenty-five years later. More than in Cecil, we find out about the other barristers with whom Pace is quartered and where they fit into the higgledy piggledly world of legal practice. The major difference is the almost total absence of female professionals. The book consists of a series of episodes in the style of Henry Cecil. The tone is light. The young couple are not well off, but they both have private incomes and deprivation means running out of gin. Cigarettes are constantly on hand to smoke while worrying about the lack of money. Some of the humor derives from the location of the cottage of the Paces in the midst of wealthy neighbors including solicitors and bankers. The episodes are highly visual, and they call to mind a standard television sitcom in their structure. For instance, typically, early on, Alan Pace is rude to a pompous middle-aged man, denying him his regular seat on the morning

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train into town. They part with the bumptious younger man glad to have got one over on the older man who has not received his expected deference. Their wives—neither engaged in waged work or childcare—meet quite independently. The older wife, hearing of the plight of the younger couple, is sure that her husband will be able to put some work Pace’s way and invites them round for cocktails that evening. The classic end of a half-hour sitcom scene arrives with the door opening and Pace discovering the identity of the new neighbor—none other than the pompous middleaged man from the train and a solicitor. The solicitor himself is not there in person, his wife explains, as he is not feeling well after a “dreadful” incident involving being deprived of his seat on the train by some “fresh faced young man.” The chapter ends abruptly there, with the clear message that what could have been a valuable source of case referrals for the impecunious barrister will now not come to fruition following this incident. The major narrative element is a civil action by an eccentric millionaire businessman against a company for a misleading advertisement. The principle involves one of the first things which first-year law students studying contract learn about,36 namely the difference between an offer and a “puff.” For the plot to work there have to be a number of elements— the client with bottomless financial resources, a firm of solicitors with no scruples about advising him to waste his money on what is a laughable claim or non-existent defense, and a young barrister prepared to accept these doubtful instructions. The litigation has shades of Albert Haddock about it. There is also the fortuitous insistence by the rich litigant that Alan Pace be his barrister because he has chanced to see him in action in court in a very minor case, seemingly not being overawed by a cantankerous judge. The book ends on a high note for our hero, with him being promised work from the solicitor neighbor, Steven Curry, as his price for silence about the traffic offense which the solicitor commits at the end of the breach of contract trial. In his haste to get to court, Curry has run into the car of Pace’s unscrupulous instructing solicitor. This latter solicitor’s firm normally likes to instruct a barrister who pads out the case with multiple motions and appeals to increase the fees of all the lawyers. Pace refuses to do this, and they seek to sack him. This unethical action comes to light, and they are forced to instruct Alan Pace even though he will not swell their costs by spinning out the litigation with protracted procedural points. Pace is more than happy to have his witness silence “bought” with the promise in the last paragraph of the book of “plenty of briefs” from Steven Curry’s firm.

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What strikes one reading this book alongside the early Henry Cecil works is the similarity of style along with the mixture of comic storyline and the direct and indirect commentary on the English legal system of the 1950s. It also prefigures the triple elements of Mortimer’s Rumpole stories with “Case-Chambers-Home.” Here, we encounter the amateurism of the training and the limitations of the market for legal services as well as a hint of the darker side of lawyers’ abilities to stray from the path of righteousness, a feature largely missing from Cecil’s lawyer portrayals.37 In this first novel another missing feature is female legal professionals. There is only a spinster barrister’s clerk and non-waged wives in this world of male barristers. We meet Alan Pace again a couple of years later in his career in Wigged and Gowned (1958), in which the major focus is on relations with women, specifically a newly qualified blonde barrister, Caroline Welber. The time being the 1950s, the nearest Alan Pace gets to infidelity is that of the mind in the style of Jimmy Carter.38 Caroline Welber is the junior barrister in the major case with which we are concerned. This again involves a rich eccentric, golf-mad Jonathan Green, who keeps absent-mindedly marrying women without remembering to obtain a divorce from the incumbent wife. This time, however, we are dealing with crime. Green has been charged with bigamy, and Alan Pace is the junior counsel. The major theme throughout this second outing is the role of women in the legal profession. The Head of Chambers, Oliver Hunt has had a traumatic experience when appearing in the past before a female magistrate. This fills him with fear when the judge in the bigamy trial, Mr. Justice Blue, dies in the luncheon interval and a newly appointed judge appears for the new trial. This turns out to be Mrs. Justice Jelph, the first female High Court judge to be appointed in England. Fortunately, Hunt’s nemesis, the oily and manipulative Reggie Aiden, rubs the judge up the wrong way and incurs her displeasure in his confusion as to how to address her, referring to her as a “woman judge.” Things are resolved neatly when a combination of the intuition of Pace’s spectator wife Belinda and her insistence that Alan put the points she thinks are pertinent along with the unconventional nonlegalistic approach of the new judge to produce a surprise victory for the defense and an end to the ill-fortune of the Head of Chambers when women are involved in his trials. The last time we encounter barrister Alan Pace he is still struggling. This time, in Brief Help (1961), the major concern continues to be the trope of the supposed wandering eye of the protagonist and the problems he encounters in trying to maintain a mask of innocence in relation to his dealings with the by-now married Caroline Welber. She has married the

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golf-mad eccentric Jonathan Green but wants Alan Pace to act for her in her divorce. The major part of the book involves a series of misunderstandings and misperceptions around Pace’s denials that he has met Caroline and his lies to his wife about her. All these meetings are of course completely innocent, but, egged on by his Head of Chambers, Oliver Hunt, who fancies himself as some kind of latter day Jeeves figure, Pace resorts to a variety of fictions and misrepresentations. At one juncture he claims to have had lunch not with Caroline but a fictitious woman whose name he makes up, whom he describes as looking like the “back end of a bus.” This person turns out to exist—the name being buried in his subconscious—and is someone he played with as a boy. She is, of course, stunningly beautiful, and it comes back to haunt him. Like the first two, the book concludes with a “major” case. In Brief Help this involves the divorce of Caroline Green, née Welber, for desertion by her husband. As a result of the distracted incompetence of Alan Pace, evidence emerges that, during the required minimum period of three years of the so-called desertion, there were several periods of reconciliation. The couple end up together at the end of the book effusively thanking Alan for bringing them to their senses. It was, it turns out, all a way for Caroline to get her rich but occasionally cheeseparing husband to pay her a decent allowance. He agreed to her terms late in the action provided that the divorce did not go through. It was at this point that Caroline, herself a barrister, managed to deny that she would have had her deserting husband back during their brief reconciliations. The book ends with Alan and his wife Belinda happily together with the would-be solver of all marital problems, Oliver Hunt still phoning in improbable schemes of reconciliation. Having established a more leisurely pace than the rapid rise and career success of Roger Thursby, Jeffries might have gone on producing novels charting the legal life of Alan Pace for some years. This did not occur. After Brief Help there is nothing more from the pen of Hastings Draper. Perhaps Roderic Jeffries had returned to lucrative legal practice? Possibly the sheer volume of Cecil’s work and his successful translation to stage, screen and television had exhausted the market demand for light legal procedurals. In fact, Jeffries simply shifted his emphasis from the legal profession to crime fiction and went on to produce some 186 books, none of which return to the English courts but are principally located abroad, where Jeffries moved.39

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3. Conclusion These novels are set at the same time and in the same milieu as mid-period Cecil. There are a number of themes which immediately suggest themselves in contrast to the world of Cecil. Firstly, the role of women is very different. In the legal world of Henry Cecil women make only the rarest of appearances as legal protagonists. There are the sisters, Jane and Prunella Coombe—solicitor and barrister—who appear in Daughters in Law. Rather than being heroic protagonists, however, they are the innocent dupes of the Buttonstep brothers. By contrast, the works of Hastings Draper figure female judges in Wigged and Gowned and female barristers in Wiggery Pokery and Wigged and Gowned. The lawyers’ wives are, of course, and unsurprisingly for the 1950s, located in the home rather than engaged in waged work. It is not simply that Draper has women in the picture in a somewhat different way from Cecil but also the role of women is discussed much more extensively. The vehicle for the discussion of women’s role is the misogynistic Head of Chambers, Oliver Hunt. He is the catalyst for a discussion of what women can or cannot add to the practice of law. His misogyny is not, however, merely a knee-jerk reaction to the female sex—he has suffered reverses whenever he has appeared before women magistrates. This provides the opportunity for our main protagonist, Pace, to provide the platform for a more reasoned view of a legal world with women in it. There is also the question of the nature of the legal profession. The principal issue which all the books illustrate is the need for a substantial private income to be able to practice at the English Bar of the 1950s. This is achieved through our “unconnected” barrister making his way more through luck and “niceness” rather any great skill or application. There is also a neat contrast with his relative success as compared with the other members of the chambers, who lack his luck. There are also issues which we find in the work of Mortimer40 but which reflect the society Draper was observing. Although Britain experienced race riots in 1958 in Nottingham and Notting Hill, and had racist parties commanding attention in bye-elections,41 the issue of immigration and race were rather late in appearing in both novels and films.42 As noted above, the loss of the literary world of Alan Pace was not, on the face of it, due to any factor other than the writer’s desire to work in other genres. It is perhaps to be regretted that his keen critical eye was not cast over the developments and changes in the decades from the 1960s onwards, given the tone and prescience of this aside towards the end of his final light legal comedy:

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Chapter Thirteen Most forms of legal actions have decreased in numbers due to the fact that the class of person who used to enjoy going to law can no longer do so owing to the effects of constant inflation, and the companies which might have taken such people’s places seem to prefer to waste their money on esoteric or erotic advertising. Divorce provides the exception. Legal aid enables anyone to have a go, and to the newly qualified, or not so successful barrister, that is an excellent thing. A few undefended divorces a day keep the debts at bay.43

As was hoped at the start of this process, Hastings Draper’s adventures of Alan Pace do, indeed, provide readers with a sharper and more critical viewpoint of the legal profession and the issues of gender and class in post-war Britain to contrast with the dominant blander version which we get from an initial reading of Henry Cecil. It is only to be regretted that we have had to wait until well into the twenty-first century and Tim Kevan’s Babybarista novels for a sardonic critical eye to again be cast over the English legal profession.44

Bibliography Barberis, P., J. McHugh, & M. Tyldesley. Encyclopedia of British and Irish Political Organizations. London: Continuum International Publishing Group, 2005. Berlins, M. “The Case of the Missing Writers.” The Guardian, October 5, 2004, http://www.guardian.co.uk/books/2004/oct/05/law.world (accessed September 6, 2013). Cecil, H. Natural Causes. London: Michael Joseph, 1953. —. According to the Evidence. London: Michael Joseph, 1954. —. Brothers in Law. London: Michael Joseph, 1954. —. Friends at Court. London: Michael Joseph, 1956. —. Much in Evidence. London: Michael Joseph, 1957. —. Sober As a Judge. London: Michael Joseph, 1958. —. Daughters in Law. London: Michael Joseph, 1961; New York: International Polygonics, 1991. —. Independent Witness. London: Michael Joseph, 1963. —. No Fear or Favour. London: Michael Joseph, 1968. —. The English Judge. London: Stevens, 1970. Chedlow, B. Chitty’s Mercantile Contracts. London: Sweet & Maxwell, 1955. Draper, H. Wiggery Pokery. London: WH Allen, 1956. —. Wigged and Gowned. London: WH Allen, 1958. —. Brief Help. London: WH Allen, 1961.

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Galsworthy, J. The Man of Property. London: Penguin, 1906. —. In Chancery. London: Penguin, 1920. —. To Let. London: Penguin, 1921. Gest, J. M. “The Law and Lawyers of Charles Dickens.” The American Law Register 53 (7) (1905): 401–426; available from “The University of Pennsylvania Law Review - Article Stable,” http://www.jstor.org/stable/3306989. Hare, D. Murmuring Judges. London: Faber and Faber, 1993. Herbert, A. P. Misleading Cases. London: Methuen, 1927. —. More Misleading Cases. London: Methuen, 1930. —. Still More Misleading Cases. London: Methuen, 1933. —. Uncommon Law. London: Methuen, 1935. —. Codd’s Last Case. London: Methuen 1952. —. Bardot MP? London: Methuen, 1964. —. Wigs at Work. London: Methuen, 1966. Kevan, T. Law and Disorder. London: Bloomsbury, 2009. —. Law and Peace. London: Bloomsbury, 2011. Lawson, M. “Review.” The Guardian, October 27, 2012. http://www.guardian.co.uk/theguardian/2012/oct/27/guardianreview.ht mln (accessed September 6, 2013). Megarry, R. The Rent Acts. 10th Edition. London: Stevens, 1967. Moran, L. “Cause Lawyering ‘English Style’: Reading Rumpole of the Bailey.” In The Cultural Lives of Cause Lawyers, edited by A. Sarat and A. Scheingold, 297–330. Cambridge: Cambridge University Press, 2008. Morison, J. & C. Bell (eds.). Tall Stories? Reading Law and Literature. Aldershot: Dartmouth, 1996. Mortimer, J. Rumpole. London: Folio, 1994. —. Rumpole and the Primrose Path. Harmondsworth: Penguin, 2004. —. The Anti-Social Behavior of Rumpole. Harmondsworth: Penguin, 2007. Published as Rumpole Misbehaves. New York: Viking, 2007. Robson, P. “Images of Law in the Fiction of John Grisham.” In Tall Stories? Reading Law and Literature, edited by J. Morrison and C. Bell, 21. Dartmouth: Aldershoot, 1996. —. “Fade to Grey: Portraying the Ethnic Minority Experience in British Film.” International Journal of Sociology of Law 2 (2002): 235. —. “Lawyers and the Legal System on TV: The British Experience.” International Journal of Law in Context 2 (4) (2007): 333. Schoonover, W. Wilkes: His Life and Crimes. Ballantine: New York, 1991.

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Tutt, E. A Yankee Lawyer—The Autobiography of Ephraim Tutt. New York: Charles Schribner’s Sons, 1943. Zander, M. The English Legal Profession. London: RKP, 1965.

Notes 1

Steve Greenfield, Guy Osborn & Peter Robson, Film and the Law: The Cinema of Justice, Second Edition (Oxford: Hart , 2010). 2 Peter Robson, “Lawyers and the Legal System on TV: The British Experience,” International Journal of Law in Context 2 (4) (2007): 333. 3 Leslie J. Moran, “Cause Lawyering ‘English Style’: Reading Rumpole of the Bailey,” in The Cultural Lives of Cause Lawyers, eds. Austin Sarat & Stuart Scheingold (Cambridge: Cambridge University Press, 2008), 297–330. 4 This common law crime of registering disapproval of the judiciary is rarely encountered but was the title of a critical play by David Hare from 1991. See David Hare, Murmuring Judges (London: Faber and Faber, 1993). 5 Robert Megarry, The Rent Acts, Tenth Edition (London: Stevens, 1967); Joseph Chitty, Mercantile Contracts (London: Sweet & Maxwell, 1955). One of my own earlier essays which drew attention to the politics of the doctrine of “contrary to public policy” was rejected by a journal on the basis that it was critical of the judiciary politics. 6 J. M. Gest, “The Law and Lawyers of Charles Dickens,” The American Law Register 53 (7) (1905): 401–26. 7 Dust jacket, Henry Cecil, Natural Causes (London: Michael Joseph, 1961) with a review quotation for Much in Evidence (London: Michael Joseph, 1957) from Robert Lindley of the Spectator. 8 Ibid., with a review quotation for Alibi for a Judge (Cornwall: Stratus Books, 1960) from Julian Symons of the Sunday Times. 9 “I read it as a sitting of course, and my verdict is that it is the best he has done … even more laughs than No Bail for the Judge.” Dust jacket, Henry Cecil, According to the Evidence (Cornwall: Stratus Books, 1954; paperback edition, 1965). The former is a light-hearted look at how gullible witnesses can be, but the latter is a quite dark book about a judge charged with murdering a prostitute. It is unclear whether the quotation is an oblique criticism of Cecil or sloppy puffery/journalism. 10 “Cecil better than ever.” Dust jacket, Henry Cecil, Friends at Court (London: Michael Joseph, 1956), paperback edition, 1962. 11 Dust jacket, Hastings Draper, Wiggery Pokery (London: WH Allen, 1956). 12 Dust jacket, Hastings Draper, Wigged and Gowned (London: WH Allen, 1958). 13 Dust jacket, Hastings Draper, Brief Help (London: WH Allen, 1961). 14 Mark Lawson, The Guardian, October 27, 2012, 10. 15 Henry Cecil, Daughters in Law (Introduction by Jon Breen (New York, International Polygonics, 1991), (American Edition), first unnumbered page. 16 Ibid., second unnumbered page.

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Ibid., third unnumbered page. Train (1875–1945) was an Assistant District Attorney and then private lawyer in New York. His literary work included the lawyer for the common man, Ephraim Tutt, who appeared in stories in the Saturday Evening Post and Yankee Lawyer (New York: Charles Scribner’s Sons, 1943), a fictional autobiography of Tutt. 18 Winston Schoonover is the pseudonym of long-practicing San Diego lawyer Charles Sevilla, former No. 2 at the State Prosecutor’s Office and respected defense attorney principally on appeal. Schoonover purports to write about the “hard boiled” defense attorney John Wilkes, whose work in 1970s New York has been described as “a bizarre cross between Rumpole of the Bailey and mud wrestling,” Winston Schoonover, Wilkes: His Life and Crimes (New York: Ballantine, 1991), 18. On Sevilla see also “Charles Sevilla Law Office,” http://www.charlessevilla.com/pdf/calawyerfeb01.pdf, where he appears as one of most cited California lawyers in 2001 in an article in the California Lawyer entitled “The lawyers lawyers would hire if they got busted.” 19 John Grisham, A Time to Kill (New York: Wynwood Press, 1995). 20 Scott Turow, Presumed Innocent (New York: Farrar Strauss and Giroux, 1987). 21 McConaughey and Ford actually play the protagonist lawyers in the films A Time to Kill (1996) and Presumed Innocent (1990). 22 Marcel Berlins, “The Case of the Missing Writers,” The Guardian, October 5, 2004, G2, 10. 23 Peter Robson, “Lawyers and the Legal System on TV: The British experience,” International Journal of Law in Context 2 (4) (2007), 333. 24 Leslie J Moran, “Cause Lawyering ‘English Style’,” 297–330. 25 Although it has been suggested that Cecil is in the tradition of Dickens, the overwhelming image of Victorian lawyers is far from comic in Bleak House, Great Expectations and A Tale of Two Cities. 26 John Mortimer, Rumpole (London: Folio, 1994), vii. 27 Peter Robson, “Images of Law in the Fiction of John Grisham,” in Tall Stories? Reading Law and Literature, eds. John Morrison & Christine Bell (Dartmouth: Aldershot, 1996), 203. 28 Henry Cecil, Brothers in Law (London: Michael Joseph, 1954), Friends at Court (London: Michael Joseph, 1956), and Sober as a Judge (London: Michael Joseph, 1958). 29 Interview with the author, July 2005. This has come to pass in the medium of radio. Benedict Cumberbatch has played such the role in the 2012 radio plays centered on the experiences of the young Rumpole: “Rumpole and The Expert Witness,” “Rumpole and The Gentle Art of Blackmail,” “Rumpole and the Explosive Evidence,” “Rumpole and the Man of God,” “Rumpole and the Eternal Triangle,” “Rumpole and the Family Pride” and “Rumpole and the Penge Bungalow Murders.” For details, see “BBC Radio 4 Programmes,” http://www.benedictcumberbatch.co.uk/audio/young-rumpole-radio-plays/. 30 He first appeared on TV in December 1975 in Rumpole (aka Rumpole and the Confession of Guilt), and the novelized version was published in 1978. This was

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the process of Mortimer’s Rumpole—TV first then a novelized version, rather than the more traditional approach found with Cecil and others. 31 John Mortimer, The Anti-Social Behaviour of Rumpole (Harmondsworth: Penguin, 2007). In the U.S., the book appeared as Rumple Misbehaves, (New York: Viking, 2007). Rumpole is described as being in his seventies when he is chronologically well into his nineties. 32 Henry Cecil, Daughters in Law (1961) per Breen, “Introduction,” fifth unnumbered page. This may be regarded as a somewhat backhanded compliment given the variable quality of the Cecil oeuvre. What the book does contain is an intricate and improbable plot and an unlikely denouement with a twist—a speciality of many of the Cecil “thriller” novels like Natural Causes (1953), According to the Evidence (1954), Much in Evidence (1957), Daughters in Law (1961), Independent Witness (1963) and No Fear or Favour (1968). 33 Ibid. 34 Dad’s Army by Jimmy Perry and David Croft ran from 1968 until 1977, with Hitler poised to invade Britain throughout. No mention was ever made in the series of how the war was going. “The Dad’s Army Appreciation Society,” http://www.dadsarmy.co.uk/. 35 The long-running Archers series has, from May 1950 in Britain, typically seen characters age rather slower than standard chronology. “Archers Addicts: The Official Fan Club for BBC Radio 4’s The Archers,” http://www.thearchers.co.uk/, (accessed June 25, 2013). 36 Carlill v Carbolic Smoke Ball Company [1893] 1 Q.B. 256. 37 Pace his drunken comedy solicitor Mr. Tewkesbury, who makes a major appearance in Much in Evidence (1957). 38 President Jimmy Carter stated in an interview with Playboy Magazine in 1976: “I’ve looked on many women with lust. I’ve committed adultery in my heart many times. God knows I will do this and forgives me.” “Notable Quotes,” http://www.notable-quotes.com/c/carter_jimmy.html. 39 The internet reveals that Jeffries was born in London in 1926, and was “educated at Harrow View House Preparatory School & the School of Navigation, Southampton. He went to sea in 1943 serving with the New Zealand Shipping Co. and the Union Castle Line. He ‘swallowed anchor’ in 1949, read for the Bar and started writing children’s books, the first of which was published in 1951. He was called to the Bar in 1953, but after losing all of his first seven cases he gave up the law and became a full-time writer. He has now written over 120 books which have been published throughout the world, in many languages, and have been adapted for radio, television and film. He is married and now lives in Mallorca.” Roderick Jeffries: Golden Age of Detection http://www.gadetection.pbworks.com/w/page/7930853/Jeffries,%20Roderic. 40 Rumpole’s first appearance is to defend a young Afro Caribbean man in “Rumpole and the Confession of Guilt” (BBC TV play, December 1975). 41 The ex-leader of the British Union of fascists, Sir Oswald Mosley, stood for Kensington North, near Notting Hill, in the 1959 General Election. His policies were centered on the issue of immigration, and he called for forced repatriation of

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Caribbean immigrants as well as prohibition of mixed marriages. Mosley's final share of the vote was only 8.1%. Peter Barberis, John McHugh & Mike Tyldesley, Encyclopedia of British and Irish Political Organizations (London: Continuum International Publishing Group, 2005), 191. 42 Peter Robson, “Fade to Grey: Portraying the Ethnic Minority Experience in British Film,” International Journal of Sociology of Law 3 (2002): 235. 43 Hastings Draper, Brief Help, 168. 44 Tim Kevan, Law and Disorder (London: Bloomsbury, 2009); Law and Peace (London: Bloomsbury, 2011).

PART FOUR POP CULTURAL JURISPRUDENCE

CHAPTER FOURTEEN RENEGOTIATING THE WEST IN JOEL AND ETHAN COEN’S TRUE GRIT KATHRYN BROWN

Joel and Ethan Coen’s film version of Charles Portis’s best-selling novel of the 1960s, True Grit (2010), has many of the hallmarks of a traditional Hollywood Western: a demand for retribution, a manhunt, and law enforcement officers who typically exceed the boundaries of their authority for the purpose of implementing their own notion of “justice.”1 While invoking such familiar tropes, however, the film also uses the theme of law to depict the American West in a state of transition. The purpose of this chapter is to examine the roles that law and legal process play in the film and, in particular, to consider the extent to which the entry into voluntary agreements is portrayed as securing, or failing to secure, a just model of democratic society. Throughout the following discussion, I will make use of both Portis’s novel and its adaptation by the Coen brothers to illustrate these points. While the Coens’ film is largely faithful to the book, I shall argue that it brings into relief the contrast between the personal freedoms implied by the ability to negotiate and form contracts and the broader values necessary to shape a just society. I shall also use that analysis to discuss some of the social issues that the novel addressed in the 1960s.

1. True Grit and Myths of the West John H. Lenihan has argued that after the Second World War the genre of the Western movie became “one of the mechanisms a democratic society used to give form and meaning to its worries about its own destiny at a time when its position seemed more central and its values less secure than ever before.”2 By looking back to acts of “founding” that included the settlement of new territories, the experience of physical danger and personal hardship, the geographical expansion of commercial trade, and the evolution of an organized system of justice, Westerns offered a potent visual

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means by which to reflect on the structures, mores and institutions that shaped the emergence of a democratic society outside the structures of an elitist, aristocratic regime. As Lenihan notes, however, in addition to exploring such aspects of “founding,” depictions of the historic West were also capable of speaking to contemporary themes by calling into question the underlying values and forms of associational life to which this particular form of social development gave rise.3 In his book on the political significance of Westerns directed by Howard Hawks and John Ford, Robert Pippin sums up this point in the following words: We receive in many Westerns not just a mythic account of the founding of legal, civil society, with an American inflection, but the expression of a great anxiety about what this particular founded society will be like, whether it can hold together, whether it can really leave behind what it was. By this I mean leaving behind the mythic and largely feudal notion of nearly complete self-sufficiency and self-reliance, an honor code, the unavoidability of violence in establishing and maintaining proper status and order, a largely male and isolated world.4

It is against this functioning of the Hollywood Western as an originary social myth, with its attendant self-questioning and socio-political anxieties, that True Grit demands to be understood and analyzed. I first want to deal with the ways in which the novel and film exploit familiar tropes of the Western and will then go on to consider some important ways in which they challenge the audience’s expectations of works in this genre. Each version of the narrative shares key aspects of the traditional Western, a fictional world that is, as Pippin notes, characterized by masculinist ideals of self-sufficiency and the use of violence to maintain order.5 Set in the late 1870s, the plot of True Grit concerns the story of Mattie Ross, a fourteen-year old girl who seeks justice for the murder of her father, Frank Ross. We learn that Ross and his farm hand, Tom Chaney, made a trip to Fort Smith in Arkansas to take possession of some ponies that Ross had bought from a local stock trader; after an evening of cards and whiskey, Chaney shot and killed the unarmed Ross, stole his horse and two California gold pieces, and fled across State lines into the “Indian Territory,” an area to which various First Nations tribes had been relocated in the early nineteenth century and that would later become part of South Eastern Oklahoma (I shall return to this issue below). We are told in both film and book that although Chaney departed the murder scene at great speed, he “could have walked his horse, for not a soul in that city could be bothered to give chase.” As the local sheriff has no jurisdiction in the Indian Territory, Mattie hires US Deputy Marshal Reuben (“Rooster”) Cog-

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burn, a man with “true grit,” to assist her in tracking down Chaney and bringing him before Judge Isaac C. Parker, the federal judge at Fort Smith. The circumstances of Chaney’s escape provide an important motivation to the central quest of the narrative. It is not simply an error in policing for which Mattie tries to compensate; instead, it is the local community’s passive ethos towards crime that she seeks to expose and countermand. The biblical quote that concludes the opening chapter of the book (and that serves as the epigraph to the film) expresses Mattie’s view of the local community’s willingness to tolerate crime when it does not affect them personally: “The wicked flee when none pursueth.”6 In Mattie’s worldview, the pursuit of Tom Chaney is not just a matter of personal revenge, but the fulfillment of a moral duty. The plots of both novel and film are clearly motivated by Mattie’s desire for retributive justice (strikingly highlighted for the viewer in the promotional material for the film). This theme is vividly set up for the reader/viewer in an opening scene that features a triple hanging outside the Federal Courthouse in Fort Smith, an event that draws a crowd of “a thousand or more people and fifty or sixty dogs” (TG, 18). The citizens of Fort Smith may be apathetic when it comes to permitting a murderer to escape, but they are happy to enjoy the enforcement of law as a form of entertainment. Although she expresses revulsion at the scene, this is precisely the kind of public “justice” that Mattie seeks for the murder of her father. Chaney is also being pursued by a Texan Ranger (LaBoeuf) for the murder of a Texan senator, but it is in Fort Smith that Mattie wants Chaney to stand trial. Her image of criminal justice is anchored not only by the prospect of punishing the wrongdoer, but also by the desire for public acknowledgement of the wrong that she and her family have suffered in the town where the crime took place. In contrast to the fairground atmosphere of the hanging scene, therefore, the trial and execution of Tom Chaney are intended to be an ethical calling to account of the local community itself. In keeping with this central theme, Bob J. Frye notes that the first and last lines of the narrative (spoken by Mattie in the first person) establish a framework of retributive justice: “People do not give it credence that a fourteen-year old girl could leave home and go off in the wintertime to avenge her father’s blood but it did not seem strange then, although I will say it did not happen every day” (TG, 9); “This ends my true account of how I avenged Frank Ross’s blood over in the Choctaw Nation when snow was on the ground” (TG, 215) (emphasis added).7 While retribution is a familiar topos in the Western genre, it is given an innovative inflection in True Grit, however, through its connection to Mattie’s role as account-

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ant of the family business. Throughout the novel and film, the metaphor of book-keeping is used to characterize the reciprocal rights and obligations that underpin the exercise of justice. In Mattie’s moral “ledger,” it is the task of the law to catch up with those who “commit evil” and to “demand payment” from them (TG, 37). While the involvement of Deputy Marshal Rooster Cogburn is key to the balancing of this moral profit and loss account, we soon learn that Cogburn stands in an ambiguous relation to the law’s public procedures and institutions. We first meet him in Judge Parker’s court, where he is giving evidence about his actions during the recent capture of a defendant accused of murder and robbery. In the course of his evidence, Cogburn is forced to admit that he has shot and killed 23 men over a four year period (including the brother and father of the defendant), a bloody history that prompts the defense counsel to remark: “This assassin Cogburn has too long been clothed with the authority of an honorable court. The only way I can prove my client’s innocence is by bringing out the facts of these two related shootings, together with a searching review of Cogburn’s methods. All the other principals … are conveniently dead” (TG, 47–8). This opening courtroom scene presents an archetypal image of the Western hero-cum-avenger as identified in a classic essay published by the film theorist André Bazin in the 1950s. He argues that in the Western genre “the law is unjust to the extent that it pretends to guarantee a moral society but ignores the individual merits of those who constitute that society. If it is to be effective, this justice must be dispensed by men who are just as strong and just as daring as the criminals … There is often little moral difference between the outlaw and the man who operates within the law.”8 Bazin’s description captures Mattie’s dilemma at the beginning of the narrative—the law has failed to bind the townspeople into a moral community, and this produces the result that Mattie must turn to the “meanest,” most “pitiless” man to give chase to the criminal. However, this also produces the result that the audience needs to identify some other feature of Cogburn that singles him out as an admirable character (I shall return to this point below). The early scenes of True Grit are concerned, then, with identifying gaps between private, communal and institutional morality. While Cogburn typically metes out his own form of justice to alleged wrong-doers, his personal history is marked by opportunism, self-interest, and shifting allegiances. We find out that during the Civil War, Cogburn rode with William Clark Quantrill, the leader of a “bushwhacker” (guerilla) unit of the Confederacy. Quantrill’s unit, that included outlaws such as Frank and Jesse James, operated outside formal chains of command and was responsible for violent raids on pro-Union cities (most notably the

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massacre at Lawrence, Kansas in 1863) that resulted in significant civilian casualties.9 While Cogburn’s character is slightly softened in the Coens’ adaptation of the novel, we are left in little doubt about his personal ethics or his legal and social outsider status.10 Although the portrayal of Cogburn clearly meets a key aspect of the Western genre as described by Bazin, there is, however, a crucial way in which it deviates from this archetype. As he leaves the courtroom, the Marshal’s hands are shaking, and it is Mattie who has to roll his cigarette for him (this point is conveyed more strongly in the book than the film). Surrounded by “pettifogging” or “shitpoke” lawyers (TG, 63) who increasingly demand adherence to legal procedure, Cogburn is aware that his style of frontier justice is coming to an end. For Robert Warshow this antagonistic relation between law and the Western hero is characteristic of the genre: “the reign of law settles over the West and he [the hero] is forced to see that his day is over … What he defends, at bottom, is the parity of his own image—in fact, his honor.”11 For Warshow, this fate of the hero, including his eventual expulsion from the society he “protects,” is a familiar culmination of many films in this genre. This is also borne out by the ending of True Grit. In the final stage of the narrative (25 years after the principal action takes place), we find that Cogburn has departed the US Marshals service and is a performer in a Wild West Show. Yet while his ultimate expulsion from society is symbolized by this nostalgic carnival act that borders on self-parody, it is a transition that is pre-empted by the opening of the narrative. In an early conversation with Mattie, Cogburn confesses: “I am an old man sleeping in a rope bed in a room behind a Chinese grocery. I have nothing.” When the audience is first introduced to Cogburn, therefore, it is clear that his place in the legal and social order has already disintegrated. As I shall argue in the remainder of this chapter, it is the relationship between Mattie and Cogburn that illuminates the broader effect of this social transition and that motivates key questions about the changing relationship between law and civil society in the late nineteenth century.

2. Renegotiating the West Rooster Cogburn’s personal and professional fragility in the opening of the film is an obvious counterpart to the death of Mattie’s father. Reinforcing this parallel, it is Mattie who steps in and assumes control in each case—she runs the family business, takes up her father’s gun, wears his hat and coat, draws up a contract with Cogburn, and becomes his “employer.” In an early scene of the film, a brief conversation between Mattie

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and the Sheriff establishes her role in this new social and economic order: MATTIE: I am here to settle my father’s affairs SHERIFF: All alone? MATTIE: I am the person for it. Mama was never any good at sums and she can hardly spell cat. I intend to see papa’s killer hanged.

Developing Warshow’s point, Rooster Cogburn may be faced with the fact that “his day is over,” but this is used in the narrative to symbolize a far greater shift in personal relations and a decline of patriarchal order. The masculinist ideals of self-sufficiency that typified the Western genre are here displaced by Mattie’s intelligence and business acumen. She is what would later become the “New Woman,” educated, self-reliant, and eager to assert her financial independence. Important for the purposes of the present discussion, it is Mattie’s use of law (including its language and procedures) that becomes a vital instrument in this exercise of personal autonomy. A crucial early scene illustrates this point. Mattie meets with the stock dealer, Col. G. Stonehill, and seeks to renegotiate the contract that her father had entered into for the purchase of twenty ponies (the transaction that had brought him and Chaney to Fort Smith). Mattie wants Stonehill to buy back the ponies, to compensate her for the theft of her father’s horse (in Stonehill’s stable when Chaney stole it), and to pay $25 for the gray horse that Chaney left behind (on loan to him by Frank Ross). In response, Stonehill argues that the bill of sale for the horses is final and binding, that he is not responsible for the theft of Ross’s horse, and that Mattie is not the owner of the gray horse and therefore does not have the right to “sell” it to him. In the lengthy (and humorous) negotiations that follow, Mattie argues that Stonehill was the custodian of her father’s horse and, therefore, owed a duty of care to keep it safe, that her lawyer (J. Noble Daggett) will serve a “writ of replevin” to recover possession of the gray horse, that a jury would undoubtedly sympathize with a petition made against Stonehill by a grieving widow and three children, and that she will release him from any and all liability in the matter if he signs a settlement in an amount of $320 (provided that the $20 is paid in advance). Stonehill eventually concedes, and they draw up and sign a new agreement. My reason for focusing on this scene is because of the way in which the assertion of economic interest, and its attendant legal bargaining, shape a social relationship. Although Mattie is only fourteen, her use of legal concepts (and the threat of legal proceedings) places her in a position to bargain with a businessman in the adult world. This scene both illuminates Mattie’s character and foregrounds the negotiation of social relationships

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throughout the narrative. The contract into which Mattie enters with Cogburn, for example, gives her rights to direct and control him: “It is I. Mattie Ross, your employer”; “I gather that you and Mr LeBoeuf have come to some sort of agreement. As your employer I believe I have a right to know the particulars”; “He [Cogburn] is working for me. He must do as I say”; “When I have bought and paid for something I will have my way. Why do you think I am paying you if not to have my way?” Returning to Bazin’s comment quoted above, law may fail to guarantee a moral order in the narrative, but it does secure an economic order. Crucially, it is through that economic order that new social relations are formed. Mattie’s negotiating skills identify her as a protagonist in a selfconsciously modernizing West and as the embodiment of a wider social shift that jurist Henry Sumner Maine had famously described in 1861; namely, the emergence of increased personal autonomy symbolized by an individual’s ability to form contracts. Maine writes: “Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals.”12 Although writing in a nineteenth-century Western European context (and advancing an inflated and “progressivist” idea of the liberties afforded by a contractualist social model), Maine’s suggestion that increased personal autonomy is symbolized by a shift from “status” to “contract” provides a lens through which to view the new forms of social interaction that are imagined in True Grit.13 Mattie is quite literally freed from a traditional familial role upon the death of her father, and her exertion of bargaining power places her on an equal footing with the people she encounters throughout the chase for Chaney. The portrayal of this renegotiation of the West consists not only in the formation of new bargains, but in the introduction of new parties to those bargains. This aspect of the narrative establishes a further contrast between Mattie and Cogburn. In a satirical interpretation of this image of social progress, the Marshal describes an earlier period of his life: “My second wife, Edna, she had taken a notion she wanted me to be a lawyer. Bought a heavy book called Daniels on Negotiable Instruments and set me to reading it. Never could get a grip on it, I was happy enough to set it aside and leave Texas.” Further emphasizing Cogburn’s alienation from both law and a social order based on contractual bargaining, this glimpse of personal history speaks to shifts in the way in which the West was imagined and mapped. Cogburn’s departure from family and home in Texas draws attention to his ongoing attachment to legally and morally unregulated spac-

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es—his desire to inhabit and sustain the “isolated” image of the West as described by Pippin. As I shall argue below, however, ultimately even the flight across state boundaries into the Indian Territory fails to conform to this image. During his negotiations with Mattie regarding the buy-back of the ponies, the stocktrader, Col. Stonehill, describes the Indian Territory as a “sink of crime” and a place in which the “civilizing arts of commerce do not flourish” (TG, 30). In a departure from this depiction of the Indian Territory, the Coen brothers’ film emphasizes the nineteenth-century expansion of trade and negotiation across geographical, ethnic and cultural difference. This is symbolized by ad hoc acts of trading within and across the border of the Indian Territory. In a visually striking scene of the film, Mattie and Cogburn come across the body of a hanged man during their pursuit of Chaney. They cut down the body, but it is immediately taken up by a passer-by. As Cogburn notes: “it is a dead body, possibly worth something in trade.” Later, another traveler through the Territory approaches Mattie and Cogburn, the body of the same hanged man draped over one of his horses. The man explains that he “Traded for him with an Indian, who said he came by him honestly. I gave up two dental mirrors and a bottle of expectorant.” He then makes a further offer of the body: “I have taken his teeth. I will entertain an offer for the rest of him.” Paradoxically, the exercise of commercial self-interest in True Grit has the positive side-effect of bridging difference between individuals and communities. It thus complements the role played by contractual negotiation in narrative’s image of social relations.14 Much of this bridging involves the formation of contracts around living, dead, dismembered, or absent bodies. Mattie negotiates the cost of transporting her father’s body—and later Cogburn’s body—back to Yell County; dead bodies can be broken down into tradable items and sold; Bagby’s store in the Indian Territory is the principal location of both trade and intelligence about the movement of individuals through the region; and, most importantly, each of Mattie, Cogburn and Laboeuf enter into differently motivated contractual arrangements for the tracking and capture of Tom Chaney. While Mattie is motivated by a desire for retribution, Cogburn works for payment, and Laboeuf aims to collect a bounty payable in Texas. There is, therefore, a clash of motives and interest underlying the central quest of the film, and the relationship between the three protagonists is based on a fragile coalition of interests, two of which are aimed at the realization of financial profit rather than the administration of justice. I have argued in this section that the striking of bargains and the capacity of individuals to negotiate and enter into contracts erode social differ-

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ence in True Grit. Against a background of Maine’s image of a “progressive society” envisaged in the 1860s, this contractualist realization of personal liberty appears to place the personal relations portrayed in the film in a distinctly “modern” light. An important caveat must, however, be made here, for True Grit, like many other Westerns, raises important questions about the degree of stability and the quality of associational life that may (or may not) be guaranteed by such voluntary agreements and the concept of personhood implied by them. This is an issue that Robert Pippin explores in his interpretation of John Ford’s film Red River (1948). Pippin examines the various agreements to which the characters bind themselves when agreeing to take part in a dangerous cattle drive and then considers the lengths to which the characters go in their attempts to break or enforce those promises. According to Pippin, one of the main socio-political issues raised by Red River is whether “the bonds of contract are psychologically sufficient to form stable associations.”15 In his account, this issue is relevant to the portrayal of personal relations in the film and also points to a much larger “contractual” issue that arose in the US in the nineteenth century, namely the declaration of secession by the Southern states. Drawing a parallel between the portrayal of the cattlehands’ rebellion against their leader in Red River and the “rebellion” that led to the formation of the Confederacy, Pippin states: “In both mutiny and secession we can see the relative uselessness of the appeal to ‘what one contracted to do’ and the greater importance of authority, power, and the right understanding of human psychology in sustaining such a contract.”16 Developing Pippin’s point, my suggestion is that while True Grit offers a view of the ways in which contracts might secure new relationships between individuals by bridging differences between them, it also speaks powerfully to the gaps left by a contractualist social model. In other words, the film asks the viewer to consider what forms, customs or shared interests are necessary over and above voluntary agreements to support the functioning of a democratic society. How the film answers this question is the subject of the final section of this chapter.

3. Justice, Power, and Civil Society I have pointed out some of the positive ways in which the theme of contractual bargaining influences the portrayal of personal relations in True Grit. It is equally important, however, to follow through the way in which the narrative points to failures of this social model. Complicating Maine’s account of voluntary agreement as an expression of personal liberty, many of the bargains in True Grit reflect, or are circumscribed by, custom and

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institutional power structures. The first of these concerns the geography of the narrative. The space in which most of the film’s action takes place, the Indian Territory, may be said to have its origins in contract, but not one that reflected the fair exercise of equal bargaining power. The Indian Territory was formed from a series of treaties entered into between the United States government and First Nations peoples, one of the most significant agreements being the Treaty of Dancing Rabbit Creek entered into with the Choctaw tribe in 1830 and ratified under the Indian Removal Act of the same year.17 The agreement to form this territory and to rehouse tribal members to it resulted in one of the largest land transfers from a First Nations tribe to the State, the loss of Choctaw goods and livestock, the irrevocable deprivation of traditional homelands, and a high number of fatalities during the process of removal.18 Secondly, I have described some of the important agreements that Mattie negotiates throughout the narrative for the purpose of exerting her own autonomy, controlling the financial affairs of her family, and garnering the external support required to achieve her various goals. At the end of the narrative (set in 1903), we see Mattie as an adult woman. Although she is wealthy, she remains politically disenfranchised and, as a selfdescribed “cranky old maid,” socially marginalized. Adult women play a minor role in the social fabric of True Grit, and Mattie’s own youthful exploits do not ultimately secure her a stable footing as a single woman in the adult world.19 Although Mattie’s strength of personality allows her to exert independence outside traditional gender roles, she still has to confront the “force of law, public opinion and social control” that, as Winnifred Harper Cooley wrote in 1904, operated to demarcate a restricted sphere of action for women.20 Thirdly, the novel (more so than the film) provides us with a closer look at another of Mattie’s acquaintances, Yarnell Poindexter, an African American man who is employed on the Ross’s farm in Yell County and who accompanies Mattie to Fort Smith at the beginning of the narrative. In the novel, we learn that Yarnell was born of free parents, but that he had been kidnapped and brought to Arkansas just before the Civil War: Yarnell was a good man, thrifty and industrious, and he later became a prosperous house painter in Memphis, Tennessee. We exchanged letters every Christmas until he passed away in the flu epidemic of 1918. To this day I have never met anybody else named Yarnell, white or black. I attended the funeral and visited in Memphis with my brother, Little Frank, and his family. (TG, 11)

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While the relationship between Mattie and Yarnell is and remains one of mutual courtesy and respect, this does not extend to all other encounters during their journey. We learn that, on the trip to Fort Smith, Yarnell is racially abused by a train conductor. Mattie’s response is publicly to point out the “hateful” nature of the conductor’s speech, thereby demonstrating to the other passengers that the conductor is worthy of contempt (TG, 16). In this period of Reconstruction, Yarnell is a free citizen who (in principle) holds a right to vote, yet the novel calls into question the freedoms implied by such a right in the face of widespread racial prejudice. The history and legacies of slavery also add a further complication to the portrayal of different commonalities of interest in the novel. Upon her encounter with Native Americans in the Indian Territory, Mattie explains: I will own I was somewhat afraid of them although they were not, as you may imagine, wild Comanches with painted faces and outlandish garb but rather civilized Creeks and Cherokees and Choctaws from Mississippi and Alabama who had owned slaves and fought for the Confederacy and wore store clothes. Neither were they sullen and grave. I thought them on the cheerful side as they nodded and spoke greetings. (TG, 104)

Although Mattie objects strongly to the racist hate speech of the train conductor, her image of “courteous” Native Americans is derived from the latters’ former allegiance to the Confederacy (including the endorsement of slavery implied by that allegiance) and their participation in commerce. While True Grit demonstrates how the exercise of commercial self-interest can bridge difference, it also highlights that the assertion of such interest tracks and reinforces broader power structures that generate or enforce inequality across ethnicity and gender. Through these three examples, therefore, True Grit points to contradictions between the freedom to enter into contracts, the rights that purport to be guaranteed by those contracts, and the ways in which institutional powers, customs and traditions can undermine the value of voluntary agreements. In other words, the narrative highlights the gaps and uncertainties inherent in a contractualist model of social relations. This makes the film not just an important commentary on a particular period of US history, but on the constituent elements of democratic society. To take another apposite nineteenth-century example, Alexis de Tocqueville’s Democracy in America focuses precisely on overlaps and conflicts between institutional political structures and forms of social organization that are derived from voluntary agreement. In his analysis of Tocqueville’s book, Sheldon Wolin writes:

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My suggestion is that in its renegotiation of the West, True Grit enquires into the broader cultural influences and institutional powers that shape the creation of “political beings.” Specifically, the narrative exposes certain advantages of a contractualist model of democratic society while also highlighting the existence of broader power structures and socio-cultural attitudes that support or inhibit the just working of that society. In his discussion of the relationship between democracy and civil society, Mark E. Warren describes the need to develop the “democratic capacities of individuals” through techniques such as “providing information and educating citizens, developing their sense of political efficacy, cultivating capacities for deliberation, and developing civic virtues such as toleration, trust, respect for others, and reciprocity.”22 Popular culture is capable of playing a role in this form of civic education. It is worth keeping in mind that the conflicts between contract, institutional power and social custom on which I have focused in True Grit were as potent when the novel was published as during the period in which the narrative was set. The 1960s witnessed the rise of the Choctaw youth movement, a group that instigated campaigns for political, economic and social recognition and became part of a wider movement known as “Red Power.”23 Questions about Mattie’s social role and opportunities as an adult women spoke directly to issues raised by feminists, in particular those discussed by Betty Friedan in her groundbreaking book The Feminine Mystique of 1963.24 Finally, the prejudicial treatment of Yarnell and the background constraints that implicitly attached to his personal freedoms resonated with the profound social changes and voting rights legislation secured by the civil rights movement in the mid-1960s. Under the guise of a familiar Western, True Grit therefore resonated with legal, political and social issues that were both topical and deeply important to the shaping of civil society in the United States of the 1960s. As such, it can be understood as functioning not just as entertainment, but as part of a broader political education of the viewer. The narrative of True Grit culminates—as is appropriate in a Western—with a dramatic shoot-out between the protagonist (Cogburn) and the

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members of a gang led by Lucky Ned Pepper, a train robber with whom Tom Chaney has been riding. Instead of a straightforward victory for Cogburn, however, the scene unfolds in a way that requires the cooperation of the three protagonists—Cogburn kills the principal members of Ned Pepper’s gang, Laboeuf rescues Mattie from Chaney and also saves Cogburn from Ned Pepper, and Mattie saves Laboeuf (and herself) from Chaney by shooting and killing the latter, thus concluding her own quest for retribution. Finally, Cogburn brings Mattie to safety after she is bitten by a rattlesnake following the shooting of Chaney. I mentioned above that the relationship between Mattie, Cogburn and Laboeuf is held together by a coalition of different interests, two of which are financial. In this culminating scene, however, their attachment has developed from a voluntary agreement across difference into a solidaristic relationship of mutual trust and respect. It is this point that hints at the implications of the film for a concept of civil society. Taking up Warren’s point that it is through “generalized trust” that people form “co-operative relations with strangers,” it is trust that ensures the ultimate survival of the protagonists of True Grit.25 Displaying many familiar features of both a “buddy movie” and a traditional Hollywood Western, True Grit can also be interpreted as a reflection on the personal, legal and contractual bargains that shape associational life in a democracy.

Bibliography Bazin, André. What is Cinema. 2 vols. Berkeley: University of California Press, 1971. Cartmell, Donald. The Civil War Book of Lists. Franklin Lakes, NJ: The Career Press, 2001. Cooley, Winnifred Harper. The New Womanhood. New York: Broadway Publishing Company, 1904. Diamond, Alan, ed., The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal. Cambridge: Cambridge University Press, 1991. Friedan, Betty. The Feminine Mystique [1968]. New York: Norton, 2013. Frye, Bob. J. “Charles Portis.” In Updating the Literary West, edited by Thomas Lyon, 497–503. Fort Worth, Texas: Texas Christian University Press, 1997. Hirschman, Albert O. The Passions and the Interests: Political Arguments for Capitalism before its Triumph. Princeton: Princeton University Press, 1997.

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Kitses, J. & G. Rickman (eds.). The Western Reader. New York: Limelight, 1998. Lambert, Valerie. Choctaw Nation: A Story of American Indian Resurgence. Lincoln: University of Nebraska Press, 2007. Lenihan, John H. Showdown: Confronting Modern America in the Western Film. Urbana: University of Illinois Press, 1985. Littlefield Jr., Daniel F. & James W. Parins. Encyclopedia of Indian Removal, 2 vols. Santa Barbara, CA: Greenwood, 2011. Lyon, Thomas J. Updating the Literary West. Fort Worth, Texas: Texas Christian University Press, 1997. Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas [1861]. New York: Henry Holt, 1906. Morrison, James D., James C. Milligan & L. Davis Norris (eds.). The Social History of the Choctaw Nation: 1865–1907. Durant, OK: Creative Informatics, 1987. Pippin, Robert B. Hollywood Westerns and American Myth: The Importance of Howard Hawks and John Ford for Political Philosophy. New Haven: Yale University Press, 2010. Poon, Phoebe. “From Status to Contract: Inheritance and Succession in George Eliot’s Late Fiction.” Sydney Studies in English 38 (2012). Portis, Clinton. True Grit. London: Bloomsbury, 2005. Tocqueville, Alexis de. Democracy in America. Translated by Arthur Goldhammer. New York: The Library of America, 2004. Warren, Mark E. “What kind of civil society is best for democracy?” Portuguese Journal of Social Science 3 (1): 37–47. Warshow, Robert. “The Westerner.” In The Western Reader, edited by J. Kitses & G. Rickman. New York: Limelight, 1998. Wolin, Sheldon S. Tocqueville Between Two Worlds: The Making of a Political and Theoretical Life. Princeton: Princeton University Press, 2001.

Notes 1 Charles Portis, True Grit (London: Bloomsbury, 2005); further references to the novel are to this edition (abbreviation TG). All other quotes are from the film: Joel Coen & Ethan Coen (screenplay and direction), True Grit, Paramount Pictures, 2010. Portis’s novel was serialized in May 1968 in The Saturday Evening Post. According to Bob J. Frye, the novel went on to sell over 60,000 hardback copies and 1.5 million paperbacks, remaining in the best-seller list for over twenty-one weeks. See Bob J. Frye, “Charles Portis,” in Updating the Literary West, ed.

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Thomas J. Lyon, (Fort Worth, Texas: Texas Christian University Press 1997), 497–503 (498). 2 John H. Lenihan, Showdown: Confronting Modern America in the Western Film (Urbana: University of Illinois Press, 1985), 9. 3 Ibid. 4 Robert B. Pippin, Hollywood Westerns and American Myth: The Importance of Howard Hawks and John Ford for Political Philosophy (New Haven: Yale University Press, 2010), 24. 5 Pippin, Hollywood Westerns and American Myth, 24–5. 6 Proverbs, 28.1, The Bible, Authorized King James Version (Oxford: Oxford University Press, 1998), 28. 7 Frye, “Charles Portis,” 499. 8 André Bazin, “The Western: or the American Film par excellence,” in André Bazin, What is Cinema (2 vols.), vol. 2 (Berkeley: University of California Press, 1971), 140–8 (146). 9 For further detail of Quantrill’s “Raiders” see Donald Cartmell, The Civil War Book of Lists (Franklin Lakes, NJ: The Career Press, 2001), 101–2. 10 In Portis’s novel, Cogburn is eventually stripped of his Marshal’s badge following a duel in Fort Gibson and is hired by stock owners in Wyoming to “terrorize thieves and people called nesters and grangers. It was a sorry business, I am told, and I fear Rooster did himself no credit there in what they called the ‘Johnson County War’” (TG, 211). 11 Robert Warshow, “The Westerner,” in The Western Reader, eds. J. Kitses and G. Rickman (New York: Limelight, 1998), 35–48. 12 Henry Sumner Maine, Ancient Law; Its Connection with the Early History of Society and its Relation to Modern Ideas [1861] (New York: Henry Holt, 1906), Chapter V, pp. 163–4. For discussion of the Victorian values that shaped Maine’s progressivism see Alan Diamond, ed., The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal (Cambridge: Cambridge University Press, 1991), Part I. 13 For an example of nineteenth-century literature’s engagement with Maine’s ideas, see Phoebe Poon’s insightful discussion of George Eliot’s reading of Maine’s Ancient Law in “From Status to Contract: Inheritance and Succession in George Eliot’s Late Fiction,” Sydney Studies in English 38 (2012): http://ojsprod.library.usyd.edu.au/index.php/SSE/article/view/6684 (accessed May 20, 2013). 14 I am thinking here of the thesis advanced by Albert O. Hirschman in The Passions and the Interests: Political Arguments for Capitalism before its Triumph (Princeton: Princeton University Press, 1997). 15 Pippin, Hollywood Westerns and American Myth, 39. 16 Ibid., 49. 17 For details of the terms of the treaty and its various breaches by the Federal government see Daniel F. Littlefield Jr & James W. Parins (eds.), Encyclopedia of Indian Removal, 2 vols. (Santa Barbara, CA: Greenwood, 2011), vol. 2, 243–5.

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James D. Morrison, James C. Milligan & L. Davis Norris, The Social History of the Choctaw Nation: 1865–1907 (Durant, OK: Creative Informatics, 1987). 19 The exception is Mrs. Floyd who runs the Monarch Boarding House in Fort Smith. 20 Winnifred Harper Cooley, The New Womanhood (New York: Broadway Publishing Company, 1904), 15. 21 Sheldon S. Wolin, Tocqueville Between Two Worlds: The Making of a Political and Theoretical Life (Princeton: Princeton University Press, 2001), 172. 22 Mark E. Warren, “What kind of civil society is best for democracy?,” in Portuguese Journal of Social Science 3 (1): 37–47 (40). 23 For further details see Valerie Lambert, Choctaw Nation: A Story of American Indian Resurgence (Lincoln: University of Nebraska Press, 2007), 62. 24 Betty Friedan, The Feminine Mystique [1968] (New York: Norton, 2013). 25 Warren, “What Kind of Civil Society is Best for Democracy?,” 41.

CHAPTER FIFTEEN AFFIRMATIVE CINEMA: WHEN FILM-MAKERS DEFEND MINORITIES PEDRO R. FORTES

I. Introduction This chapter analyses “affirmative cinema,” understood as the production of motion pictures with a transformative ambition and a focus on the defense of minority rights. In other words, works in which film-makers function as activists by advancing affirmative action. There are different ways in which narratives may convey the symbolic protection of vulnerable individuals within a given society. One important approach is through the depiction of a dramatic story in which characters suffer discrimination as a consequence of their religious belief, race or sexual orientation. Given contemporary ethical beliefs and the empathy that the viewer may feel with such “Christ-like” characters,1 such narratives may raise awareness about moral wrongs and disseminate the message that discrimination ought not to happen. Another important way of encouraging the transformation of society through cinema stems from narratives with counterfactual elements that indicate what ought to be done in order to make society fairer and more equal. Regardless of their approach, many film-makers express these transformative ambitions and hope to change society through their motion pictures.2 This chapter begins with an analysis of how complex socio-legal questions may be presented through sequences of image and sound. I will argue that affirmative cinema can disseminate transformative ideas about international human rights, civil and political liberties, and minority rights in general. Motion pictures are capable of representing legal controversies in a series of visual fragments and, as such, they introduce key aspects of complex questions to large audiences and frame legal debates within contemporary society. The literature on popular culture and the law suggests that television and cinema may cultivate certain ideas within the minds of

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viewers without their awareness of this subconscious influence.3 Taking up this idea, this chapter explains how motion pictures may communicate normative ideas that are not inferred through logical arguments. Since the days of the Lumière brothers and Georges Méliès, scholars have debated whether cinema constitutes a reproduction of reality or an artistic factory of dreams.4 Standing somewhere between the two, cinematic images are not facts, but symbolic representations and forms of expression that, according to the director’s choice, may express normative ideas about how reality ought to be. I shall argue that cinema is “affirmative” when filmmakers produce narratives containing statements about how vulnerable minorities ought to be protected. Minorities benefit from affirmative cinema for their social emancipation because power is exercised in society not only through coercion and violence, but also through cultural domination. Hegemonic narratives function as ideological means of controlling and subordinating the oppressed.5 Mainstream values are disseminated as common-sense ideas through cultural artifacts, and this cultural hegemony can entrench asymmetries of power, even in the minds of minorities themselves. In this context, most motion pictures produced by Hollywood contain hegemonic narratives, reproduce unfair social hierarchies, and disseminate mainstream values to audiences. In contrast, affirmative cinema produces counter-hegemonic narratives, denounces injustices and challenges the status quo. These counter-narratives of affirmative cinema aim to deconstruct mainstream ideas cultivated by hegemonic narratives and, as a consequence, to defend minorities from discrimination based on religion, race, or sexual orientation.

2. Could a Motion Picture Be Worth a Thousand Legal Words? According to a well-known American adage, “a picture is worth a thousand words.” This twentieth-century proverb conveys the idea that images may represent complex ideas and facilitate the acquisition of knowledge through visual expression. Reflecting this idea, film-makers often open important avenues for complicated legal debates outside real or fictional courtrooms. This occurs not only in legal television dramas, but also in genres of contemporary cinema that confront viewers with significant legal dilemmas of our times. For instance, a film that falls ostensibly within the “action” genre may trigger intense discussions about international human rights, the social responsibility of corporations, and the so-called “abundance curse” debated among scholars in the field of law and devel-

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opment. That is what Blood Diamond (2006) achieved in its portrayal of the relationship between the diamond trade and human rights violations in Africa. This film managed to condense the socio-legal implications of a very complex problem6 into a 143-minute political war thriller and revealed how the jewel trade finances military conflict. In addition to grossing $171 million and being nominated for five academy awards, Blood Diamond has been praised by Amnesty International and Human Rights Watch as being extremely important material through which to understand these complicated issues. This film is not only good entertainment but also a rich piece of international human rights discourse. Motion pictures are not substitutes for legal books and scholarship or judicial decisions, but they can offer snapshots of important normative ideas. In this case, for example, the cinematic portrayal of a military conflict financed by the mining industry raised global awareness of the problem, labeled a desirable consumer good as a tainted commodity, and showed the importance of the international certification of jewels. Blood Diamond is not an isolated example. Several recent motion pictures convey normative ideals through their narratives. A series of examples comes from Michael Moore’s documentaries. The award winning Bowling for Columbine (2002) is a thorough critique of the Second Amendment of the United States Constitution and the notion that the “right of the people to keep and bear arms should not be infringed.” Fahrenheit 9/11 (2004) discusses the legitimacy of the war on terror and also touches on the loss of civil and political liberties after the Al Qaeda terrorist attack on the United States. In Sicko (2007) Moore discusses the American healthcare system, comparing and contrasting it with Canada, Cuba and France, where citizens have access to low cost public hospitals, physicians and medicine. More recently, in Capitalism: A Love Story (2009) Moore denounces the unfairness of the American financial system, addressing examples of regulatory capture. In each of these films, Moore condenses extremely complex legal issues into visual snapshots— gun control in the context of school shootings; civil liberties in the context of the war on terror; healthcare as an economic, social and cultural right provided by the state; erosion of the financial system by powerful lobbies; and the relationship of congress and regulators to special interest groups. Moore shows the audience how easily someone can buy bullets in the United States and questions whether school massacres are related to unrestricted access to guns and ammunition. He also shows the expenses of medical care in the United States and exhibits images of American patients shocked by cheaper equivalents elsewhere. Illustrating the corrosive effect of money in the nation’s capital, Moore offered a picture depicting several

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U.S. representatives with balloons showing the amount of campaign contributions that each one had received. As mentioned, these images are not substitutes for legal scholarship on the underlying issues,7 but they are worth at least a thousand words in their concentrated expression of these legal and regulatory controversies. Such documentaries have the merit of framing important legal debates for large audiences, exposing key aspects of the argument and raising international awareness about these conflicts. Even though Moore is not a lawyer and his genre is not the traditional courtroom drama, his narratives portray socio-legal conflicts that are designed to influence the way the viewer perceives gun control, terrorism, healthcare and the financial system. According to “cultivation analysis,” television influences the outlook of frequent viewers.8 The academic literature on popular culture and the law also suggests that cinema may have such an impact by shaping the perspective of the audience about legal matters.9 It can also be argued that there is a reciprocal relationship between law and popular culture. On the one hand, legal practice inspires cinema producers to create fictional representations of courtroom dramas and to develop narratives that reproduce or comment on socio-legal controversies. On the other hand, legal practice is also shaped by cinema, as viewers (including, in many cases, those who decide to become lawyers) develop their perspectives on the legal profession, the judicial system, and justice itself.10

3. Do Motion Pictures Contain Normative Ideas? I have argued that motion pictures may take the form of compressed visual expressions of complex dilemmas and narratives that transmit moral ideas.11 However, this does not necessarily mean that normative conclusions may be logically inferred from films. According to a well-known lesson from Hume, moral statements may not be logically inferred from factual statements.12 For instance, it may be true that (1) the purchase of diamonds from conflicted regions in Africa is financing the purchase of military equipment, and that (2) this military equipment is causing the death of millions of individuals. However, the truth of statements (1) and (2) does not mean that one could logically infer that we ought not to purchase diamonds from conflicted regions in Africa. Factual reasoning does not provide a sufficient basis for moral statements, since the logical operations involved in the analysis of facts (what is and is not) are ontologically different from the moral analysis (what ought or ought not to be). In this sense, morality is not a matter of fact, but a question of values.13

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In the specific context of cinema, this philosophical inquiry can prompt reflection on the possibility of logically inferring moral conclusions from films. Could a viewer logically infer from Blood Diamond that we ought not to purchase diamonds from conflicted regions in Africa? A preliminary discussion of this issue is related to the status of motion pictures. As mentioned above, cinematic images do not necessarily correspond to facts, rather they are representational or symbolic expressions of facts. Films are made primarily for entertainment, and fictional materials usually contain disclaimers regarding the resemblance of characters to real people. Therefore, the truth conditions of a valid logical statement can be considered to be absent in cinema. On the other hand, the artistic narrative of a film may contain normative elements and convey moral messages. Through cinematic techniques, Blood Diamond clearly criticizes and locates military conflict in Sierra Leone in relation to international human rights issues concerning the diamond trade. In this sense, even if the motion picture does not contain a sequence of true statements of fact, the chain of images and sound that is edited according to the director’s perspective may nevertheless include normative elements. In other words, the normative content of films is not derived from the truth of images, but from the values that shape its narrative. It is these values that can turn motion pictures into pieces of practical philosophy in which ethical problems are described and presented to a broad audience.14 Sometimes a narrative is centered on the story and the presence of the storyteller is relatively discreet; on other occasions the storyteller is central and clearly narrates the film. Michael Moore appears in all his documentaries, asking questions not only of different interviewees, but also of the viewers. The clear presence of the narrator helps to communicate the normative ideas of the film, as the speaker identifies and discusses the issues at stake in a given controversy. Moore is certainly not a timid storyteller.15 Audiences can easily identify his political agenda by listening to his comments, questions, ironies and critiques as a left-wing, liberal democrat. In contrast to Moore’s documentaries, most mainstream Hollywood movies contain an implied commentary. For instance, Blood Diamond is told through a sequence of images and sound without any obvious intervention by the director. Yet normative ideas are still part of the film’s narrative, since its depiction of characters, editing techniques and the screenplay constitute a moral critique of military conflicts financed by the diamond trade. A prodigious example of the ethical ideas in this motion picture is found in its final scene—the conference in Kimberly, South Africa, that led to the Kimberly Process Certification Scheme. By associating this conference with a typical Hollywood “happy ending,” the film subtly demon-

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strates support for this initiative as a potential solution to the human rights violations previously depicted. Film-makers’ ambitions for their representations of socio-legal controversies indicate whether a film contains normative elements in its narrative. Some motion pictures have more descriptive ambitions, while others could be classified as having transformative ones that aim to provoke changes in the real world.16 The latter category would include “preventive fictions” (narratives depicting negative scenarios that are ignored in the real world) where the film attempts to convey that the problem will remain unsolved if society does not intervene. Transformative ambitions also include “votive fictions”—narratives that depict counterfactual stories which suggest a moral reading of what ought to be done and subtly indicate the transformative ambitions of the film.17 My point is that the ethical impact of a film cannot be logically inferred from a scientific analysis of its images and sounds, but rather through a holistic appreciation and interpretation of the narrative structure of the work and of the values that it embodies.18

4. Do Minorities Need Affirmative Cinema? Like film analysis, understandings of the meaning and content of the law vary. For instance, legal scholars have repeatedly turned their attention to the question of which social groups should be legally recognized as “discrete and insular minorities” in line with the famous footnote 4 of United States v. Carolene Products Company, 304 U.S. 144 (1938). Should, for instance, “poor individuals” be recognized as members of a minority group and, therefore, be entitled to free healthcare? Should residents of conflict areas in Africa be considered as “vulnerable individuals” entitled to special protection from the international community? Answers to these and similar questions often depend on the political views of law-makers within a given legal system. In the context of film, the recognition of minorities depends on the narrative choices made by film-makers within a given motion picture. In contrast to Michael Moore’s Sicko, some films depict poor characters as lazy, ignorant individuals who do not deserve empathy or protection. An example is found in the sub-plot of Million Dollar Baby (2004), in which the boxer’s mother refuses to receive a house from her daughter, as it may endanger her social security payments and medical benefits. Depicting the poor as “white trash” does not invite the viewer’s support for free healthcare. In contrast to the narrative of Blood Diamond, a more subtle example reveals that African characters are not always protected in motion pictures: in Coming to America (1988), an African prince moves to New

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York City in search of a queen simply because no African woman is interesting enough for him. According to the narrative, African women are subservient, as shown by a scene in which a possible bride stands on one foot and barks in order to demonstrate that she was trained to be fully obedient to her husband. This scene fosters the idea that African women are neither independent nor suitable as partners, and that the prince should look for his wife in the United States. Thus, poor individuals and African characters are not always constructed through a positive lens in a given narrative. In line with the above examples, most Hollywood motion pictures contain mainstream narratives that reproduce asymmetries of power that exist within society. For instance, a common plot in contemporary Hollywood cinema describes the search for love between white, heterosexual characters that are ultimately united. While there is typically a conflict that stalls resolution of these romantic narratives, the problem is rarely due to the religion, race, sexual orientation, or gender of the characters. For instance, in You’ve Got Mail (1998) the protagonists are separated because the male protagonist is afraid of admitting to his female counterpart that his family owns a huge chain of bookstores that threatens the existence of her familyrun bookstore around the corner. In How to Lose a Guy in 10 Days (2003) the characters are distanced by the fact that they met when the female protagonist was supposed to write a magazine article about the classic mistakes that women make leading to them to “lose a guy.” Another example is Fifty First Dates (2004), in which a bizarre amnesia interferes with a couple’s relationship, as the heroine forgets everything about the previous day after a regular night’s sleep. Dozens of other examples could be given to demonstrate that most Hollywood films contain an element of conflict based not on religion, race, or sexual orientation, but on a narrative artifice that is contrived and easily overcome.19 By failing to provide a platform to discuss the pressing issues of contemporary society, Hollywood may be said to reinforce mainstream ideologies. In fact, by refusing to discuss such issues, Hollywood paradoxically acknowledges their status as sensitive socio-legal controversies. According to Gramsci,20 cultural artifacts support the maintenance of power within societies. His theory of cultural hegemony identifies the importance of ideology as a means of control and subordination. Therefore, asymmetries of power may be masked by a cultural hegemony that results in the working class defending ideas that are detrimental to them and beneficial to the bourgeoisie. Cultural alienation implies an ideological belief nurtured by hegemonic ideas that are defended by individuals who are subordinated and oppressed by the same value system they defend. Origi-

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nally, Gramsci was concerned with the bourgeoisie and the proletariat in line with Marxism,21 but post-Marxist readings of cultural alienation have expanded this analysis to include oppression and subordination based not only on poverty, but also on national origins, religious belief, sexual orientation and race.22 Stereotypes associated with religion have damaged the reputation of minorities for centuries, The Merchant of Venice’s Shylock and Parsifal’s Klingsor being examples of Jewish stereotypes that nurtured oppression and violence in the worlds of Shakespeare and Wagner, respectively.23 Cultural artifacts such as these contributed to the oppression, violence and mass murder of millions of Jews in recent history by serving as ideological propaganda directed against this religious minority. In addition, racial minorities and LGBT individuals have also been depicted in negative ways since the silent years of Hollywood. For instance, The Birth of a Nation (1915) portrays Ku Klux Klan members as heroes and African-American men as unintelligent and sexually aggressive towards white women. In A Florida Enchantment (1914), Lillian swallows a magic seed and transforms herself into a man, Lawrence; her husband Fred also changes his sexual orientation after swallowing a magic seed and, following his cross-dressing, is pursued by an angry mob; in the end, it is revealed that Lillian just had a horrible dream. This film is the first to include cross-dressed individuals as protagonists, but it reinforces gender stereotypes by depicting this experience as a nightmare. These examples suggest that minorities could benefit from affirmative cinema. Hegemonic narratives nurture the perceptions of frequent viewers whose values are shaped by the popular culture they consume through television and motion pictures. Through cultivation, viewers may reproduce the stereotypes expressed by cultural artifacts without necessarily being aware of the impact of this cultural hegemony on their mindsets. Romantic couples in Hollywood are usually composed of wealthy, white, heterosexual individuals, and this standard characterization may impact viewer’s perceptions about mixed race or homosexual couples. Between 1930 and 1968 the portrayal of mixed couples on screen was restricted by censorship guidelines established by the Motion Picture Production Code. According to these censorship guidelines, miscegenation (sexual relationships between individuals from different races) and any suggestion of sexual “perversion” (relating to sexual intimacy between individuals from the same sex) were strictly prohibited.24 Aside from a few rare concessions— such as two men dancing together in Wonder Bar (1934)—Hollywood cultivated the notion that normal relationships consist of romantic love between heterosexual individuals of the same ethnicity. I would argue that affirmative cinema is necessary to deconstruct such hegemonic discourses

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and to protect minorities from the cultural oppression and social subordination ideologically supported by the mainstream narratives that systematically exclude non-whites, non-heterosexual, and other minorities from depiction on screen.

5. When Do Film-Makers Defend Minorities? Affirmative cinema can develop counter-hegemonic narratives in various ways. For instance, while Quentin Tarantino produces fantasies that are detached from the realist tradition, his stories are thought provoking and capable of deconstructing mainstream assumptions. For instance, the freed slave who hunts white outlaws in Django Unchained (2012) and the secret Jewish military squad that assassinates Hitler in Inglorious Basterds (2009) are unbelievable fictional plots, but they vindicate minorities symbolically. These fantastical narratives reinvent history and place subordinated minority groups in a different position hierarchically. In these two films, an African American may ride a horse, carry a gun or have dinner with a plantation owner in the nineteenth-century South, and Jewish soldiers may interrogate and torture Nazi opponents during the Second World War. The audience obviously understands that these are fictional narratives, but the popularity of these movies also indicates that viewers appreciate these counter-hegemonic narratives in which oppressed individuals are allocated powerful roles within unjust societies. Their symbolic revenge in these movies reminds the audience that these minorities deserve special legal protection as compensation for their suffering in recent history. In this sense, their fictional vindication on screen can be said to support the vindication of their rights in contemporary societies. Minorities may also be protected in film through realistic stories. In The Pianist (2002), Roman Polanski opens the narrative with images of Warsaw in the late 1930s, just before the German invasion, and demonstrates to viewers that he is telling a real story. The plot traces the biographical memories of Jewish-Polish pianist Wladyslaw Szpilman during the Second World War and covers the relevant historical episodes of the German occupation, including the Warsaw Ghetto uprising, the transportation of Jews to concentration camps from the Umschlagplatz, and the destruction of Warsaw after the Polish uprising. Portraying the life of a character as a filmed biography, viewers are often captivated by the idea that they are watching a real story within the special structure of biographical time25 and feel empathy with the characters suffering injustices.26 In the case of this movie, Polanski was himself a Jewish Holocaust survivor of occupied Warsaw and had always wanted to record his own wartime

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memories in one of his films. Therefore, The Pianist also contains recollections of the director who was praised for his objectivity, even though the narrative communicates a subjective view of occupied Warsaw.27 Ultimately, the main character survived because of the sympathy and protection of a few individuals who managed to challenge the Nazi occupation. Another epic wartime movie with an equivalent message is Schindler’s List (1993), a work that tells the story of a German businessman (Oskar Schindler) who saved around one thousand Polish Jews from the holocaust by employing them in his factory in occupied Krakow. This film employs a visual style that is typical of filmed biographies. It was shot in black and white and with handheld cameras to increase the impression of a wartime documentary. Director Steven Spielberg considers it his first movie with a deeper message and confessed to difficulties in filming it because of his own Jewish roots and family members who survived the holocaust.28 Regarding the depiction of Oskar Schindler’s character, his transformation from a Nazi supporter to a Jewish protector was meant to be subtle and gradual. A girl dressed in red is the only colorful character, and her execution marks not only Schindler’s change, but also symbolizes the fact that the United States, Britain and Russia knew about the decimation of the Polish Jews and, in Spielberg’s opinion, did not take steps to stop the holocaust.29 In this sense, the film carries the strong normative message that religious minorities ought to be protected. Following the box-office success of this film, Spielberg established the Shoah Foundation to record and preserve testimonies of holocaust survivors for future generations. Some motion pictures also carry strong normative messages that racial minorities ought to be protected. Uncle Tom’s Cabin (1927) and To Kill a Mockingbird are controversial examples, as the African American characters are deemed to be virtuous because they are victimized in different ways at the hands of whites. As Asimow and Mader put it, audiences may feel empathy with “the depiction of a black man suffering in distinctly Christ-like terms.”30 However, some viewers may simply internalize the social hierarchies reproduced in these films and develop the idea that oppressed individuals require the protection of, for example, well-meaning, but socially and economically advantaged white lawyers. Hollywood has rarely cast black actors for the role of lawyers, Philadelphia (1993) being one of the few exceptions. The life of civil rights activist and Supreme Court Justice, Thurgood Marshall, inspired a brilliant theatrical monologue starring Lawrence Fishburne, though Thurgood (2011) cannot be described as a biographical film. Except for a brief appearance in Glory (1989) and a recent biographical documentary, abolitionist leader Frederick Douglass still awaits a proper dramatic filmed biography. Hollywood

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has also not produced deserved tributes to Martin Luther King Jr. and other leaders of the civil rights movement, such as Rosa Parks. The Rosa Parks Story (2002), for instance, was produced only for television. At the date of writing, the only Hollywood film dedicated to an African American leader is Malcolm X (1992). This film dramatizes the biography of Malcolm X from his criminal career through to his murder, and also depicts his conversion to Islam and his views about racial struggle in the United States. An important narrative element in this film is the use of flashbacks, which gradually reveal more about the character, memories of discrimination as a child, and his family problems. The developing character arc provides possible explanations for his transformation into an important African American leader. In interviews, director Spike Lee admitted to having a transformative ambition in his films. In Malcolm X, Lee asked for the financial support of prominent members of the black community to enable him to maintain his artistic freedom and to realize this motion picture in the way in which he had envisioned it. His film condenses the emancipatory discourse of Malcolm X, communicating the complex challenges of racial struggle to a broad audience and spreading the normative idea that all people should be treated equally. This message is clear from the beginning of the film, which opens with a burning American flag together with the footage of Rodney King being beaten in the streets of Los Angeles and actor Denzel Washington’s voice quoting Malcolm X: “we don’t see the American dream; we’ve experienced only the American nightmare.” This message was present in Lee’s previous motion pictures, Do the Right Thing (1989) and Jungle Fever (1991). Each of these films shows the difficulties of inter-racial relationships in the United States, a subject already explored in Guess Who´s Coming to Dinner (1967) which, in contrast with the complicated romantic relationship in Jungle Fever, supported inter-racial marriage. It provided a powerful counter-hegemonic narrative by positively representing the romantic relationship between a black doctor and his white fiancée. As both the groom and the bride have to persuade their liberal parents to accept their marriage, this motion picture contains the normative message that couples ought not to be judged by the color of their skin and that love can transcend race. The film release coincided with the U.S. Supreme Court landmark decision Loving v. Virginia, 388 U.S. 1 (1967) that struck down laws in 17 states prohibiting interracial marriage. The counter-hegemonic narrative of Guess Who’s Coming to Dinner may be seen as an important cultural artifact that helped to deconstruct widespread opposition to inter-racial marriage in the United States, inviting audiences to discuss racial prejudice and to reflect on this com-

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plex socio-legal question. This film also contained the first inter-racial kiss in Hollywood, as the Motion Picture Production Code expressly prohibited any intimacy between white and black characters until the 1960s. Same-sex relationships were also censored in Hollywood until the late 1960s and LGBT characters were condemned to remain in a “celluloid closet” for decades.31 Once censorship ended, however, LGBT characters were often portrayed in cinema through cruel stereotypes. For instance, in The Silence of the Lambs (1991) and Basic Instinct (1992) the role of the murderous villain is allocated to a transvestite and a lesbian respectively. It was not until Philadelphia (1993) that gay characters were positively portrayed on screen.32 In recent years, Hollywood films have repeatedly denounced homophobia and, at least symbolically, protected LGBT individuals. Boys Don’t Cry (1999) tells the dramatic story of a transgender man, Brandon Teena (anatomically a woman and originally named Teena Brandon) being raped and murdered by two of his girlfriend’s acquaintances. Brokeback Mountain (2005) narrates the prohibited romance between two cowboys who have sexual encounters over two decades until one of them is murdered. Milk (2008) is the biography of gay rights activist Harvey Milk from the beginning of his political career in San Francisco until the attack that ended his life. All these narratives provoke empathy in audiences through the depiction of brutal and unjust violence committed against LGBT characters. Brokeback Mountain disseminates to a broad audience the complex socio-legal question of same-sex marriage discussed by the U.S. Supreme Court in Hollingsworth v Perry 570 U.S. (2013) and United States v. Windsor 570 U.S. (2013). However, by portraying the suffering of the protagonists and condemning the violence committed against them, this counter-hegemonic narrative turns these victimized gay characters into symbolic martyrs of the same-sex marriage cause. The normative message of Brokeback Mountain is that society ought to legalize, accept and protect same-sex marriages. Like other affirmative cinema motion pictures, this film also has a clear transformative ambition and aims to protect minorities by promulgating a counter-hegemonic narrative.

6. Conclusion Cultural studies traditionally refer to “cultural hegemony”33 when describing how television influences the perspective of frequent viewers through the cultivation of mainstream ideas.34 The literature on popular culture and the law suggests that cinema may also shape viewers’ perspectives on certain issues,35 but there is no scientific evidence to suggest that a person’s ideas are influenced by the motion pictures they watch. This chapter has

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explored this subject by focusing on the work of film-makers with a transformative ambition, whose motion pictures contain normative ideas about how minorities ought to be protected. These film-makers hope to influence their audiences and to intervene actively in debates and legal controversies relating to religion, race and sexual orientation. Further empirical studies are needed to examine the extent to which viewers are influenced by these counter-hegemonic narratives of affirmative cinema. It may be difficult to conduct such studies amongst U.S. audiences, as the normative ideas conveyed in affirmative cinema are often simultaneously discussed in congress, courts and academia. Conversely, it would be interesting to examine the influence of affirmative cinema in countries where the relevant normative ideas of a film were not discussed in political arenas at the time of its broadcast. For instance, in Brazil there has not been a solid source of law (precedent, doctrine or scholarly work) to decide cases about the holocaust, same-sex marriage, or racial quotas. Yet, in a series of landmark decisions, minorities have been protected in a number of ways by the Brazilian Supreme Court. For example, the court: upheld the conviction of Siegfried Ellwanger for publishing and selling books denying the existence of the holocaust (STF – HC 82424/RS – 2003); unanimously struck down the Civil Code clause that restricted marriage to relationships between a man and a woman, judicially recognizing the validity of same-sex marriage (STF – ADPF 132 – 2011); unanimously approved racial quotas for 20% of black students at the University of Brasilia (STF – ADPF 186 – 2012). Obviously, none of the opinions cited films such as The Pianist, Brokeback Mountain or Do the Right Thing, but judges also lacked many traditional sources of law to reach their judgment. Perhaps values disseminated through affirmative cinema were influential in encouraging the protection of minorities in these landmark cases? Finally, it is important to acknowledge that the impact of affirmative cinema on individuals’ mindsets and its ability to stimulate legal change may not be easily evidenced by scientific data. In contrast to quantitative data used to demonstrate the cultivation effect,36 this chapter has explored ways in which a few counter-hegemonic narratives—condensed into threehour long motion pictures—aim to shape audiences’ perspectives on samesex marriage, inter-racial relationships and the protection of religious minorities. Film directors may have this transformative ambition, but do they actually manage to protect minorities through their films? At this stage, the influence of affirmative cinema depends on our views about how films in general can shape social opinions. At this exploratory stage, this chapter has examined cases where film-makers seek to defend minorities, but

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leaves open the question as to whether affirmative cinema can achieve this goal in practice.

Bibliography Adorno, Theodor. In Search of Wagner. London: Verso, 2005. Asimow, Michael. “When Harry Met Perry and Larry: Criminal Defense Lawyers in Television.” Berkeley J. Ent. & Sports L 1 (2012): 77–98. Asimow, Michael & Shannon Mader. Law and Popular Culture: A Course Book. New York: Peter Lang Publishing, 2007. Beil, Benjamin, Jürgen Kühnel & Christian Neuhaus. Studienhandbuch filmanalyse: Ästhetik und Dramaturgie des Spielfilms. München: Wilhelm Fink, 2012. Campbell, Greg. Blood Diamonds: Tracing the Deadly Path of the World’s Most Precious Stones. Boulder: Westview Press, 2002. Friedman, Lawrence. “Law, Lawyers, and Pop Culture.” Yale Law Journal 98 (1989): 1579–1606. Gerbner, George. “Cultivation Analysis: An Overview” Mass Communication & Society 3 (4) (1998): 175–194. Gramsci, Antonio. Prison Notebooks. 3 vols. New York: Columbia University Press, 1996. Greenberg, James. Roman Polanski: Seine Filme, Sein Leben. München: Knesebeck, 2013. Hume, David. A Treatise of Human Nature. Edited by David Fate Norton & Mary J. Norton. Oxford: Oxford University Press, 2000. Joly, Martine. Introduction à l’analyse de l’image. Paris: Armand Colin, 2009. Jullier, Laurent. Analyser un film: de l’emotion à l’interpretation. Paris: Flammarion, 2012. Lessig, Lawrence. Republic, Lost: How Money Corrupts Congress and a Plan to Stop It. New York: Twelve, 2011. Roberts, Janine. Glitter & Greed: The Secret World of the Diamond Cartel. New York. Disinformation Co., 2003. Russo, Vito. Celluloid Closet: Homosexuality in the Movies. New York: Harper and Row, 1987. Said, Edward. Culture and Imperialism. New York: Vintage, 1994. —. Orientalism. New York: Vintage, 1979. Schickel, Richard. Steven Spielberg: Seine Filme, Sein Leben. München: Knesebeck, 2012.

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Sherwin, Richard K. Law and Popular Culture. In The Blackwell Companion to Law and Society, edited by Austin Sarat. Oxford: Blackwell Publishing Ltd, 2004. Tushnet, Mark. Out of Range: Why the Constitution Can’t End the Battle Over Guns. Oxford: Oxford University Press, 2007. Zoellner, Tom. The Heartless Stones. New York: St. Martin’s Press, 2006.

Notes 1 Michael Asimow & Shannon Mader, Law and Popular Culture: A Course Book (New York: Peter Lang Publishing, 2007), 36. 2 Laurent Jullier, Analyser un film: de l´emotion à l´interpretation (Paris: Flammarion, 2012), 108–9. 3 Asimow & Mader, Law and Popular Culture, 54–8. 4 Benjamin Beil, Jürgen Kühnel & Christian Neuhaus, Studienhandbuch Filmanalyse: Ästhetik und Dramaturgie des Spielfilms (München: Wilhelm Fink, 2012), 23–4. 5 Antonio Gramsci expanded the concept of ideology, including cultural topics among the ideological materials of the ruling class in his prison notebooks. See Antonio Gramsci, Prison Notebooks, vol. II. (New York: Columbia University Press, 1996), 52–3. 6 For the detailed socio-legal implications of the diamond trade in Africa, see Greg Campbell, Blood Diamonds: Tracing the Deadly Path of the World’s Most Precious Stones (Boulder: Westview press, 2002); Janine Roberts, Glitter & Greed: The Secret World of the Diamond Cartel (New York. Disinformation Co, 2003); Tom Zoellner, The Heartless Stones (New York: St. Martin’s press, 2006). 7 I have in mind, for instance, among others: Lawrence Lessig, Republic, Lost: How Money Corrupts Congress and A Plan To Stop It (New York: Twelve, 2011); Mark Tushnet, Out of Range: Why the Constitution Can’t End the Battle Over Guns (Oxford: Oxford University Press, 2007). 8 George Gerbner, “Cultivation Analysis: An Overview,” Mass Communication & Society 3 (4) (1998): 175–94. 9 Asimow & Mader, Law and Popular Culture, 54–8. 10 For an overview on how pop culture influences legal practice see, for instance, Lawrence Friedman, “Law, Lawyers, and Pop Culture,” Yale Law Journal 98 (1989): 1579–1606; Richard K. Sherwin, Law and Popular Culture, in The Blackwell Companion to Law and Society, ed. Austin Sarat (Oxford: Blackwell Publishing Ltd., 2004). 11 Jullier, Analyser un film, 26. 12 David Hume, A Treatise of Human Nature, eds. David Fate Norton & Mary J. Norton (Oxford: Oxford University Press, 2000), 293–302. 13 Hume, A Treatise of Human Nature, 302–6. 14 Jullier, Analyser un film, 133.

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This distinction between timid and narcissistic narrators can be found in Jullier, Analyser un film, 65. 16 This classification between descriptive and transformative ambition can be found in Jullier, Analyser un film, 101–12. 17 This distinction between preventive and votive ambitions can be found at Jullier, Analyser un film, 108–112. 18 This distinction between preventive and votive ambitions can be found at Jullier, Analyser un film, 17–22. 19 The fantastical element in The Curious Case of Benjamin Button (2008) is the fact that the character gradually becomes younger over time, driving the leading characters apart. In Ghost (1990) “death do them part,” as the hero is murdered and yet continues to protect his loved one with the support of a medium. In stark contrast, the hero in Highlander (1986) is immortal, which prevents him from having a normal life and a regular love story. 20 His cultural theory is found in many different parts of his work, but it is neatly summarized at Gramsci, Prison Notebooks, vol. II, 52–3. 21 Gramsci, Prison Notebooks, vol. I, 42–64. 22 I have in mind especially the post-colonial tradition and works such as Edward Said, Culture and Imperialism (New York: Vintage, 1994), and Edward Said, Orientalism (New York: Vintage, 1979). 23 A very comprehensive cultural critique of the social character of Wagner’s work—especially anti-Semitism in Parsifal—can be found at Theodor Adorno, In Search of Wagner (London: Verso, 2005), 8–17. A brief note on how Shakespeare openly sided with the ruling classes of society and produced aristocratic art can be found at Gramsci, Prison Notebooks, vol. II, 123. 24 Asimow & Mader, Law and Popular Culture, 22–4; 205–07. 25 The special dimension of biographical time in cinema is highlighted by Beil, Kühnel & Neuhaus, Studienhandbuch Filmanalyse: Ästhetik und Dramaturgie des Spielfilms, 278–9. 26 Asimow & Mader, Law and Popular Culture, 36. 27 James Greenberg, Roman Polanski: Seine Filme, Sein Leben (München: Knesebeck, 2013), 208–12. 28 Richard Schickel, Steven Spielberg: Seine Filme, Sein Leben (München: Knesebeck, 2012),157–62. 29 Schickel, Steven Spielberg, 160–1. 30 Asimow & Mader, Law and Popular Culture, 36. 31 The comprehensive analysis of this phenomenon can be found in Vito Russo, Celluloid Closet: Homosexuality in the Movies (New York: Harper and Row, 1987). 32 Asimow & Mader, Law and Popular Culture, 207. 33 Since the term was coined by Gramsci, Prison Notebooks, vol. III, 64–5. 34 Gerbner, “Cultivation Analysis,” 175–94. 35 Asimow & Mader, Law and Popular Culture, 54–8. 36 The methodology used, for instance, by Gerbner, “Cultivation Analysis,” 175– 94.

CHAPTER SIXTEEN “IT’S MY CULTURE, STUPID!”: A REFLECTION ON LAW, POPULAR CULTURE AND INTERDISCIPLINARITY JEANNE GAAKEER

“a culture is defined by what it can name” Alberto Manguel, A Reader on Reading1

1. Overture Throughout the ages the institution that is law has generated critical attention. The figure of the judge is no exception, not least because judges often cut a sorry figure, from François Rabelais’ literary judge Bridoye who is brought to trial himself because he decides his cases by throwing dice2 to those fascinating, hybrid creatures of postmodernity, television judges. Serious cultural inquiry into law and its practitioners started at the beginning of the twentieth century with the interest in the literary representation of law, on the view that reading literary works forces us to step back from the technicalities of law and makes us look at it as a cultural phenomenon.3 Literary works depicting institutional abuses were treated as historical sources and some of them led to legal reform,4 and the reading habits and literary preferences of judges became the subject of investigation.5 When, with the turn to interpretation in the social sciences in the 1960s and 1970s, doctrinal, black letter law began to lose its autonomous position to solve questions that were previously considered as belonging to its exclusive domain, the door was opened to other disciplines. Literature and literary theory were among the first subjects to which jurists turned. Since then, the interdisciplinary movement in legal theory that goes by the name of “Law and Literature” (and to which I claim adherence) thrives not least because of the societal importance attached to the investigation of critical portrayals of law. Furthermore, the educative function of a human-

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istic approach to law developed from the idea that literature, especially nineteenth-century realist narrative fiction, appeals to the emotions as well as to the intellect, and that this is a quality that can help jurists develop an empathetic attitude towards those they are called upon to represent or judge.6 The long dominant emphasis on high culture has shifted these past few decades, and today, lo and behold, judges have gained notoriety as actors in televised court drama. To me, as a practitioner, the portrayal of law in popular culture, including tabloids and TV series, often seems a farcical or even perverse form of law-bashing, on the one hand, with lying lawyers as “princes of darkness.”7 On the other, the gist of so many products of popular culture is that law is the great redeemer (although fictional jurists often overstep the boundaries when trying to find a just solution, as John Grisham’s template for legal fiction shows). This redemptive aspect is often in sharp contrast to everyday legal reality with plea bargaining, problems in jury selection in common law legal systems, the law’s undue delays, or miscarriages of justice as a result of assigning heavy tasks to inexperienced (examining) judges.8 This contrast is an interesting phenomenon for interdisciplinary research as it also provides an opportunity to connect research, more than is done to date, to legal practice. I say this because the move away from Sophocles, Dostoyevsky and Shakespeare to Crime Scene Investigation, Boston Legal and Judge Judy still disregards the close link of theory and practice internal to the discipline of law. On the view that law and other cultural forms both reflect and constitute our world so that any critical cultural inquiry necessarily encompasses an internal and external view, it is important to invite an interdisciplinary discussion of both the values we care for in law and those of the interdisciplinary “Law and Popular Culture” venture itself. Only then can we achieve the ultimate goals of the humanist approach (i.e. self-reflection and self-knowledge), for we always risk being trapped by our own discipline’s “deep canonicity,” i.e. “the canonicity of certain ways of thinking, talking, and arguing that are characteristic of a culture,” be it legal or otherwise.9

2. Legal Actions On the view that popular culture contributes to the mental frames with which we perceive law and society, I aim to reflect on the topics of reading popular culture jurisprudentially, on mediality and popular justice in the courtroom, and on methodological aspects of disciplinary co-

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operations of law and culture(s) to explore our local cultural imaginations and scripts. Seeing law in its contemporary cultural context(s) has a long tradition in European legal practice, with examples such as the basoche in French legal culture around 1500 (i.e. satirical fake trials held by the brotherhoods of young lawyers) and theatrical performances at the Inns of Court during the height of English legal humanism.10 In European legal theory it is to Montesquieu that we owe the idea that any cultural context is itself a frame of reference, in the sense that it offers a specific configuration of views on law, government, society, the good life, and humankind’s place in the whole. To me, there is a direct link in this approach to the seminal proposals of Clifford Geertz to look upon culture as a web of significance (also in the sense of the symbolic order of institutional forms) and its analysis as “an interpretive one in search of meaning,” and of Robert Cover who urged us to explore the connection between the normative and the narrative of the world we inhabit.11 If law is unthinkable without the human society from which it originates and the development to which it contributes, it is an integral part of culture. But what is law? And what is culture? What is “Law and Popular Culture?” For centuries, jurists have tried in vain to find a definition of law, wrote the German philosopher Immanuel Kant in the eighteenth century in The Metaphysics of Morals. The question behind any definition of law as a cultural discipline presupposes an inquiry into the societal and conceptual conditions of law and legal practice, and such cultural inquiry is in itself a practice guided by the epistemological characteristics of an era. On this view, we need to combine both the internal and external standpoint (i.e. we are in and of that practice as much as we investigate it from the outside).12 So, as someone who combines academic work in the field of legal theory and “Law and Literature” with legal practice and life as a judge, these questions are urgent. This is even more so given the close connection between theory, in the sense of the academic study of and research in law that (re)produces the overall picture of a field of law, synthesizing what seems incompatible at the case level, and legal practice that provides the cases for consideration and always moves between norm and fact, between law as a system of norms and rules and the administration of justice.13 My personal internal and external experience of, and perspective on, “Law and —” suggests a few observations and subsequent caveats. To start with observations, my experience in “Law and Literature” is that all too often the question after the quidditas or “whatness” of law in interdisciplinary research is not perceived as important, let alone made explicit. Do we mean substantive or procedural law within a given legal

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system? Do we use the word “law” in contradistinction to the, or a concept of justice and, if so, do we show our conceptual colors as far as the legal theory we espouse is concerned? Or is the word “law” used as opposed to “morality”? And is it immediately clear to the reader that the author has either a common law or a civil law system in mind? The differences between common law and civil law thought and practice cannot but lead to different answers to the question “what is law?” and, as a result, to different approaches in interdisciplinary studies. To give a few examples, trial by jury in relation to the adversarial nature of law and the agonistic structure of the legal process in the US strongly differs from both the English and the continental-European place of the jury in legal procedure (i.e. European countries that have a jurysystem). What is more, it greatly differs from civil law countries as far as the function and position of the judge is concerned and the procedural act of judging itself. Thus the ceremonial aspects of legal procedure differ, and that is very important when it comes to doing research in the field of Law and Popular Culture. In civil law countries, the inquisitorial approach has traditionally been dominant in criminal law. It favors a process of verification of evidence (mostly textual in the form of witness statements and all kinds of technical reports ranging from DNA tests to psychiatric reports on the defendant’s mental health, or the lack of it) against the background of what the Code of Criminal Procedure offers by way of an evidential checklist. So the test of the evidence and relevant arguments based on it differs from the way this is done in a system that favors equality of arms and the idea that a defendant can invoke the hearing of expert-witnesses by way of counter-expertise. At the same time, civil law countries have started to adopt some adversarial features. If Thomas Paine was right when he wrote in his 1776 pamphlet Common Sense that in America the law is king, what does that mean for the mental picture the word law evokes, also in terms of constitutionalism? In the European Union the point is illustrated in the various official languages of, for example, the European Convention on Human Rights and the culturally dissimilar notions of the very idea of a “right,” let alone a “human right,” in the countries that are parties to the treaty. This point becomes even more important when we think of the cultures of those countries aspiring to membership of the European Union. Law is a malleable concept, and what is meant by it is context-dependent, hence the question of its demarcation matters. The same goes for the term “culture.” Lawyer-sociologists such as Weber and Durkheim defined this in general terms as the visible symbol of underlying values. Others suggest that culture refers to “learned modes

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of behavior and its material manifestations, socially transmitted from one generation to the next and from one society or individual to another,” and that this is not helpful when it comes to understanding novel cultural trends in which such intergenerational transmission in view of acculturation does not play a role.14 So there is obviously a point to be made for the specification of the cultural in Cultural Studies if we recall that Raymond Williams, who co-founded the field in the early 1960s, wrote that “culture is ordinary.”15 Sarat and Kearns note that “[L]aw and legal studies are relatively latecomers to cultural studies”16 and argue that, traditionally, the study of culture is “that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.”17 In addition, Sarat and Simon offer the caution that the definitional vagueness of culture leads to its treatment as something “outside ongoing local practices and social relations.”18 I could not agree more, for the cultural study of law indeed: invites us to acknowledge that legal meaning is found and invented in the variety of locations and practices that comprise culture, and that those locations and practices are themselves encapsulated, though always incompletely, in legal forms, regulations, and symbols.19

But if “whatness” comes in circles in cultural studies, in much the same way that it does in Law and the Humanities generally, this complicates the search for a cultural location from which to start scholarly research, especially given the current diversity in interdisciplinary legal theory. So we must choose and make explicit how we use the term “culture,” if only to preclude the risk that “the core debate is increasingly a debate about what is being debated.”20 This leads to the next question: What, then, is “popular” culture, and who decides, i.e. the masses in the sense of the general audience and the sale of cultural products, or the scholars? And what does the “and” actually connect? Our circumstances are no longer those in which law and popular culture formed a unity, as, for example, in Renaissance England when one could encounter a row of heads of executed criminals on stakes in the morning and attend a performance of Macbeth in the afternoon, the images of both being immediately recognized.21 So do we perhaps enter even more contentious areas than the demarcation zones of law and culture when we do Law and Popular Culture? The current proliferation of cultural ambivalence in our societies also pertains to popular culture. Now that the relationship between law and culture is no longer the exclusive domain of legal anthropology and/or the sociology of law, interdisciplinary legal theory needs to take a more systematic account of the notion of culture,

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because, as Roger Cotterrell claims, the term “embraces a too indefinite and disparate range of phenomena.”22 I am inspired by Cotterrell’s argument that the issue is that of law as a form of cultural projection in which the object of much research is to ask how law appears when represented as part of society’s general, public self-images, filtered through popular understandings or presented by mass media.23 At the same time, I embrace the idea of law itself as an example of cultural inheritance, and hence I am critical of popular culture’s projections of law that diverge entirely from law as those inside the profession know it. After all, law is my culture.

3. Three Caveats—or, Mind the Gap(s) I want to illustrate my position by adding three caveats, while keeping in mind that, ideally, a cultural analysis of law may both challenge traditional ideas of culture and propose new views of law. It should also be acknowledged that any “learned system of culture inevitably depends on one’s position in the world.”24 My first caveat is prompted by the quidditas issues discussed above. It is precisely because interdisciplinary cultural-legal studies are broadening that the question of the methodology of jurisprudential readings of (any) culture should be highlighted. In contradistinction to traditional views on legal theory, such as the one espoused by the late Ronald Dworkin, that treat jurisprudence as part of political philosophy and hence its topics as belonging to the realm of morality with the concept of justice writ large,25 we need to take into account the concrete legal context far more than is done to date. That is why we need to make more prominent the distinguishing features of law in the cultural objects under consideration, possibly in a comparative way. So there lies the challenge that Robin West already pointed to, namely, that while the (various) Law and Culture denominations have strongly developed during the past decade: “There has been no systematic treatment, of which I’m aware, of the possibility that cultural products, no matter how defined or conceived, might actually contain insights into the nature of law that influence jurisprudential debates.”26 Such treatment would, as noted above, have to include a thorough analysis of the legal aspects involved, lest the cultural view presented end in the dead-end street of dilettantism instead of fulfilling its critical, jurisprudential purpose. From my European point of view, this would also require reflection on (dis)similarities in legal methodologies and their effects on cultural studies. West herself illustrates her points with examples taken from American cultural legal studies, from TV series such as LA Law and CSI to Tom

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Wolfe’s I am Charlotte Simmons and an actual rape case at Duke University.27 One may argue, of course, that such cultural artifacts are well known outside the US, but the question of conceptual translation remains acute. To give an example, in the Albanian novelist Ismael Kadare’s Spring Flowers, Spring Frost 28 we read how, at the end of the twentieth century, traditional Albanian customary law known as the Kanun became a subject of interest to the Helsinki Committee and the International Criminal Court in The Hague because of its provisions on blood feuds. This subject had been politically silenced in Albania given the combined desire to seek closer relations with the European Union and the knowledge that there was a Council of Europe memorandum that denounced blood feud. Not only is Albanian private justice a far cry from other European legal systems’ doctrinal views on the subject, but even more so from the line of thought that brings together Balzac, an analysis of Clint Eastwood movies and Abu Ghraib in a recent analysis of revenge in (popular) culture.29 At the same time, we should avoid the risk of creating false oppositions between legal systems, as is too often the case when culturalists and common law oriented legal scholars alike keep emphasizing that civil law starts from the abstract rule to be applied by the judge to concrete cases. This is an oversimplified and partly incorrect view of what judges do in civil law countries.30 William MacNeil’s innovative study of “people’s law” or “pop law,” as found in popular literary, televisual and cinematic texts, i.e. Lex Populi, the Jurisprudence of Popular Culture,31 is a fine example of research that acknowledges the need to pay careful attention to different contexts. Nevertheless I would suggest that more work needs to be done because the recontextualisation of jurisprudence that MacNeil suggests we take upon us still runs the risk that a subject such as the representation of law in movies and on television (the media attention for the Italian trial of the American student Amanda Knox is a case in point) is left untranslated, i.e. accepted without modifications necessary for our understanding in legal contexts different from the context of its production. The view that acculturation is also culture- and context-dependent must, therefore, be put center stage. I fully agree with MacNeil when he suggests that popular culture “could and should play a signal part, indeed a profoundly democratizing role in the ongoing battles over the ‘politics of the law’ and the law in and of politics … by delivering jurisprudence from the ‘classes’ (the Posners and Dworkins, for example) to the ‘masses’.”32 I would therefore argue for a substantive approach to the question of what particular qualities make a cultural artifact “culture” and to the view of law espoused. My suggestion is prompted by the recent fresh input on the connection of law and hip-hop, a musical form that undoubtedly al-

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ready has social impact as Paul Butler writes.33 His Let’s Get Free, a HipHop Theory of Justice is the story of how, as an African American public prosecutor, his arrest for assault suggested an investigation into incarceration rates in relation to race. This leads him to argue that hip-hop music may (help) transform the US justice system because it “describes, with eloquence, the problems with the current system, and articulates, with passion, a better way.”34 Butler acknowledges that hip-hop, as a product of youth culture and because it seems to celebrate violence, may not be an obvious choice, yet he claims that: “A frequent theme in hip-hop is that the law does not properly weigh the immorality posed and danger caused by white elites. Rather, it exaggerates the threat posed by the poor and the minorities.”35 This view of the inside of US justice, assuming that it is more or less correct, is interesting for the improvements it suggests, such as education and the involvement of the community as forms of crime prevention, and for the jurisprudential thesis that the degree of guilt should direct the form and duration of the punishment, i.e. social and policy grounds included. The latter, however, sits uneasily with the principles behind most penal codes. What is more, the idea of private justice that emanates from many hip-hop lyrics, with a retributive system based on “an eye for an eye, a tooth for a tooth,”36 raises the question of whether this can be called jurisprudence, i.e. a theory of justice, let alone if it is feasible to treat it seriously in a legal context, rather than as a socio-political issue. If there is such a thing as hip-hop law it would seem that it is highly instrumental, and that would be the interesting jurisprudential point.37 This brings me to my second caveat, relating to the topic of mediality and popular or informal justice in the sense of the dispute resolution that the general public seeks in TV courts (rather than via state law and its institutions), or by means of media attention for the legal procedure in which they are involved.38 While similar to institutional law in its representations, the cultural location of popular justice lies, by contrast, in the presumptions of the general public on what the right outcome of a case should be. Here, therefore, the internal-external issue returns.39 For my example I draw on a personal experience. In spring 2012 I was involved in the trial of a “ghost-driver” (i.e. a motorist driving against the traffic on a motorway) under the influence of alcohol who was charged with culpable homicide after having caused a fatal car accident in which a young man had died. The Dutch Supreme Court had already referred the case back to the Appellate Court on a technical point of law with respect to the deadline for sending in the defendant’s blood sample for forensic investigation. The mother of the young man hoped for legal and emotional

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closure so that she could try to move on with her life, but she was extremely anxious that because of this technicality the defendant would not be punished severely enough for the death of her son (here too the concept of private justice is predominant), and so turned to the makers of a television series entitled Pro Deo40 in which a team of well-known Dutch advocates helps people seek justice as they perceive it. The Pro Deo team then asks permission to record the proceedings in court on the day of the trial. Given the rules and regulations of Dutch courts, such coverage is restricted to the so-called “penguin shot” (i.e. the entrance of the members of the judicial panel in full attire with black robes and white bands), the introduction of the case, the charging speech of the public prosecutor and, two weeks later, the session in which the judgment is pronounced. So far, so good; but when the episode was televised the court was not amused when the images of the reading of the judgment to the defendant were followed by shots of the defense lawyer, whom we knew had definitely not been present at that crucial moment. Moreover, we found that much of this episode was filled with attempts by the TV host to get into contact with the defendant outside the courtroom, i.e. he went to the defendant’s home to try and talk about the case. Given the presumption of innocence that we hold dearly, and also from a point of view of privacy before and after sentencing, such actions are reprehensible in judges’ eyes and resemble an auto-da-fé. So my lamentation would be “Is this real life? Is this just fantasy?”41 My caveat to those involved in cultural studies would be to mistrust deeply what they see when they see court proceedings of any kind, and that includes those of the Judies and Barbaras of popular television.42 Or, from the other perspective: mind the possible gap between what you take to be your object of scholarly investigation and “what really happened” and keep probing the veracity of what you “see.” I say so because visuality or visual literacy and mediality have already generated a generous amount of critical scholarly attention ever since Richard Sherwin pointed to the interpenetration of law and popular culture and suggested that not only does culture affect ordinary expectations about truth and justice in real cases, but that aesthetics are constitutive of (legal) reality.43 The focus of the investigations so far, however, has been on either the aesthetics44 or on the trial as the paradigmatic form of law’s cultural representation45. These are often combined with the topic of principles of procedural integrity46 and the epistemologies involved in the difference between a text-based jurisprudence and visualization in and of law in evidentiary situations.47 The manipulation of images in the sense described here has, to my knowledge, not been given the attention it deserves. So the judge’s frustration—it’s my

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culture, stupid—should also be the culturalist’s challenge. This is also important in view of the goal of humanistic studies to attain self-reflection and self-knowledge—because law’s (self-) representation is seriously undermined in my example, we should pause to reflect on what such manipulations mean, if anything at all, beyond the blatant commercialism of television producers inspired by what the audience presumably wants to see. The risk is production of a stereotypical depiction of the “criminal” that legal practice knows has no equivalent in reality. That is why I advocate that we keep in mind the hermeneutic question posed by Gadamer and Ricoeur: “what is it that I do when I say that I attribute meaning to images and which are the determining factors in that process?,” while keeping in mind that “understanding is not the elimination of prejudice and the perception of what truly is; rather, understanding is the product of the cultivation of productive prejudices.”48 This leads me to my third caveat on our positions in the disciplinary spectrum and relates to the pitfalls and peculiarities of the co-operations that we call interdisciplinary, especially when we combine not two but three cultures. Each discipline has its own prejudices because of the simple fact that when, in the nineteenth century, fields of knowledge that were originally unified diverged and subsequently developed into academic disciplines, they developed their own languages of concepts, values, goals and methodologies. As a result, those disciplines in the explanatory, empirical domain of the natural sciences paradigm will treat, for example, the problem of random acts of violence differently from the disciplines that start from the hermeneutic position of the humanities aimed at understanding rather than explaining. In short, each discipline has its own way of seeing. This suggests, first, the question of whether as interdisciplinarians we are perhaps forcing our views on others, as colonizers, or whether we are the ones being invaded.49 Secondly, this suggests that we learn to enter imaginatively into the discipline(s) we co-operate with and to perform the switching exercise necessary to preclude disciplinary confirmation biases. This is even more important when, as Sherwin writes, in the case of law and culture studies, the object under consideration is composed of so many components—law and film, law and music, law and literature, law and sports, law and journalism.50 So we should always ask whether we are held captive by our own picture of reality.51 An example from legal practice illustrates the point, concerning a Dutch case of insulting behavior towards a policeman in the execution of his duty. On March 16, 2007 a young man was arrested for such behavior because he wore a bomber jacket with the letters “ACAB” printed on it, the insult being that these letters stand for “All Cops Are Bas-

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tards.” The regional court acquitted, but the appellate court found the defendant guilty because it found that some 190,000 hits on the internet made the combination “ACAB” an accepted fact that needed no further proof: perspicua vera non sunt probanda. The Supreme Court quashed the judgment on a point of procedural law because the appellate court had googled after, rather than during, the trial session, so that the defense had had no chance to respond. The second appellate court panel then acquitted on the ground that the meaning of “ACAB” was not common knowledge and hence could not be insulting. Again, the attorney-general tried to get an annulment. The Supreme Court agreed with the attorney-general, now on a point of substantive law, because whether or not an expression like “ACAB” was common knowledge was not a qualifying element of the criminal charge.52 So whether or not “the masses” know what “ACAB” means is not relevant. When a third appellate court panel was appointed, the attorney-general demanded that an alternative charge be added to the first. The court permitted the addition, but in the end found the defendant guilty of the first charge. Of decisive importance was not that “ACAB” is meant to insult police officers worldwide (the court took that as an accepted fact without further ado), but the circumstance that this defendant was well aware of the insulting character of the term. He had been given a warning a week before the date mentioned in the criminal charge that the police officers took offense. So when a week later he wore the same jacket while visiting a place of entertainment in the city center, he knew what to expect when caught. In other words, this was enough to establish criminal intent. Culture and law clash here. Is, as the defense suggested, the defendant just a peaceful young man who had no intent to insult the policeman and was only wearing a garment to connect to the world of his peers, in this case the world of punk and hardcore—baggy jeans and lots of piercings as items of fashion? The sociologist and culturalist may agree. Or is the possible allegiance to ultra-right movements that such clothing suggests a reason for societal concern? The criminologists and those in politics and political science have a field day. The jurist asked to decide about the insulting character of the abbreviation “ACAB” faces both a legalhermeneutic and a factual-cultural challenge, for in another case the appellate court decided that wearing a jacket with a small metal badge reading “ACAB” was not enough to establish criminal intent, and another lower court convicted someone who lifted his shirt and showed a tattoo on his belly reading “ACAB” to a policeman.53 But what if the tattoo or the letters on the jacket are not perceived by the policeman? What does it mean that the unique selling point of the company making these jackets is that

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they will attract attention? Is wearing a piece of clothing an “act” in the sense of insulting behavior and in what way is it comparable to insulting acts such as spitting or giving someone the finger, as commentators on the above decisions have asked? The third appellate panel observed that a person’s liberty to choose what to wear is restricted by criminal law, in so far as texts on garments are insulting. My point here is that when it comes to deciding about the legal issues in this case, both substantive and procedural, “culture” proves to be a difficult concept that easily leads jurists off the right (legal) track (in this case [presumably] at least from June 6, 2008 when the Regional Court Middelburg gave its decision [unpublished] to June 26, 2013). Context proves to be everything! That is another reason why jurists may benefit from what interdisciplinary studies have to offer.

4. Conclusion We would do well to keep in mind Homi Bhabha’s argument that cultural difference “emerges from the borderline moment of translation that Benjamin describes as the ‘foreignness of languages’.”54 Benjamin’s remarks on translatability are salient reminders of the fact that meaning is in constant flux and is context-dependent with the result that translation, be it of texts or disciplinary peculiarities, “is only a somewhat provisional way of coming to terms with” the otherness of texts and disciplines.55 That is why we must live with residue and loss. A prudent use of the affirmation of the value of our own cognitions and interpretive approaches is therefore in order to inculcate the methodological consciousness of the (im)possibilities and specifics of our disciplinary co-operations. While we can never wholly escape our hermeneutic positions, we must probe our own disciplinary prejudices and not pit one discipline against the other, but strive for transparency and conceptual clarity. Only then can we confer legitimacy on our “Law ands,” an acknowledgement of the liminality56 of which remains inherent in—or even essential to—our project.

Bibliography Arlidge, Anthony. Shakespeare and the Prince of Love: The Feast of Misrule in the Middle Temple. London: Giles de la Mare, 2000. Armstrong, Walter P. “What Do The Justices Read?” American Bar Association Journal 35 (1949): 295–98. Bhabha, Homi K. “DissemiNation: time, narrative, and the margins of the modern.” In Nation and Narration, edited by Homi K. Bhabha, 291– 322. London and New York: Routledge, 1990.

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Balkin, Jack M. “Interdisciplinarity as Colonization.” Washington and Lee Law Review 53 (1996): 949–70. Balkin, Jack M. & Sanford Levinson (eds.). Legal Canons. New York: New York University Press, 2000. Barnhizer, David. “Princes of Darkness and Angels of Light: The Soul of the American lawyers.” Notre Dame Journal of Legal Ethics & Public Policy 14 (2000): 371–477. Benjamin, Walter. “The Task of the Translator.” In Illuminations, translated by Harry Zohn, edited and with an introduction by Hannah Arendt, 69–82. London: Fontana Press, 1973. Binder, Guyora & Robert Weisberg. Literary Criticisms of Law. Princeton: Princeton University Press, 2000. Bond, Cynthia D. “‘We, The Judges’: The Legalized Subject and Narratives of Adjudication in Reality Television.” UMKC Law Review 81 (2012): 1–60. Bouhaïk-Gironès, Marie, Simon Gabay, Jelle Koopmans & Katell Lavéant. “Legal Theory, Legal Practice and Drama (1200–1600).” Law & Humanities 5 (2011): 75–95. Burke, Peter. Cultural Hybridity. Cambridge: Polity Press, 2010. Butler, Paul. Let’s Get Free, a Hip-Hop Theory of Justice. New York and London: The New Press, 2009. Carpi, Daniela & Jeanne Gaakeer (eds.). Liminal Discourses, Subliminal Tensions in Law and Literature. Berlin: De Gruyter, 2013. Cavallone, Bruno. “François Rabelais and Procedural Justice.” In Teaching Law through the Looking Glass of Literature, edited by Barbara Pozzo, 87–92. Bern: Stämpfli Publishers, 2010. Coombe, Rosemary. “Is there a Cultural Studies of Law?” In A Companion to Cultural Studies, edited by Toby Miller, 36–61. Malden MA: Blackwell, 2001. Cotterrell, Roger. “Law in Culture.” Ratio Juris 17 (2004): 1–14. Cover, Robert. “Nomos and Narrative.” Harvard Law Review 97 (1983): 4–68. De Sousa Santos, Boaventura. “State, Law, and Community in the World System: An Introduction.” Social and Legal Studies 1 (1992): 131–42. Dahlberg, Leif. “Introduction, Visualising Law and Authority.” In Visualizing Law and Authority. Essays on Legal Aesthetics, edited by Leif Dahlberg, 1–9. Berlin: De Gruyter, 2012. Dworkin, Ronald. Justice in Robes. Cambridge (Mass.) and London: The Belknap Press, 2006. Ferguson, Robert A. The Trial in American Life. Chicago and London: University of Chicago Press, 2007.

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Flessas, Tatiana. “Aphorisms, Objects, Culture.” In Nietzsche and Legal Theory, Half-Written Laws, edited by Peter Goodrich & Marina Valverde, 105–24. New York: Routledge, 2005. Gaakeer, Jeanne. “The Future of Literary-Legal Jurisprudence: Mere Theory or Just Practice?” Law and Humanities 5 (2011): 185–96. —. “‘On the Study Methods of Our Time’: Methodologies of Law and Literature in the Context of Interdisciplinary Studies.” In Intersections of Law and Culture, edited by Priska Gisler, Sara Steinert Borella & Caroline Wiedmer, 131–49. Basingstoke UK: Palgrave MacMillan, 2012. —. “European Law and Literature: Forever Young. The Nomad Concurs.” In Dialogues on Justice: European Perspectives on Law and Humanities, edited by Helle Porsdam & Thomas Elholm, 44–72. Berlin: De Gruyter, 2012. Geertz, Clifford. The Interpretation of Cultures. New York: Basic Books, 1973. Gisler, Priska, Sara Steinert Borella & Caroline Wiedmer, “Setting the Stage: Reading Law and Culture.” In Intersections of Law and Culture, edited by Priska Gisler, Sara Steinert Borella & Caroline Wiedmer, 1– 13. Basingstoke UK: Palgrave Macmillan, 2012. Kadare, Ismael. Spring Flowers, Spring Frost, translated by David Bellos. New York: Arcade Publishing, 2002. Kahn, Paul W. “Freedom, Autonomy, and the Cultural Study of Law.” In Cultural Analysis, Cultural Studies, and The Law, edited by Austin Sarat & Jonathan Simon, 155–87. Durham: Duke University Press, 2003. Leiboff, Marett. “‘Ditto’: Law, Pop Culture and Humanities and the Impact of Intergenerational Interpretative Dissonance.” The Australian Feminist Law Journal 36 (2012): 145–63. Lorenz, Aaron. R. S. Lyrics and the Law: The Constitution of Law in Music. Lake Mary US: Vandeplas Publishing, 2007. MacGregor, Neil. Shakespeare’s Restless World. London: Allen Lane, 2012. MacNeil, William P. Lex Populi, The Jurisprudence of Popular Culture. Stanford: Stanford University Press, 2007. —. Novel Judgements, Legal Theory as Fiction. Milton Park and New York: Routledge, 2012. Manguel, Alberto. A Reader on Reading. New Haven and London: Yale University Press, 2010. Maynard, Katherine, Jarod Kearney & James Guimond. Revenge versus Legality, Wild Justice from Balzac to Clint Eastwood and Abu Ghraib. Milton Park, Abingdon UK: Birkbeck Law Press, 2010.

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Nussbaum, Martha C. Love’s Knowledge. Oxford: Oxford University Press, 1990. —. Poetic Justice, the Literary Imagination in Public Life. Boston: Beacon Press, 1995. Mootz, Frances J. III. “Law among the Sight Lovers.” New York Law School Law Review 57 (2012): 61–74. Norrie, Alan. Law and the Beautiful Soul. London: GlassHouse Press, 2005. Olson, Greta. “Intersections of Gender and Legal Culture in Two Women Judge Shows: Judge Judy and Richterin Barbara Salesch.” In Contemporary Gender Relations and Changes in Legal Cultures, edited by Hanne Petersen, José M. Lorenzo Villaverde & Ingrid Lund-Andersen. Copenhagen: DJǚF (forthcoming 2013). Papke, David R. “From Flat to Round: Changing Portrayals of the Judge in American Popular Culture.” The Journal of the Legal Profession 31 (2007): 127–51. Sarat, Austin & Thomas R. Kearns. “The Cultural Lives of Law.” In Law in the Domains of Culture, edited by Austin Sarat & Thomas R. Kearns, 1–20. Ann Arbor: University of Michigan Press, 1998. Sarat, Austin & Simon, Jonathan. “Beyond Legal Realism? Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship.” In Cultural Analysis, Cultural Studies, and The Law, edited by Austin Sarat & Jonathan Simon, 1–34. Durham: Duke University Press, 2003. Schneck, Peter. Rhetoric and Evidence, Legal Conflict and Literary Representation in U.S. American Culture. Berlin: De Gruyter, 2011. Sherwin, Richard K., ed., Popular Culture and Law. Farnham: Ashgate, 2006. Sherwin, Richard K. Visualizing Law in the Age of the Digital Baroque. London and New York: Routledge, 2011. Sherwin, Richard K. “Visual Jurisprudence.” New York Law School Law Review 57 (2012): 11–39. Smits, Jan M., Andrei Ernst, Steven Iseger & Nida Riaz. “If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of HipHop Law.” Ars Aequi 62 (2013): 99–108. Weisberg, Richard. “Wigmore’s Legal Novels Revisited: New Resources for the Expanding Lawyer.” Northwestern University Law Review 76 (1976): 17–28. Vismann, Cornelia. “Image and Law—a troubled relationship.” In Cornelia Vismann. Das Recht und Seine Mittel, edited by Markus Krajewski & Fabian Steinhauer, 417–27. Frankfurt am Main: Fischer, 2012.

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West, Robin. “Literature, Culture, and Law—at Duke University.” In Teaching Law and Literature, edited by Austin Sarat, Cathrine O. Frank & Matthew Anderson, 98–113. New York: Modern Language Association, 2011. Wigmore, John H. “A List of Legal Novels.” Illinois Law Review 2 (1908): 574–93. Wigmore, John H. “A List of One Hundred Legal Novels.” Illinois Law Review 17 (1922): 26–41. Williams, Raymond. “Culture is Ordinary.” In Resources of Hope: Culture, Democracy, Socialism, edited by Raymond Williams, 3–14. London: Verso, 1989. Wittgenstein, Ludwig. Philosophical Investigations. Oxford: Blackwell, 1992. Cases accessible at www.rechtspraak.nl: Regional Court Utrecht, August 25, 2011, LJN: BR5832 . Appellate Court The Hague, February 20, 2009, LJN: BH3651. Appellate Court The Hague, May 13, 2011, LJN: BQ4426. Appellate Court Leeuwarden, February 17, 2012, LJN: BV6101. Appellate Court Den Bosch, June 26, 2013, ECLI:NL:GHSHE:2013:2618 Dutch Supreme Court, January 11, 2011, LJN: BP0291. Dutch Supreme Court, July 3, 2012, LJN: BW9978.

Notes 1 Alberto Manguel, A Reader on Reading (New Haven and London: Yale University Press, 2010), 204. 2 See Bruno Cavallone, “François Rabelais and Procedural Justice,” in Teaching Law through the Looking Glass of Literature, ed. Barbara Pozzo (Bern: Stämpfli Publishers, 2010), 87–92. 3 Traditionally, the origin of this line of thought is traced back to John Wigmore’s 1908 publication of a list of legal novels—from novels in which a trial-scene or cross-examination is portrayed, to novels depicting professional legal life, the methods of law, or a theoretical point of law. See John H. Wigmore, “A List of Legal Novels,” Illinois Law Review 2 (1908): 574–59, and “A List of One Hundred Legal Novels,” Illinois Law Review 17 (1922): 26–4. For an elaboration, see Richard Weisberg, “Wigmore’s Legal Novels Revisited: New Resources for the Expanding Lawyer,” Northwestern University Law Review 71 (1976): 17–28. 4 For example, Upton Sinclair’s 1906 novel The Jungle helped bring to light abuses in the Chicago meat industry and thus contributed to new legislation, the 1906 Pure Food and Drug Act.

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E.g. Walter P. Armstrong, “What Do The Justices Read?,” American Bar Association Journal 25 (1949): 295–98, on US Supreme Court justices’ reading lists. 6 See Martha C. Nussbaum, Love’s Knowledge (Oxford: Oxford University Press, 1990) and Poetic Justice, the Literary Imagination in Public Life (Boston: Beacon Press, 1995). 7 David Barnhizer, “Princes of Darkness and Angels of Light: The Soul of the American lawyers,” Notre Dame Journal of Legal Ethics & Public Policy 14 (2000): 371–477. 8 Cf. Jeanne Gaakeer, “‘On the Study Methods of Our Time’: Methodologies of Law and Literature in the Context of Interdisciplinary Studies,” in Intersections of Law and Culture, ed. Priska Gisler et al., 131–49 (Basingstoke UK: Palgrave MacMillan, 2012). An extreme example of miscarriage of justice is the 2001 Outreau affair in France, the basis of the 2011 film Présumé Coupable by Vincent Garenq. 9 Jack M. Balkin & Sanford Levinson (eds.), Legal Canons (New York: New York University Press, 2000), 15. 10 For the basoche, see Marie Bouhaïk-Gironès et al., “Legal Theory, Legal Practice and Drama (1200–1600),” Law & Humanities 5 (2011): 75–95. For the culture of the Inns of Court, see Anthony Arlidge, Shakespeare and the Prince of Love: the Feast of Misrule in the Middle Temple (London: Giles de la Mare, 2000). 11 Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973), 5; Robert Cover, “Nomos and Narrative,” Harvard Law Review 97 (1983): 4–68. 12 Cf. Paul W. Kahn, “Freedom, Autonomy, and the Cultural Study of Law,” in Cultural Analysis, Cultural Studies, and The Law, eds. Austin Sarat and Jonathan Simon (Durham: Duke University Press, 2003), 177, “One characteristic of a cultural approach to law is that it positions itself on the line separating internal and external accounts of the law.” 13 For an elaboration see Jeanne Gaakeer, “The Future of Literary-Legal Jurisprudence: Mere Theory or Just Practice?,” Law and Humanities 5 (2011): 185–96. 14 Tatiana Flessas, “Aphorisms, Objects, Culture,” in Nietzsche and Legal Theory, Half-Written Laws, eds. Peter Goodrich & M. Valverde (New York: Routledge, 2005), 107. 15 Raymond Williams, “Culture is Ordinary,” in Raymond Williams Resources of Hope: Culture, Democracy, Socialism (London: Verso, 1989) 3–14. See also Guyora Binder & Robert Weisberg, Literary Criticisms of Law (Princeton: Princeton University Press, 2000), 462ff. 16 Austin Sarat & Thomas R. Kearns, “The Cultural Lives of Law,” in Law in the Domains of Culture, ed. Austin Sarat & Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1998), 5. 17 Sarat & Kearns, “The Cultural Lives of Law,” 3, footnote omitted. 18 Austin Sarat & Jonathan Simon, “Beyond Legal Realism?: Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship,” in Cultural Analysis, Cultural Studies, and The Law, eds. Austin Sarat & Jonathan Simon (Durham: Duke University Press, 2003), 12. See also Peter Burke, Cultural Hybridity (Cambridge: Polity Press, 2010), 5: culture is thought of “in a reasonably broad sense to

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include attitudes, mentalities and values and their expression, embodiment or symbolization in artifacts, practices and representations.” 19 Sarat & Kearns, “The Cultural Lives of Law,” 20. Cf. Rosemary Coombe, “Is there a Cultural Studies of Law?” in A Companion to Cultural Studies, ed. Toby Miller (Cambridge: Blackwell, 2001), 36–61. 20 Boaventura De Sousa Santos, “State, Law, and Community in the World System: An Introduction,” Social and Legal Studies 1 (1992), 132. 21 Neil MacGregor, Shakespeare’s Restless World (London, Allen Lane, 2012), 260. 22 Roger Cotterrell, “Law in Culture,” Ratio Juris 17 (2004), 1. 23 Cotterrell, “Law in Culture,” 5. 24 See Priska Gisler et al., “Setting the Stage: Reading Law and Culture,” in Intersections of Law and Culture, eds. Priska Gisler et al. (Basingstoke UK: Palgrave Macmillan, 2012), 3. 25 Ronald Dworkin, Justice in Robes (Cambridge Mass. and London: The Belknap Press, 2006). 26 Robin West, “Literature, Culture, and Law—at Duke University,” in Teaching Law and Literature, eds. Austin Sarat et al. (New York: Modern Language Association, 201), 107. 27 Cf. the bulk of the publications in the Journal of Criminal Justice and Popular Culture, www.albany.edu/scj/jcjpc. 28 Ismael Kadare, Spring Flowers, Spring Frost, trans. David Bellos (New York: Arcade Publishing, 2002). 29 See Katherine Maynard et al., Revenge versus Legality, Wild Justice from Balzac to Clint Eastwood and Abu Ghraib (Milton Park, Abingdon UK: Birkbeck Law Press, 2010). 30 I elaborate on this point in Jeanne Gaakeer, “European Law and Literature: Forever Young. The Nomad Concurs,” in Dialogues on Justice: European Perspectives on Law and Humanities, eds. Helle Porsdam & Thomas Elholm (Berlin: De Gruyter, 2012), 44–72. 31 William P. MacNeil, Lex Populi, the Jurisprudence of Popular Culture (Stanford: Stanford University Press, 2007), 1. See also William P. MacNeil, Novel Judgements, Legal Theory as Fiction (Milton Park and New York: Routledge, 2012) for a distinctly methodological approach of reading nineteenth-century prose fiction jurisprudentially. 32 Macneil, Lex Populi, 57. To me the Boston Legal series remains the most interesting from a legal point of view in that every episode contains at least one serious jurisprudential issue if one abstracts from the antics of Denny Crane. 33 Paul Butler, Let’s Get Free, a Hip-Hop Theory of Justice (New York and London: The New Press, 2009),124. Cf. Aaron Lorenz, Lyrics and the Law: the Constitution of Law in Music (Lake Mary US: Vandeplas Publishing, 2007), 147–187. For the bond perceived between law and (popular) music (and also interesting when read in order of date from a point of view of the development of the topic) see also David Kornstein, The Music of the Laws (New York: Everest House Publishers, 1982); Hanne Petersen, “On Law and Music: from song duels to rhythmic

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legal orders?” Journal of Legal Pluralism 41 (1998): 75–87; Peter Goodrich, “Operatic Hermeneutics: Harmony, Euphantasy, and Law in Rossini’s Semiramis,” Cardozo Law Review 20 (1999): 1649–1671; Monica Sette Lopes, Uma Metáfora, Musica & Direito (São Paulo, LTr, 2006). 34 Butler, Let’s Get Free, 123. 35 Butler, Let’s Get Free, 139. 36 Even though the accompanying videoclips may be hilariously funny, such as Tim Hope’s clip for the Dutch Bingo Players music, of the “deadly ducks,” replicating gang culture and wild justice as ducks take revenge on some thugs for the death of a duckling and the theft of the bag of the old lady who feeds the ducks. 37 See Jan M. Smits et al., “If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law,” Ars Aequi 62 (2013): 99–108, for an identification of four principles: (1) Criminal justice is based on retaliation (proportionality); (2) Self-justice is supreme in hip-hop law; (3) Respect is obligatory, i.e. no “dissing”; (4) Law is an instrument to be used for one’s own advantage. 38 Popular justice as defined in Alan Norrie, Law and the Beautiful Soul (London: GlassHouse Press, 2005), 33–49. 39 Given the scope of this section I pass over the topic of the portrayal of the judge in reality television, while noting (and doubting) that “While legal scholars may decry the bizarre view of adjudication implicit in shows like, for example, Judge Judy, they should not assume that viewers will see the show as exemplifying the law, but rather a version of law, which may be more or less mythic,” Cynthia D. Bond, “‘We, The Judges’: The Legalized Subject and Narratives of Adjudication in Reality Television,” UMKC Law Review 81 (2012): 6. Cf. David R. Papke, “From Flat to Round: Changing Portrayals of the Judge in American Popular Culture,” The Journal of the Legal Profession 31 (2007): 127–51. 40 See http://www.rtl.nl/programma/prodeo; episode 2, broadcast December 30, 2012, RTL8. 41 The opening lines of Queen’s 1975 hit song “Bohemian Rhapsody” from the album A Night at the Opera. 42 For an extensive analysis of women judge shows, see Greta Olson, “Intersections of Gender and Legal Culture in Two Women Judge Shows: Judge Judy and Richterin Barbara Salesch,” in Contemporary Gender Relations and Changes in Legal Cultures, ed. Hanne Petersen et al. (Copenhagen: DJǚF, 2013). 43 See Richard K. Sherwin, ed., Introduction to Popular Culture and Law (Farnham: Ashgate, 2006), 1–5. 44 Cf. Leif Dahlberg, “Introduction. Visualising Law and Authority,” in Visualizing Law and Authority. Essays on Legal Aesthetics, ed. Leif Dahlberg (Berlin: De Gruyter, 2012), 1–9. 45 Cf. Peter Schneck, Rhetoric and Evidence, Legal Conflict and Literary Representation in U.S. American Culture (Berlin: De Gruyter, 2011). 46 Cf. Robert A. Ferguson, The Trial in American Life (Chicago and London: University of Chicago Press, 2007) for the preconditions of transparency as far as proceedings are concerned.

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Cf. Richard K. Sherwin, Visualizing Law in the Age of the Digital Baroque (London and New York: Routledge, 2011); “Visual Jurisprudence,” New York Law School Law Review 75 (2012): 11–39. Cf. Cornelia Vismann, “Image and Law—a troubled relationship,” in Cornelia Vismann. Das Recht und Seine Mittel, eds. Markus Krajewski & Fabian Steinhauer (Frankfurt am Main: Fischer, 2012), 417– 27. 48 Frances J. Mootz III, “Law among the Sight Lovers,” New York Law School Law Review 75 (2012): 73. Here, the humanities should also take into consideration what happens when (canonical) texts can no longer be read as they were because young people lack the education required, see Leiboff, M., “‘Ditto’: Law, Pop Culture and Humanities and the Impact of Intergenerational Interpretative Dissonance,” The Australian Feminist Law Journal 36 (2012): 145–63. 49 See Jack M. Balkin, “Interdisciplinarity as Colonization,” Washington and Lee Law Review 53 (1996): 949–70. 50 Sherwin, Popular Culture and Law, 2. 51 Ludwig Wittgenstein, Philosophical Investigations (Oxford: Blackwell, 1992) nr. 115, “A picture held us captive. And we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably.” 52 See Appelate Court The Hague, February 20, 2009, LJN: BH3651; Dutch Supreme Court, January 11, 2011, LJN: BP0291; Appelate Court The Hague, May 13, 2011, LJN: BQ4426; Dutch Supreme Court, July 3, 2012, LJN: BW9978, all accessible at www.rechtspraak.nl. 53 See Appellate Court Leeuwarden, February 17, 2012, LJN: BV6101, and Regional Court Utrecht, August 25, 2011, LJN: BR5832, both accessible at www.rechtspraak.nl. 54 Homi K. Bhabha, “DissemiNation: Time, Narrative, and the Margins of the Modern,” in Nation and Narration, ed. Homi K. Bhabha (London and New York: Routledge, 1990), 314. 55 Walter Benjamin, “The Task of the Translator,” in Walter Benjamin Illuminations, trans. Harry Zorn, ed. and intr. Hannah Arendt (London: Fontana Press, 1973), 75. 56 For law’s liminal aspects see Liminal Discourses, Subliminal Tensions in Law and Literature, eds. Daniela Carpi & Jeanne Gaakeer (Berlin: De Gruyter, 2013).

CHAPTER SEVENTEEN FILM AND MASS TORT LITIGATION IN THE UNITED STATES: A CIVIL ACTION AND ERIN BROCKOVICH BYRON G. STIER

1. Introduction In recent years, numerous films have depicted mass tort litigation in the United States, including A Civil Action, Class Action, Erin Brockovich, The Insider, Michael Clayton, Runaway Jury and Thank You For Smoking.1 This chapter focuses on two films attempting to most closely present the conditions surrounding mass tort litigation in the real world: A Civil Action and Erin Brockovich. Both films present somewhat fictionalized adaptations of actual litigations related to alleged injuries from groundwater pollution.2 A Civil Action and Erin Brockovich may be viewed as a twinned, complementary study in professional strategies for success in mass tort litigation. Together, the films raise and explore questions related to (1) litigation finance and the problem of disparate resources among counsel; (2) morality and lawyering, particularly with regard to the integration of idealism and pragmatism; and (3) work-life balance for litigators within a broader context that weighs one’s allegiances to career, family and justice. In light of the breadth of the themes raised, the films might be of interest to law students, practicing lawyers and scholars nationally and internationally seeking to understand the functioning and challenges of mass tort litigation in the United States.

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2. The Films (a) A Civil Action The 1998 film A Civil Action is based on the best-selling non-fiction book by Jonathan Harr.3 John Travolta and Robert Duvall star in the film, which was nominated for two Oscars. While the film’s budget was approximately $60 million, the film garnered less than $57 million in box office proceeds in the United States.4 The film tells the story of plaintiffs’ lawyer Jan Schlichtmann and his small Boston firm Schlichtmann, Conway & Crowley. At the outset of the film, Schlichtmann and his successful firm win a $2 million dollar settlement in a medical malpractice case. He then travels to Woburn, Massachusetts, to tell his clients that the firm is dropping a water pollution case that has also been rejected by other firms. However, Schlichtmann spots two large industrial plants by the river, infers deep-pocketed defendants, and changes his mind. The firm represents several families in lawsuits against two large companies, W. R. Grace and Beatrice Foods, claiming they polluted the groundwater in Woburn and caused the deaths of several children in the town from leukemia. Forced to bear the expenses of its expert witnesses and devote all of its time to the case with only the hope of future contingent-fee recovery, the firm is nearly bankrupted. The firm needs to return repeatedly to its banker, “Uncle Pete,” for loans to fund the litigation. Ultimately the banker, perhaps believing the firm has lost its proper business perspective, stops the loans, and the firm’s partners mortgage their own houses to fund the litigation. During pretrial depositions, one W. R. Grace employee discloses that the company employees dumped toxic chemicals, and other employees return to give depositions to admit the dumping. Over Schlichtmann’s strenuous objections about the need for his clients to testify and tell their stories to the jury, the court holds a bifurcated trial, with causation evidence about possible groundwater contamination preceding evidence of damages to the children. While the jury is deliberating, Schlichtmann rejects a $20 million settlement offer from Beatrice. The jury finds that W. R. Grace caused groundwater contamination but that Beatrice did not. With the prospect of both professional and personal bankruptcy looming, the firm settles with W. R. Grace for an amount that barely covers its losses on the case. But Schlichtmann, who subsequently files for personal bankruptcy, is unable to forget the case. He discovers that Beatrice’s em-

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ployee tried to dispose of evidence of chemical pollution, causing a pond to light on fire. As the film closes, we are told that Schlichtmann tries to reopen the case against Beatrice, and the Environmental Protection Agency uses Schlichtmann’s work to require the defendants to clean up the groundwater.

(b) Erin Brockovich Erin Brockovich (2000) had a budget of approximately $52 million, but grossed more than $125 million at the box office in United States, and Julia Roberts won an Oscar for Best Actress.5 Like the film A Civil Action, Erin Brockovich was also inspired by actual events, involves groundwater contamination, and begins with a single-plaintiff case. At the outset, Erin Brockovich is in a car accident caused by another driver running a red light and hitting Brockovich’s car. But unlike A Civil Action, in which Schlichtmann wins a big lawsuit and becomes overconfident as a result, Brockovich loses her case. As a result of her loss at trial, Brockovich is left to confront her extensive medical bills. Desperate, she manages to obtain a job as a secretary at her lawyer Ed Masry’s firm, Masry & Vititoe, where she finds lurking, within an apparent real estate deal being considered by the firm’s client Donna Jensen, a massive toxic-tort water pollution case. Pacific Gas & Electric has been dumping chromium-6 in Hinkley, California, and the chromium-6 has contaminated the groundwater. Brockovich then uses her remarkable passion and drive to investigate the case. In particular, she uses her ability to relate to regular folks to sign up hundreds of plaintiffs for the firm. Masry’s firm subsequently brings a mass action directly against PG&E. Sensitive to the financial pressures of bringing such a case, however, Masry teams up with another larger plaintiffs’ firm with more resources and more experience. PG&E subsequently agrees to use the arbitration of individual cases to inform a broader settlement. Brockovich also discovers that a PG&E employee was asked to destroy documents related to the pollution, raising the possibility of punitive damages. The process ultimately leads to a $333 million payment by PG&E to the plaintiffs.

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3. Litigation Finance and the Problem of Disparate Resources Both A Civil Action and Erin Brockovich reveal the difficulty that plaintiffs’ firms encounter in financing mass tort litigation. While the use of contingent fees in much of the world is sharply restricted or not permitted,6 it remains the principal method of financing mass tort litigation in the United States, under which the plaintiff lawyer bears the costs of bringing a case, including expert witness fees.7 If the client achieves a settlement or a verdict at trial, the plaintiff’s lawyer receives a percentage of the recovery, usually 33–40%, and also generally obtains reimbursement for the costs incurred in prosecuting the lawsuit, including expert witness fees. The amount remaining after deduction of the lawyer’s fees and costs is then paid to the client. By using the contingent fee mechanism, impecunious plaintiffs are spared the cost of paying for the lawyer’s time, while the lawyers are generally incentivized to increase their client’s recovery because their own fee would increase as well. In addition, compared to other countries, the United States may also be seen as particularly hospitable to tort litigation by injured plaintiffs because of the availability of punitive damages and the general absence of a loser-pays rule, under which the losing party must pay the prevailing party’s reasonable attorneys’ fees.8 The plaintiffs’ lawyers in A Civil Action and Erin Brockovich both utilize contingent fees.9 In A Civil Action, after settling with W. R. Grace for $8 million, the plaintiffs’ lawyers meet with their clients and explain that their contingent fee is 40%, but that they will reduce their fee to 28%, resulting in a $2.2 million fee. In addition, the firm notes that its expenses in the case, including the fees of many expert witnesses before and during trial, were $3.5 million. The remaining $2.3 million is then divided equally among the families, resulting in a $375,000 payment for each. Similarly, in Erin Brockovich, Masry and Brockovich describe their fee structure to potential clients who may have suffered health problems from groundwater pollution by PG&E. In a meeting with several families, Masry explains that the firm will receive 40% of their recovery. The families balk, but Brockovich turns them around by recounting her own experience when Masry represented her and describing the burdens he would face in their case: Boy, I know how you feel. The first time I heard that number I said, “You’ve got to be kidding me.” Forty goddamn percent? I’m the one who’s injured, and this joker sits at a desk all day and he wants to walk away with almost half my award. But then I ask him what he makes if I

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don’t get anything. [Masry interjects, “Then I don’t get anything either.”] Plus, he’s out all the costs, so I realized, he’s taking a chance, too.

Both films expose the difficulty that small plaintiffs’ law firms encounter in bringing costly lawsuits against well-funded corporate defendants. Indeed, at the outset of the Woburn litigation in A Civil Action, Schlichtmann seeks to drop the case because of the expected expense. His law partner, James Gordon, argues that taking a water pollution case involving a merely “probable” carcinogen, trichloroethylene, would involve the firm in costly new medical research that it could not afford to fund. After deciding that a substantial recovery is possible against the deep-pocketed defendants, the firm subsequently takes the case but is overwhelmed by the financial burdens of maintaining the litigation. Early in the litigation, Schlichtmann meets with an expert who explains that a large team of geologists and engineers, as well as monitoring wells and seismic tests, will be necessary to assess potential groundwater pollution by defendants. As the case proceeds through discovery, Gordon informs Schlichtmann that the plaintiffs’ experts have so far cost $1.4 million. Moreover, Gordon notes that every lawyer in the firm is working only on the Woburn case, so the firm has no income from other cases. Uncle Pete becomes concerned that the firm has already spent all of its money from other victories and is taken aback when Gordon requests an additional $600,000 loan. As the firm plunges into trial with precarious finances, Gordon, who is responsible for the firm’s finances, becomes somewhat unhinged by the firm’s inability to cover its expenses. He takes out multiple credit cards, gives $200 to a televangelist, and buys lottery tickets. In the next bank visit, Uncle Pete is concerned that Gordon is hiding a gun, but Gordon instead produces his personal collection of gold Kruggerands and the deeds to the lawyers’ houses in an attempt to provide additional collateral to the bank for more loans. Gordon also fires the firm’s staff. Before beginning the next phase of the trial, W. R. Grace expresses its interest in again discussing settlement. Gordon informs Schlichtmann that the firm needs an $8 million settlement merely to cover the firm’s debt, and also mentions that he has already cashed in the partners’ retirement plans and life insurance policies. W. R. Grace representative Al Eustis offers Schlichtmann $8 million to settle the case, and he has to accept this lowball offer. When the firm meets with its clients, Gordon explains the limited sums they will be receiving, stating, “You’re looking at four guys who are broke. We lost everything trying this case.” Schlichtmann, Conway & Crowley then disbands. Schlichtmann moves into a modest apartment and declares personal bankruptcy, a marked change from his financial success

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portrayed in champagne, parties, and shopping at the beginning of the film. In the film’s final scene, a bankruptcy judge questions Schlichtmann’s filing, raising questions about his listing of only $14 in a checking account and a portable radio, after 17 years in law practice. The judge inquires, “Where did it all go? … The money, the property, the personal belongings, the things one acquires in one’s life?” Text on the screen then informs viewers that it took several years for Schlichtmann to settle his personal debts. Erin Brockovich also depicts the financial stress of mass tort litigation on a small plaintiff’s firm. In Masry’s initial meeting with a young lawyer David Foil from PG&E, Foil offers $250,000 to buy the Jensens’ house. When Masry & Brockovich reject the offer as insufficient, citing the significant health problems suffered by the Jensens, Foil, trying to sound intimidating, intones: “Before you go off on some crusade, you might want to remember who it is you’re dealing with here: PG&E is a $28 billion corporation.” Later, Masry tells Brockovich that PG&E sent the young lawyer to waste their time, noting that it did so “because they can, because they have $28 billion at their disposal; they can afford to waste all the time in the world.” When Brockovich suggests they do the same to PG&E, Masry responds, “Do you think I’m made of money?” Later, after Brockovich has recruited numerous Hinkley residents as clients, she tries to convince Masry to bring tort claims on their behalf, not merely make real estate deals. Masry again highlights the plight of the small plaintiffs’ lawyer in taking on a large corporate defendant: “Something like this, Erin, it could take forever. They’re a huge corporation. They could bury us in paperwork for the next 15 years. I’m just a guy with a small private firm.” When Brockovich continues to press Masry, he details some of the costs: Do you know where the money comes from? That’s why these cases settle? Lack of money. Do you know what toxicologists and geology experts cost? We’re looking at hundred grand a month easy. We’ve already made a huge dent in my savings.

Brockovich observes that “it’s kind of like David and what’s his name,” referencing the biblical story of David vs. the giant Goliath. Masry responds, “It’s like David and what’s his name’s whole … family.” When Masry agrees to take on the case and Brockovich assures him he’s doing the right thing, Masry tells her to remind him of that when he has to file for bankruptcy. As the case continues to grow, he notes that the firm has no money coming in and that he will need to take a second mortgage on his house.

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In contrast to the lawyers in A Civil Action, Masry associates a larger plaintiffs’ firm with highly qualified attorneys in order to share the costs of the case and enhance their ability to litigate against PG&E. Masry’s move to bring in another plaintiffs’ firm illustrates a broader trend in recent decades toward the formation of networks of plaintiffs’ counsel. In mass tort litigation, plaintiffs’ law firms have increasingly shared information, pooled resources, developed specialized expertise, and coordinated strategy in an attempt to match the extensive financial resources and coordinated nationwide legal defense presented by the corporate defendants.10 After Masry brings in the more experienced firm, PG&E requests the cases be submitted to binding arbitration and the firms together press the plaintiffs’ claims. Brockovich finds evidence that PG&E’s headquarters knew about the toxic contamination, as well as PG&E’s instructions to destroy incriminating documents, and the arbitration yields a $333 million award to all the plaintiffs. In contrast to the glum families at the end of A Civil Action, plaintiff Donna Jensen in Erin Brockovich is overwhelmed with gratitude when Brockovich informs her that her family was awarded $5 million. In the film’s final scene, Masry’s firm is shown moving into new, more expensive offices, and he hands a surprised Brockovich a bonus check for $2 million.

4. Morality and Lawyering A Civil Action and Erin Brockovich also provide a useful paired perspective on the role of idealism and pragmatism in lawyering. The two films present several alternative models of lawyering that might be termed as follows: (1) superficial, materialistic lawyering; (2) idealistic, zealous lawyering; (3) cynical, technocratic lawyering; and (4) morally infused, pragmatic lawyering. Of the four options, the films suggest that morally infused pragmatism is the most successful approach, both professionally and personally.

(a) Superficial, materialistic lawyering Jan Schlichtmann’s character in the early scenes of A Civil Action is an example of superficial, materialistic lawyering. The film portrays him as financially successful but morally vacuous. After obtaining a $2 million settlement for a quadriplegic plaintiff by shamelessly pulling the jury’s heartstrings and indulging in a champagne celebration with his partners, he appears as a guest on a talk radio show where he is identified as one of the most eligible bachelors in Boston. On-air, Schlichtmann disputes stereo-

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types of the personal injury lawyer and declares his concern and empathy for clients. But the film undercuts his sincerity by juxtaposing his words of caring with images of him happily dancing in celebration, shopping in a fancy clothes store, and handing out his card to accident victims (which likely violates ethical rules against in-person solicitation).11 One caller to the radio show, Anne Anderson, who is in fact a client of Schlichtmann’s firm, embarrasses him for not knowing who she is and for his office’s failure to return her calls. As he scrawls a private handwritten note to the radio host to “save [him]” from the caller, Anderson states that Schlichtmann’s firm is representing her in a case involving the death of her son from leukemia, and she invites him to come to Woburn to “meet some of those people whose pain is your pain.” At the office the next day, Schlichtmann discusses the Woburn case with his partners. He begins by accusing his partner Kevin Conway of having taken the case because of sympathy for the prospective client. Conway stresses that the case, though “an orphan” abandoned by other firms, is a good case, with twelve leukemia deaths over a fifteen-year period, including eight children. When Gordon argues that the science linking the deaths to water contamination is unproven, and highlights the cost of the case, Schlichtmann agrees, insensitively stating, “I can appreciate the theatrical value of several dead kids—I mean, I like that, obviously that’s good, but that’s all this case has going for it. That’s not enough.” When Conway sullenly agrees to drop the case, Schlichtmann suggests that he will only start crying with the client and not be able to give up the case. Thus, Schlichtmann says he will drive to Woburn and tell the clients that the firm will no longer represent them. When Schlichtmann subsequently travels to Woburn to meet with the client families, Anne Anderson describes her goals as moralistic, not monetary: “I want to be clear. I’m not interested in money. None of us are. That’s not why we’re here. What we want is to know what happened. And we want an apology.” Rather than Anderson’s moralism, Schlichtmann responds with a focus on money. When she says she does not know who caused her son’s harm, he emphasizes his firm’s economic interest in the case, asking, “Who is going to apologize to you and pay me? There has to be a defendant, and one with very deep pockets. This is not an inexpensive case to try.” Before Schlichtmann leaves, Anderson informs him that an old tannery and some small factories sit beside the river, and suggests that he might be interested in seeing them. Stopped by a police officer for speeding on his way home, he decides to walk down the river and railroad tracks. He spies a factory and a railcar with the logo of a large company, W. R. Grace. Pro-

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ceeding further, he sees an old tannery, with dirty water flowing from pipes onto the ground, and he takes particular notice of the logo on the truck: J. Riley Leather Co., a subsidiary of a large company, Beatrice Foods. Back at the office, Schlichtmann’s attitude on the case completely changes. Brimming with happiness, Jan informs his partners that Beatrice holds many well-known brands, and that W. R. Grace has manufacturing facilities in two dozen states, as well as South America and Japan. Likely thinking of the deep resources these companies could use to satisfy a large plaintiffs’ judgment against them, or fund a large settlement, he berates Conway: “This is a gold mine. You almost let it get away.”

(b) Idealistic, zealous lawyering During A Civil Action, Schlichtmann’s approach to lawyering gradually moves from superficial materialism to idealistic zeal. His idealism, however, undercuts his ability to litigate and negotiate effectively, and financial ruin follows. The key moment of transition to idealistic zeal occurs when the film shows Schlichtmann alone, sitting in his car by the side of the highway in the rain, in the spot where a plaintiff had pulled over on his way to the hospital and unsuccessfully tried to revive his dying son. As Schlichtmann stares into the distance, the film intersperses flashback images of his clients, a father and mother, attempting cardiopulmonary resuscitation on their son in their car. He then receives a call from Gordon, who informs him that opposing lawyer Bill Cheeseman has called to discuss settlement. Although Gordon enthuses at the prospect of settling the case, Schlichtmann seems ambivalent as he continues to imagine the plight of the family and the dying child. At the subsequent settlement conference, Schlichtmann destroys any chance at settling the case by making wildly unrealistic demands. He lists the profits of each of the defendants for the prior year, $198 million for W. R. Grace and $436 million for Beatrice, and he suggests that defendants’ settlement payment should be sufficient to compensate the plaintiff families, provide for their future economic security, and deter the defendants from polluting ground water in the future. He initially proposes that the defendants pay $25 million, which appears to be favorably received by Bill Cheeseman and one of his partners as a first offer. But then to the surprise of Schlichtmann’s partners, he begins improvising an impossible list of additional necessary payments: $25 million for a research foundation on hazardous waste and illness, and $1.5 million per family, annually, for 30 years. After adding all the amounts, Cheeseman incredulously states that

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Schlichtmann is asking for $320 million. Beatrice’s lawyer Jerry Facher and Cheeseman then quietly leave without responding to the offer. Gordon angrily tells Schlichtmann, “you said this would never go to trial. You just made certain that it would, without consulting us, I might add.” When Schlichtmann responds, “they think they can buy us,” his law partner Bill Crowley says, “yeah,” indicating that money is of course the purpose of settlement. Later, in another settlement discussion with Facher while waiting for the jury to deliver a verdict about scientific causation, Schlichtmann predicts that the jury will “see the truth” and reminds Facher that “eight kids are dead.” Despite the impending financial collapse of Schlichtmann’s firm, and without consulting his clients,12 he rejects Facher’s offer of $20 million to settle the case against Beatrice.13 The jury subsequently finds in favor of Beatrice in their verdict about groundwater contamination, so Schlichtmann loses his reckless gamble. With the trial set to continue against W. R. Grace, Schlichtmann’s firm appears unable to finance the remainder of the trial, so he goes to New York to discuss settlement with Al Eustice at W. R. Grace’s corporate headquarters. Before the negotiations, Gordon informs Schlichtmann that $8 million will pull the partners and the firm out of the debt they accumulated in taking the case. To Schlichtmann’s surprise, Eustice offers $8 million to settle the case, saying that W. R. Grace cannot offer more because other lawyers would hear about it and begin filing cases themselves. Schlichtmann initially resists, saying he cannot go to the families emptyhanded and that he owes them more. Later, as artwork is being hauled away from Schlichtmann’s firm to pay its debts, he tells Gordon, “I’m so sick and tired of hearing you moan about money. This isn’t about money anymore.” Gordon asks what the case is about, noting that he wants to know what has cost him his house, his credit, and his life. Schlichtmann responds, “If they’re willing to give us $8 million, then that’s not enough.” Gordon responds, “So the only thing you’re willing to take is what they won’t give us?” Finally, Schlichtmann relents and calls to accept the settlement offer.

(c) Cynical, Technocratic Lawyering The defense lawyers in A Civil Action present another view of lawyering, an amoral, but narrowly competent approach that might be called cynical, technocratic lawyering. The defense lawyer most personifying this model is Jerry Facher, a partner at the large law firm of Hale & Dorr. An accomplished trial lawyer who also teaches a trial advocacy course at Harvard

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Law School, Facher focuses on litigation tactics that favor his client and does not consider larger moral considerations. His view of lawyering is set forth in a discussion between him and Schlichtmann in the courthouse, as they await the jury’s verdict in phase one of the groundwater contamination trial. After Schlichtmann predicts that the jury will “see the truth,” Facher rejects any connection between truth and the law: “The truth? I thought we were talking about a court of law. You’ve been around long enough to know that the courtroom isn’t the place to look for the truth. You’d be lucky to find anything here that in any way resembles the truth.” Schlichtmann responds that “[e]ight kids are dead,” but Facher continues to set forth his cynical view of the law: “Jan, Jan, that suit fits you better than the sentimentality. That’s not how you made all that money all those years, is it? You want to know when this case stopped being about dead children? The minute you filed the complaint, the minute it entered the justice system.” Facher then appeals to Schlichtmann as a gambler, and suggests a high-stakes gamble “to test [Schlichtmann’s] born-again faith in the righteousness of our courts.” Facher offers Schlichtmann $20 million to settle the case against Beatrice before the jury returns with its verdict, and highlights the apparent IRS lien on any recovery by Schlichtmann’s firm because of unpaid taxes. Facher suggests that his settlement offer “would put everything in perspective for [Schlichtmann] as far as truth, justice, and dead children.” When Schlichtmann offers to assemble the decisionmakers to discuss settlement, Facher refers to himself as the decisionmaker, although he may have conferred previously with his client about his settlement authority. Facher tells Schlichtmann, “You’re looking at Mr. Beatrice. I don’t have to call anybody, do you? It’s just you and me. We’re like kings, sitting in our castle deciding important things, deciding the fates of others, and counting money.”14 As Schlichtmann contemplates the offer, Facher intones, “If you’re really looking for the truth, Jan, look for it where it is, at the bottom of a bottomless pit.” Like Jerry Facher, the defense lawyer for W. R. Grace, Bill Cheeseman of Foley Hoag & Eliot, is portrayed as amoral, focused merely on winning the case for his client. When employee Al Love states in a deposition that barrels with solvents were dumped on the ground at the back of the factory, Cheeseman, who is defending the deposition, inquires whether Love needs to take a break, apparently attempting to stop him from continuing his disclosure. After the deposition, when Cheeseman attempts to convince Love that the cancer cluster in town is merely the product of chance, Love ominously states that he knows what happened and that he knows who did it, but that he is not a “rat.” In response, Cheeseman half-heartedly urges

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Love to tell him who was involved, and tells Love to think about it and call if he wants. As Cheeseman talks, Love’s changing expression suggests he believes Cheeseman is merely seeking to satisfy his and his client’s potential legal duty to inquire, without genuinely seeking the information, and Love then walks away.

(d) Morally infused, pragmatic lawyering Drawing on both the idealistic, zealous lawyering model and aspects of technocratic lawyering, Erin Brockovich describes a model of lawyering that is both morally informed and also practical. Of course, Brockovich is not a licensed lawyer, but might be considered a legal secretary or litigation assistant. In many firms in the United States, legal secretaries and litigation assistants, as well as paralegals who may have received some education in law, are deeply involved in organizing and facilitating a lawyer’s representation of a client, though they cannot represent the client in court. According to a recent report from the United States Bureau of Labor Statistics, 85.9% of paralegals and legal assistants are women, and 79% of miscellaneous legal support workers are women, while only 31.1% of lawyers are women.15 Brockovich and Masry’s interaction as female litigation assistant and male lawyer are therefore typical of many law offices in the United States. Throughout the film, Brockovich is presented as a fiery and moralistic investigator, whose approach tracks the moralistic but impractical approach that Schlichtmann follows through much of the latter part of A Civil Action. Initially shown in a car-accident trial represented by her lawyer Ed Masry, she loses her meritorious case in part because she is goaded by the opposing lawyer into cursing and yelling while on the witness stand. Indeed, throughout the film, Brockovich’s quick temper threatens her success in career and personal matters. In addition, as with Schlichtmann in A Civil Action, her moralism drives her to push harder than others. She assertively talks her way into a job as a secretary in Masry’s law office by highlighting her dire need for funds after he lost her case. While there, she raises questions about the appearance of medical records in a pro bono real estate matter. After receiving permission to further investigate the matter, she drives out to meet with the client, Donna Jensen, and hears that PG&E has been paying medical bills for the Jensens and has offered to buy their house. PG&E has also informed the community that a benign form of chromium has entered the groundwater from its industrial plant. Still intrigued and concerned, Brockovich meets with a university toxicology expert. He warns her that

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some forms of chromium are highly toxic and advises her to find out from the local water board what type of chromium PG&E has been using. She visits the water board and convinces the employee to let her look through the accumulated records by herself. There, Brockovich finds a cleanup and abatement order against PG&E stating that toxic hexavalent chromium has polluted the groundwater. When she returns to the office she learns that Masry has fired her because he deems his approval of her investigation was insufficient to justify her lengthy absence. He subsequently rehires her when the university expert leaves a message at the firm saying the hexavalent chromium she found in Hinkley could be responsible for Donna Jensen’s cancer. In return for showing Masry a document that incriminates PG&E, Brockovich bargains to be rehired by him with a salary raise and medical benefits. As Brockovich and Masry investigate the groundwater pollution, her emotional moralism balances his cautious practicality, and their combined efforts demonstrate an effective, pragmatic and morally informed approach to lawyering. Masry shrewdly rejects an early $250,000 real estate offer for the Jensens’ property. Brockovich displays empathy for prospective clients and her zeal to obtain justice enables her to sign up numerous clients from Hinkley. When Masry doubts his ability to pursue the case in light of his limited resources and experience, she urges him on, telling him that they can get PG&E, which “poisoned people and lied about it.” While Erin may not know the burden of litigation, she says she knows the difference between right and wrong, and she convinces Masry to keep at the case. As the case moves into a large-scale toxic tort litigation, she conducts an extraordinary factual investigation, gathering water samples and a dead frog for analysis, and even climbing down a well shaft to get water. In addition, she assembles 411 plaintiffs and 162 declarations, and is able to map out the details of PG&E’s negligence in failing to line ponds and dumping hexavalent chromium. Later, she is able to obtain documents from a former employee showing that officials at the PG&E holding company (as well as the local subsidiary) were aware of the groundwater contamination problems and may have sought to cover them up, raising the possibility of punitive damages. While Brockovich’s boundless energy keeps Masry in the litigation and contributes enormously to the development of the case, Masry brings a practical wisdom that keeps the litigation from overwhelming the firm. Unlike Jan Schlichtmann in A Civil Action, Masry is aware of the financial limits of the firm and of his own ability in bringing the case. Crucially, Masry decides to bring in more experienced and well-financed co-counsel

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in the Hinkley litigation. Kurt Potter, an experienced lawyer at a larger plaintiffs’ firm, joins them in the case. PG&E agrees to binding arbitration to determine the issues of liability and damages. Masry has difficulty persuading the plaintiffs to forego a trial, but he explains the tactical benefits of doing so and Brockovich goes door to door to persuade hundreds of plaintiffs to consent. When the arbitration is complete, the arbitrator determines that PG&E must pay $333 million, the largest settlement of a direct action against an insurer in U.S. history. We are informed that PG&E no longer uses hexavalent chromium in any of its plants and that its holding ponds are now lined to prevent any contamination.

5. Work-Life Balance While Erin Brockovich presents no easy answer to vexing concerns of work-life balance in lawyering, the realistic portrayal of the benefits and drawbacks of high stakes litigation may be helpful to lawyers. The film repeatedly shows the personal burdens of the case’s long hours. Brockovich’s son becomes angry with her for working late and for reading during dinner when she is home. Another time, her son argues with her about taking him to roller hockey, and she responds that other mothers do not work and so have more time to do such things. One night, driving home from Hinkley, Brockovich calls her boyfriend, George, and he informs her that her baby Beth started talking that day, saying “ball.” Brockovich cries as she laments missing her child’s first words. In addition, at a fair in Hinkley she is unable to be with her family and tells them to leave without her so she can stay and speak with a PG&E employee about the plant. Her hectic work schedule also appears to be the dominant cause in the breakup of her relationship with her boyfriend, who tells her that she either needs to find a different job or a different guy. For all the problems the work causes her, however, it is also deeply fulfilling for Brockovich, and the financial returns make a better life for her children possible. Until she received the job at Masry’s firm, Brockovich struggled financially, a single mother with three children and no job. She believes her job will help her children, and she tells her son who is upset with her working late: “I’m doing this for us. I know it’s hard for you to understand.” In an argument with George, Brockovich describes the meaning of her job: “This job, for the first time in my life, I got people respecting me. Up in Hinkley, I walk into a room, and everybody shuts up to hear if I got something to say. I never had that before ever. Please don’t ask me to give that up.”

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The extent of Brockovich’s personal connection to her job becomes apparent when she becomes angry that Kurt Potter’s firm has alienated many of the plaintiffs. Listening to her angry objections, Masry suggests that she is erratic and makes things personal when they are not. Her response challenges clear divisions between life and work. She yells, “Not personal! That is my work, my sweat, my time away from my kids. If that’s not personal, I don’t know what is!” In another scene, Brockovich is unable to go to breakfast with her son because she is working. Before leaving, the son looks at a picture of a sick child, and asks why the child’s own mom cannot help her. Brockovich replies that the child’s own mom is very sick as well. Understanding, her son then asks if he can bring his mother back some eggs for breakfast. Brockovich’s hard work on the case provides increasing financial success that enables a different life for her and her children. As the case progresses and Masry recognizes her hard work, she receives a raise and obtains medical benefits, and she later receives a $5,000 bonus with a note from Masry to hire a nanny, as well as the keys to a Jeep parked in front of her house. Finally, after the case is processed through binding arbitration, Masry moves his firm to luxurious offices in a high-rise building, and she is given a corner office with a view. In the film’s final scene, Brockovich is left agape as Masry presents her with a bonus check for $2 million. The film Erin Brockovich therefore raises serious questions about the tradeoffs of high-stakes litigation for lawyers and for those assisting lawyers. The stress of Brockovich’s job likely worsens her already difficult temper and challenges her romantic and family relationships. But she is also fulfilled by her work, and she and her family benefit from the financial stability and success her position provides. The film does not address the question of how lawyers and legal workers can more effectively integrate the burdens of litigation with their personal life.

6. Conclusion These films provide both positive and negative approaches to the issues of litigation finance, the disparity of resources, and the morality of lawyering. A Civil Action portrays a lawyer overwhelmed by his opponent’s superior resources, and also displays failed approaches to lawyering. In contrast, Erin Brockovich suggests these problems might be overcome. Even with Brockovich’s ongoing personal problems in work-life balance, Erin Brockovich shows her, in its final scene, as a fighter of injustice who also becomes rich. That Hollywood happy ending may account for audiences spending more than twice as much money for the film in theaters than they

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did for A Civil Action. In law and in life we crave solutions, as well as detailed assessments of problems, and a close examination of both films helps pursue that broader goal in the context of mass tort litigation.

Notes 1

A Civil Action (Paramount Pictures 1998); Class Action (Twentieth Century Fox 1991); Erin Brockovich (Jersey Films 2000); The Insider (Touchstone Pictures 1999); Michael Clayton (Castle Rock Entertainment 2007); Runaway Jury (Regency Enterprises 2003); Thank You for Smoking (Room 9 Entertainment 2005). 2 This chapter discusses the films’ presentations of the persons involved in the litigations. Of course, the films do not accurately depict actual persons or events. See Michael Asimow & Shannon Mader, Law and Popular Culture—A Course Book (New York: Peter Lang, 2nd ed. 2013), 249–55 (referring to A Civil Action as a “docudrama” and discussing differences between the film and real events in the litigation). 3 Jonathan Harr, A Civil Action (New York: Vintage, 1996). The book provides a more detailed assessment of both the law and the actual facts of the case. 4 “Box office/business for A Civil Action,” IMDb, http://www.imdb.com/title/tt0120633/business?ref_=tt_dt_bus. 5 “Box office/business for Erin Brockovich,” http://www.imdb.com/title/tt0195685/business?ref_=tt_dt_bus. 6 The use of contingent fees may be gradually spreading around the world, and indeed, Australia has taken the lead among countries in opening its litigation to third party financing. See Mark A. Behrens et al., “Global Litigation Trends,” Michigan State Journal of International Law 17 (2009): 165, 183–7. 7 See ABA Model Rule of Professional Conduct, Rule 1.5(c) (1983) (permitting contingent fees). The Model Rules can be found at http://www.americanbar.org/groups/professional_responsibility/publications/model _rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_c ontents.html 8 See Behrens, “Global Litigation Trends,” 183, 187–93. 9 See Asimow & Mader, Law and Popular Culture, 258–9 (discussing litigation financing in A Civil Action). 10 See Byron G. Stier, “Resolving the Class Action Crisis: Mass Tort Litigation as Network,” Utah Law Review (2005): 863, 896–09 (discussing the historical development of plaintiff lawyer networks and their structure and benefits). 11 See ABA Model Rule of Professional Conduct, Rule 7.3 (1983) (generally prohibiting in-person solicitation of clients if the lawyer is seeking pecuniary gain). 12 See ABA Model Rule of Professional Conduct, Rule 1.2(d) (1983) (stating that “[a] lawyer shall abide by a client's decision whether to settle a matter”). 13 In reality, according to Haar’s book Facher made no settlement offer while the jury was deliberating.

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If Facher had previously discussed the issue of settlement with his client, and the client agreed to parameters for the settlement, then that approach would comply with Rule 1.2. 15 Bureau of Labor Statistics, “Household Data, Annual Averages, Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity,” http://www.bls.gov/cps/cpsaat11.pdf (presenting data from 2012).

CHAPTER EIGHTEEN ENGRENAGES: ANTILEGALISM AND FRENCH REALISM BARBARA VILLEZ

French television legal dramas have for many years offered anything but an attractive, let alone realistic, representation of the French legal system. This is one of the principal reasons why French television viewers have watched so many US legal series, producing the result that they think their system of criminal justice works as it does in the United States. Young people expect to hear their Miranda rights read to them by policemen or ask for their right to make a phone call upon arrest. A recent anecdote tells of a witness in a French courtroom “pleading the fifth” in order to avoid answering a question addressed to him by a judge. A contributing factor to this confusion is that it has been cheaper for French television channels to buy the rights to broadcast imported legal fictions rather than to produce competitive local dramas. It is, in part, also due to the low ranking of television fictions in the cultural hierarchy of France, a feature of the industry that has discouraged efforts to put creative energy into television series in general. Nevertheless, there are quotas requiring most terrestrial channels to broadcast a certain number of locally produced shows during prime time per week as well as a certain number of European programs. In 2005, the pay channel Canal Plus decided to develop a series that would both meet these requirements and combat diminishing subscriptions (following the loss of its monopoly to broadcast soccer matches) that had led to its momentary decline in the television landscape of the country. Obviously, this new strategy was also the fruit of awareness that television series had become commercial objects that could facilitate entry into an international market. Engrenages is credited as Canal Plus’s first effort to produce a new kind of French television drama and as the first legal series to center on an ensemble cast that shows different legal professions working together. Before this, French television series were little concerned with the justice

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system. The most popular series were about the police or investigators, be they private detectives or improvised “Miss Marples” (such as school teachers or antique dealers) who engaged in solving crimes. The most famous French television investigators were Nestor Burma1 and Inspector Maigret.2 There were a few series touching on law-related professions, Femmes de loi3 (a prosecutor and a policewoman) or Le Jap4 (juge des applications des peines—a judge who administers sentences), Le juge est une femme5 (an investigating magistrate). These programs centered on a single character and dealt mostly with social issues, but very little with the law. There are many reasons for this, one being that scriptwriters have had little to no experience with the law, unlike the writers of American law series since, at least, Perry Mason. In addition, French television dramas have been more concerned with the solution of mysteries and the intricacies of social conditions and interpersonal relations. Another reason for the poverty of legal content in these fictions lies in the French cultural tradition of “antilegalism” that, as I shall discuss below, evinces a disinterest in, and cynicism towards, the law.

1. Engrenages: An Attempt to Innovate Canal Plus began its new trend in the production of fictions with a twelve episode series of Engrenages (translated into English and sold a year later to the United Kingdom’s BBC4 as Spiral). When it appeared on British television, critics hailed the show for its traditional French cinematic realism, its superb acting and its fast camera work, but admitted that they understood nothing of the French legal system after having watched it.6 This enthusiasm was probably more the effect of the show’s novelty (and perhaps a touch of snobbery in praising a foreign series) rather than its brilliance.7 The first and second seasons were clumsy with respect to the acting, the directing and above all the writing. Some narrative aspects were implausible and useless for any possible teaching purposes (such as comparative law or legal language and culture courses). The French critical reception was low key, to say the least. In addition, the show was often classified as a police series, and the law side of it decidedly did not make a great impression on most viewers. Typical of French cynicism towards the law and the legal professions, especially in the first two seasons, magistrates8 were portrayed as bungling idiots and lawyers as disdainful client haters. Despite the “new style,” a traditional bias was evident in both the textual and visual narratives of the series. A striking example of these portrayals is Roban (Philippe Duclos), a juge d’instruction (a type of examining magistrate who investigates a

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case to determine whether a prosecution is justified). Roban comes into possession of a diary that belongs to the principal victim of the first season, involving high placed corruption and a prostitution ring.9 In an incredible demonstration of unprofessional behavior, he brings the diary home to examine it at his desk, which just happens to be in front of a window that is left open as he goes to make himself a cup of tea. Of course, someone sneaks up to the window from outside and seizes the diary. The baffled juge d’instruction comes back to discover this ridiculous disappearance of important evidence. If this were not enough to undermine the legal profession, lawyers are portrayed as ambitious, money-motivated crooks who work for the underworld or carry out their pro bono hours as uncaring legal aid defenders of lowlife criminals. Joséphine Karlsson (Audrey Fleurot) is an interesting contrast to many American female television lawyers in that she has no empathy for her clients and neither nurtures them nor cares about their emotional states. She becomes the associate of an alcoholic lawyer, whose main clients deal in organized crime, and runs errands for him despite the risk of serious trouble and professional sanctions. Preparing a witness in season two, Karlsson loses patience with the sniveling client and shouts at her: “There is no justice, ok? You have to fight and grab them by the throat to attack … oh go wash your hair, I’ll do the rest.” Karlsson’s character evolves slowly until she becomes sympathetic to the plight of illegal aliens in season four, although at first this moral development is difficult to believe. In the third season, she is the legal aid counsel for Fuentès, who turns out to be a serial killer, and suggests that he begin a hunger strike, “because that usually has a good effect on the judges.” Prosecutors, who in the French legal profession are not lawyers, but magistrats because of a different training scheme, are portrayed as pawns in a political system that seems little concerned with justice. Judges are portrayed as career motivated and incapable of listening or empathizing. Pierre Clément (Grégory Fitoussi) is one of the regular protagonists, a young, honest, at first quite naïve, prosecutor whose loyalties are challenged by the hierarchy. The head of the parquet (corps of prosecutors in a particular geographic area) warns him to be careful and behave as required or he will “have trouble.” In season three, he tells Roban, the juge d’instruction he worked with in earlier episodes: “I used to believe in justice … they [those that head the institution] are all rotten.” The same terms are used by the juge to describe the Ministère public (another term for the institution of justice, more clearly indicating its link to government) to his intern, yet another young character whose ideals will soon be challenged and destroyed.

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“Justice” is often referred to in the series as disappointing, warped and corrupt, but this is understood to be the “institution of justice,” not the ideal of fair treatment under the law. This reflects a major difference between the organization of justice in the United States and France—in the former, the legal system is composed of the articulation of separate but cooperating services, whereas in France it is composed of a hierarchy dependent on the Ministry of Justice, a branch of the central authority of government. The French legal system operates as a whole, and independence from the institutional political hierarchy is portrayed as an impossible ideal. Even in the first season of Engrenages, despite the obvious ridicule applied to the protagonists as their characters evolved, the series had at least the merit of showing the different services that work together within the French legal framework. It was never clear in the first two seasons at what point the different services would intervene, nor who had authority over whom, especially since much of the information was a misrepresentation of the facts. This negativity communicates a lack of confidence in the institution of justice and, when analyzed closer, also reveals the French tradition of “antilegalism” inherent in the culture and history of the country.

2. The Ideas of Edgar Quinet “Antilegalism” is a concept that finds its source in the writings of French historian, Edgar Quinet, the author of Philosophie de l’histoire de France (1857). According to Quinet, France is structured according to a hierarchical idea of the state that is inseparable from political form. It is set up according to general written codes into which situations must fit in order to be managed, and a privileged place is reserved for the formal written word. This contrasts with the pragmatic approach of Anglo-Saxon countries belonging to the Common Law family, where judges enjoy a wider and more creative scope in which to work. The French judiciary is collegial. All judges are part of an institution and do not speak in their own name, but rather in the name of “justice,” the name of the ministry, that is the government. Since the institution of justice, as everything else, depends on the state, it is the state that receives recognition. The negative view is that justice is seen as a showcase, a form without substance. Justice (as an institution not a system) is devoid of authority, because authority is not granted to it by the state. The judiciary is under political control and is thus seen as a false institution, deprived of legitimacy in the minds of many French citizens.10 It is an empty form

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because authority lies elsewhere. For this reason, the legal professions inspire little confidence. According to Quinet, central authority is seen to provide citizens with the liberty to enjoy life and culture, while the state takes care of problems that come under its power. In the United States, the idea of individual responsibility is essential to the well being of the community; the system is dependent on the individual. In France, by contrast, the “Bien commun” (the general welfare) is understood to depend not on the individual, but on the state which, like the monarchy before it, the Catholic Church, or even the traditional idea of family, is a vertical, paternalistic structure. For Quinet, French citizens consent to be ruled by the state, and although they are willing to forgo a measure of individual responsibility, they do not give up the right to complain. Having a strong state allows protest. The only other alternative is revolution,11 as seen in France’s past. In Quinet’s account, French citizens therefore maintain a certain liberty through their distrust of the state. This may seem a curious relationship— an individual is critical of authority while simultaneously leaving it the burden of decision. Antoine Garapon, referring to Quinet, explains that because the institution of justice cannot replace the central authority, it becomes a puppet of the state and, as such, attracts cynicism and skepticism from the citizenry. This is apparent in numerous French literary works and examples of popular culture in which the legal professions are derided. These range from the works of Rabelais in the fourteenth century to Racine’s Les Plaideurs (The Litigants of 1668), and television parodies of the 1970s (for instance, Pierre Desproges’s Le tribunal des flagrants délires).12 This particular relation to the institutions of the state explains the weight of cynicism about legal process and justice in contemporary French culture. American legal dramas present a very different image. Despite expressions of criticism, the latter usually end on a note of confidence in the criminal justice system, a point that has even affected French popular culture, creating the confusion referred to earlier in this article. The state provides a form for all things. French culture affords particular attention to form, especially written codes, and the importance of form is political, whereas law and precedent are more pragmatic.13 The law is not the fruit of experience in France, but must be understood as coming from concepts emanating from the state. L’Etat de droit expresses this idea and has little to do with the expression “rule of law,” in which law governs the relations between citizens or between citizens and government agencies. The Common Law courts seek to maintain a balance between individual rights rather than to regulate behavior according to codified rules.

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In France, everything is centralized because the state organizes life. Paris is a perfect example of this—a precise, uniform, aesthetic form governs the city. The beauty of Paris comes from the authority of the state— the perspective and colors of architectural façades must conform to certain rules. The organization of public gardens serves as another example of this condition. The state is everywhere, and all its institutions are tied to an historical event or political figure. The ties to history may not always be visible, but they are always there. The weight of history can make things difficult to change, and this is also a source of cynicism (especially among the younger generations). Understanding antilegalism in this manner helps us to read French legal dramas in a different way. Examples of antilegalism abound because they are deeply rooted in the nation’s culture. Aspects of antilegalism are not specifically imported into the narratives. Instead, they are evident because the narratives are written by French scriptwriters who cannot dissociate themselves from these attitudes. Evidence of antilegalism runs throughout the first four seasons14 of Engrenages, but a particular moment in the third season demonstrates, both diegetically and visually, the dependence of judges and prosecutors on the strength of the state behind the Ministry of Justice. In this incident, the Juge d’instruction, Roban, has begun an investigation in a suburban town that leads to the discovery of local government corruption. His judicial superiors are annoyed by his decision to pursue this investigation, especially because the mayor of the town in question is a personal friend of the head of state. Roban is thus warned by his superiors to devote his time to other cases. In addition, the president of the court demands that prosecutor Pierre Clément check on Roban and make regular reports to him, a task that Clément considers outside the scope of his job. Soon after refusing to do this, Clément discovers that his office has been moved to a lower floor and that he has been relieved of his responsibilities in criminal trials and demoted to traffic court. The scene which follows shows Clément in his new role, sitting in a court that deals with routine procedures in cases of traffic violations and minor offenses. Clément is robed, but hardly listens to the details of the cases described, one after another, non-stop. He is seen slumped at his desk in court, sitting sideways, and not confronting the people who appear before the judges at trial. He spends most of his time checking emails or text messages on his smartphone. His hand supports his head, which serves as another visual, gestural indication of boredom. His presence is a symbol of the institution, and his boredom a metaphor for the procedure taking place: hollow, without substance, an empty form.

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Each time, the presiding judge asks Clément what the prosecution requests in the case at hand. Clément rises to speak, as he must, and delivers the same sentence repeatedly: “I request the application of the law.” He does not adapt the application of the law to the particular cases, his performance is rote, a series of ritual expressions and gestures with little meaning, emptying the procedure of any pertinence. Finally, Clément, unable to go on with this charade, leaves the court to everyone’s amazement. He goes to the robing room, tears open his robe and seems to have trouble breathing. Then he crumples his robe and throws it in the bin. The viewer understands this to mean he will give up the magistracy. Actually, in the following scenes he will become a lawyer. Clément will make this transformation without going through many formal steps and he will share an office with Karlsson, not the most inspiring of possible colleagues and certainly not the most ethical. But it is a small world, or perhaps merely a cheaper solution for the producers. Scenes such as Clément’s demotion or his poor behavior at trial, the repetitive, empty courtroom form, the dubious behavior of lawyers, and depictions of political intrigue exemplify the antilegalistic tradition of French culture. These are deep attitudes that French viewers may not even be aware of themselves. Nevertheless, they recognize something in the series, and the arrival of new writers for seasons three, four and five, making a more concerted effort towards realism, has not modified the antilegalistic atmosphere that pervades in the show.

3. The Series Takes a Turn Towards Realism In 2006, the show’s production company, Son et Lumière, contacted Anne Landois to write the scenario for season three. Anne Landois was known for having written several films for television with legal content and especially a remarkable docudrama directed by Denys Granier-Deferre called Rendez-moi justice.15 One of the consultants for the previous season of Engrenages was invited by Anne Landois to co-author the series. As he was still a divisional commander in the police force, he wrote under a pseudonym, Eric De Barahir. De Barahir’s professional experience and Landois’s past research offered a new opportunity for realistic stories, giving the audience a “feeling of the real”16 and diminishing the ridicule of earlier seasons without necessarily eliminating the critical character of the writers’ antilegalistic culture. De Barahir, who co-authored seasons three and four with Landois, was able to show the specific moments in which different protagonists would intervene in the investigations. Landois, who has now become the show-

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runner of Engrenages, also consults lawyers, judges, police detectives and political activists in an effort to verify behavior and hear stories that will serve as inspiration for the episodes. On occasion, she has even accompanied legal professionals in their work, watching them in trials and observing interrogations at police stations. The professionals that the writers have met often express their satisfaction with the way their jobs are [now] represented in this series: “They appreciate the realism of the series because they feel the difficulties they confront are related in the narratives as well as the conflicts that occur with certain colleagues.”17 Some stories also come from the media. In season four, for example, citizen protest movements in support of illegal aliens served as inspiration for the diegesis dealing with the evolution of the Karlsson character. Each season contains multiple story lines, but this is one of the most important of season four, showing the plight of illegal aliens in France (les sans papiers) and the demonstrations against reforms first proposed by the Sarkozy government to deal with them. The series confronts not only the polemics of attitudes on immigration (legal or otherwise), but also the dangers of an overly security-motivated government, the hunt for illegal aliens, clashes between protesters and the riot police, and the actions of the extreme left. One plot deals with an internal terrorist group within the extreme left. A real incident called l’affaire de Tarnac occurring in 2008 is considered by many (but denied by De Barahir) as the basis for season four, which was written and broadcast in 2012. The Tarnac incident concerned the arrest of a group of French students in connection with the alleged sabotage of a high-speed train track. The first episode of season four of Engrenages begins with four youths in a car fleeing a probable crime scene (the viewer does not know at this point); one is dying from having been in the way of the explosives he fabricated himself. The link, true or false, to the Tarnac case, makes the series more credible in comparison with the narratives of seasons one and two, which were implausible and too rapidly dismissed. French judges have expressed the view that the representation of the judicial hierarchy and collegial obligations of their profession in the series is realistic and a refreshing change from fictional dramas in which portrayals of the law are tinted with American details (jurors sitting apart from the judges, cross-examinations, lawyers rising to object to questioning by their adversaries).18 Most often, television channels and producers import these visual and narrative codes into their productions because they feel that American trials are more dramatic and exciting than French legal procedure. They think that French audiences expect to see these Ameri-

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canisms, but many French lawyers and judges find them irritating and pathetic. Engrenages shows the intricacies of relations between magistrats and lawyers, including how their different training leads to different corps, much like different clubs. When Clément becomes a lawyer, he swears to do the contrary of what he had trained for years to do (i.e. to prosecute). The series has shown the reality of French magistrats (prosecutors and judges alike) who are servants of the institution. The actual interventions of lawyers in judges’ offices (a large part of their work is done in the offices of judges) is shown with realism, for instance the judges who work in offices do not wear robes. Yet, in order to talk to them, the lawyer must wear his as a symbol of his function. Clément, as a lawyer, defends Police Detective Berthold when she is being investigated for misconduct. His demonstration of how she could not have done what she is accused of shows the necessity of quick thinking and eloquence. But shortly after Clément becomes a lawyer, he succumbs to his old bleeding heart habits and gets too close to a homeless youth who turns against him and accuses him of pedophilia. It is Karlsson who comes to his rescue and defends him before the same internal affairs judge, showing again the ways in which lawyers deal with judges when it is best that the person being represented say as little as possible. Other examples of realism—or in fact Barthesian “experience of the real”—consist in references to the media or to Sarkozyian reforms of the judiciary. In season four the juge d’instruction is bothered by journalists seeking to interview him with respect to a case he is investigating. However, he is unable to comment on pending cases as l’instruction (the period of investigation) must be carried out in secret. These are matters rarely dealt with on television.19 In a scene of season three, Roban is engaged in a discussion with his young intern over a proposed bill to reform his particular sector of activity within the judiciary. Not only is this a timely issue brought to public attention through a fictional conversation, it also stages a confrontation between the two generations: the juge d’instruction who seems to be speaking from experience and the young intern expressing the conceptual need to renew a tired institution. The scene gives food for thought. It is interesting, and commendable, that the writers take the public seriously. Traditionally producers and scriptwriters would avoid topical subjects. Here, not only do they take up a political debate, but they do not give the public any lessons. There is no simplistic explanation of the reform; audience members are treated as informed viewers who can come to this discussion having at least heard of the proposal.

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To conclude, Engrenages is an interesting case of French television writing in that it shows an evolution of ways of dealing with the law in French fictions. The reality of various departments comprising the institution of justice are shown to work together (for example the proximity of the juge d’instruction to the police) while others are seen to be in conflict. Professional functions, institutional hierarchy and the collegiality of the judiciary are effectively represented. The theoretical independence of the magistracy is questioned through the creation of plausible situations. The hierarchical relations shown in the narrative and in the visual language of the series (who wears what, how do those in power stand facing those who depend on them for their careers, for their freedom, etc.) paint a picture of an antilegalistic society. The everyday reality of crime is also convincingly conveyed, including its effect on police detectives and magistrats. Ultimately, justice is seen to be in the hands of the political, of an ultimate authority; it is not the work of citizens. Antilegalism is perhaps more present in Engrenages than it has ever been in other legal dramas in France. It clearly does not mean “anti-justice,” nor does it suggest anything undemocratic. France is a democracy based on the idea of a strong central authority where people often express their consensus, but more regularly their disapproval. Antilegalism is a culture in which the idea of democracy resides in politics alone. The common law viewer watching Engrenages needs some understanding of this political culture in order fully to appreciate its characters and their relations to each other. Yet it is possible that the authors themselves are not fully aware of the significance of this background framework, because while another person’s culture can be difficult to perceive, an individual’s own culture is even more opaque because of a lack of distance. The arrival of realism in the series did not, and does not, mean that reality is central. Real cases and issues may be referred to at times, but these are not major concerns throughout the series. By adopting a more realistic tone, the contemporary culture of the country becomes apparent and this is what gives the series its interest. Watching this program in the context of a comparative law course would allow students to acquire an image of how law and justice work in France, and perhaps offer an opportunity to discuss the deep rooted political and cultural foundations of the country. Is everything in Engrenages true? Of course not. Nor is everything true in US legal series. But is this important? These fictions do not claim to replace documentary (is documentary unbiased and totally reliable?), nor are they textbooks for legal training. What is important is that they give an entry into these systems. A television show that provokes curiosity and

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questioning is a successful tool for both entertainment and learning. This is, after all, at the basis of research on law and popular culture.

Bibliography Barthes, Roland. Littérature et réalité. Paris: Seuil, 1982. Fiske, John. Television Culture. London: Methuen & Co., Ltd., 1987. Garapon, Antoine. “Edgard Quinet, pourfendeur de l’antijuridisme français,” unpublished article (2013). McCabe, Janet, ed., “Exporting French Crime: The Engrenages/Spiral Dossier.” In Critical Studies in Television 7 (2) (2012): 101–18. Quinet, Edgar. [1857] Philosophie de l'histoire de France. Paris: Payot, [re-edition 2009].

Interviews Anne Landois, interviewed by Marianne Colbran, (translation B.Villez), email exchanges with the author, August 2013. Judge Sylvie Perdriolle (former justice of the Court of Appeals of Paris, former judge of the Cour d’Assises [criminal justice] of Paris, former directrice of the Ministry of Justice Agency for the judicial protection of youths [Jan 1998–Sept 2002]), interviewed by B.Villez, June 2013.

Notes 1

Fictional crime investigator created by novelist Léo Mallet, adapted into a television series, Antenne 2, then France 2, M6, 1991–2003. 2 Fictional police inspector created by Georges Simenon, adapted into several films and a television series, Antenne 2, 1991–2005. 3 TF1, 2002–2009. 4 TF1, 1992–1996. 5 TF1, 1993–still in production 6 See http://www.imdb.com/title/tt0477507/reviews (2006–2010) last consultation 10, October, 2013. 7 Lucy Mazdon, “Spiral on BBC4: Putting Quality First,” in “Exporting French Crime: The Engrenages/Spiral dossier,” Critical Studies in Television 7 (2) (2012): 115. 8 It must be noted that the French magistrat can be the equivalent, in the Common Law system, of either a prosecutor or a “sitting” judge. After the initial university law degree, students either prepare to become lawyers (and train for the bar exams) or enter a special school in Bordeaux (according to their results in a competitive

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exam) to train as magistrats. Upon graduation, they become either prosecutors or judges (of which there is a considerable number of different types). 9 The first season of Engrenages has multiple narratives; one (an open narrative) which runs through the entire first season and others (closed narratives) which are resolved in each episode 10 Garapon, Edgar Quinet, “Pourfendeur de l’antijuridisme français,” unpublished paper, 2013, 2. 11 Garapon, see supra 10, citing Toqueville who draws attention to the fact that the French revolution replaced absolute monarchy with a strong centralized administration. The idea of equality weakened society in favor of a strong central power. 12 Radio program on France Inter, 1980–81. 13 Garapon, Edgar Quinet, Pourfendeur, op cit. 14 In France a series is broadcast once all the episodes of the season have been written. 15 A true story about the brutal murder of a child in a small town of France by two marginal residents (in 1988). The film is composed of interviews, news clips and especially the reconstitution of courtroom scenes which Anne Landois was able to write based on meticulous research of the court secretary’s notes (which are not transcripts). Since it is forbidden to film trials in France, the fictional reconstitution of courtroom scenes was the only solution to give a complete vision of what occurred in this case. 16 What Barthes refers to as l’effet du réel (Littérature et réalité, [Paris: Seuil, 1982, 1st edition, 1968], 81–90) and which becomes an “expérience of the real” (translation used in John Fiske, Television Culture [London: Methuen & Co., Ltd., 1987], 128). 17 Interview of Anne Landois by Marianne Colbran August 2013, translated by Barbara Villez. 18 Interview of Judge Sylvie Perdriolle by B.Villez, June 2013. 19 Ibid.

PART FIVE TEACHING LAW AND POPULAR CULTURE

CHAPTER NINETEEN POPULAR CULTURE IN THE CLASSROOM AND BEYOND: USING HARRY POTTER AS A PORTKEY FOR CIVICS AND COMMUNITY INVOLVEMENT KELLY E. COLLINSWORTH

Harry’s heart was beating a violent tattoo against his Adam’s apple. He swallowed hard, turned the heavy iron door handle, and stepped inside the courtroom.1

The bland potion of civics, served straight, bores most students. Their contemporary educational experiences have not often prepared them to engage with the subject matter or to recognize its import. Any educator who has attempted to explain the intricacies of the legal system or the mechanics of legislation to high school or college students has been confronted by glazed, disinterested stares and drooping heads. The American educational system of the twenty-first century has left its graduates knowing too little about the United States’s own governmental and judicial systems to be prepared to act as informed and active citizens. Therefore, educators who hope to remedy the problem of lacking civics education should use their time wisely by making the subject memorable and entertaining, and popular culture can be a powerful instrument in an effective teacher’s bag of tricks. By linking civics to books or movies that students love, you provide them with new ways to make connections. Students may not be interested in how the real world legal system functions, but they will be very interested in Harry Potter’s appearance before the Ministry of Magic for his disciplinary hearing for the unauthorized use of magic.2 By making such a connection, an instructor can open the door to numerous paths of investigation. One might discuss how Harry, like the students, does not understand the legal system, has no idea what might happen to him, and has a “crushing sense of dread”3 about

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attending the hearing. One might choose to compare how charges are brought and laws are enforced in the wizarding world to these same processes in the real world. Or, one might open a discussion as to whether Harry had been charged justly since, as Harry’s friends offered before his hearing, “there’s definitely something in the International Statute of Secrecy about being allowed to use magic to save your own life.”4 As you can see, opportunities relating to this one example are numerous. In civics education, pop culture can be the portkey5 that moves students into the seemingly magical realm of interest and engagement.

1. The Civics Problem Like a bewildered Harry approaching his hearing at the Ministry, most U.S. citizens lack basic knowledge about the legal system and their rights, and what little they do know is often distorted as it passes through the prism of popular culture, such as movies, books and television.6 This lack of knowledge is not limited to the legal system, but it also applies broadly to civics in general. Polling shows that nearly two-thirds of Americans cannot correctly identify the three branches of government.7 And, “nearly two-thirds of Americans can’t name even a single member of the Supreme Court.”8 In a 2011 Newsweek poll, “almost forty percent of Americans failed the [U.S. Citizenship] test.”9 Not surprisingly, they “did very poorly on the questions related to law and our legal system.”10 In a March 2011 speech, U.S. Secretary of Education Arne Duncan recognized the critical need for civics education, stating that students “need to know their rights—and their responsibilities … [T]he skills acquired through civic participation are … critical to succeeding in the knowledge economy of the 21st century.”11 That being said, there has never been less emphasis placed on civics education.12 Less than one-third of students tested by the National Assessment of Educational Progress were proficient in civics.13 With increasing classroom time spent on No Child Left Behind measures and courses in Science, Technology, Engineering and Mathematics (STEM), there is little time left in a public school’s curriculum for teaching civics. In fact, most social studies teachers view their own classes as less important than the STEM classes.14 All the while, many experts recognize civics education as being as “critical as literacy and mathematics.”15

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2. Our Role in Civics Education While most college and law school faculty might wonder if civics education should be a part of their responsibilities, students are not acquiring civics literacy in secondary schools, and the little they do learn is not engaging. In a 2005 study of three hundred high school students, “over 95% ‘did not think their social studies class was relevant to their personal life.’”16 In another civics study, “only 11% of students reported spending time in their classes on ‘problems facing the country today’.”17 After studying the state of civic literacy in the U.S., the Annenberg Public Policy Center published a recent report entitled “Guardian of Democracy: The Civic Mission of Schools,”18 making strong recommendations for increasing civic literacy. “Guardian of Democracy” argues that the benefits of civic learning include a reduction in the dropout rate, higher test scores, and a demonstration of “high levels of twenty-first century skills such as critical thinking, news comprehension, and work ethic.”19 The report further recommends that post-secondary institutions require every student to take at least one civic engagement learning course.20 Moreover, attorneys have a responsibility to be community leaders and engaged citizens and to be a “public citizen having special responsibility for the quality of justice.”21 Recently, the American Bar Association President called for every attorney to provide civic education to students.22 The argument has been advanced that the entire law school curriculum should incorporate “[i]ssues of public service, law reform, and access to justice” to ensure that future lawyers can uphold their special civic duty.23 If students in undergraduate legal programs and law schools can be engaged in teaching civics to younger learners, they will be more likely to maintain this engagement as legal practitioners. Many law school students have been participating in civic education for years through the successful Street Law Program.24

3. Finding the Magic in Civics Education Clearly, more civics instruction should be provided, but “civics education needs to be more engaging.”25 The publication of a collection of law review articles in The Law & Harry Potter26 made me realize that using Harry Potter was an academically acceptable method of teaching complicated legal topics, and it proved to be a highly effective method at the rural state university where I teach. The fact that Harry Potter is widely read and loved by children, teens, college students and adults all over the world makes it a ready tool for teaching law and civics in a way that engages

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students at all levels. As stated by authors Asimow and Mader in the preface to The Law and Popular Culture: A Course Book: When students are brought face to face with popular culture, the result is very different from the typical college-level course. Normally, the teacher is the expert and the students passively soak up as much of the teacher’s knowledge as they can absorb. However, in a course based in the media of popular culture, the students share experiences with the instructor. Every student in the room is already an expert in interpreting popular culture.27

This statement was particularly true in regards to the student knowledge of the Harry Potter series. Many of my students will recite passages verbatim from any one of the seven books in the series. They retrieve names, dates, and spells before I can say “stupefy.” Our current students grew up with Harry, Ron and Hermione. When the last movie of the Harry Potter series was released in July 2012, I noticed many of my students left melancholy posts on Facebook stating that “they felt like their childhood was over.” These young adults continue to spend money on Harry Potter, too. Based on the success of its original park attraction, Universal Studios recently announced a summer 2014 expansion of “The Wizarding World of Harry Potter” into a multi-park experience, including Diagon Alley and a ride on the Hogwarts Express between parks.28 Recently, J. K. Rowling again made the list as one of the Forbes 100 Most Powerful Women.29 The ABC Family channel still runs “Harry Potter weekends,”30 and the movies still stand as the top grossing series in cinematic history.31 Admittedly, the Harry Potter series is not a book series about the law or lawyers. In fact, a lawyer appears nowhere in the entire series, even though the books feature several court scenes. In the final book of the series, Harry Potter and the Deathly Hallows, the Minister of Magic, Rufus Scrimgeour, arrives to meet with Harry, Ron and Hermione regarding the contents of Albus Dumbledore’s will. Hermione begins asking the Minister probing questions about the laws regarding confiscation of the contents of a will. The following exchange occurs: “Are you planning to follow a career in Magical Law, Miss Granger?” asked Scrimgeour. “No, I’m not,” retorted Hermione. “I’m hoping to do some good in the world!”32 Despite this unfair criticism of the legal profession, much can be learned from the series. For example, the article “Harry Potter and the Half-Crazed Bureaucracy”33 introduced my students to the bureaucratic system that is present in the wizarding world. The article invokes discussions of separation of powers, the role of government, personal freedoms, and the welfare state. The Harry Potter world could then be compared to

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our government, with supplemented reading materials of actual cases, statutes, statistics, etc. Another popular article, “Sirius Black: A Case Study in Actual Innocence,”34 allowed students to look at our criminal justice system through a different lens, requiring them to set aside preconceived notions. Most students hate to read, and it is next to impossible to get them to read assignments.35 However, almost every article in this book was read by most of the class, and many students confessed to not selling the book after the class was finished.

4. One Muggle Professor’s Class My college-level class was entitled “Harry Potter and the Law,” and it targeted non-legal studies majors. Having taught a general education course covering practical law and civics topics, I knew that students needed a more in-depth study of law and government, even if they were not pursuing legal careers. Enrollment in my initial class consisted of twentyseven students from sixteen different disciplines, including eight students from the hard sciences. Only three students were from legal studies or government programs. The twenty-four other students would likely never have taken a law class had Harry Potter not been involved. As one student wrote at the conclusion of the class: Signing up for the class I wasn’t sure what I was getting myself into because I knew that I wasn’t a big fan of law but that I did love Harry Potter. I was afraid that clashing the two would only burn me out on Harry Potter. I was completely wrong because even though it may not always seem like I am into it I loved everything we did from the mock trial to the discussions in class on chapters in the textbook.36

Having created a class to engage and educate college students in law and civics, I felt that it could have a broader impact on younger students in our community. Therefore, I incorporated a service-learning project as a major component of the class. Additionally, despite Professor Umbridge’s disgust with the idea of “hands-on learning,”37 I knew my students would learn the legal material better if they were using it to teach others.38 The National Service-Learning Clearinghouse defines service learning as “a teaching and learning strategy that integrates meaningful community service with instruction and reflection to enrich the learning experience, teach civic responsibility, and strengthen communities.”39 In servicelearning, as opposed to pure volunteerism, the service is connected to an educational course objective with the results and reflection measured by the professor.40 This reflection is critical as “it allows induction to accom-

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pany deduction, personal discovery to challenge received truths, and immediate experience to balance generalizations and abstract theory.”41 Without the reflective aspect, the students are merely doing another assignment just to pass the class. The emergence of service-learning as a pedagogical tool is founded in the philosophy of John Dewey. John Dewey focused on the “philosophy of experience” and how learning occurs from that experience.42 He perceived that for “knowledge to be usable through recall and application it has to be acquired in a situation; otherwise it is segregated from experience and is forgotten or not available for transfer to new experiences.”43 In addition, combining these experiences with reflective thinking leads to further inquiry.44 Dewey further believed that this inquiry would be the method “… by which citizens became informed, communicated interest, created public opinion and made decisions.”45 Dewey’s educational philosophy and service learning can be further supported by Bloom’s Taxonomy of Educational Objectives, which encourages high order thinking beyond just memorization of facts and application.46 The pedagogical success of service learning cannot be understated, especially when we hold an objective of having informed and active citizens. The studied benefits of service learning for college students include “increased grade point averages, retention, degree completion, graduate degree aspiration, civic responsibility, and life skills.”47 Therefore, I arranged to have an event for local Girl Scouts (grades 4– 12), during which my students would assist the Scouts in meeting requirements for a civics-related badge. As part of meeting the badge requirements, the Girl Scouts would serve as jury members for a Harry Potter-based trial. One might argue that presenting a trial based on fictional magical characters performed within a one-hour time span might not provide significant legal instruction to the audience, especially considering that most legal cases never go to trial. However, “the pop cultural trial does not have to be ‘accurate’ in order to teach us something about law … The pop cultural trial educates at the same time it entertains.”48 In fact, jury service can be an opportunity to educate jury members about the civic process.49 As one law professor argued: Obviously, brief jury instructions cannot replace a complete civics or legal education; however, the constitutional lessons within jury service can be made transparent and relevant to jurors. The constitutional principles of democratic participation, equality of opportunity, due process/fairness, respecting diversity, and balanced and accountable government are directly connected with the constitutional role of the jury. By identifying those con-

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stitutional principles and creating the space to practice and reflect on those principles, jury instructions can enrich the jury experience, both during deliberations and after court is over.50

Jury service has additionally been linked to increased civic engagement after jury service, including increasing voting participation.51 Unfortunately, most people will never serve on a real jury and have this opportunity for greater civic engagement; however, service on a mock-trial jury can attempt to emulate these positive effects. Therefore, before each presentation, the audience was provided some lessons on the legal system and their roles as jury members. The event also included post-trial discussions with the audience regarding the presentation of evidence, the applicable law, biases that they held when deciding how to weigh evidence, differences between our mock trial and a “real” trial, and the usefulness of jury instructions. We also discussed the way that crimes were punished, or not punished, in the Harry Potter novels and whether these “selective prosecutions” occur in our “real world.” In choosing a topic for the trial, I wanted to use a situation from the Harry Potter books that I thought would be uncomfortable for the students, both for my students in the class and for the younger students serving as jurors. I did not want the jury’s decision to be “easy.” Therefore, I knew that we could not use Lord Voldemort as a defendant. Instead, I wanted to use Harry Potter as a defendant. Using Harry would make students see that anyone can be caught up in the legal system, that the accused does not have to be “evil.” In The Half Blood Prince, Harry commits a questionable attack on fellow student, Draco Malfoy. During his sixth year at Hogwarts, Harry becomes convinced that Draco is up to no good. Harry is also engrossed in reading the hand-written notes in the margins of his potions textbook, much of which contain spells and curses with which Harry is not familiar. One day, a suspicious Harry confronts Draco in the restroom. Draco turns to curse Harry, and in response, Harry uses the unknown curse “sectumsempra,” which cuts Draco to shreds. Harry is horrified by his own actions. Luckily, Professor Snape is able to save Draco’s life.52 Using this scenario for my mock-trial, Harry was charged with FirstDegree Assault53 under Kentucky law.54 The jury charge against Harry Potter read as follows: The Defendant has been charged with First-Degree Assault. You will find the Defendant guilty of First-Degree Assault under this Instruction, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:

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(1) That in this county on or about May 6, 1997, the Defendant intentionally caused a serious physical injury to Draco Malfoy by using a deadly weapon which was readily capable of producing death or other serious physical injury AND (2) That in so doing, the Defendant was not privileged to act in selfprotection or justification OR (1) That on or about May 6, 1997, the Defendant caused a serious physical injury to Draco Malfoy; AND (2) That in so doing, the Defendant was wantonly engaging in conduct which created a grave risk of death to another and thereby injured Draco Malfoy under circumstances manifesting extreme indifference to the value of human life. AND (3) That in so doing, the Defendant was not privileged to act in selfprotection or justification.

Using this jury charge, the students developed witnesses for the prosecution and defense. The Prosecution argued that Harry had become obsessed with Draco, stalking him through Hogwarts’ shadowy halls. When Harry entered the lavatory, Draco fired a warning shot from his wand to frighten Harry away. Harry used the “curse for enemies,” knowing that all the curses and spells written by the Half Blood Prince had worked. The Prosecution argued that Harry could have used a defensive countercurse, such as Expelliarmus,55 which he had always used when fighting “he who must not be named.” The Prosecution additionally argued that Harry could not claim self-defense because he was the initial aggressor, following Draco into the restroom, because Harry could have retreated rather than engage Draco in a duel, and because the force used by Harry was unreasonable. The Defense argued that Draco Malfoy was a Death Eater.56 Harry, with this knowledge, was faced with an enemy that he knew had no hesitation in using an unforgiveable curse.57 When Harry heard Malfoy start to utter the incantation for “cruciatus,”58 he knew he had to respond with enough force to stop him. Having just read the sectumsempra curse in his potion’s book, he used the first curse he could think of to protect himself. In homage to the successful verdict in the O. J. Simpson trial, the defense’s closing argument ended with “If Cruciatus he did begin, then this case Potter must win!”59 Many of my students, when reflecting on the trial, were surprised by the idea that Harry Potter might be guilty because he used “unreasonable force.” They admitted that when reading the book they had not considered why Harry failed to use his signature defensive spell, expelliarmus. One

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student wrote, “I believe a lot of people were surprised to find that they could see Malfoy’s point of view and that some of them agreed that Harry had crossed the line in using Sectumsempra.”60 In addition, the students engaged with and retained the otherwise “boring” civics subject matter. As one student wrote in her reflection: I normally would not have retained a lot of the information about the court systems without them being taught from a Harry Potter stand point that I already knew and just needed to apply it. The service learning made learning the information easier to retain and redraw when asked about it, as well as providing the intensity of a true criminal trial.61

For the Girl Scout event, we divided the jurors into three jury panels of twelve.62 One group was entirely made up of parents. We used a Special Verdict format for our jury instructions that provided a step-by-step question and answer format to assist jurors in reaching a verdict.63 Following jury deliberations, each foreperson presented the verdict. The adult group and one Girl Scout group found Harry not guilty. The other group found Harry guilty. After the verdicts were rendered, the jurors were asked to provide feedback on the process. Most were amazed at how difficult it was to make a decision. The parents seemed to have the most animosity towards jury service, saying they hoped to never serve on a real jury. The Girl Scouts, on the other hand, seemed to be excited by the prospect. The older Girl Scouts were especially interested, wanting to know more about the legal process. The second time I taught the class, the service learning project focused on high school seniors. For this event, a group of students prepared a lesson plan on jury service and the court system. Two days before the mocktrial event, these students went to the high school class, gave a pre-test, and then presented the lesson. After the mock-trial event, which was held at a local district courtroom and was attended by the district court judge, the students took a post-test. All of the high school senior students failed the pre-test, but all of the students scored an 80% or higher on the posttest. A mock-trial serves as just one of the many ways that Harry Potter can be used to promote civic education, and certainly the delivery mechanism for using Harry Potter does not have to be a college law class. This event would work equally well in any class that strives to encourage critical thinking, teamwork, service learning and civics education.64 Additionally, the books mentioned previously in this essay are filled with excellent scenarios that can be used for individualized lessons in law and government.65 For example, the lack of checks and balances in the governmental struc-

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ture of the wizarding world provides an excellent avenue for teaching about the significance of the three branches of our government. Further, the recent movement by schools to punish out-of-school behaviors, such as controversial postings on Facebook, is a popular topic with students. The Order of the Phoenix provides an excellent starting point for discussing school discipline and student rights.

5. Conclusion I teach at a rural state university in one of the poorest regions of the U.S., but my area’s ineffective civics education and love of Harry Potter are common anywhere in the country. Harry Potter allowed my students to connect directly with both younger learners and complex matters of American law and civics. As another student wrote in their course reflection: After the first performance of the mock trial I knew that we had done something great, not only in the creativity of combining the Harry Potter world with the world of law but also in how great of a learning experience watching the trial was for those who knew nothing about the legal systems and how trials work. I had just as much fun helping with and being a part of the trial as the people who were watching the trial in the audience.66

The Harry Potter novels are some of the most significant cultural artifacts of our new century. Their impact on our current generation of high school and college-aged students may be unmatched by anything since Star Wars in the 1970s and 1980s. Harry Potter is the one thing with which most young people are familiar. As such, it provides educators at all levels with a perfect launching pad for educational programming in an array of subject matters, serving as a particularly rich source of ideas for civics education. It is my sincere hope that teachers across the country can find ways to use the world of Harry Potter to teach students about their own rights and responsibilities as citizens in this slightly less magical world that we all must inhabit.

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Appendix A WIZARDING WORLD CASE NO. 97-F-00002 MINISTRY OF MAGIC PROSECUTION VS. HARRY JAMES POTTER DEFENDANT Verdict Form Definitions to determine guilt "Dangerous instrument" means any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury; "Deadly weapon" means any of the following: (a) A weapon of mass destruction; (b) Any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged; (c) Any knife other than an ordinary pocket knife or hunting knife; (d) Billy, nightstick, or club; (e) Blackjack or slapjack; (f) Nunchaku karate sticks; (g) Shuriken or death star; or (h) Artificial knuckles made from metal, plastic, or other similar hard material. "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ; "Intentionally"—A person acts intentionally with respect to a result when his conscious objective is to cause that result or to engage in that conduct.

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"Wantonly"—A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. Your answers to these questions must be unanimous (meaning everyone agrees) Instruction #1 Deadly Weapon or Dangerous instrument Did the Prosecution prove beyond a reasonable doubt that the wand used by the Defendant to cast the sectumsempra curse is a dangerous instrument or deadly weapon as defined above? ______ Yes (if yes, then go to instruction #2) ______ No, (if no, then go to Instruction #3) Instruction #2 Assault in the First Degree Did the Prosecution prove beyond a reasonable doubt that on or about May 6, 1997, the Defendant intentionally caused a serious physical injury to Draco Malfoy by casting the sectumsempra curse from his wand? ______ Yes (if yes, then go to instruction #4) ______ No (if no, then go to instruction #3) Instruction #3 Did the Prosecution prove beyond a reasonable doubt all of the following: (1) That on or about May 6, 1997, the Defendant caused a serious physical injury to Draco Malfoy; AND (2) That in so doing, the Defendant was wantonly engaging in conduct which created a grave risk of death to another and thereby injured Draco Malfoy under circumstances manifesting extreme indifference to the value of human life. ______ Yes (if yes, then go to instruction #4) ______ No (if no, then go to Instruction #5 and mark “not guilty”.

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Instruction #4 Self-protection defense: At the time an individual, including the Defendant, uses physical force upon another person he believes that person was then and there about to use physical force upon him, he is privileged to use such physical force against that person as he believes to be necessary in order to protect himself against it, including the right to use deadly physical force but only if he believed deadly physical force to be necessary to protect himself from death or serious physical injury (a) There was an immediate use of unlawful force against the defendant by Draco Malfoy. ______ Yes (If yes, then go to B) ______ No (If no, then go to Instruction #5) (b) The Defendant used only as much force as reasonably appears to be necessary under the circumstances. ______ Yes ______ No Continue to Instruction #5 after answering this question. Instruction #5 Verdict If you answered YES to both the questions in Instruction #3, you must find the Defendant not guilty. If you answered No to Instruction #3 and Yes to Instruction #2 or #3, you must find the Defendant Guilty. _____ Guilty

_____ Not Guilty

The Jury foreperson should sign after selecting Guilty or not Guilty. Remember: the vote must be unanimous. ____________________________________ JURY FOREPERSON

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Bibliography “ABC Family’s Harry Potter Weekend.” The Leaky Cauldron, May 11, 2011. American Bar Association, Putting on Mock Trials. Chicago: Division for Public Education, American Bar Association, 2002. Asimow, Michael & Shannon Mader. Law and Popular Culture: A Course Book. New York: Peter Lang Publishing, 2007. Bergman, Paul & Michael Asimow. Reel Justice: The Courtroom Goes to the Movies. Kansas City: Andrews McMeel Publishing, 2006. Bloom, Benjamin S., ed., Taxonomy of Educational Objectives: The Classification of Educational Goals. New York: David McKay Co., 1956. Cress, Christine M., Cathy Burack, Dwight E. Giles Jr., Julie Elkins and Margaret Carnes Stevens. “A Promising Connection: Increasing College Access and Success Through Civic Engagement,” Campus Compact, September 2010. Croteau, Michelle. “Most Americans Can’t Name Any Supreme Court Justices,” Findlaw.com Press Release, January 10, 2006. Duncan, Arne. U.S. Department of Education, “The Next Generation of Civics Education.” Speech presented at the iCivics “Educating for Democracy in a Digital Age” Conference, Washington D.C., March 29, 2011. Feith, David. Teaching America: The Case for Civic Education. New York: Rowman and Littlefield, 2011. Ferguson, Andrew Guthrie. “Jury Instructions as Constitutional Education.” University of Colorado Law Review 84 (2013): 223–303. “Forbes 100 Most Powerful Women List: Queen Elizabeth and J. K. Rowling the Only British Entries.” Huffington Post, May 22, 2013. http://www.huffingtonpost.com (accessed February 28, 2014). Gibson, Michael T. “A Critique of Best Practices in legal Education.” University of Baltimore Law Review 42 (2012): 1–80. Giles, Jr., Dwight E. & Janet Eyler. “The Theoretical Roots of ServiceLearning in John Dewey: Toward a Theory of Service-Learning.” Michigan Journal of Community Service Learning 1 (1) (1994): 77–85. Gould, Jonathon, ed., Guardian of Democracy: The Civic Mission of Schools. Pennsylvania: The Leonore Annenberg Institute for Civics of the Anenenberg Public Policy Center at the University of Pennsylvania and the Campaign for the Civic Mission of Schools, 2011. Kentucky. Revised Statutes, Annotated (Baldwin, 2012), sec. 508.010. Model Rules of Professional Conduct Preamble, 1.

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Morris, Karen & Bradley S. Carroll. Law Made Fun Through Harry Potter’s Adventures: 99 Lessons In Law From The Wizarding World For Fans Of All Ages. South Carolina: CreateSpace Independent Publishing Platform, 2011. Papke, David Ray. “The American Courtroom Trial: Pop Culture, Courthouse Realities, and the Dream World of Justice.” South Texas Law Review 40 (1999): 919–32. Pomerantz, Dorothy. “Can ‘The Hobbit’ Make ‘The Lord of the Rings’ The Top Film Franchise of All Time?,” Forbes, December 13, 2012. Robinson, Bill. “Justice in Jeopardy: The ABA Perspective.” Indiana Law Review 46 (2013): 7–14. —. Keynote Address at the 2011–2013 Bellwood Lecture. September 14, 2011. “Against Any Winds that Blow: The Special Role of the Judiciary in Protecting Rights and Securing the Rule of Law.” Idaho Law Review 48 (2011): 73–84. Rowling, J. K. Harry Potter and the Order of the Phoenix. New York: Scholastic, 2004. —. Harry Potter and the Goblet of Fire. New York: Scholastic, 2002. —. Harry Potter and the Prisoner of Azkeban. New York: Scholastic, 2001. —. Harry Potter and the Deathly Hallows. New York: Scholastic, 2009. —. Harry Potter and the Half Blood Prince. New York: Scholastic, 2006. Rowthorn, Virginia. “Health Law Service-learning Trip: A How-To Guide.” Journal of Law, Medicine & Ethics 40 (2012): 401–408. Smith, Linda F. “Fostering Justice throughout the Curriculum.” Georgetown Journal on Poverty Law and Policy 18 (2011): 427–52. Smith, Linda. “Why Clinical Programs Should Embrace Civic Engagement, Service Learning and Community Based Research.” Clinical Law Review 10 (2004): 723–54. Street Law, “About Us.” http://www.streetlaw.org/en/about/who_we_are (accessed September 24, 2013). Thomas, Jeffrey E. & Franklin G. Snyder, eds., The Law & Harry Potter. Durham, North Carolina: Carolina Academic Press, 2010. “What is Service-Learning?” National Service-Learning Clearinghouse, http://www.servicelearning.org/what-service-learning (accessed September 24, 2013). “Universal Orlando Announces Wizarding World Expansion Opening in 2014.” Pottermore News, May 11, 2013. Wolk, Steven. “Reading for a Better World: Teaching for Social Responsibility with Young Adult Literature.” Journal of Adolescent & Adult Literacy 52 (2009): 664–673.

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Zubrzycki, Jacklyn. “Scholars Put Civics in Same Category as Literacy, Math.” Education Week, October, 2011.

Notes 1

J.K. Rowling, Harry Potter and the Order of the Phoenix (New York: Scholastic, 2004), 136. 2 Rowling, Order of the Phoenix, 33. 3 Ibid., 115. 4 Ibid., 115. 5 A portkey is a magical object that can be used to transport a person to another location. J. K. Rowling, Harry Potter and the Goblet of Fire (New York: Scholastic, 2002), 70 6 For a book that educates law-related film watchers on the actual legal system by providing “legal analysis” of popular law-related film, see Paul Bergman & Michael Asimow, Reel Justice: The Courtroom Goes to the Movies (Kansas: Andrews McMeel Publishing, 2006). 7 Arne Duncan, “The Next Generation of Civics Education” (speech presented at the iCivics “Educating for Democracy in a Digital Age” Conference, Washington D.C., March 29, 2011) http://www.ed.gov/news/speeches/next-generation-civicseducation (accessed September 24, 2013). 8 Michelle Croteau, “Most Americans Can’t Name Any Supreme Court Justices,” Findlaw.com Press Release, January 10, 2006 http://company.findlaw.com/presscenter/2012/two-thirds-of-americans-can-t-name-any-u-s-supreme-courtjustice.html (accessed September 24, 2013). 9 Wm. T. (Bill) Robinson III, Keynote Address at the 2011–2013 Bellwood Lecture (Sept. 14, 2011), “Against Any Winds that Blow: The Special Role of the Judiciary in Protecting Rights and Securing the Rule of Law,” Idaho Law Review 48 (2011): 83 (citing Andrew Romano, “How Dumb Are We?,” Newsweek (March 20, 2011), http://www.thedailybeast.com/newsweek/2011/03/20/howdumb-are-we.html. ) 10 Ibid., 84. 11 Duncan, “The Next Generation.” 12 For more information on the need for civics education, see David Feith, Teaching America: The Case for Civic Education (New York: Rowman and Littlefield, 2011). 13 Duncan, “The Next Generation.” 14 “A recent survey found that 70 percent … of social studies teachers believe that their classes are a lower priority because of pressure to show progress on statewide math and language arts tests.” Duncan, “The Next Generation.” 15 Jaclyn Zubrzycki, “Scholars Put Civics in Same Category as Literacy, Math,” Education Week , October 2011, (Reporting on arguments advanced by ten papers released by the American Enterprise Institute in October) http://www.edweek.org/ew/articles/2011/10/26/09civics.h31.html?tkn=SRZFsYPg 74UQDKtKSfTuA%2F%2BOxkR5uolodsC0 (accessed September 24, 2013).

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Steven Wolk, “Reading for a Better World: Teaching for Social Responsibility with Young Adult Literature,” Journal of Adolescent & Adult Literacy 52 (2009): 665, citing Y. Zhao & J. D. Hoge, “What Elementary Students and Teachers Say About Social Studies.” Social Studies 96 (2005), 218. 17 Wolk, “Reading for a Better World,” citing M. H. Lopez & E. H. Kirby, “U.S. Civics Instruction: Content and Teaching Strategies,” August 2007 http://www.civicyouth.org/featured-us-civics-instruction-content-and-teachingstrategies/ (accessed September 24, 2013). 18 Jonathan Gould, ed., Guardian of Democracy: The Civic Mission of Schools. (Pennsylvania: The Leonore Annenberg Institute for Civics of the Anenenberg Public Policy Center at the University of Pennsylvania and the Campaign for the Civic Mission of Schools), http://www.civicmissionofschools.org/the-cam paign/guardian-of-democracy-report (accessed September 24, 2013). 19 Ibid., 16–25. 20 Ibid., 43. 21 Model Rules of Prof’l Conduct Preamble 1, available at http://www.americanbar.org/groups/professional_responsibility/publications/model _rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_ scope.html. 22 Bill Robinson, “Justice in Jeopardy: The ABA Perspective,” Indiana Law Review 46 (2013): 14. 23 Linda F. Smith, “Fostering Justice throughout the Curriculum,” Georgetown Journal on Poverty Law and Policy 18 (2011): 427. 24 I participated in the Street Law Program at The Ohio State University as a law student and believe this opportunity greatly influenced my sense of the importance of providing civic education to younger students. See “About Us,” Street Law, http://www.streetlaw.org/en/about/who_we_are (accessed September 24, 2013). 25 Duncan, “The Next Generation.” 26 Jeffrey E. Thomas & Franklin G. Snyder, eds., The Law & Harry Potter (Durham, North Carolina, Carolina Academic Press, 2010). 27 Michael Asimow & Shannon Mader, Law and Popular Culture: A Course Book, (New York: Peter Lang Publishing, 2007), preface, xxiii. 28 Pottermore News, “Universal Orlando Announces Wizarding World Expansion Opening in 2014,” May 8, 2013, http://pottermore-news.com/2013/05/08/ universal-orlando-announces-wizarding-world-expansion-opening-in-2014/ (accessed September 24, 2013). 29 Huffington Post, “Forbes 100 Most Powerful Women List: Queen Elizabeth and J. K. Rowling the Only British Entries,” May 22, 2013, http://www.huffingtonpost.co.uk/2013/05/22/forbes-most-powerful-womenlist_n_3319895.html?utm_hp_ref=uk?ncid=GEP#slide=2484903 (accessed September 24, 2013). 30 The Leaky Cauldron, “ABC Family’s Harry Potter Weekend,” May 11, 2013, http://www.the-leaky-cauldron.org/2013/5/11/abc-familys-harry-potter-weekend (accessed September 24, 2013).

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Dorothy Pomerantz, Forbes, “Can ‘The Hobbit’ Make ‘The Lord of the Rings’ The Top Film Franchise of All Time?,” Dec. 13, 2012, http://www.forbes.com/sites/dorothypomerantz/2012/12/13/can-the-hobbit-makelord-of-the-rings-the-top-franchise-ever/ (accessed September 24, 2013). 32 J.K. Rowling, Harry Potter and the Deathly Hallows (New York: Scholastic, 2009), 123–124. 33 Thomas, The Law and Harry Potter, 33–47. 34 Ibid., 91–101. 35 In a study of third-year law students conducted at eleven law schools “only 44.1% reported completing “all,” “nearly all,” or “most” of their reading assignments.” Michael T. Gibson, “A Critique of Best Practices in Legal Education,” University of Baltimore Law Review 42 (2012): 63, citing Mitu Gultai, Richard Sander & Robert Sockloskie, “The Happy Charade: An Empirical Examination of the Third Year of Law School,” Journal of Legal Education 51 (2001): 235, 242, 245 tbl.2. 36 Student Reflection on file with author 37 “Using defensive spells? … Why, I can’t imagine any situation arising in my classroom that would require you to use a defensive spell, Ms. Granger … You’ll be learning about defensive spells in a secure, risk-free way” (quote by Delores Jane Umbridge) Rowling, Order of the Phoenix, 242. 38 See, e.g., Christine M. Cress et al., “A Promising Connection: Increasing College Access and Success Through Civic Engagement,” Campus Compact, September 2010, http://www.cccompact.org/sites/default/files/A-Promising-Connectioncorrected.pdf (accessed September 24, 2013). 39 “What is Service-Learning?,” National Service-Learning Clearinghouse, http://www.servicelearning.org/what-service-learning (accessed September 24, 2013). 40 Linda Smith, “Why Clinical Programs Should Embrace Civic Engagement, Service Learning and Community Based Research,” Clinical Law Review 10 (2004): 728. 41 Smith, “Fostering Justice,” 436 (citing Edward Zlotkowski, “A New Model of Excellence in Successful Service-Learning Programs,” New Models of Excellence in Higher Education (1998): 3. 42 Dwight E. Giles, Jr. & Janet Eyler, “The Theoretical Roots of Service-Learning in John Dewey: Toward a Theory of Service-Learning,” Michigan Journal of Community Service Learning 1 (1994): 79. 43 Ibid. 44 Ibid. 45 Ibid., 81. 46 Bloom’s Taxonomy recognizes six levels of progressive learning: (1) “knowledge,” (2) “comprehension,” (3) “application,” (4) “analysis,” (5) “synthesis” and (6) “evaluation.” Benjamin S. Bloom, ed., Taxonomy of Education al Objectives: The Classification of Educational Goals (New York: David McKay Co., 1956), 18.

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Virginia Rowthorn, “Health Law Service-learning Trip: A How-To Guide,” Journal of Law, Medicine & Ethics 40 (2012): 403 (discussing a study by M. F. Toncar and J. S. Reid et al., entitled “Uniform Assessment of the Benefits of Service Learning: The Development, Evaluation, and Implementation of the SELEB Scale,” published in the Journal of Marketing Theory and Practice 14 (Summer 2006): 223–238. 48 David Ray Papke, “The American Courtroom Trial: Pop Culture, Courthouse Realities, and the Dream World of Justice,” South Texas Law Review 40 (1999): 931. 49 Andrew Guthrie Ferguson, “Jury Instructions as Constitutional Education,” University of Colorado Law Review 84 (2013): 240. 50 Ibid., 239–240. 51 Ibid., 281. 52 J.K. Rowling, Harry Potter and the Half Blood Prince (New York: Scholastic, 2006), 521–524. 53 Kentucky. Revised Statutes, Annotated (Baldwin, 2012), sec. 508.010 54 We used Kentucky law and procedure. Later, we were able to compare differences in the trials held in the Harry Potter books and in American trials. 55 A spell that disarms one’s attacker. 56 A Death Eater is a follower of Lord Voldemort. Death Eaters are marked with a snake insignia on their arms. During the trial, much was made of Draco pulling up his sleeve to show the dark mark on his arm. 57 There are three unforgivable curses. Using an unforgivable curse allegedly will get one a “life sentence in Azkaban [the wizard’s prison].” Rowling, the Half Blood Prince, 217. 58 The Cruciatus curse is one of the three unforgivable curses in the Harry Potter books. The curse causes extreme pain to the victim and, in some cases, can cause irreversible mental damage. 59 Johnny Cochran famously stated in his closing argument in the O. J. Simpson case that “If it doesn’t fit, you must acquit.” 60 Student Reflection on file with author. 61 Student Reflection on file with author. 62 By having multiple juries, the trial can be presented to a large audience. However, each juror group would need a private location in which to conduct deliberations. 63 A copy of the Special Verdict Form used in the mock trial is attached as Appendix A. 64 For more help with conducting mock trials, see American Bar Association, Putting on Mock Trials (Chicago: Division for Public Education, American Bar Association, 2002). 65 For assistance with ideas, see, e.g., Karen Morris & Bradley S. Carroll, Law Made Fun Through Harry Potter’s Adventures: 99 Lessons In Law From The Wizarding World For Fans Of All Ages (South Carolina: CreateSpace Independent Publishing Platform, 2011). 66 Student Reflection on file with the author.

CHAPTER TWENTY STATE-SANCTIONED VIOLENCE, BEETHOVEN AND KUBRICK’S A CLOCKWORK ORANGE TERRI MESTER

Another day of hair in my food. Another day of being cheated, overlooked. Another day of nausea. I play Beethoven: Symphony 9. The violin simmers for an instant, The cello is the instant And the timpani, The timpani comes crashing. My stomach turns its peach pit to the moon! The sound says I am the hand of God. The sound says I am the fist of God come crashing. I recline, No stranger to violence in the instant. I survey my field of spiders, My field of moths, my field of daffodils. I spread my arms As though over a great army. Where is this God I’ve heard so much About?

—Jay Hopler1

For the past six years, my husband and I have taught a course entitled “Framing Our Legal System: Law in the Movies.” We’ve searched for films that would engage undergraduates consisting mostly of engineers

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and a sprinkling of pre-law students. We’ve gone through all the courtroom dramas during one semester or another and have concluded that they all share the same structure: little person goes against big bad establishment in the form of corporation, law firm, law school, government, or the military. As a film professor, I also search for aesthetically pleasing movies that can be analyzed for more than their ideological content. With a few exceptions, courtroom melodramas are formally conservative. But recently, I’ve found a solution in dystopian science fiction films like Ridley Scott’s Blade Runner, Steven Spielberg’s Minority Report and Stanley Kubrick’s A Clockwork Orange. This chapter will focus on the latter, which is the earliest and most controversial of the three. In the 1972 film (based on Anthony Burgess’s novel), the brilliant soundtrack reinforces the film’s obsession with crime, punishment and rehabilitation, violence and sex, and, most importantly, the problem of individual freedom versus state control. Ultimately, the film asks: is it better to be a vicious rapist and thug than a mind-controlled vegetable who has been deprived of the thrill of listening to the music of his beloved Beethoven?

1. The Historical Context It’s important for contemporary students to understand the cultural conditions in which both novel and movie were created. When Burgess published his novel in 1962, World War II was a recent memory. The Cold War and the ever-present threat of a nuclear war were a reality. Kubrick’s adaptation premiered in 1972 amidst urban race riots and an undeclared Vietnam War. Youth protested at national conventions and on college campuses. When four students at Kent State University were killed by the National Guard in 1970, the issue of individual freedom versus state power weighed heavily on many viewers’ minds, especially the young. No one was to be trusted over the age of 30. Catering to this growing and more film-savvy audience, Hollywood produced a spate of youth-centric movies like Easy Rider and The Graduate, whose protagonists rebel against authority and the materialistic values of an older generation. Violence and poverty were also on the rise in London. This breakdown in law and order is reflected in the movie A Clockwork Orange which is full of violent actions by teenage thugs like the larger-than-life Alex de Large. The thugs go on ultraviolent crime sprees after purchasing moloko, a drugged milk that increases libido and violent impulses and is dispensed from the nipples of naked female statutes. To counter the violence, England’s reigning political party invents a conditioning program which will halt the growing rate of violent rapes and beatings plaguing London. Like Minority Report,

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the state wants to prevent crime before it occurs, no matter the ethical consequences. England’s welfare state also grew as the split between economic classes became wider. In the movie, Alex and his working class parents live in dreary housing developments decorated in garbage and obscene graffiti. The more affluent middle class live in spacious and starkly geometric dwellings with aluminum and chrome tables and womb-like chairs.

2. Tripartite Structure The movie, like the novel, is symmetrically divided into three acts. Act I follows the escapades of Alex (Malcolm McDowell) and his three droogs, or gang members, as they shock us with their nonchalant brutality. They beat up a homeless man and fight with a rival gang which is in the process of the old “in/out” (Alex’s euphemism for rape) with a young girl. Then, as a nightcap, they visit the home of a writer and gag and tie him up as Alex proceeds to rape the writer’s wife and viciously beat him to the choreographed rhythms of Gene Kelly’s iconic “Singin’ in the Rain.” After a conflict with his gang, Alex is caught by the authorities in Act II and sentenced to a fourteen-year prison term. But after two years, he enters a “voluntary” experiment in behavior modification. This conditioning renders him not only incapable of violence or sex; he also becomes violently ill when confronted with either. The doctors convert Alex into a model member of society, or a “clockwork orange.” He is all sweetness and bright on the outside, but inside a wind-up toy for science and the state.2 After his release as a conditioned wimp, he is especially vulnerable to the societal retribution that awaits him.3 In Act III those who he had previously victimized come back with a vengeance, including the writer, Mr. Alexander, who causes Alex to attempt suicide by jumping out a window. Now very much resembling Beethoven with his unkempt hair, beady eyes and furrowed brow, the writer locks Alex in a room and forces him to listen to the master’s Ninth Symphony, which formerly Alex had adored but now is brainwashed to find intolerable. Alex’s voice-over tells us, “Suddenly, I [saw] what I had to do, and what I had wanted to do, and that was to do myself in; to snuff it, to blast off for ever out of this wicked, cruel world. One moment of pain perhaps and then sleep for ever, and ever and ever.” He is rescued and his conditioning is reversed by the Minister of the Interior, who now realizes his program to reduce crime through aversion therapy is no longer politically expedient. Alex is now free to engage in “the old ultraviolent” again with full government support.

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3. Violence and Sex The disturbing violence in the film is inseparable from its eroticism. After Alex returns home after an evening of the “ultraviolent” in Act I, he masturbates to his beloved Beethoven’s Ninth in his bedroom. He conjures up violent fantasies of himself as a vampire, then images of a bride hanging by the neck from the gallows, erupting volcanoes and dancing Jesuses with erections. On another occasion, Alex breaks into the affluent home of the Cat Lady, which is garishly decorated with large frescos of erotica. They wrestle with each other with her threatening to strike him with a bust of his beloved Beethoven, but he attacks first with a giant phallic sculpture and crushes her skull. Luckily, Kubrick refrains from showing us the results. The final scene has Alex lying in a hospital bed recuperating from his conditioning and being spoon fed by the Minister of the Interior who brings in gigantic speakers, and we and Alex are treated to a final hearing of the Ninth. But instead of visions of the sublime, Alex fantasizes about making love to a woman in the snow with spectators dressed in period costumes looking on. While the film’s violence and sex are artistically expressed, several critics reacted negatively to the film’s violence and sex when Clockwork first came out in 1972. Pauline Kael claimed the movie “might be the work of a strict and exacting German professor who set out to make a porno-violent sci-fi comedy.”4 Other critics reacted to the misogyny in the film.5 When this viewer first saw the movie, it was like Kubrick had subjected me to aversion therapy; I walked out totally nauseated. Despite the rash of violent films coming out at this time after the lifting of the Hays Code, like Bonnie and Clyde and Straw Dogs, Clockwork was over the top. In our more conservative times, we would label the movie’s violence as politically incorrect,6 and we cannot dismiss the violence as innocuous because it is not realistically depicted.7 However, after repeated viewings, I have concluded that it is obvious that the violence and crimes of Act I are not gratuitous. Kubrick makes a strong point as he counterpoises the violence perpetuated by the individual with collective or state-sanctioned violence. The individual gets punished for violating society’s laws, but society authorizes and sanctions violence through its law. What else is the death penalty but state-sanctioned violence? The torture of terrorists and the ongoing confinement of individuals at Guantanamo are also examples of state-authorized violence.

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4. Crime, Punishment, and Toying with Redemption After Alex is captured for his crimes, we see how the state punishes its citizens. When interrogated, Alex is beaten to a pulp by sadistic law enforcement agents. We are not privy to his trial but are told that he is sentenced to fourteen years. The next shot is an aerial one of the prison, resembling a panopticon, Jeremy Bentham’s model for an ideal prison. Alex’s new home contains a tower in the center that can easily survey the six wings extending from it. This is the first aerial view in the film. Before, most of the shots are at eye level and medium to close-up, mostly centering on Alex’s face. The distant aerial shots of the prison are an analogue for the panoptic and impersonal gaze of the state institution on its prisoners.8 Alex is told to refer to authorities as “sirs,” he’s given a number (6555321), and never referred to by name. The prisoners are never allowed to cross a white line separating them from authority, even if they must contort their bodies to sign a release paper. For exercise, they walk around in tiny circles. Alex has no choice but to submit to the order of the prison. According to critic Michel Foucault, prisons in general contain an overt threat of violence justified through order: What is fascinating about prisons is that, for once, power doesn’t hide or mask itself; it reveals itself as tyranny pursued into the tiniest details; it is cynical and at the same time pure and entirely “justified,” because its practice can be totally formulated within the framework of morality. Its brutality consequently appears as the serene domination of Good over Evil, of order over disorder.9

Alex conforms well to prison life and befriends a priest who teaches him the Bible in the hope of making him a moral human being. But when Alex fantasizes scenes from the “big book,” he is a Roman legionnaire sadistically whipping Christ on his cross or he’s being fed grapes in bed by exotic naked handmaidens and drinking “Hebrew vino” to the sounds of a nondiegetic Scheherazade on the soundtrack.10 Alex’s only redemption, at this point in the movie, remains the artistic expression of violence and sex.

5. Human Agency Versus State-Sanctioned Control Alex manages to get out of prison after two years by volunteering for the Ludovico treatment. Unlike the punishment in prison, this treatment signals a change in the nature of control or violence committed by the state on the individual. After Alex is “cured,” he can no longer make choices. His future has been determined for him. He will no longer be endowed

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with the rights of the free and rational citizen that our enlightened forefathers envisioned for us over 200 years ago, conceptualized as a social contract, and which still serve as the foundation of our legal system. If our lives were totally determined for us by the old capricious Greek gods or their modern equivalent in the state, how could we assign responsibility for our actions? Law is based on human agency. But how can we be responsible for a crime if we have been brainwashed by the Red Queen of Diamonds to commit murder, like Raymond Shaw in the Manchurian Candidate, or have been lobotomized by Nurse Ratched like Randall P. Murphy in One Flew Over the Cuckoo’s Nest? Unlike these other two characters, Alex is aware of his actions and able to know he has been manipulated and molded. He has full knowledge of his present and past state.11 The priest who befriends Alex in prison suggests on two occasions that free will, even when used for evil purposes, is better than being controlled according to the needs of the state. When Alex first asks him about the treatment, the priest questions whether the technique really makes a man good. “Goodness comes from within,” he says. “Goodness is chosen. When a man ceases to choose, he ceases to be a man.” After witnessing Alex on stage demonstrating his cure to the authorities, like his retching after being kicked around, licking the shoes of a bully, or again getting sick through a close encounter with a beautiful topless woman, the priest cries out: “Choice! The boy has no real choice, has he? … He ceases to be a creature capable of moral choice.” One of the few things that both Christians like the priest and atheistic existentialists agree on is that freedom is the only ground for human meaning. Alex, for that matter, does not freely select the Ludovico program. “He chooses the devil that he does not know over the one he knows.”12 He is ignorant of how the program works; he just wants to get out of prison. The consent is not informed. The therapy, including its dangers and methods, are not explained to Alex.

6. Crime and the Soundtrack Some critics think the music in Clockwork counters our antipathy for the violence in the movie.13 Kubrick took advantage of music’s manipulative potential, “wrapping the violence in familiar scores.”14 Thus the fight with Billy Boy and his droogs is counterpointed in slow motion with Rossini’s “Thieving Magpie,” and the ménage with the two girls Alex picks up in the record store is fast-motion camera work to Rossini’s “William Tell Overture.” As mentioned, Alex’s brutal rape and beating of the artist and

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his wife is done to the carefree and romantic “Singin’ in the Rain.” All the violence is choreographed. In addition to the music, Alex’s mellifluous voice and Nadsat language (compliments of Burgess’s novel) diffuse the violence, for, despite his actions, Alex is the only attractive character in the film. One critic called him “loathsomely attractive.” It is also curious that a sociopath like Alex would be enthralled by Beethoven. You would think he’d be more inclined towards 1970s punk or rock. When Alex hears a woman singing the Ode to Joy from the fourth movement in the Korova Milk Bar after a night of random violent acts, his voiceover comments: Oh, bliss! Bliss and heaven! It was gorgeousness and gorgeosity made flesh. It was like a bird of rarest spun heavenmetal. Or like silvery wine flowing in a spaceship, gravity [just like a ballet] all nonsense now.

7. Beethoven’s Role in the “Cure” Outside of Alex’s violent and erotic fantasies, the diegetic Beethoven score is not heard as background to any of the actual crimes committed in the movie. But the Ninth plays a major role in the state-sanctioned violence or Ludovico treatment Alex undergoes as punishment. For many viewers, the treatment of Alex by the state constitutes the most dangerous violence in the film.15 After being injected with a nausea-producing drug and having his eyes clamped wide open, he is forced to watch violent images with the Ninth Symphony as background music. In one such image, the doctors treating Alex show him scenes from Leni Riefenstahl’s Triumph of the Will with images of Hitler saluting the multitudes to the finale of the Ninth. After enduring the abuse, Alex cries out to stop. When asked what bothered him, he does not refer to his own suffering but to Beethoven. He says: “… using Ludwig Van that way. He did no harm to anyone, Beethoven just wrote music.” But did Beethoven just write music? If music’s content is equal to its form, can there be any inherent meaning to music in the lexical sense?16 What connection was Kubrick trying to make by choosing the Ninth above all the other classical music he could have picked? Is his choice of the Ninth merely random as some critics think? Is there anything inherently violent, aggressive or erotic in the music that would relate to the state’s punishment of Alex or trigger Alex’s violent and erotic fantasies when he hears the symphony? Curiously, Burgess’s novel mentions many composers (many of them fictional), while the film boils down Alex’s love for music to only Beethoven, and in particular the Ninth.

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Paradoxically, The Ninth is usually felt to be an anthem to freedom and human solidarity. The “Ode to Joy,” taken from a poem by the German romantic poet Schiller, expresses a “model of human transformation.” According to Rolland, “it preaches the kingdom of God on earth, established by the brotherhood of man, in reason and in joy.”17 In the Ode to Joy a line reads, “All men become brothers.” Alex insists on a brotherhood being formed between himself and the viewer. He appears in almost every scene and, as narrator of his story, he has the power to achieve brotherhood and often refers to listeners as “Oh, my brothers.” However noble its conception, the Ninth Symphony has not existed in a vacuum. During the two hundred plus years since its composition, it has picked up several political connotations, which suggest neither freedom nor brotherhood. Can we, for instance, separate German music from German culture, as we cannot for Wagner and the Nazis? The linking of Beethoven and Hitler in the montage Alex is forced to watch conjures up the historical fact that Hitler and his regime reified and glorified Beethoven as a true German hero and an icon of nationalistic pride.18 The Ninth was always played to celebrate Hitler’s birthday. In 2000, it was played on the grounds of an Austrian concentration camp during its anniversary. Leonard Bernstein played it at the collapse of the Berlin Wall, and it is the anthem of the European Union. As mentioned, Alex accidentally discovers during his therapy that Beethoven and Nazi propaganda films are closely intertwined,19 and while the Ninth presents such ideals as brotherhood, freedom, and joy, it gives no indication of how the listener should achieve these. This aligns painfully well with Alex’s search for freedom and joy, and with the rather open ended question of whether he actually ever has a choice.

8. Conclusion So what are the moral and legal lessons in this film that could possibly be conveyed to students? Gehrke thinks A Clockwork Orange is central to European and American understandings of criminal deviance.20 The movie is a “warning not to accept science or the state as impeachable guardians of civilization.” 21 Kolker, on the other hand, says Kubrick offers no alternative to the central conflict of free will versus state-sanctioned control and may be using the theme ironically to throw audiences off.22 If we have to choose between the charming but sociopathic Alex and a wimpy automaton Alex, Kubrick could be saying the audience really has no choice; we are all clockwork oranges. This theory certainly makes sense in light of Kubrick’s pessimism.23 But whether or not the film casts an ironic spin on

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serious themes, we can still learn from it. We can no longer be indifferent to good and bad forms of violence and our systems of punishment. Should the state merely “cure” or should it mete out justice and punishment? Obviously, Alex’s victims in Act I of the movie did not feel they received justice or they wouldn’t have sought out vengeance in the vigilante form that Alex receives in Act III. In addition, we cannot help but question the function of music and, most importantly, ponder whether or not freedom is an inherent right and the basis of a democratic society as our forefathers thought, or simply a cultural construct. I am indebted to Professor Michael Asimow for his analysis of the deep structure of American courtroom dramas.

Bibliography A Clockwork Orange. Directed by Stanley Kubrick. 1972. Burbank, California: Warner Home Video, 2007. DVD. Gehrke, Pat. J. “Deviant Subjects in Foucault and A Clockwork Orange: Congruent Critiques of Criminological Constructions of Subjectivity.” In Depth Of Field: Stanley Kubrick, Film, and the Uses of History, edited by Geoffrey Cocks, James Diedrick & Glenn W. Perusek. Madison: University of Wisconsin Press, 2006. Gengaro, C. L. Listening to Stanley Kubrick: The Music in His Films. Lanham, Md.: Scarecrow Press, 2013. Hanoch-Roe, Galia. “Beethoven’s ‘Ninth’: An ‘Ode to Choice’ as Presented in Stanley Kubrick’s A Clockwork Orange.” International Review of the Aesthetics and Sociology of Music 33 (2002): 171–179. Hopler, Jay. “Green Squalls.” In Yale Series of Younger Poets 45. New Haven: Yale University Press, 2006. Hoyng, P. “Ambiguities of Violence in Beethoven’s Ninth through the Eyes of Stanley Kubrick’s A Clockwork Orange.” German Quarterly 84 (2011): 159–76. Kael, Pauline. “A Clockwork Orange: Stanley Strangelove.” In Stanley Kubrick’s A Clockwork Orange, edited by Stuart Y. McDougal, 134– 39. New York: Cambridge University Press, 2003. Kerman, Joseph & Alan Tyson. The New Grove Beethoven. New York: W.W. Norton, 1983. Kolker, Robert P. “A Clockwork Orange … Ticking.” In Stanley Kubrick’s A Clockwork Orange, edited by Stuart Y. McDougal, 19–36. New York: Cambridge University. Press, 2003. Krämer, P. A Clockwork Orange. New York: Palgrave Macmillan, 2011.

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Lichtenberg, I. H. Lune & P. McManimon, Jr. “Darker than Any Prison, Hotter than Any Human Flame: Punishment, Choice, and Culpability In A Clockwork Orange.” Journal of Criminal Justice Education 15 (2004): 429–49. LoBrutto, Vincent. “Based on the Novel by Anthony Burgess, Or: How Stanley Kubrick Cinematically Created A Faithful Adaptation of A Clockwork Orange by Making It His Own.” In Portraits of the Artist in A Clockwork Orange, edited by Emmanuel Vernadakis & Graham Woodroffe, 145–59. Angers, France: Presses de l’Universitè d’Angers, 2003. McDougal, Stuart Y., ed., Stanley Kubrick’s A Clockwork Orange. Cambridge: Cambridge University Press, 2003. McQueen, S. “Adapting to Language: Anthony Burgess’s and Stanley Kubrick’s A Clockwork Orange.” Science Fiction Film and Television 5 (2012): 221–41. Pezzotta, Elisa. (2012). “The Metaphor of Dance in Stanley Kubrick’s 2001: A Space Odyssey, A Clockwork Orange and Full Metal Jacket.” Journal of Adaptation in Film and Performance 5 (2012): 51–64. Rabinowitz, Peter J. “A Bird of Like Rarest Spun Heavenmetal.” In Stanley Kubrick’s A Clockwork Orange, edited by Stuart Y. McDougal, 109–30. New York: Cambridge University Press, 2003. Reynolds, Christopher. “From Berlioz’s Fugitives to Godard’s Terrorists: Artistic Responses to Beethoven’s Late Quartets.” Beethoven Forum 8 (2000): 147–163. Staiger, Janet. “The Cultural Productions of A Clockwork Orange.” In Stanley Kubrick’s A Clockwork Orange, edited by Stuart Y. McDougal, 37–60. New York: Cambridge University Press, 2003. Stilwell, Robynn. “I just put a drone under him, and he’s as bad as he needs to be: Collage and Subversion in the Score of Die Hard.” Music and Letters 78 (1997): 551–80. Solomon, Maynard. Beethoven. 2nd edition. New York: Schirmer, 1998. Vernadakis, Emmanuel, Graham Woodroffe & Anthony Burgess. Anthony Burgess Centre. Portraits of the artist in “A Clockwork Orange”: Papers and music from the Anthony Burgess Centre’s international symposium “the avatars of ‘A Clockwork Orange,’” December 7–8, 2001. Angers, France: Presses de l’Université d’Angers, 2003.

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Notes 1

Jay Hopler, “Meditation on Beethoven: Symphony 9.” Ploughshares 27 (2001): 61. 2 Pat J. Gehrke, “Deviant Subjects in Foucault and A Clockwork Orange: Congruent Critiques of Criminological Constructions of Subjectivity,” in Depth of Field: Stanley Kubrick, Film, and the Uses of History, ed. Geoffrey Cocks, et. al. (Madison: University of Wisconsin Press, 2006), 151. 3 Ibid., 149. 4 Pauline Kael, “A Clockwork Orange: Stanley Strangelove,” in Stanley Kubrick’s A Clockwork Orange, ed. Stuart Y. McDougal (New York: Cambridge University Press, 2003), 134–39. 5 Janet Staiger, “The Cultural Productions of A Clockwork Orange,” in Stanley Kubrick’s A Clockwork Orange, ed. Stuart Y. McDougal (New York: Cambridge University Press, 2003), 39. 6 It would be interesting to see how college students react to the violence in A Clockwork Orange. They consider themselves more sophisticated about it than their elders. Students often express a particular fondness for Quentin Tarantino’s films. They can watch a man being ripped apart by vicious dogs without blinking. But A Clockwork Orange is clearly a different breed of violence. Teachers should consider carefully whether to use A Clockwork Orange in an undergraduate class in light of the explicit misogyny in the film, as some students could be offended by it and complain. 7 For example, Vincent LoBrutto compares the violence to a Warner Brothers cartoon in Kubrick’s use of slow motion, fast motion and distorting wide angle lenses. LoBrutto, Vincent, “Based on the Novel by Anthony Burgess, Or How Stanley Kubrick Cinematically Created A Faithful Adaptation of A Clockwork Orange by Making It His Own,” in Portraits of the Artist in A Clockwork Orange, eds. Emmanuel Vernadakis & Graham Woodroffe (Angers, France: Presses de l’Universitè d’Angers, 2003), 156. 8 Gehrke, “Deviant Subjects,” 153. 9 Quoted in Ibid., 153–54. 10 Interestingly, Beethoven’s Ninth is the only diegetic classical music in the film. 11 Robert P. Kolker, “A Clockwork Orange … Ticking,” in Stanley Kubrick’s A Clockwork Orange, ed. Stuart Y. McDougal (New York: Cambridge Univ. Press, 2003), 19–36. 12 Lichtenberg et. al., “Darker Than Any Prison, Hotter Than Any Human Flame,” 437. 13 Robynn Stilwell takes a contrary position, claiming that since most of the audience is familiar with the music we do not receive any musical surprises and thus are undistracted from the disturbing acts of violence on the screen and the “irony of the juxtaposition of Beethoven’s sublime creation with Alex’s vile destruction.” Robynn Stilwell, “I just put a drone under him, and he’s as bad as he needs to be: Collage and Subversion in the Score of Die Hard,” Music and Letters 78 (1997): 571.

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Peter J. Rabinowitz, “A Bird of Like Rarest Spun Heavenmetal,” in Stanley Kubrick’s A Clockwork Orange, ed. Stuart Y. McDougal (New York: Cambridge University Press, 2003), 121. 15 Stuart Y. McDougal, Stanley Kubrick’s A Clockwork Orange (New York: Cambridge University Press, 2003), 6. 16 Galia Hanoch-Roe, “Beethoven’s ‘Ninth’: An ‘Ode to Choice’ as Presented in Stanley Kubrick’s A Clockwork Orange,” International Review of the Aesthetics and Sociology of Music 33 (2002): 172. 17 Quoted in Maynard Solomon, Beethoven (New York: Schirmer, 2nd ed. 1998), 409. 18 P. Hoyng, “Ambiguities of Violence in Beethoven’s Ninth through the Eyes of Stanley Kubrick’s A Clockwork Orange,” German Quarterly 84 (2011): 171. 19 Rabinowitz, “A Bird of Like Rarest Spun Heavenmetal,” 120. 20 Gehrke, “Deviant Subjects,” 147. 21 Ibid., 148. 22 Kolker, “A Clockwork Orange . . . Ticking,” 35. 23 I am referring to the atomic bomb in Dr. Strangelove, which was the result of government power and stupidity, or the robot Hal in 2001: A Space Odyssey who outwits his human creators.

CHAPTER TWENTY-ONE MORE MEDIA AND MORE COUNTRIES: NEW APPROACHES TO TEACHING LAW AND POPULAR CULTURE DONALD PAPY

1. Introduction The teaching of law and popular culture has increasingly become more challenging and exciting. Since its origins roughly thirty years ago, the field has tackled the questions of how law and popular culture interact, and what difference this makes to the legal system. It is a dynamic field, everexpanding and widening in scope. A primary insight of the law and popular culture movement is that most people derive their knowledge of the law through popular culture in movies, television, books, newspapers and other periodicals, and the internet. Because of the impact on the legal system’s actors—namely, juries, legislators, judges, layers, clients, and the public at large—it is important, if not critical, to examine how popular culture presents law, lawyers and the legal system. Traditionally, teaching in this field has tended to focus on films portraying the legal system, analyzing how well these films have accurately portrayed the legal system and what impact these images have on the perception of the public about the legal system. Thus, while the title of the courses have generally been “Law and Popular Culture,” they primarily have been about “Law and Film.” This chapter will explore why this has been so in the antecedents of the field of law and popular culture, and will offer suggestions for broadening the scope to include more media, specifically television, both fiction and non-fiction, and coverage in all media of actual trials. In addition, the chapter will suggest that the courses include coverage of other legal sys-

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tems and cultures and how they have been affected by American and country-specific popular culture.

2. Antecedents of Law and Popular Culture (a) Legal realism Whether Law and Popular Culture is a movement, school or field of study is subject to discussion. One of its earliest antecedents is the Legal Realism movement which is most prominently identified with such legal giants as Karl Llewellyn and Jerome Frank. The Law and Society movement also posits that law should not be viewed as simply a set of rules to be studied, but rather that the law must be viewed in the context of how it actually operates in relation to society as a whole.

(b) Law and literature An outgrowth of legal realism, law and literature developed as a method of viewing typically classic works of literature as texts to be studied. Examples include fiction such as Melville’s Billy Budd, Kafka’s The Trial or Dickens’ Bleak House; plays such as Shakespeare’s The Merchant of Venice; or other works that address legal themes and which illuminate the times of the work and the legal system in the setting. Thus, the focus tends to be on works considered in the canon of English or world literature. These works are typically viewed as high-brow or, at minimum, middlebrow culture. The other hallmark is the focus on textual analysis. Such courses often focus on the societal aspects of the work but always on how the work illuminates the particular legal system or law in general.

(c) Law and popular culture The next frontier in legal studies of the impact of society on the legal system has been the law and popular culture movement. Drawing on the insights of legal realism and law and literature, law and popular culture has posited that everything that affects the actors in the legal system should be studied. Thus, law and popular culture draws from high, medium and low culture because all of these influences address issues of how the public views the legal system. Perhaps most importantly through the jury system, the average citizen is a vital component of the legal system and undoubtedly consumes enormous amounts of popular culture. Since law and popu-

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lar culture is primarily how the public “learns” about the law, every aspect of popular culture is relevant for the operation of the legal system. Not only juries, however, are affected by the influence of popular culture. Judges (especially state judges who are generally elected), lawyers, state prosecutors, legislators and members of the executive branch which carries out the laws are affected by the public perception of law and the legal system. Thus, how law is portrayed in film, television, the internet, popular novels, advertising, newspapers, magazines or blogs and other social media is worth studying to determine how the actors in the legal system are affected by all media.

3. How Law and Popular Culture Has Been Taught (a) Focus on film The earliest scholarly work in the field focused on film.1 The teaching of such courses has likewise primarily used individual films for study and discussion purposes. Even today, two primary textbooks in the field available for classroom instruction suggest that certain films be viewed prior to class.2 Courses which cover a three-hour period may even view a film in class and then discuss it after viewing. In any event, although changing, the focus on film, and on particular films, continues even if less pronounced than in the past. I suggest several reasons for this phenomenon. (i) Easy accessibility One factor in the focus on film is the accessibility, especially initially, compared to television. In the 1980s movies were readily available on videocassette tapes, then on DVD, and now through streaming internet sites such as Netflix or Amazon for viewing on computers. Only recently have television shows become available. Further, the assignment of one film for viewing before (or during class) is convenient. In particular, a full-length feature film, typically about two hours, makes a convenient “text” for analysis. This notion correlates with the traditional case method of analysis that still prevails in law schools. The case method, introduced in the late nineteenth century by Harvard Law School Dean Christopher Columbus Langdell, initially with full-length appellate cases and then later with edited versions, was itself subject to criticism by legal realists such as Jerome Frank.3 The case method holds that in order to learn “the law” students need to study the texts of the law. Frank’s critique noted that much of “the law” is not contained in appellate opinions (texts), but rather in the day-to-day business of the law, i.e., the

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proceedings in trial courts. The reality of the law, according to Frank, was simply not as tidy and learnable as Langdell and his case method suggested. The film as focus of the law and popular culture field is also consistent with the text-based approach of the law and literature movement. This movement focused on great “texts” which yield insight into how legal systems operated (in the classic works’ settings) and on how the legal system operates, since it, too, is based on texts of cases, statutes and constitutions. (ii) Professors’ natural interest in film In addition to accessibility and a text-based approach, another reason for the popularity of film as the focus of law and popular culture is the natural interest in film, particularly as opposed to television, of most professors, especially law professors. Classic films are often described as (at least akin to) works of art, while television has rarely been so described, at least until recently with the advent of more critically acclaimed shows, especially on cable television, such as The Wire. Professors are unlikely to have attended television screenings and are much more likely to have screened films during their academic training on college campuses. Finally, there is no doubt that the emotional power of film (at least viewed in its traditional setting of large darkened rooms on large screens with many other people, often strangers) generally creates more vivid, moving and memorable experiences than television. While this paradigm is changing with the advent of large-screen, high-definition television, I am describing the historical process that in part led to the focus on film in law and popular culture classes.

(b) Television is far more important than film in influencing the public The influence of television on American (and world) audiences is undeniable. The average American watches many hours each day. Comparing the number of film-goers for a particular film and the weekly audiences for popular television shows reveals the great difference between the sizes of the respective audiences. In addition, television series typically last over many months and are generally repeated after a season concludes. Syndication further extends the life of popular shows, some perhaps indefinitely. The significance of television to a course on law and popular culture is indisputable. Although the specific viewing experience (at least in the past) may be different, the audience size and hours of viewing, not to men-

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tion the narrative continuity for popular shows, demonstrate that the comparative significance of television is overwhelming. The growing availability of television shows creates opportunities for incorporating television shows into the law and popular culture curriculum. Television shows typically run, even with commercials, one hour (or less than 45 minutes without). With judicious editing, a number of shows or segments could be incorporated into required viewing before class or even during class. The availability through DVD or streaming opportunities is burgeoning so the lack of accessibility seems to have diminished or even disappeared. Further, television has for some time been inundated with law and lawyer shows, in addition to police procedurals which often have portrayals of lawyers and judges. In an exercise at the beginning of each semester I ask my students to catalog the number of hours of their viewing in a day which feature law or lawyers. Even the students are often surprised by the results. The shows are almost countless, including daytime television where the judge shows continue to saturate the airwaves. A significant marker occurred several years ago when Judge Judy surpassed Oprah as the most watched daytime show. Historically, there are a number of shows which have had a disproportionate impact. Any history of lawyers on television generally begins with Perry Mason, which affected Americans’ perception of lawyers and law. Even Supreme Court Justice Sonia Sotomayor, at her confirmation hearings, acknowledged the show’s impact on her notion of the legal system. The show focused on a heroic solo criminal practitioner who fought zealously for his clients, all of whom were both innocent and vindicated in the end, typically during a preliminary hearing. Mason was always shown working and without even a glimpse of a personal life outside the law office. Another major breakthrough series was L.A. Law. This show, for the first time, focused on the personal lives of the lawyers in a successful Los Angeles law firm practicing civil as well as criminal law. The glamorousness of the lawyers and the material success (some would say excess) of the firm presented the practice of law in a new light, often addressing ethical as well as personal issues. A steep rise in applications to law schools at the time was even attributed to the success of this show. A later-generation show, The Practice, created and written by David Kelley, formerly a practicing attorney and one of the writers and producers of L.A. Law, again showed the personal lives of attorneys in a full-service firm, but this time in a gritty urban setting (Boston) and on the verge of

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financial collapse. It is doubtful that this show contributed to increasing applications to law school. Another show with a dramatic impact on the image of law and lawyers has been Law & Order, and its many spinoffs. This show, which was also in part a police procedural, portrayed prosecutors, defense attorneys and the legal system in the grittiest of settings (Manhattan). Widely credited with a pro-prosecution approach (even evidenced by its title), this show has had a wide impact on the public’s perception of the criminal justice system. Its self-proclaimed “ripped from the headlines” structure, enormous popularity, and ubiquity have led to many hypotheses about its meaning for the legal system. An important theory, in relation to the flooding of the airwaves with television judge shows, most prominently Judge Judy, is Professor George Gerbner’s cultivation theory, which holds that repeated viewing of consistent themes on television leads the viewing public to hold certain distorted views (for our purposes, of the legal system).4 The low cost and continued widespread popularity of the format qualifies this genre as worthy of study in a course on law and popular culture.

(c) Representation of law in all media should be addressed Not every medium which addresses law in popular culture is neatly definable as a cohesive, discrete “text,” the way an appellate opinion, a film, a television episode or a book could be considered. Other media which affect the public’s perception of “law” may be more difficult to use as teaching devices, but nonetheless may be as important, if not more so, than the more bite-size materials that have made up the bulk of the teaching tools for law and popular culture courses. What follows is a discussion of several of those sources and how they can be integrated into a course on law and popular culture. (i) News coverage of trials, lawyers, and judges The earliest sources of news, until the modern era, were of course newspapers and other print periodicals. Early trials in American history and news about individuals who were lawyers or judges were covered, often in great detail, by those sources. Sensationalized trials fit neatly into the kinds of stories that generate interest (and sales). They often involve murder or other serious crimes, and include tales of sexual infidelity, betrayal and other human activities that have been of interest to humans, recorded since Biblical times and earlier.

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The modern era has of course seen the advent of newsreels, television, and now the internet. Although print media still survive (sometimes barely or with a shortened expected lifespan), it is not the interest in stories that has faded but simply the means of delivery that has changed. In any event, the public’s exposure to, and interest in, law is more significant than ever because of the speed, widespread availability and power of new media. The challenge for teachers of law and popular culture is how to present these sources of information about law and the legal system in a way that captures their importance. It is surely more difficult to compile such sources in a way that is teachable without readily available, discrete “texts.” (ii) An integrated approach is needed While selecting materials for teaching law and popular culture is challenging, another important issue is how to integrate the sources of the public’s knowledge about law. One of the critical issues in teaching in this area, and in developing textbooks or course books, is how to organize the teaching materials. For example, teachers and course books often use subject matter as an organizing principle, a section of the course being devoted to criminal law, tort law or military law, for example. Each chapter of the book or class period is devoted to one of those subject areas, and the class is assigned a particular film which addresses that subject matter. I am suggesting that within this framework other sources of public information could be included. For example, a collection of newspapers stories devoted to a particular legal subject matter could be assigned. Another organizing principle could be to focus on particular actors in the legal system—juries, judges, legislators—and following how they are affected by news coverage, films and television in their decision-making. Whatever organizing principle is employed, more than just film should be examined.

(d) All Exposure to Law-Related Themes Is Important One of the primary tasks of a lawyer, broadly stated, is to predict outcomes of actual or potential legal disputes. This notion often makes laypeople uncomfortable since it appears that, if true, lawyers could be lumped in with soothsayers and fortune-tellers, not learned professionals. (Of course, a similar formulation of the purpose of weather forecasters could be viewed as similar to lawyers, and weather forecasters are generally, though not universally, viewed as professionals.) But since lawyers are faced with this task of prediction, it is critical that lawyers obtain as much information as possible to formulate those

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predictions. This is an important skill for law students to consider and ripe for classroom discussion. The information about each possible decisionmaker of course varies. For example, juries might consider factors and pop culture influences that might be less significant when considered by judges. But even judges, especially the elected-type (which includes most state trial judges), can be influenced by the stories, both non-fiction and fiction, to which they are exposed. Further, it is not just traditional media like film and television which should be studied. More recent phenomena like attorney advertising, including not just on television but billboards and internet communications such as blogs, should be considered. How all of these influences affect different actors will be discussed later in this chapter, but what is most important is that a comprehensive, integrated approach should be developed to examine all of these factors.

3. Why Study Law and Popular Culture? The basic question of why law and popular culture should be studied has often been addressed in the past 30 years. In an earlier section of this chapter I addressed the origins of the law and popular culture movement. This section will address not only why this area deserves study but also its importance in the modern curriculum.

(a) The public derives its understanding of the law primarily through the media The public derives its understanding of the law primarily through the mass media. People voraciously consume popular culture. The mass media present images of lawyers and the legal system to an inordinate degree, at least in terms of quantity. Comparatively few members of the public have first-hand knowledge of the legal system or even know lawyers, and even fewer have taken a course in law. Thus the public, especially those who are or could become jurors, bring often distorted or downright wrong “knowledge” about the system to their roles. Tocqueville noted in Democracy in America the importance of the jury system to the fabric of the United States.5 In the twenty-first century the influence of the media on juries is undeniable, and it is that fact that most informs why the study of law and popular culture is so important to lawyers, the legal system and society. In addition to their role as jurors, the impact on the entire system is worthy of study.

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(b) The public’s understanding of the legal system Each of the relevant actor groups is affected by what we study in law and popular culture. As discussed above, the most crucial group for law and popular culture purposes are jurors, who typically consume massive amounts of popular culture, much of it portraying the legal system. In addition to actually serving as jurors, citizens are in general affected by and act upon what they observe in popular culture. Opinions of citizens are expressed in public opinion polls which are taken note of by elected officials. Further, citizens vote. Their opinions influence lawmakers, elected judges and state prosecutors (who are generally elected). The study of the public’s understanding of the legal system in the academy has generally focused on one or two types of media—film and, to a lesser extent, television—and not on all media. Most studies by academics have spent less time on other media for the reasons suggested above. Much of the scholarship has examined how accurate portrayals of the law in the media have been, although some have argued that the issue is not that important because the public recognizes that films and television programs are fictionalized. It is my contention that such questions are not the core issues of law and popular culture. Rather, the focus should in large part be on how juries are processing trial information in light of their individual influences. In other words, what thought processes actually lead jurors to reach their conclusions?

(c) Research should be focused on how jurors decide Much more research is needed to begin to answer these questions. There have been studies of the television judge shows and the so-called “CSIeffect.” What is needed for the future are studies of juror backgrounds, attitudes, and thought processes, as well as the media influences that individuals have had. There should be in-depth studies of jurors (and potential jurors) to begin to answer these questions. Driving license holders could be surveyed, filtering those who have served or likely to serve. Actual juror recollections of their media history should be examined. While some studies of media influence have been made, most rely on law student or college student samples. While that has been a start, a more systematic analysis of the appropriate population should be undertaken. In other words, what are these actual or potential jurors watching, reading and coming into contact with during their lives. More efforts for using

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focus groups should be considered. An analysis of story-telling techniques and narrative development should be examined with properly selected groups to better understand how the mass media influences individuals.

(d) The research should be interdisciplinary The type of research that should be undertaken should involve psychology, dramaturgy and sociology. An emphasis on an individual’s psychological reasons for making decisions is a first step in the analysis. Dramaturgy can be included on a theoretical and practical basis. How does performance in a courtroom relate to media portrayals of law and the legal system? Shortened attention spans are certainly part of the process. That the television reflects the quick (45 minutes or less) resolution of complex legal issues that might take days, weeks or even months is a major area of concern. How do, or should, lawyers address such false impressions that jurors may have received thousands of times? Finally, group dynamics as explored through social psychology and sociology are also useful areas of inquiry. Recent high-profile cases, such as the George Zimmerman trial as well as the seminal O. J. Simpson trials, demonstrate the potency of race-based concerns in court. In short, the many ways that popular culture influences the legal system, most importantly through the jury system, should be explored by considering all mass media exposure that present images of law and the legal system, not just film. The research in this area has only begun to examine the depth of influence that law and popular culture has had. A comprehensive look at all media influences and an in-depth examination of individual decision-making will further reveal just how important the contribution the field of law and popular culture can be.

4. Law and Popular Culture Should Include a Transnational Perspective (a) The importance of American popular legal culture As discussed throughout this chapter, popular culture, and in particular popular legal culture, has a significant impact on the legal system in the United States. The public consumes all forms of popular culture and lawrelated shows and themes are pervasive. Especially through the jury system, the American legal system is affected dramatically. Through public expectations of the legal system the effects are widespread though not ful-

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ly understood. But the impact of America’s popular culture is not limited to this country. Popular culture is widely-viewed as America’s biggest export. American music, films, television shows, games, fashion and clothing dominate the world’s markets and psyche. Through television (and now the internet), America’s reach is unbounded by national borders, and, particularly with the decline of manufacturing, it is unquestionable that America’s influence is dominant and growing in the field of popular culture. Film and television may be the most significant of all popular culture exports. Most countries simply do not have the same highly developed film and television industries either through lack of resources, interest or infrastructure. Whatever the reasons, most of the world relies on the United States to supply much of their film and television.

(b) The impact of American popular legal culture on other countries (i) The case of Germany It might be posited that American popular legal culture would have little or no impact on a foreign country that does not share the same legal system. Although the public might consume such American fare, what difference might that exposure have on a country like Germany which does not share the same legal structure and tradition? An important article by Stefan Machura and Stefan Ulbrich, German professors, sheds light on the subject.6 Their article found that while Germans do consume German legalthemed shows and film, they are also familiar with American film and television and have come to expect that the German legal system shares the same characteristics as the American. The article suggests that German lawyers have been forced to modify the way they present cases to conform to clients’ expectations of how a lawyer should act. The article offers reasons for the interest of the public in legal matters and especially American media portrayals. Many of the reasons have been addressed in scholarship about American popular legal culture, such as the inherent drama of courtroom battles and the moral questions that such presentations raise. Conversations with law faculty and students at the University of Leipzig have confirmed the significance of American popular culture representations on Germans. Regarding the public expectations in foreign countries that their legal system and lawyers behave the way lawyers do in American films and television, an examination of foreign audiences’ reactions can reveal more

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about how law and popular culture interact. If they are affected by American popular culture, and if not, how they are affected by their own popular legal culture can also illuminate the interaction.7 (ii) Other foreign countries One of my students at the University of Miami School of Law researched how Argentines consume popular legal culture (primarily American films) and concluded that despite the negative portrayals of American lawyers, Argentines have more favorable opinions of American lawyers than Argentine lawyers. This low opinion of their own lawyers is consistent with a study of law students’ attitudes in Argentina. Similarly negative findings about Venezuelan lawyers were found in a University of Miami law student’s research paper. Another student researched a Mexican experiment with oral, as opposed to written, trials in a state bordering the United States. The student concluded that the experiment was, at least in part, influenced by the broadcasting in Mexico of American popular legal culture, including news coverage of American trials as well as film and television portrayals of trials.

(c) Avenues of future research and study Examining the impact of American and local popular legal culture on another country can be valuable in a number of ways, and can illuminate American legal popular culture refracted through the experiences of another legal system. Further, examining other countries’ experiences can help discover common elements of narrative and storytelling. While the American system has its own unique characteristics, how our system is viewed by others and how others view their own can help us understand the elemental, human responses to all legal systems.

5. Conclusions This chapter argues for two fundamental changes in the teaching of law and popular culture. First, the course should move beyond film as the touchstone. While film is undoubtedly important and readily assigned, more effort should be placed on finding appropriate television shows as well as other materials to study. There should be an effort to incorporate all elements of popular culture depictions of law and lawyers and new ways of organizing the material. Since jurors are the individual units of the

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primary mechanism influenced by popular culture, efforts should be made to examine how jurors may be influenced based on their exposure to all manner of popular culture. Second, courses in law and popular culture should seek to examine how American popular culture affects the legal system in other countries and how local popular culture affects those countries’ legal systems. Not only does globalization offer challenges and opportunities for examining the American legal system, it also allows teachers and students to see law and popular culture in refreshing and exciting new ways.

Notes 1

See, e.g., Steve Greenfield et al., Film and the Law, 2nd ed. (Oxford: Hart, 2010), and Anthony Chase, Movies on Trial (New York: The New Press, 2002). 2 Michael Asimow & Shannon Mader, Law and Popular Culture: A Course Book, 2nd ed. (New York: Peter Lang, 2013) (new edition with greater emphasis on television), and David Ray Papke et al., Law and Popular Culture: Text, Notes, and Questions, 2nd ed. (New Providence, New Jersey: LexisNexis, 2012). 3 Jerome Frank, “Why Not a Clinical-Lawyer School?,” University of Pennsylvania Law Review 81 (1933): 907. 4 George Gerbner, “Growing Up with Television: The Cultivation Perspective,” in Media Effects: Advances in Theory and Research, 2nd ed., eds. Jennings Bryant & Dolf Zillman (Hillsdale, New Jersey: Erlbaum, 2002). 5 Alexis de Tocqueville, Democracy in America (New York: Knopf, 1994), Vol. I, 280–87. 6 Stefan Machura & Stefan Ulbrich, “Law in Film: Globalizing the Hollywood Courtroom Drama,” Journal of Law and Society 28 (2001), 117–32. 7 Michael Asimow et al., “Perceptions of Lawyers—A Transnational Study of Student Views on the Image of Law and Lawyers,” International Journal of the Legal Profession 12 (2005), 407–36.

CHAPTER TWENTY-TWO TEACHING A WRITING INTENSIVE LAW AND POPULAR CULTURE FRESHMAN SEMINAR GARY E. PETER

1. Introduction The University of Minnesota-Twin Cities, a large, public, four-year research university located in Minneapolis-St. Paul, Minnesota, is home to approximately 35,000 undergraduate students, with well over 5,000 entering as first year students. In the late 1990s, then President Mark Yudof established a university-wide freshman seminar program. Freshman seminars would enroll fifteen to twenty first year students in a course designed and taught by full-time faculty members with expertise in a particular area. The freshman seminar would thus provide students, early in their college career, with a small class seminar experience and the opportunity to study with one faculty member, something that in a large university setting might not otherwise occur until well into their junior and senior years. Further benefits of a freshman seminar would include a small faculty-tostudent ratio that promotes greater interaction with the instructor and other students in the course, leading to greater academic and social engagement for first year students. In addition, the seminars help students meet liberal education and writing requirements needed for graduation. In recent years, first year experience courses and seminars have been recognized as representing “high-impact educational practice,” a term first coined by Indiana University professor of higher education George Kuh, that can lead to greater student retention and engagement and which can in turn result in student success and, ultimately, college graduation.1 The most effective first year seminars, according to Kuh, emphasize frequent writing assignments, critical inquiry, information literacy and group work.

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In 2008, I was given the opportunity to develop a freshman seminar at the University of Minnesota, where I currently teach in the Department of Postsecondary Teaching and Learning (PsTL), a department focused on multidisciplinary and multicultural teaching and research housed in the College of Education of Human Development (CEHD). In addition to teaching courses in law and citizenship open to students of all levels throughout the university, I also participated in developing a team-taught, interdisciplinary course on food with two other PsTL faculty members (one a biologist, the other a social scientist) for first year students in CEHD. Drawing on my additional interests in film and media, my background as a lawyer, and my ten years of experience teaching writing courses at the college level, I quickly settled on the idea of a seminar for first year students from across the university focused on law and popular culture which would also emphasize the development of writing skills in a number of areas. I knew such courses could be found on the course schedules of many law schools, but I learned that law and popular culture courses offered at the undergraduate level were less frequent. Such courses limited to first year students only were even more rare. Therefore, armed with little more than a textbook2 and a description published in the University Course Guide,3 I designed a course, “Reflections of Justice: Images of the Law in Literature, Film and Popular Culture,” that would be appealing to first year students from a variety of colleges and majors and that would incorporate the high-impact educational practices that are hallmarks of a successful freshman seminar.

2. A Writing-Intensive Seminar According to Kuh, courses that integrate writing as a high-impact educational practice are most effective when they encourage students to “produce and revise various forms of writing for different audiences in different disciplines ...”4 Student writing should therefore not be limited to more traditional formats such as essays or research papers. Students are likely to demonstrate a higher level of engagement as well as development of writing skills if the tasks assigned and genres are varied. The University of Minnesota has implemented specific guidelines for what qualifies as a writing-intensive course: x Writing is comprehensively integrated into the course x Writing is a significant part of the course grade (at least one-third)

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x Writing is learned through revision (instructor feedback, peer review of drafts, individual conferences) x Writing is a significant part of the course work (15-20 revised pages) x Writing is explained and practiced in the course.5 In my design of the course, I therefore sought not only to meet the university-wide writing-intensive requirements, but also to create assignments that were varied, challenging, and appropriate for both the subject matter (law and popular culture) and the composition of the class (first year undergraduates). The specifics of each assignment are described below, with the texts of the assignments appearing in the Appendix.

(a) Writing responses In these short (two to three pages) thesis-driven papers, students write about five of the ten films we study during the semester. Students may devise their own topic, or choose to respond to one of the following prompts that I provide: x What does this particular film teach us about law, lawyers, the legal system, ethics or justice? x What can we learn about the cultural or political issues at the time the film was made? x How does the film conform (or not) to the “courtroom genre?” x What can we learn about filmmaking (editing, music, cinematography, art direction, other elements)? Response papers are evaluated based on whether they meet the required length, utilize good mechanics (grammar, punctuation, syntax), are clearly organized and, most importantly, are supported with specific examples from the film that is the subject of the paper. Students thus have the opportunity to practice more “low stakes” writing using textual evidence, a skill that will be important later in their college careers when they undertake more advanced written work in other courses.

(b) Analytical assignment In creating this assignment, my primary goal was to help students increase their skills in information literacy and research, rather than on producing a lengthy final research paper (something that I found many students had

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already done in other classes or in high school). To that end, students focused on developing a central research question related to law or to law and popular culture, and then drafted an annotated bibliography of five to seven sources covering both scholarly and popular materials along with a two to three page overview of their research findings. Thus, the goal of the assignment was for students to provide a “road map” of a potential research paper rather than the paper itself. Given the potentially broad parameters of the assignment, I spent a great deal of class time helping students to refine their area of inquiry. For example, students posted their proposed questions on the class website and received input from both class members and myself on whether the question was too broad or too narrow, whether it was “researchable” and/or “arguable,” and how they might locate relevant sources. Once students had settled on their topics, I arranged for research instruction tailored to a first year audience with a member of the law school library staff. Students were able to receive individual assistance with research and left the session with a much clearer idea of how they might locate relevant sources for the assignment as well as a stronger sense of investment in their work. I also required instructor-student conferences to go over drafts in progress, provide suggestions for further revisions, and to answer questions. Students reported that they preferred the annotated bibliography format over a longer, more traditional paper and that they learned a great deal about locating and evaluating sources, skills that would be helpful later in their college careers. They also appreciated the opportunity to meet with me individually to discuss not only their drafts but also their overall performance and progress in the course, an opportunity seldom available in larger, lecturebased courses. Nevertheless, challenges with this assignment remain. Students often gravitated towards more “tried and true” subjects, such as the insanity defense, the death penalty, cameras in the courtroom and the like, despite my encouragement to explore less traveled and more focused topics that might yield new and more interesting discoveries for them. As a result, I will in the future probably provide more limitations on the selection of particular topics as options for the assignments. In addition, students often had no trouble finding relevant sources, but the audience for those sources was generally not made up of first year undergraduates. For example, students could readily locate law review articles on their subjects, but not surprisingly, given the complex nature of these articles that can be challenging even for those with legal training, many had difficulty making sense of them. Consequently, I spent quite a bit of time coaching students to help them understand the key points of the

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article without getting too bogged down in footnotes and citations. In future iterations of the analytical assignment I may need to provide more specific guidelines on appropriate and accessible sources (in other words, law review articles are not required) in order to lessen student frustration.

(c) Creative assignment In addition to these more traditional forms of academic writing and research, I wanted students in the seminar to have the opportunity to explore other writing genres. College students, especially first year students, rarely have the opportunity to experiment with journalism, short stories, poetry, drama and other forms unless they seek out a course specifically tailored to provide practice and experience with those genres. As a result, I devised a “creative assignment” through which students, using different prompts related to the characters of the films we study, would draft a creative piece in a genre of their choosing. Some of the prompts include the following: x x

x x x x

The Verdict: Write the next chapter of Frank Galvin’s life after he wins the case against the hospital. To Kill a Mockingbird: Write a news story covering the Board of Professional Responsibility hearing where charges of misconduct against Atticus Finch for covering up the murder of Bob Ewell were considered. Anatomy of a Murder: Write Paul Biegler’s lecture on his first day as a law professor at Northern Michigan University. Write a story in which Biegler, Galvin and Finch have lunch together and talk about their cases and experiences. Counsellor at Law: Update the office, characters and plot to the present time. Revisit and rewrite the story from a “supporting” character’s point of view in another genre (for example, poetry written by Boo Radley, To Kill a Mockingbird).

Students were also encouraged, in consultation with me, to create their own prompts for generating a creative piece. Students appreciated the opportunity to write something other than the more traditional paper, and for me reading their creative work was a welcome change from more “academic” papers. Assigning a “creative” piece, however, posed a number of challenges, most notably in the area of assessment. To put it plainly, how do you grade creativity? Part of my criteria for grading includes consideration of whether the work “extends and

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enriches our understanding of the text or characters” and whether it “makes effective use of the elements of its particular form,” but I found these guidelines, by themselves, did little to alleviate my concern about the subjectivity of creative work and the difficulty of assigning a particular letter grade. To address this issue, in the future I plan to incorporate an accompanying “reflective” component to the assignment in which students must explain their choices and selection of a particular form. In addition, I realized, after using this assignment for a couple of semesters, that it made much more sense for students to address my question above about how their work extends and enriches our understanding of the text rather than me trying to divine that purpose on my own. As a result, the final grade for this assignment relies less on how well a student “executes” the elements of the form and more on how well they articulate their reasons for using the form and what more we as readers can learn about the film, its characters and its themes from their reimagining of the text.

(d) Mock trial brief The final writing project of the course is a Trial Brief, a key component of the Trial Advocacy Unit. In the Trial Advocacy Unit, students work in teams of five or six to try a case against an opposing team of five or six. The case materials that I provide include all relevant law, witness statements and evidence; to provide a fair experience for everyone, students are not permitted to conduct any research outside the class. Students choose whether they wish to play attorneys or witnesses and are responsible for drafting their own trial materials. Thus, attorneys prepare opening and closing statements, while witnesses write their own direct examination questions and must be prepared for cross-examination. Students then try their cases to a jury of their peers (the other half the class who is on a different case and who will get their turn to put on their case on a different day) with a judge—me—presiding. To help students develop critical thinking as well as writing skills, I provide very little instruction on how to prepare their materials and for their roles. Instead, students develop their “work product” (and, by extension, their “demeanor” in court when the trials are “performed”) based on what they have observed in the films we have studied. For example, students have used Frank Galvin’s impassioned closing statement in The Verdict as a model for what they hope to convey in their own statements, while others have emulated Paul Biegler’s “down to earth” style in the courtroom in Anatomy of a Murder. Likewise, witnesses have drawn inspi-

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ration from characters testifying at trials, such as Kramer v. Kramer’s Joanna Kramer and her ability to weather an aggressive cross-examination. Students then reflect on those choices in a section of their trial brief, describing their impact on their performance at trial. Students generally give high marks to the mock trial portion of the course; they very much enjoy the opportunity to try a case before a judge and jury. Some students, however, expressed uncertainty about having to develop their written materials with little to no guidance from me, and wished for more opening/closing statement and direct examination “models” to follow. For me, the challenge is to provide enough assistance so that students feel confident in their writing, while also giving them enough freedom to make their own discoveries and apply what they have learned, thus enhancing the development of independent critical thinking skills.

3. Conclusion Engaging students in a first year seminar is a high-impact educational practice that can be critical to their later success in college. The development of effective writing skills with diverse assignments in a first year seminar is a key component in furthering that engagement. Law and popular culture, with its focus on our legal system and exploring what film, television and literature teach us about it, is particularly rich terrain for implementing a wide variety of writing strategies for engaging first year students who already have, whether they realize it or not, a great deal of exposure to popular culture. Students have the opportunity to develop both creative and critical skills in communicating ideas, which can help them be better prepared to handle the rigors of higher education beyond the first year.

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Appendix PsTL 1908W Reflections of Justice: Images of the Law in Literature, Film and Popular Culture Writing Responses To help you further develop your writing and critical thinking skills you will write five short papers on the film texts we will be studying this semester: x WRITING RESPONSE #1: Anatomy of a Murder or To Kill a Mockingbird x WRITING RESPONSE #2: The Verdict or Counselor at Law x WRITING RESPONSE #3: The Paper Chase or LA Law x WRITING RESPONSE #4: Indictment or Twelve Angry Men x WRITING RESPONSE #5: Philadelphia or Kramer v. Kramer The due dates are given in the course schedule (roughly one paper every two weeks). Papers should be at least two full and no more than three pages, typed and double-spaced. Handwritten papers will not be accepted. Each response is worth 40 points for a total of 200 points (out of a possible 1,000 for the entire course). Evaluation criteria for Weekly Writing Responses: x Paper meets the required length x Paper has been proofread and is well-written at the sentence level, containing limited mechanical errors (grammar, punctuation, typos) x Paper has a clear organization and focus x The ideas in the paper are supported with examples from the film What should you write about? You have quite a bit of freedom in what you choose to cover in your response. Here are some possible areas for exploration, many of which we will be addressing in class throughout the semester in discussions and that are also addressed in Asimow and Mader, Law and Popular Culture:

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x What does this particular work teach us about law, lawyers, the legal system, ethics, or justice? What does it teach the general public? How accurate and fair is the film’s account in reflecting actual data about lawyers, legal procedures, or the legal system? x Many films with the law as their subject matter focus on the difference between “justice” and “law.” Do you see a gulf between the two in a particular film? If so, how did you come up with your version of “justice?” And what's wrong with “law” if it doesn’t produce “justice?” x What can we learn about cultural or political issues and attitudes at the time the film was made (as distinguished from the time in which the story is set)? In other words, what kind of messages are the writer and director trying to send to viewers beyond just entertaining them? x What do we learn about lawyers? How do lawyers interact with other lawyers or judges or with non-lawyers such as clients, staff, friends or family members? What is the impact of lawyers’ work on their personal relationships? What professional roles do lawyers play other than in trials and how well do they play these roles? What can we learn about how lawyers feel about what they do and how these feelings influence their public actions and their private lives? x In our society, we’re committed to the adversarial system in which the truth (or at least justice) is expected to emerge from the zealous efforts of opposing advocates. Does this film cast doubt on the adversary system or does it reinforce the wisdom of that system? What does the film say about access of ordinary or poor people to the legal system as a way to solve problems and obtain “justice”? x There is a courtroom or a lawyer genre, meaning a set of audience expectations or stock stories that we often see in a film, in the same sense that there is a western or detective or horror film genre. Can we identify patterns of the courtroom or lawyer film or television genre? Does this film conform to the limitations of the genre or does it transcend them? x What can we learn about filmmaking from this film? What is distinctive about the film’s editing, music, cinematography, direction, art direction, acting, or sound? x Viewing films about law is a form of experiential learning. Treating the film as if you were a participant in the events depicted in the film, how did you react to the film? What emotions did it stir? How would you like to have been one of the lawyers, clients, jurors, or

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the judge involved in this film? Would you have acted differently than they did? Does the film make you more or less interested in a legal career? Why/why not? Do you see the lawyers as role models, or just the opposite? ANALYTICAL PAPER ASSIGNMENT GUIDELINES Length: about 6-8 typed, double-spaced pages, including the Works Cited page Worth 200 points out of a total 1,000 points for the course (5 points for research question; 170 points for final paper; 25 points for presentation) For this assignment you will undertake an individual written research project based on an important issue of your choosing related to law or to law and popular culture. The primary purpose of this assignment will be for you to demonstrate your ability to conduct in-depth research using a variety of sources, cite those sources according to APA or MLA style, and evaluate those sources for a research project. In addition to writing a detailed review of your individual sources, you will also draft a two page overview of your research findings, including a statement of your central question. CENTRAL QUESTION Your first step is to identify a central question or issue that you will address through your research. Here are some examples: x x x x

How have women in the legal profession been portrayed in film and television? What has been the impact of those portrayals? The CSI effect: how do “criminal procedural” shows impact the legal process, including how juries evaluate evidence, how lawyers try cases, etc.? What’s the impact of social media (Twitter, Facebook, etc.) on the legal process? The impact of attorney advertising on the legal profession—and the public’s perception of the legal profession

As you can see, some of these are questions about law, some are about law and popular culture, and some are a combination of both. You have a lot of freedom in selecting a topic for this assignment but you want to be sure

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that your issue is clear and focused. For example, “criminal law” is too broad a topic, but there are many narrower subjects within that area that you could choose. You may wish to pursue an issue that we’ve already discussed in class that you wish to explore in more depth. There are MANY other possibilities for central questions. These are just examples of how you should formulate your question. NUMBER OF SOURCES For this assignment you will need to locate five sources. At least one of your sources should be a book and one should be another scholarly source (journal article, for example). You will need to select sources that have enough length and substance that you can fully address the questions below. No more than two of your sources may be web sites or newsmagazines or newspapers (e.g. Atlantic Monthly, the New York Times), and you’ll want to insure that the sites you choose are current, credible and reliable. Newspapers and newsmagazines are NOT considered scholarly for this project. REQUIRED ELEMENTS FOR EACH SOURCE Citation Information Provide the complete citation for the source in correct MLA or APA style. Source Analysis For each source, include the following: x Brief Summary. Provide a brief summary IN YOUR WORDS of the source, including a statement of the overall thesis/main idea for the source. DO NOT SIMPLY CUT AND PASTE AN EXISTING SUMMARY! Doing so will result in zero points for this assignment. x Important Quotations. Include two important quotes from the source and explain, IN YOUR OWN WORDS, an analysis of why these quotations are significant to understanding your topic. x Audience and Purpose. Identify the intended audience for the source and its intended purpose. Is the purpose to convince? Inform? Investigate? Entertain? Challenge? Is it a popular or scholar-

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ly source? Be as specific as you can, paying attention to the type of language used and the voice/tone of the writer. x Source Evaluation. How did the source contribute to your understanding about your topic? If it didn't, why not? Why would this source be an important one to include in a paper? What additional questions does the source raise for you in your research? What are the limitations of the source? The Source Analysis portion of this assignment should be about five to six typed, double spaced pages (about one to one and half pages per source). A Source Analysis example will be posted on the course Moodle site. You will also include a two page, double spaced overview of your research findings, including a statement of your thesis. TOTAL NUMBER OF PAGES TO TURN IN: about seven to eight pages. CRITERIA FOR EVALUATION x Sources and quotations are cited correctly according to MLA or APA style. x All sources should relate directly to the research question. x All elements listed above addressed fully for each source. x Thorough research from a variety of sources; at least one source is from a book and one is from another scholarly source. x Two page overview is carefully written, with clear thesis statement. x Final product has been thoroughly edited and proofread with limited grammatical and punctuation errors. DUE DATES x Tuesday, March 26: Analytical Paper assigned; begin brainstorming topics and issues. x Tuesday, April 2: Central Question due in class (5 points) x Tuesday, April 9: U of M Law School Library tour (attendance required); meet at 1:15 at the library. x Tuesday, April 16 or Thursday, April 18: No regular class either day; first draft due at Individual Conference with Gary sometime during the week; conference attendance required. x Tuesday, April 23: Analytical Paper Due (uploaded to course Moodle site); begin 5 minute presentations to class (worth 25

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points of the 200 points for the paper); finish presentations on Thursday, April 25. CREATIVE ASSIGNMENT GUIDELINES At least 4 FULL and no more than 6 typed, double-spaced pages Worth 150 points out of a total 1,000 points for the course ASSIGNMENT IDEA (ONE PARAGRAPH) DUE IN CLASS ON THURSDAY, FEBRUARY 21 FIRST DRAFT DUE FOR PEER REVIEW (TWO COPIES): THURSDAY, MARCH 7 FINAL DRAFT DUE AND SHARING WITH THE CLASS: THURSDAY, MARCH 14 Introduction For this assignment you will have the opportunity to apply what you have learned and observed in our first four films and to use your imagination to create your own law-related creative piece. Because this is a creative assignment, there are a lot of directions that you can go. Do not assume, however, that writing a creative piece will be “easier” than a more “traditional” essay! You will need to think carefully about the story you want to tell and how it relates to the films, characters and themes we have discussed. You will also need to consider the best form that your piece should take—more about that below. Form The form that you choose is up to you—short story, short screenplay, newspaper account, or even poetry. Keep in mind, though, that if you choose a particular form, you’ll need to use the elements of that form as completely as you can. For example, a short story must have scenes, characters, plot and dialogue. Instead of telling the reader what happened, you’ll need to show it through the use of those elements. Similarly, if you choose to write in a more non-fiction/journalistic format, you’ll need to keep in mind good old who/where/what/when/why/how and do your best to make sure that your writing conforms to that particular style. A screenplay includes mostly dialogue, but also contains directions about camera angles, scene, music and so on. Once you’ve decided on a particular form, I encourage you to spend a little bit of time locating an example and studying it to become more familiar with it. Examples of screenplay format can be found easily on the internet.

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Some Suggestions to Get You Thinking This is by no means an exhaustive list—you DO NOT need to choose one of these options, but you can if you would like to. These suggestions are here to help spark your imagination about other possibilities that you might have in mind. Once you have an idea, I strongly encourage you to consult with me before or after class, during office hours, or via e-mail for feedback, suggestions and encouragement. x What happened to Frank Galvin (from The Verdict) after his case against the hospital? Did he get his act together and rehabilitate his career? Or did he revert to his previous ways? What was his next big case, and what happened? Write a story in which we see the next chapter of his life. You can also apply this prompt to the other lawyers. Did Atticus Finch ever take another case? What about Paul Biegler? What happened? x Word eventually leaked out about how, at the end of To Kill a Mockingbird, Boo Radley killed Bob Ewell. Radley was not charged with a crime, but the Alabama State Board of Professional Responsibility held a hearing to determine whether Atticus Finch, because he did not report the murder, should be disciplined or even disbarred and not permitted to practice law. Imagine that you are a reporter covering the hearing. What happened? Who testified for and against Finch? What was the Board’s decision? You can also use the same scenario for the other lawyers (Biegler, Galvin, Simon). x After defending Lt. Manion, Paul Biegler became disillusioned with the practice of law and decided to take a position teaching criminal law and trial practice at Northern Michigan University School of Law. Taking into account everything you learned about him from watching him in action, write his first day lecture to first year law students. What would he say to them? Another option: you are a reporter for the student newspaper sitting in on the lecture. What did you observe? How did Biegler act? How did he interact with students? x Write a short screenplay or play in which Biegler, Finch, and Galvin sit down together over lunch or a drink to talk about the practice of law. What would they say to each other? To take this idea even further, assume that each knows of the other’s “big” case. What would they say to one another? For instance, what might Galvin, given his sometimes less than ethical view of the practice of law, have advised Finch to do differently to win his case?

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x If poetry is something you feel comfortable with or want to try, write a series of poems (4–5) as a way to comment on a character or theme in one of the films. For example, what are the different facets (lawyer, father, member of the community) we see in Atticus Finch? How is the theme of race handled in To Kill a Mockingbird? x Imagine that you are a law student and you are a law clerk working for one of the lawyers in the four films. Write a first-person monologue describing your experience—what’s a typical day like? What’s a big case you’re working on (other than the one in the film—use your imagination!)? What did you see, observe, learn? x Write a story in which you imagine George Simon’s law office (from Counselor at Law) in 2013. How would it be different? What role would technology play? How might the same scenarios/crises that we see in the movie play out today? x Your own idea here! Grading Criteria for the Creative Piece x Assignment idea (one paragraph) due in class on Thursday, February 23 (5 points) x First draft completed for peer review for class on Thursday, March 2 (25 points) x Final draft of Creative piece creates something new—it extends and enriches our understanding of the text or characters (50 points) x Final draft of Creative piece makes effective use of the elements of its particular form (50 points) x Final draft of Creative piece is well-written at the sentence level (correct grammar, punctuation, proofread for errors) OR if “nonstandard” English used, writing accurately reflects a particular style or approach necessary for the form (20 points). Conferences Individual conferences with me on your paper are not required but are strongly encouraged. As an incentive, I will add 5 points to your Creative Assignment grade in exchange for meeting with me for one in person conference during regular office hours or some other time we arrange. FINAL REFLECTIVE STATEMENT GUIDELINES LENGTH: ABOUT FOUR TO FIVE TYPED, DOUBLE SPACED PAGES

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WORTH 100 POINTS OF 200 POINTS FOR THE GROUP PROJECT DUE: MAY 9 (LAST DAY OF CLASS), UPLOADED TO MOODLE BY 10 PM PART I: FOR THE MOCK TRIAL/FINAL GROUP PROJECT x Every paper should start with a discussion of your team’s theory of the case. What did your team most want to prove at trial? What law did you rely on? What were the most compelling facts of your case to support your theory? What witness testimony did you hope to use at trial to prove your case? Be sure to mention each witness in this part of the paper. x If you are an attorney, include the text of your opening statement or your closing statement. x If you are a witness, include the questions and proposed answers for your direct examination. The next part of your paper should be a paragraph regarding potential areas for cross examination that you may be asked by the other side and how you propose to respond. x Your work product as described above should reflect your ideal trial scenario, rather than what actually happened when you performed your trial. x Every paper: In a paragraph, discuss how the texts of our class— the films that we studied and discussed—impacted and influenced your trial preparation and strategy, both individually and as a team. Think about specific trial elements (openings, closings, directs, crosses) that we saw in the texts. For example, was there something in Frank Galvin’s closing statement in The Verdict that you tried to incorporate? Or was there a particular strategy that you might have avoided, based on what you saw? x Every paper should conclude with a one paragraph assessment of your individual contributions to your team’s effort followed by a one paragraph assessment of the contributions you believe other team members made to your team’s effort (one paragraph for your whole team, not one paragraph per member). PART II: ABOUT THE CLASS AS A WHOLE x In a paragraph, describe how you would assess your overall learning in our class in terms of the law, law and popular culture, or

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both. What important ideas or concepts have been the most memorable? To put it another way, what are the one or two things that you will be taking with you?

Notes 1

G. D. Kuh, High-Impact Educational Practices: What They Are, Who has Access to Them, and Why They Matter (Washington, D.C.: Association of American Colleges and Universities, 2008). 2 Michael Asimow & Shannon Mader, Law and Popular Culture—A Course Book (New York: Peter Lang, 2006). A second edition of this book was published in 2013. 3 “This writing intensive freshman seminar will explore the treatment of legal themes in films, literary texts, and popular culture. We will look at the law through stories, cinema, television and other mediums to consider the following questions: Do these portrayals of ‘the law’ enhance or inhibit our understanding of how the law ‘works’ in our everyday lives, thus impacting our participation as citizens? Do literature, film and other media accurately reflect both our legal system and how lawyers are trained and the work that they do, or do they rely upon outdated, stereotypical, or sensationalized portrayals? We will also consider whether literature, film, and popular culture can actually be useful in helping us better comprehend the complexities and ethics of the law in all of its often-frustrating ambiguity. Students will have the opportunity to develop their skills in research, analysis, oral communication, and creativity through writing formal papers, participating in and leading class discussions, making presentations, writing stories and poems, and completing a group project.” 4 Kuh, High Impact Educational Practices. 5 http://onestop.umn.edu/faculty/lib_eds/guidelines/writing_intensive.html

CONTRIBUTOR BIOGRAPHIES

Michael Asimow is Visiting Professor of Law, Stanford Law School, and Professor of Law Emeritus, UCLA School of Law. He teaches administrative law, contract law and income taxation, in addition to a seminar on law and popular culture. Asimow is co-author of Law and Popular Culture—A Course Book (2nd edition 2013), Reel Justice: The Courtroom Goes to the Movies (2nd edition 2006), and Lawyers in Your Living Room! Law on Television (2009), as well as numerous published articles about law and pop culture. His research interests include comparative administrative law and a book on California administrative law is forthcoming. Kim Barker is a Fellow at Birmingham Law School (UK) and is responsible for teaching intellectual property and cyberlaw. Her research focuses on copyright, technology and the intersection between culture and intellectual property rights. Kim has presented internationally and has published work on various aspects of rights in virtual worlds, most recently “Online Games and IP. Battle of the Forms to Social Norms: Reconceptualising and Relayering?” in SCRIPTed 10 (3) (2013). Kim is currently working on a number of projects relating to Virtual Worlds, including aspects of regulation and gender based issues. Anthony Bradney is Professor of Law at Keele University having previously been Professor of Law at the Universities of Sheffield and Leicester. His research interests include law and religion and university legal education as well as law and popular culture. His books include Law and Faith in a Sceptical Age (2009) and Conversations, Chances and Choices: The Liberal Law School in the Twenty-First Century (2003). His most recent publication on law and popular culture was “For and Against the Law: ‘Buffy the Vampire Slayer,’ ‘Angel’ and the Academy,” Entertainment and Sports Law Journal 9 (2011) http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/. Kathryn Brown is Assistant Professor of Art History at Tilburg University (Netherlands). She is a Solicitor of the Superior Courts of England and Wales and practiced corporate law in the City of London for fourteen

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years before becoming an art historian. She teaches courses on law, art and film and has published widely on visual art and aesthetics. Her books include Women Readers in French Painting 1870–1890 (2012) and (as editor and contributor) The Art Book Tradition in Twentieth-Century Europe (2013) and Interactive Contemporary Art: Participation in Practice (2014). She has held visiting fellowships at The University of British Columbia, Tulane University, the University of Kent at Canterbury, and the Australian National University. Kelly Collinsworth is an Assistant Professor of Legal Studies at Morehead State University, a regional university in eastern Kentucky. She teaches in an ABA approved paralegal program and serves as the University’s coordinating pre-law advisor. Prior to moving to the academic world, Kelly was an attorney for eleven years with Legal Aid of the Bluegrass, a civil legal services provider for low-income persons in eastern Kentucky, where she worked mainly on foreclosure defense and family law matters. John Denvir received his J. D. from NYU Law School and his LLM. from Harvard Law School. He taught Constitutional law at the University of San Francisco for 30 years where he is now Research Professor of Law and the Humanities. He has written two books on constitutional theory: Democracy’s Constitution: Claiming the Privileges of American Citizenship (2001) and Freeing Speech: The Constitutional War Over National Security (2010). He also edited Legal Reelism: Movies as Legal Texts (1996) and was co-founder and managing editor of the website Picturing Justice for many years. Denvir has also published articles in the Stanford, Northwestern and other leading law journals and has been a Visiting Professor at The University of California Berkeley Law School (Boalt Hall), The University of Oregon Law School, and the University of Kent at Canterbury. Elena Falletti is Assistant Professor at Carlo Cattaneo University, Castellanza (Italy). She has a PhD in comparative law from Milan University (Italy) and has been a Post-doctoral fellow at the Max Planck Institute for Intellectual Property, Munich (Germany), and a DAAD and Marie Curie Fellow at the Westfälische Wilhelm-Universität, Münster (Germany). Her teaching and research interests are in the field of Comparative Law, European Union Law, Human Rights, Internet, and Intellectual Property.

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Pedro R. Fortes is Law Professor at FGV Law School (Rio de Janeiro) and a D.Phil Candidate at the Centre for Socio-Legal Studies at the University of Oxford. He holds an LLB. (UFRJ), BA in Business (PUC), LLM. (Harvard), and J. S. M. (Stanford). Research interests include complex litigation, legal education, sports law and interdisciplinary legal studies, such as law and popular culture. His representative publications include (as editor) “A globalização do ensino jurídico” (Editora FGV, forthcoming 2104), “The Law Relating to Brazilian Sports Fans” in Entertainment and Sports Law Journal (2013), and “The Class Action Paradox” in the Journal of Indian Law and Society (2009). Jeanne Gaakeer is endowed professor of legal theory and associate professor of jurisprudence at Erasmus School of Law, Erasmus University Rotterdam (Netherlands). The focus of her research is on interdisciplinary movements in legal theory (specifically “Law and Literature” and “Law and the Humanities”) and their relevance to legal practice. She is co-founder, with Greta Olson, of the European Network for Law and Literature (www.eurnll.org) and the 2013 recipient of the J. B. White Award (bestowed by the Association for the Study of Law, Culture and Humanities). She currently serves as a justice in the criminal law section of the Appellate Court of The Hague after having been a judge in the Regional Court of Middelburg. Odile Heynders is Professor of Comparative Literature at the School of Humanities at Tilburg University (Netherlands). She is leader of the program “Literature and Visual Art in the European Public Sphere” and one of the supervisors of the junior research project “Transformations in the Public Sphere.” Her own work is on literary authors as public intellectuals with a focus on Europe. She is particularly interested in the edges of literature—where does the aesthetic text end, and where does it become language in general or politics? Olga Jurasz is a Lecturer in Law at the Open University Law School (UK), specializing in international law. Prior to joining the Open University, she taught in the Department of Law and Criminology at Aberystwyth University. Olga holds an LLB. (Hons.) from Aberystwyth University and Diploma in International Humanitarian Law (ICRC, Geneva). In addition, Olga is pursuing her PhD in the field of international law and human rights, focusing on the (in)adequacy of international law in protecting women during armed conflict and its aftermath. She is a member of Editorial Board of Journal of Gender Studies and a member of the American Society of International Law.

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Contributor Biographies

Terri Mester is a lecturer and pre-law advisor at Case Western Reserve University (CWRU) in Cleveland, Ohio. Her classes include: “Framing Our Legal System: Law in the Movies,” and “Shots in the Dark: Investigating Crime Films.” Aside from teaching and advising, she has earned three degrees from CWRU, including a BA in History, an MA in English and a Ph.D. in English. Her publications include: Movement and Modernism: The Influence of Dance on Yeats, Eliot, Lawrence and Williams and a book chapter (“Eliot and Dance”) in Cambridge University Press’s Eliot in Context. She has also contributed articles on dance and modernism to The Encyclopedia of Literary Modernism: 1890–1940 and West Virginia University Philological Papers. Mester is currently researching legal issues in science fiction movies. Stefano Montaldo holds a Degree in Law at the University of Turin (Italy) and a Ph.D. in European Union Law at the University Milan Bicocca (Italy). He is assistant researcher in EU and International Law at the University of Turin and a lawyer of the Turin Bar. He teaches EU Law at the Business Administration School of the University of Turin. Montaldo’s main fields of research include the regime of scarce natural resources in International and European Law, EU criminal law, and the protection of fundamental rights in the EU. He has published extensively on these topics. Leslie J. Moran is a Professor in the School of Law, Birkbeck College University of London. After completing his undergraduate legal studies he qualified as a lawyer gaining experience primarily in accident and divorce litigation. He has been working in higher education for over 25 years. He has an international reputation for his research and scholarship on sexuality and law and law and visual culture. He continues to research and write in these areas. He has pursued these interests in his research on the judiciary which includes studies of the sexual diversity of the judiciary and a series of studies on the judicial image. He is currently principal investigator in an international network of scholars working on the making, management and consumption of the judicial image. After attaining his LLM. in International Human Rights from Utrecht University in 2010, and his M.St. in Socio-Legal Research from Oxford University in 2011, Phillip Paiement began his doctoral research in Tilburg University’s Department of Public Law, Jurisprudence and Legal History. While his research primarily focuses on the jurisprudential impacts of transnational private regulation, this derives from a broader interest con-

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cerning the consequences that globalization has on legal theory, particularly from the perspective of systems theory. Preliminary work for his dissertation has been published in Transnational Legal Theory. David Ray Papke is a professor of law at Marquette University in Milwaukee, Wisconsin, U.S.A. He teaches Property, Family Law, and interdisciplinary courses in law and the humanities. His works include Framing the Criminal: Crime, Cultural Work, and the Loss of Critical Perspective (1987), Narrative and the Legal Discourse (1991), Heretics in the Temple: Americans Who Reject the Legal Faith (1998), and The Pullman Case: The Clash of Labor and Capital in Industrial America (1999). With Christine Corcos, et al., he has co-authored Law and Popular Culture (2007; 2nd Ed. 2012), a textbook for the study of law and popular culture. Donald Papy is an adjunct faculty member at the University of Miami School of Law. He teaches a course on Law & the Media, among others. He is a graduate of the University of Pennsylvania (BA political science) and George Washington University Law School (J. D.). He has lectured in Germany for the law faculty and students at the University of Leipzig. His paper on litigation as aggression (the misuse of the courts and media for legal bullying) is being published as part of a recent conference in Budapest, Hungary. He is also a practicing attorney in Miami, Florida, and a screenwriter. Gary E. Peter has been teaching at the University of Minnesota since 2002. In addition to developing a freshman seminar on law and popular culture, he teaches undergraduate courses in law and citizenship, advanced writing and research, and American literature. Prior to teaching he practiced corporate and municipal law, clerked for the Supreme Court of Iowa, and worked in the legal publishing industry. He holds a J. D. from William Mitchell College of Law and an M. F. A. in Creative Writing from Sarah Lawrence College. His short fiction has appeared in numerous literary journals and he recently completed his first novel. Peter Robson has an LLB from St Andrews University and a PhD from Strathclyde University. He is Professor of Social Welfare Law at the University of Strathclyde, Glasgow, Scotland, a solicitor and a judge in the Appeals Services dealing with disability issues. His work includes coediting Law and Film (with Stefan Machura) (2001), co-authoring with Steve Greenfield and Guy Osborn Film and the Law: The Cinema of Justice (2010), and co-editing with Jessica Silbey Law and Justice on the

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Small Screen (2012). He is author of recent and forthcoming essays on British TV Lawyers, women lawyers on TV, law and the theatre and vigilante films. Jennifer L. Schulz is an Associate Professor in the Faculty of Law, University of Manitoba, Canada. She has been an invited research fellow at the Universities of Cambridge (Clare Hall) and London (Birkbeck). She studied law at the Universities of Cambridge and Toronto, with a particular emphasis on mediation and culture, and she was the first Canadian invited fellow at the Program on Negotiation at Harvard. Schulz has won a teaching award, is a federal research grant recipient, the author of many refereed articles and chapters on dispute resolution subjects, and a practicing mediator. Cassandra Sharp is a cultural legal scholar from the School of Law at the University of Wollongong, Australia. With a combined Bachelor of Arts (English Literature)/Bachelor of Laws (Hons) and a PhD in cultural legal studies, her primary research interest lies in the exploration of law as understood by the public through popular fictions. In particular, Sharp has empirically explored the transformative process of first year law; the use of popular stories by students in constructing identity, and the way in which understandings of ethics are challenged or maintained through popular stories of law. Sharp is a Senior Lecturer and teaches the core first year subjects of Foundations of Law and Contracts, and she finds much enjoyment from teaching the Law and Popular Culture elective. Byron Stier is Professor of Law at Southwestern Law School in Los Angeles. Founding editor of the Mass Tort Litigation Blog, Professor Stier has written numerous law review articles on mass torts, which have been cited by federal and state courts, legal treatises and law school casebooks. He was honored with the 2009 Irving D. and Florence Rosenberg Professorship at Southwestern. Professor Stier received a J.D. from Harvard Law School; an LLM. from Temple University Law School, where he was a Freedman Teaching Fellow and Lecturer in Law, and a B.A. summa cum laude from the University of Pennsylvania. Professor of law and legal culture at University Paris 8, Barbara Villez directs the research center JILC (Justices, Images, Languages, Cultures www.jilc.fr). She is also associate researcher at the Institut des Hautes Etudes sur la Justice in Paris (www.ihej.org) and the Laboratoire de communication et politique at the CNRS, where she directs a network on tele-

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vision series (http://www.series.cnrs.fr/). She has published Séries télé: visions de la justice (PUF 2005), Television and the Legal System (Routledge 2009) and many articles on television legal dramas and filming trials. Law & Order, New York Police Judiciaire: La justice en prime-time (PUF) is forthcoming in January 2014. Richard H. Weisberg helped set the “Law and Literature” movement in motion a while ago, and his books include Poethics and the Failure of the Word and a book on legal style called When Lawyers Write. His articles on popular culture include a retrospective on The Verdict and (with Michael Asimow) a taxonomy of what stories suggest to criminal lawyers when their clients confess guilt to them in the middle of a trial. His forthcoming book from OUP is In Praise of Intransigence (2014). Weisberg is the Floersheimer Professor of Constitutional Law at Cardozo Law School of Yeshiva University. He will be teaching at the University of Chicago Law School around the time his new book appears.

INDEX

Adversary system, transplanted to Italy, 141–49 Affirmative cinema, 269–82 Ally McBeal, 11–23 Characterization, 18 Gender and sexuality, 18 Graphics, 20 Music, 20 Narration, 19 Narrative themes, 18 Subjectivity, 19 Verisimilitude, 20 Alternative dispute resolution, 44 Anatomy of a Murder, 387 Argentina, 380 Assault, 343–44 Australia Queensland, gang rape, 158 Retributive justice, 153–67 Baldwin, Alec, 27–28 Baltimore, in The Wire, 123–30, 136–38 Balzac, Honoré de, 179–81, 192, 234 Becker, Arnie, 16, 30–31 Beethoven, Ludwig van, 357–65 Bernhardt, William, 236 Billy Budd, 370 Birth of a Nation, 276 Bleak House, 235, 370 Blood Diamond, 271, 273–74 Bowling for Columbine, 271 Butler, Paul, 291 Canada, 43–44 Cecil, Henry, 233–44 Chamber, The, 65–70 Characterization, legal novels, 56– 73

Civics education, 338–39 Harry Potter and, 337–46 Civil Action, A, 305–20 Counsellor at Law, 388 Client, The, 59–62 Clockwork Orange, A, 357–65 Coen, Joel and Ethan, 253–65 Comedy, Critical thrust, 34 Universality, 34 Comfort Letter, The, 57–74 Community, in De Rijdende Rechter, 183–85 Contracts, in westerns, 260–63 Comedy, 33–36, 233–44 Divorce comedies, 34–36 U.K. lawyer novels, 233–44 Criminal law Criminal responsibility, 361–62 The Wire, 121–39 Crime, media reporting, 156–58, 200–202, 205–07 Cultivation theory, 272, 276, 374 Cultural study of law, 285–96 Culture, definition of, 288–89 Culture industry, 36–38 D’Amato, Gavin, 31 De Rijdende Rechter, 177–90 Community, 183–85 Informal law, 181–83 Narrative structure, 185 Defenders, The, 14, 30 Detective stories, 101–111 Dewey, John, 342 Dickens, Charles, 235 Discrimination, treatment in movies, 269–82

410 Divorce in pop culture, 27–38 Ethics rules, 28 Frequency of, 27 Lawyers in pop culture, 27 Production Code, 28–29 Draper, Hastings, 233–44 Drug culture, in The Wire, 121–39 Dworkin, Ronald, 290–91 Engrenages, 323–33 Erin Brockovich, 305–20 European Court of Justice, popular culture and, 219–28 Decision making, 222–25 Essential role in Europe, 219–21 Fundamental rights, 225–27 Image of, 220–22 Origins of, 221–23 Fairly Legal, 43–53 Focus groups, 158–59 France, 323–33 Anti–legalism, tradition of, 323–334 Lawyers, depictions of, 322–33 Frank, Jerome, 370 Frankfort School, 36 Galsworthy, John, 235 Gaming, online, 79–91 Cybercrime, 81–83 Dangers, 80–82 Gender issues, 79–91 License agreements, 84 Massively multiplayer games, 79 Regulation, 88–90 Second Life, 80, 82, 84 Twitter abuse, 86 Virtual worlds, 79 World of Warcraft, 80 Genre, 12 Legal television and film, 11–14 Westerns, 253–65 Germany, 379 Gramsci, Antonio, 275–76 Grisham, John, 57–74 Guess Who’s Coming to Dinner, 279–80

Index Harr, Jonathan, 305–20 Harry Potter as teaching device, 337–46 Hays Code, 28 Herbert, A.P., 236–37 Hip-hop music, 292 Impact of pop culture, 37 Inquisitorial system of law, 289 Intolerable Cruelty, 32–33 Italy, criminal justice system, 141– 49 Judd for the Defense, 30 Judges Media criticism of, 203–07 Dutch reality show, 177–90 European Court of Justice, image of, 221–28 Italian, role of, 145 United Kingdom, media and, 195–210 Jurisprudence, and popular culture, 284–95 Justice Clockwork Orange, A, in, 361– 62 De Rijdende Rechter, 185–90 Hiphop music, 292 Popular conceptions of, 160–63 Retribution, public desire for, 153–67 Retribution in True Grit, 253– 65 Substantive and procedural, 163–66 Kadare, Ismael, 292 Knox, Amanda, case, 146–48, 291 Kubrick, Stanley, 357–65 L.A. Law, 15, 30–31, 373 Becker, Arnie, 16, 30–31 Divorce, and, 30 Langdell, Christopher Columbus, 371 Law, definition of, 287–88 Law and popular culture. See Teaching popular culture

Law and Popular Culture: International Perspectives Law and Order, 16, 374 The Wire, compared, 122 Lawyers in pop culture Big firm lawyers, 57–74 Divorce lawyers, 27–38 French lawyers, 323–33 Lee, Spike, 279 Legal realism, 370 Legal story conventions, 12 Series or serials, 14 LGBT, characters in movies, 276, 280 Liar, Liar, 27 Literature, law and, 286–97, 370 Litigation finance, 308–11 Llewellyn, Karl, 370 MacNeil, William, 291 Maine, Henry Sumner, 259 Malcolm X, 279 Manhattan, 29 Mass torts in movies, 305–20 Massey, Miles, 32 Mediation, 43–53 Deception, 47–51 Neutrality, 47, 50 Portrayed on TV, 45 Process, 44 Voluntary, 50 Media Judiciary and media, U.K., 195– 210 News, use in teaching, 374–75 Reporting of crime, 156–58, 200–02 Merchant of Venice, The, 276, 370 Mexico, 380 Million Dollar Baby, 274–75 Minorities, treatment in film, 269– 82 Moore, Michael, 271–73 Morality and lawyering, 311–18 Mortimer, John, 236–37 Movies Anatomy of a Murder, 387 Billy Budd, 370 Birth of a Nation, 276

411

Blood Diamond, 271, 273–74 Bowling for Columbine, 271 Civil Action, A, 305–20 Clockwork Orange, A, 357–65 Coming to America, 274–75 Counsellor at Law, 388 Erin Brockovich, 305–20 Guess Who’s Coming to Dinner, 279–80 Harry Potter films, 337–46 Intolerable Cruelty, 32–33 Liar, Liar, 27 Malcolm X, 279 Manhattan, 29 Million Dollar Baby, 274–75 Pianist, The, 277 Red River, 261 Schindler’s List, 278 To Kill a Mockingbird, 387 Too Far to Go, 29 True Grit, 253–65 Verdict, The, 387 War of the Roses, 31 Music, in A Clockwork Orange, 362–64 Narrative in pop culture, 11–24 Ally McBeal, narration, 17–24 De Rijdende Rechter, 179–81 Elements of narrative. 11 Legal story conventions, 12–14 Subjective narration, 12, 18 Narration, vs. 11 The Wire, narrative, 121–39 Netherlands, reality television, 177– 90 News, see Media No Child Left Behind, 338 Nomos, 155 Novels, legal, 57–74, 233–44 Owen Marshall, 30 Parker, Robert B., 101–111 Perry Mason, 14, 30, 324, 373 Petrocelli, 30 The Pianist, 277 Polanski, Roman, 277

412 Popular culture, definition of, 289– 90 Portis, Charles, 253–65 Potter, Harry, as teaching device, 337–46 Practice, The, 373 Pro deo, 293 Production Code and divorce, 28–29 Prosecutors French, representations of, 325, 328–29 Italian, role of, 145 Public relations, U.K. judiciary, 195–210 Quinet, Edgar, 326–27 Realism in pop culture, 41, 329–31 Red River, 261 Reed, Kate, 45 Reede, Fletcher, 32 Retribution, see Justice Rowling, J. K., 337–46 Schindler’s List, 278 Solmssen, Arthur, 57–75 Spencer novels, 101–11 Hard-boiled detectives, 101–11 Honor, 104–05 Rules, aversion to, 108–10 Values, definition of, 103–09 Vigilanteeism, 108–10 Spielberg, Steven, 278 Storytelling, 11 Elements of story, 11 Naturalism, 12 Verisimilitude, 12–13, 21–22 Summons, The, 73–74 Tarantino, Quentin, 277, 367 Teaching popular culture, 337–46, 369–81, 383–99 Assignments, 369–81 Civics and Harry Potter 337–46 Creative writing, 387–88 Freshman seminar, 369–81 Law and popular culture, importance, 369–81

Index Mock juries as teaching tool, 341–46 Mock trials, 388–89 Service learning, 341–46 Television, use in teaching, 371–74 Transnational media, 379–81 Writing course and popular culture, 369–81 Television Ally McBeal, 11–23 Breaking Bad, 121 De Rijdende Rechter, 177–90 Deadwood, 121 Defenders, The, 14, 30 Engrenages, 323–33 Fairly Legal, 43–53 Judd for the Defense, 30 Judge Judy, 373 L.A. Law, 15, 30–31, 373 Law and Order, 16, 374 Mad Men, 121 Narrative conventions, 13–17 Owen Marshall, 30 Perry Mason, 14, 30, 324, 373 Petrocelli, 30 Practice, The, 373 Reality shows, Netherlands, 177–90, 293 Sopranos, The, 121 Wire, The, 121–39, 373 To Kill a Mockingbird, 387 Tocqueville, Alexis de, 263–64, 376 Torts in movies, 305–20 Transplants, legal, 141–49 Adversarial model, 144 Italy, criminal procedure 143– 49 Cultural transplants, 141–49 Judge, role of, 145 Legal television drama and transplants, 141–49 Tricksters, lawyers as, 51 True Grit, 253–65

Law and Popular Culture: International Perspectives United Kingdom Courtroom comedy novels, 233–44 Constitutional Reform Act, 198–200 Media and judiciary, 195–210 Supreme Court, 199–201 Verdict, The, 387 Visser, Judge Frank, 177–90 War of the Roses, 31 West, Robin, 290 Westerns, 253–65 Wire, The, 129–39

413

Baltimore, in The Wire, 123–30, 136–38 Criminal justice, critique of, 121–39 Hamsterdam, 134–35 Law and Order, compared, 122 Law, failure of 121–39 Lawyers, 127–28 Police, critique of, 121–39 Political background, 121–39 Women, in westerns, 257–62 Work-life balance, lawyers, 318–19