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Syracuse Law Review
53 Syracuse L. Rev. 1165
Fall 2003
REPRESENTING LAWYERS: FROM COURTROOMS TO BOARDROOMS AND TV STUDIOS
John Brigham*
*John Brigham is a Professor of Political Science, University of Massachusetts, Amherst. The
position in this paper is an extension of work began with Christine B. Harrington of New York
University and I am grateful for her many contributions. Thanks also to Peter Brigham for his
help exploring images of the law.
SUMMARY:
... We argued that realism had become the dominant paradigm in law and that Americans have
trouble seeing this dominance because realism presents itself as continually insurgent. ... They are
treated here with regard to some general dimensions of the visual in law, specific features of a
shift away from the courtroom and the prominence of television commentary as the current face
of the law. ... Against this manifestation of realism in law, the courtroom plays the role of a
formal setting that allows contemporary authority to be embedded in the enthusiasms of realist
jurisprudence where everyone thinks they are part of the action. ... An aspect of this expansive
Legal Realism may derive from the expansion of the soap opera form into prime time
television. ... Legal expertise on television relies on realist jurisprudence to become part of the
authority of law. ... Though the attention was just a little silly, it was a nod to popular reality in its
silliness and perhaps indicates one of the boundaries of realism on television. ... These inverted
cultural forms become a metaphor for technological devotion that goes unrequited and it may be
here that we are able to see the underside of the commodity form. ...[*1165]
Introduction
This paper builds on two lines of research. One stems from an article I wrote with Christine
Harrington fifteen years ago. We argued that realism had become the dominant paradigm in law
and that Americans have trouble seeing this dominance because realism presents itself as
continually insurgent. Another line of research is on the architectures of law and the
representation of legal activity in shows like "LA Law" where there has been a shift from the
courtroom to the boardroom. In this paper, images of law and lawyers are a basis for interpreting
the current cultural construction of legal authority in a realist vein.
Panel Topic: In this session we seek to explore the cultural [*1166] construction of the American
lawyer as an instrument and facilitator of market power. In doing so, we hope to examine a
variety of images. Images might include representations of the "Wall Street Lawyer', the
"Philadelphia Lawyer', the "L.A. Suit', and the "transnational carpetbagger', among others.
Ultimately, participants in the session seek a better understanding of the role of lawyers as
counselors at law, and as conveyors of corporate and commercial values throughout the global
village.
I. The Cult of Reality
Fifteen years ago, Prof. Christine B. Harrington of New York University and I proposed that
Legal Realism n1 had become the dominant explanation for legal authority in the United States.
We described the authority of realist jurisprudence as resting on its claim to be a new discovery,
writing that:
At least since the 1930s, the view that judges and legal scholars are na<um i>ve and trapped in a
formal orientation to rules has grown progressively more influential until it may now be
described as the framework of the legal establishment. n2
We argued that one of the paradoxes of realist jurisprudence was that legal authority was
continually being re-invented against a backdrop of formalism and that its reinvention has been a
key to its authority. n3 We proposed that Americans always tend to be looking back at the purple
curtain, the robes, and the rococo courtrooms as unreal law against which a re-invented realism
absorbs the practices of legal power. n4 The Legal Realist finding was exemplified in the "gap"
study with its focus on the predictable discovery of a disjunction between law on the books and
law in action. n5 The discovery of the gap inevitably leads to hearty congratulations all around
for our perceived sophistication while we have not actually been [*1167] finding anything new
after all these years.
Today, authority in law is mobilized by a cult of knowing skepticism rather than na<um i>ve
formalism. The "cult of the robe" is part of this skepticism in that we now have the sophistication
of knowing "the robe" as something that we are no longer fooled by. Perhaps we can think of this
jurisprudence as a "cult of reality." Americans are mobilized to care about law, to defend it, and
to believe in it by the "facts" and revelations of realist jurisprudence. They can identify with
lawyers and judges as flawed human beings because others are said to have thought differently.
Not surprisingly, academic industries advance the cultural studies of law under this framework.
n6 Cultural studies call attention to the ordinary life of the law. We see law "and society," n7 "in
society", and "all over." n8 Legal Realism, as an authority for law, allows "reality," in all its
insistent and multifaceted dimensions, to be incorporated in the life of the law. What might seem
to be disruptive - the disillusionment, disappointment, and skepticism of all sorts - becomes part
of the law, a manifestation of contemporary realist jurisprudence. Not only do these orientations
not disrupt the institutions, they leave them intact and may actually strengthen them. They are
evident in TV shows like LA Law n9 and entire networks like Court TV. n10 The representation
of lawyers here and in the cultural studies debates are the subjects of this paper.
A. Before the Law
For years, students of law have traded on versions of Legal Realism and associated rhetoric. At
the University of Massachusetts, Amherst, the Legal Studies Department produces the successful
text Before the Law, which was first published almost thirty years ago and is in its sixth edition.
n11 They take their title from the Czech novelist and lawyer Franz Kafka. His critique of law is an
alienated Legal Realism that was [*1168] important to the New Left and the culture wars that
swirled around Critical Legal Studies beginning in the early 1970s. They begin the presentation of
materials with an excerpt from The Trial, Kafka's 1937 novel,
Before the law stands a doorkeeper on guard. To this doorkeeper there comes a man from the
country who begs for admittance to the Law. But the doorkeeper says that he cannot admit the
man at the moment. n12
Kafka's vision of an alien authority in "Before the Law" is not a particularly apt representation of
law. n13 The passage in which Joseph K. waits endlessly before a door which he thinks will
provide access to the law only to be told that it is not for him, seems foreign. n14 It has, however,
been popular for critical intellectuals. n15 One reason Kafka's vision is not particularly accurate is
that court proceedings in America have generally been public. n16 They are often hard to
understand, and the public interest may fade as it did during the complex debates over
suppression of evidence in the preliminary hearing on the O.J. Simpson case in the summer of
1994, but, Americans have rights of confrontation and expectations of public proceedings that
make The Trial seem foreign. Yet, the alienation critique is part of the Legal Realist structure and
it maintains the focus on the special status of the lawyer as one who is at least capable of acting as
a critical intellectual.
While Kafkaesque scenes of forlorn defendants or petitioners standing before the law are
characteristic of some aspects of the TV courtroom, for the most part it is not only the fact of
being in the presence of a judge that distinguishes the American experience, but widespread
familiarity with what should and often does happen in court. In courts, hallways and lawyers
offices are where the business of law is done. It is a heightened sense of the web of law that gives
brushes with the police an ominous quality even for those who are not in jeopardy. It is certainly
a heightened sense of the exalted nature of institutions like the United States Supreme Court that
give the Court its authority. The televised reality is even an international product that makes
aspects of American law familiar around the world. None of these realities is comparable to
Joseph K.'s odyssey in [*1169] the forbidding architectural landscape of The Trial. n17 The judge
presiding sets the American TV courtroom apart from alienated image produced by the great
Czech writer.
American law, widely disseminated in American popular culture, stands apart from that of the
influential visionary for a generation of critics. The authority of law is not John Marshall and it is
not Kafka either. n18 In the United States of America, the authority of law is far more Stephen
Speilberg (or David Kelley or Michelle Pfeiffer n19) or Court TV than either Marshall or Kafka.
The authority of law is in our knowledge of it, the ideological frameworks within which we work
and the sense that we know what to expect from law, at least some of the time. Lawrence
Friedman makes much of this familiarity. n20 He emphasizes the contemporary sense that we
know celebrities personally. n21 His criticism of this false familiarity is typical of the gap
approach of contemporary Legal Realism. n22 At its heart, the identification Americans feel with
those in authority, whether they are high court judges or local clerks, helps to solidify the
authority of law.
B. Realism as Practice
Realism, seemingly without agency, has enabled public knowledge of law to expand from the
courtroom to the boardroom and into the TV studio. While not the sole basis for authority in law,
realist jurisprudence is the framework against which all others must contend. This paper
reinterprets this form of authority much as realist jurisprudence did in establishing the
hegemony of its ideology against a foundation of legal formalism. The cultural penetration of law
is fostered by a sense of discovery and an appealing familiarity. The traditional forms by which
law expresses itself, the Marble Temple, the exclusivity of the bar, and the violence of the police
and the prison, are common knowledge. In art, architecture, entertainment and news, modern
legal authority based on Realism holds sway over the American population and stands a model
to the world. Like the market process to which it is historically and metonymically
linked, [*1170] legal authority depends on the authority of process instead of a belief in justice,
bureaucratic inevitability backed by force rather than faith in the system and conventional
practices rather than exotic legal forms. n23 The reach of realism depends on its grounding in
conventional practice and the sources of authority by which we know them. n24
The legal profession in the story of law's authority is like the Eiffel Tower in the story Roland
Barthes tells of Guy de Maupassant who was a great foe of the Tower. n25 It was said that de
Maupassant dined contentedly in the Tower restaurant although he did not care for the food. n26
The restaurant was, according to Barthes, the only place de Maupassant did not have to look at
the Tower. n27 In many respects the Tower is like the legal profession in law and legal scholars
have been much like de Maupassant. Although the legal profession dominates the landscape of
law in America, it can be avoided by those on the inside. In the legal academy, the power of the
profession and even of law more generally is often denied in the name of Realism. Realism is at
the heart of the denial. Much as lunch in the Tower provided critics with an opportunity to turn
away from the monstrous presence looming over the city, being realistic in the legal academy and
in professional practice, quite paradoxically, allows the legal professional to draw his insight
from the mythology of the ideal. As he points back to the formal and mechanical, the stuffy and
the archaic in law, he draws attention to actual behavior and away from social structures and
institutional power.
I don't mean to suggest that legal history is not replete with stories about the professional projects
of lawyers. n28 The late Nineteenth Century lawyer has been the focus of attention for Robert
Gordon who has established the role of the elite bar in New York City as "architects of
ideas [*1171] and institutions," n29 creators of law schools, the American Law Institute
"restatements" and the uniform codes. The work has been of great interest to the legal community.
Gordon gave the Holmes Lectures at Harvard Law School and his papers on the subject in the
mid 1980s draw attention to the efforts of lawyers 100 years ago to establish a high ground for
their practice. n30 According to this version of the republican thesis, these lawyers would use
their new position to help the corporations extract themselves from the strictures of "classical
legal science." n31 The result was that corporate lawyers emerged at the vanguard of the
progressive legal reform movements of the early 20th Century. Other historical workplaces the
lawyer in social perspective n32 but in ordinary practice the attention we pay to lawyers is now
generally subsumed in a realist framework.
Legal scholars develop the nature and significance of Realism as they continue to discover it.
Thus, long after the influence of similar movements toward "Realism" in America such as those in
art and philosophy, have declined, contemporary academic lawyers call up the bad old
formalism that is the hallmark of the Realist insight. n33 Thus, as I have argued, the scene for a
modern academic battle is set by Phillip E. Areeda, a professor at Harvard Law School, with the
observation that "twenty years ago our mission was to teach law in the grand manner." n34 In a
New York Times Magazine article on the struggles between Left and Right in the legal academy,
Areeda is posed behind a stack of ancient law books and his comments about method and the
"grand manner" are brought to bear through allusions to Socrates, the settled nature of law and
well worn cultural artifacts of formal legal authority most recently popularized in The Paper
Chase. n35 The discussion here emphasizes the practical dimensions [*1172] of realism that help
to maintain its authority.
Although legal histories written by lawyers are not above suspicion that they might tend, like
corporate histories, to avoid offense, they inevitably show the importance of Realism to legal
formations grounded in the academy. From such tales we learn the names and dates, the
geography and the ethnography of the professional movements in law. We also learn to place the
present against a backdrop of a certain kind of idealized past. n36 Legal Realism's perennial
discovery of a formalist past serves as a core insight that has tended to absolve us of hard
jurisprudential work. For instance, when socio-legal scholars pursue the gaps in the law by
venturing into society, what they "find" is reality, not law. These scholars assert the alternative
"reality" that is at the core of realist epistemology in order to seem to have made a contribution.
n37 In this recurring process of discovery, we often miss the constitutive character of realism for
law. The result is not only a lack of attention to doctrine but also a failure to assess some of the
practices of lawyering and judging. These include the role of the clerk in formulating appellate
opinion, interpretive traditions like original intent and the ideas of activism and restraint. Most
importantly, the combination of the two, of the ideal and the real that makes legal practice
distinctive, becomes very difficult to conceptualize.
II. Representations of Realism
In The Cult of the Court, I traced the evolution of the Supreme Court through its practices,
particularly the ones that gave the Court the power to authoritatively interpret the Constitution.
n38 That book addressed the symbolism of the Supreme Court building from outside and in. n39
The U.S. Supreme Court, whose chamber remains a video resistant space, is an elemental icon for
American law. From the purple curtain behind the bench to the constant flow of traffic in (and
almost immediately out) the back door, what we experience of the Court contributes to its
considerable authority. Other courtrooms come into widespread public consciousness when they
are featured in the news (which seldom includes pictures unless there is a video presence), part
of television or movie drama (which is [*1173] common), or in literature (which probably only
matters much if it makes it to film or video). And, other parts of law, beyond courtrooms have,
through TV, become more "real" in the sense of more human and accessible. n40 The inquiry that
began, for me, with The Cult of the Court has been expanded here to consider realism in the
cultural representation of lawyers in the mass media. n41
Court architecture is a model for understanding the mix of imagination, interests and institutions
that come to play as law takes its place in American culture. n42 Any piece of architecture draws
various aspects of the community, the funders, the builders, and the neighbors into its web. Legal
architecture has at least as many masters as the average building. It has the social interests and
capacities of those who identify a need, those that propose and fund buildings. It has the
aesthetic interests behind it of architecture and of engineering which give form to the interests
and capacities we imagine being primary sources for the built world. And legal architecture has
the special needs of the legal community, particularly the judges, for whom the security of the
building is as important a consideration in many cases as aesthetics. Buildings constitute law in a
multifaceted way that reflects the link between law and society generally. In the discussion that
follows a constitutive form of analysis is extended to law on TV.
Movies and television in courts, about courts, and about lawyers have become critical for the
authority of law. The places of adjudication are now widely experienced visually and vicariously.
Movies and television are an alternative to the traditional semiotics of marble and concrete. They
have also become a basis by which we know about the law and on which law is increasingly
constituted. Court TV employs a symbolic representation of the Supreme Court as its logo as do
many of the networks when they cover legal stories. And while the elevated bench of the judge
continues to instill awe and the box for the jury is a special place for performing a civic duty,
today the lawyers news conference, the celebrity legal commentators, video images of testimony
(and video testimony), and the orchestration from the anchor desk are the forms through which
law is transmitted to most of us. Through these forms, not the halls and walls of [*1174] justice,
black and white Americans formed their divergent opinions of the O.J. Simpson case. Given this
shift, the fictionalized, dramatized and celebritized presentations of justice take on special
significance. They are treated here with regard to some general dimensions of the visual in law,
specific features of a shift away from the courtroom and the prominence of television
commentary as the current face of the law.
A. Video and the Courtroom
We have known for some time that developments in news broadcasting and in entertainment
have produced greater familiarity with legal processes. n43 In the optimistic view of one
informed observer, David A. Harris, Court TV "... allows the public to observe the entire judicial
process." n44 This is essentially a realist claim. According to Harris, "no television producer
selects a thirty-second slice of the day's proceedings, based on the potential to entertain or boost
ratings." n45 The claim is that this sort of access amounts to "attending" the whole trial as
opposed to having it summarized in a newspaper or evening news story. n46 Yet, at the same
time the reaction is often surprise or concern about the increasing familiarity and the retreat is
back again to the claims of formalism. Harris points out, most court time is not trial time and the
image of courts that is publicly conceptualized through the video screen is largely of courts at
trial. n47 We are told that the account provided by TV may do a disservice to popular
understandings of justice. One commentator, after noting that, "more than anything else, it's the
cathode-ray tube - not the prosecutor, not the defense attorney, certainly not the evidence - that
gives a Baltimore juror his mindset," adds, "television ensures that jurors are empanelled with
ridiculous expectations." n48 This is realism and it permeates cultural studies of law. In Richard
Sherwin's When Law Goes Pop the overriding theme is the danger to law of the pervasive
television pictures of reality. n49
[*1175] Here America maintains her "cult of the court" by real attention to unreal forms. The
very existence of Court TV, like the existence of MTV and Comedy Central, changes the way we
see the social forms which they represent: comedy, music and law. We need to understand the
significance of TV as part of the authority of law rather than its opposite. The reach of the known
and the unknown is expanded in comedy, images are indelibly linked to music and law becomes
more than simply process. Joining with the promises of efficiency that are so often linked to video
monitors, the new architecture of courts appears to be the television set (and peripherally a
movie screen).
The TV courtroom represents the penetration of law in the culture as something situated in the
interior relations of our mental and emotional lives. Rather than standing "bone white... ." on a
hill behind the Capitol as the Supreme Court does, the courtrooms of TV are places we enter from
the holding cell or approach as from the litigants' bench or view from the jury box. All angles
reflect the constituted points of view law defines for us. While the Supreme Court or an average
local court is seen from cultural spaces not generally defined in law, streets, parks, or parking lots,
the spaces of TV courtrooms are constituted inside law. In Imagining Crime, Alison Young draws
our attention to what she calls "the trauma of the visible" in discussing the case of 2-year-old
James Bulger, who was killed by boys only a little older than he was near Liverpool in 1993. n50
In this case, the boys were caught on video as they left a mall. n51 Because the trial was not
televised, the video image was of an aspect of the crime, rather than the response of law. A video
of the beating of Rodney King bore a similar relation to the trial that would follow and situated
both monitor (and camera) as the central feature of the case. With it's decentering of the
courtroom, LA Law is part of the shift from such structures to the authority of the video.
The internal expression of law in the courtroom is necessarily on a more human scale than is the
case when dealing with the external architecture of law. This reflects the popular understanding
of television as a "hot" rather than a "cold" medium, like radio. Rather than massive bronze doors,
larger than life statuary and the inspirational scale of Olympian (or Victorian) motifs, the inside
of the courtroom has always been limited in the forms of jurisprudential expression. Inside, we
have the elevated bench, the positioning of opposing counsel side by side with the prosecution
nearest the jury who are set apart from the rest and close to one [*1176] another, and the gallery
is present and separate. In LA Law, the center aisle, the judge's bench, and the witness stand
become the focal points. This is a lawyer's show, not a judge show and the lawyers interact with
each other at the crucial juncture, where the center aisle crosses the bar of the counsel tables.
Witnesses and defendants are necessary for the interaction between the lawyers that goes on
before, during and after the trial. Like Perry Mason, LA Law featured important players in the
prosecuting role. While initially outside the firm, they would occasionally be recruited into the
private sector. On both shows the private seemed bigger and in LA Law it certainly looked more
lucrative than the public.
TV courtrooms reflect time and place while also existing in a cultural space out of time. The
Supreme Court's chamber, though built during the Depression, is reflective of a Victorian
grandeur that was more stylish at least fifty years prior to when it was built. Architecturally, and
now with enduring significance, the Victorian is a familiar expression of law. Like the quill pen
and the flower script in which the Declaration of Independence was drafted, the Victorian
courtroom has a special traditional place. But the contemporary courtrooms to which we have
had so much video access of late are not the Victorian courtrooms of law's traditional shrines.
Not surprisingly, they are the more austere, functional courtrooms of our newer cities.
In a twist on the old "double institutionalization" n52 thesis, the courtrooms of the modern cities
are getting a special place in the cultural iconography because, at least in part, they have
provided access to the video camera. The shyness displayed by denizens of our Victorian
courtrooms, particularly the Supreme Court, when it comes to video access has been
compensated for, and indeed may have been superceded by the access provided in places like
Florida and California to television. But the access of the TV camera to "real" courts blends with
the representations of courts on TV. The courtroom of LA Law is inevitably a Los Angeles
courtroom. That is, it is in the style of the public spaces of modern American buildings,
particularly the Sunbelt variety. The courtroom is without ornamentation, it is small, and it is
efficient. It is not the LA of Malibu or Baywatch with their sense of the Promised Land of sun,
surf and beautiful bodies. Nor is this the LA of swimming pools and opulent vehicles. The
courtroom reflects the modern public space, a pared down realm where the public has had much
less attention than the private, and the social far less cache' than the personal. Rather than the
Victorian [*1177] architecture of public buildings, which, even in California, reflected the
grandeur of collective aspirations, the court buildings of LA represent the sense that the courts
deal with others, and for the most part, there is nothing particularly grand about their business or
how it is handled.
Formalism taught that authority in law was a construct in marble, but the Supreme Court was
built as realism began to flourish. Now images of marble are brought to us by the tube. Rather
than simply treating the court in a TV show as a set to be put up and taken down at will, the
structure of the courtroom on television is one of the enduring symbols of justice in America. n53
Increasingly, these are the symbols being exported to cultures that consume American video
products. n54 Thus, the courtroom in the show represents culture as much as the law. The
courtrooms in LA Law serve for both criminal and civil cases. In this it is like the firm itself.
Indeed, it is like "the law" in this regard. Since the firm was primarily a civil law operation
defending criminal cases was generally connected to the client base. This might involve an errant
child of a wealthy corporate executive or a divorce client who takes retribution too literally. Here
the reality of the show does run against tradition. Where the great television and most of the
movie dramas have been crime dramas, LA Law shifted our attention to laws that we are used to
seeing in the headlines, or that we learn about in the liberal arts curriculum in college. This is the
law of divorce, personnel, and corporate power. It is also the law of The People's Court, n55 the
Clarence Thomas and Robert Bork Confirmation Hearings n56, and more recently, Jones v.
Clinton. n57 This is the law of Ann Kelsey's feminism and Arnie Becker's divorces, as well as
Douglas Brackman's bottom line and Leland McKenzie's corporate stewardship. n58 It is not
much more representative of the full range of law or of social life but it may indeed be [*1178] an
indication of the constitutive power of television that the presentation of this slice of life in law
caused us to see law differently, culturally. Indeed, it is easy to see why it made law more
interesting than a visit to Uncle Joe or Aunt Mary's law office.
On television over the last decade and a half, LA courtroom interiors are efficient and reasonably
clean while the courtrooms in the East (New York, Boston and Philadelphia) are places of grit
and grunge, which replay the Legal Realist perspective. Before and after LA Law, Stephen
Bochco hung out in the graffiti-covered precincts of New York. David Kelley, a Boston lawyer,
who went to Hollywood to write for LA Law previewed The Practice, described by U.S. News
and World Report, on March 3, 1997, as "a grunge update of L.A. Law." n59 The show features
the traditional struggle of the underdog against the forces of power and influence and relies on
the storybook rewards of lives saved and trusts kept over the financial rewards more central to
McKenzie, Brackman, Chaney, & Kuzak. n60 In The Practice, another, more intense Legal
Realism updated the package through which Hollywood presents law.
On the episode of LA Law titled Watts a matter? that aired in 1990, the place of the courtroom in
society is a matter for unusual comment. n61 The episode opens with a judge looking at his
courtroom after it has been trashed by a Watts-type riot. n62 The judge observes, "The American
courtroom is a reflection of American society and society is a reflection of it." n63 Of course, it is
not. Anyone who has visited an American courtroom can see that it hardly represents America
with its overrepresentation of people of color and relative absence of people of means. The
formalism of this comment is the obligatory, slightly out of tune reference that lets us in on the
reality. Of course, most cases do not go to court and those that do are necessarily atypical. Still,
the courtroom does represent a public perception of law and on LA Law at least a few attorneys
return to court, usually at the end of the show, for something akin to a legal reality check.
B. Boardrooms, Restaurants, etc.
It may be that, unlike disrobing, the realist presentation of lawyers is a [*1179] matter of where
we see them, a shift in locale. The result is an expanded consciousness of the reach of law even as
the movement is away from traditional symbols of legality. Some of the popular television
manifestations of lawyers are its informality, the turn to interests rather than right or wrong, and
technical solutions to problems. This section and the next examine the shift in locale that we
began to see by analyzing the law on TV. From the judicial pose sans robe to the boardroom in
LA Law and the studio on Court TV, the law appears to have shed its vestigial formal symbols.
n64
For one thing, rooms other than courtrooms have been important to the representation of the
legal process: the precinct house, the prison cell, the judges' chamber, and the lawyer's office. In
one of America's most compelling legal dramas, Sidney Lumet's 1957 movie 12 Angry Men (the
source of the story was a television play), the jury room is the focus of the action. n65 In police
dramas of course it is often the station house or, in the case of NYPD Blue, the "interview" room.
n66 In a series like LA Law and Murder One, the lawyer's office or the firm's suite of offices
becomes the center of attention. n67 One sign of the influence of LA Law n68 was the rise in law
school applications during its run from 1986-1992 and the apparent subsequent drop in interest in
a legal career as measured by law school applications filed after the show ended. The popularity
of the show during its run and the sophistication of its writers are apt vehicles for understanding
various tensions between parts of a culture, like the legal profession, and the broader significance
of law. Commentary on the show provides some of the earliest examples for taking TV seriously
as law.
A cleverly titled Yale Law Review article by Stephen Gillers, "Taking L.A. Law More Seriously,"
n69 plays off the jurisprudential conceits of Ronald Dworkin in Taking Rights Seriously. n70 In it,
the author argued that the show was important because it operated like a good law school class.
Each episode makes legal ideas the central focus and the treatment [*1180] generally avoids easy
or pat answers. While acknowledging that the show is as much Hollywood as law with its
headline stealing cases and lack of legal drudgery, and noting that significant ethical issues are
sometimes confused, Gillers praises the show and encourages the legal profession not to write it
off. On LA Law, nearly every episode juxtaposed the courtroom, lacking in artifice, spare and
businesslike in character, with the well-appointed law offices and the luncheon venues to which
the attorneys were inevitably drawn. n71 In the second part of the premier episode screened in
September of 1986, the Mexican-American attorney Victor Sifuentes, played by Jimmy Smits, is
sought by McKenzie Brackman as a new attorney. n72 He is taken to an obviously expensive
lunch where much is made of the unfamiliar surroundings and the use of the restaurant's
opulence as an inducement to come to the firm. n73 In another early episode, Arnie Becker goes
to a high-priced establishment for expensive lunch with a beautiful and rich potential client to
instruct her as to the realities of the divorce process. n74 Though he picks up the tab for the meal
it is clear to all but the client that it will be charged to her. n75 To some extent this positioning
links the activity in the court rooms with law's traditional venues and distinguishes them from
the more integrated spaces of the new legal practice where law is done between golf swings, bits
of salad or while getting the car out of valet parking.
Because LA Law was not primarily a courtroom drama, the courtroom scenes are set against law
in a number of other manifestations. n76 Like police and detective shows, but unlike many
lawyer shows of the past, this drama situated most legal work, and hence law, outside the
courtroom. There is the prominence of the boardroom at the beginning of each show that
suggests the presence of civil in addition to criminal law. The courtroom in LA Law is
subordinate to the boardroom. n77 Recurring in the opening of each episode, the long table
around which attorneys gather to discuss business becomes the unifying frame for the show. This
form is more common on LA Law than the courtroom and it serves as a prominent and realistic
expression of the corporate core of modern law. n78 In the boardroom, like the courtroom,
participants have places that relate to status. [*1181] In one show, Ann Kelsey fights with a new
attorney over the senior lawyer's traditional place at the table. Of course, Leland McKenzie, the
head of the firm, is at the head of the table. With its glass walls, the boardroom still looks out to
the firm where the staff can see but not hear and the special place of those allowed to participate
is affirmed. This affirmation is through the transparency of the walls and it works as well as any
leather-covered doors did in the past. The central feature of law is the firm with first the
boardroom and then the individual lawyer's offices - rather than the courtroom - as places where
law operates. This re-centering of law has important effects on the significance of the courtroom.
While the courtroom has changed little in appearance, its significance as a legal icon has
diminished. Against this manifestation of realism in law, the courtroom plays the role of a formal
setting that allows contemporary authority to be embedded in the enthusiasms of realist
jurisprudence where everyone thinks they are part of the action. In Law and Order, court is the
finale. n79 In LA Law, while not the actual center of the action in most episodes, the courtroom
remains a place of distinctly legal drama and of climax. n80 While the show makes bargaining
more prominent than its predecessors, the courtroom brings structure and finality. And, although
more expensive to produce than a conversation, the limited, familiar space of a courtroom is
relatively easy to capture on stage. It is also necessary as a foil in the tradition of realism in law.
In Legal Realism the authority of the courtroom has given way to the authority of the good life. In
shifting from the TV courtroom and the traditional style that held sway from at least Matlock, if
not Perry Mason, to LA Law the move is from the courtroom to the boardroom, from the law to
the market (or at least the market as law). n81 This is a shift from a process-based conception
with its emphasis on formal legal environments to hyperrealism. This shift plays out in the arena
of the arts, influenced by MTV and video styles more than shifts in jurisprudence, yet
jurisprudential shifts are related. Another aspect of this shift is, on the surface less simply
constructed and more a matter of a shift in scene. Of course, shifting the scene from West to East
seems characteristically to mean placing the emphasis on a darker, more ethnically charged arena.
From Hill Street Blues to LA Law, the same creator, Stephen Bochco, changed the context for his
treatment of diversity issues and other aspects of social life. n82 These [*1182] issues appear to
stand out in more analytical ways in the LA Law set than they did in the gritty precinct house of
either Hill Street Blues or NYPD Blue. n83
Video jurisprudence provides ample opportunity to examine the expressions of the Legal Realist
form. Legal Realism on TV does not only come from law shows. Other, usually successful,
television shows are a major influence. In this case the prominence of the richly detailed
Emergency Room in ER has some impact on representations across shows and across professions.
n84 An aspect of this expansive Legal Realism may derive from the expansion of the soap opera
form into prime time television. Although melodramatic, soap operas also feature greater reality
in some respects than did traditional prime time television, especially the pervasive situation
comedy. n85 For instance, in soaps the extreme close-up shows the details of struggle in the faces
of the actors and high drama is a staple of this genre. Brooks points out the significance of legal
narratives, often highlighting both the melodrama and the emotional intimacy of the form. She
mentions rape, domestic violence, incest, pornography and the killing of prostitutes. n86 The
most obvious thing for the analysis of the presentation of the courtroom is the close up. The clash
that gives meaning to the close up in the case of the soaps is human drama with an often stagy
background. As the depiction of the courtroom drama shifts from the traditional distance that is
still characteristic of LA Law n87 to the gritty close ups of Law & Order n88 and The Practice n89,
there is a sense that this hallowed legal space can stand a more complete picture.
[*1183] Like the police drama Cagney and Lacey n90, which ran about the same time, LA Law
n91 infused its texts with social commentary and followed a political agenda. This agenda was
perhaps not as identifiable as Cagney and Lacey's feminism, but it was identifiable nonetheless.
n92 On the surface, the political agenda of LA Law was one of liberal reform. n93 In this
framework, racial tolerance is good and racism is bad. Gender equality is good and the old
inequalities of gender are bad. People that merely want money are supposed to be silly and
shallow, although they may be attractive and appear fortunate. Some of these political stands are
expressed through a realist presentation on the show. They reinforce a dominant conception
holding that reality consists of facing social issues squarely without necessarily resolving them.
Because the form of courtroom drama, in its focus on disputes has always been an ideal vehicle
for such concerns, LA Law offered relatively little that was new in this area. n94 One exception
was the fact that the multiple story lines enabled the limited issues addressed in a courtroom
drama to be surrounded and interrupted with other dramatic stories.
While the popular picture of the United States Supreme Court without its robes that began to be
taken annually in the 1970s is an appropriate symbol of Legal Realism in the judiciary, the lawyer
version is not altogether so well known. We are used to realism in law and we have
conceptualized it more fully for judges and courts than for lawyers. Two nearly contemporary
movies about toxic torts, A Civil Action n95 and Erin Brocovich n96 depend on the realist
juxtaposition between courts and even firm lawyers and the reality of law. One does not use
courts except by oblique reference. The other uses them as the foil against which the action
develops. In the first film, John Travolta plays Jan Schlichtman, a relatively young and
flamboyant litigator willing to take on the polluted water supply of the town of Woburn,
Massachusetts. In the second, Julia Roberts plays Erin Brocovich, a gutsy, sexy mother of three
who takes on the Pacific Gas and Electric Company over pollution of the water around their plant
in the Mojave Desert of Southern California.
In both cases the cost of the litigation for the plaintiff's lawyers is a major theme. It is an aspect of
Legal Realism, I think, that in A Civil [*1184] Action n97 although they receive a modest
settlement, the lawyers go bankrupt. It is only through the intervention of the federal
government that the plaintiffs get the justice they have been asking for. In Erin Brocovich, n98 the
lawyer in control of the firm makes management decisions including going in with a bigger firm,
and these ultimately win a substantial settlement and there are massive bonus checks all around.
The non-lawyer is more successful because, among other things, she has a lawyer watching the
bottom line and because her little firm knows its place. In addition, she is passionate without
having to worry about professional propriety and she has a touch with the common people
because she is one. It is the ultimate Realist fantasy and it verges of being anti law except that in
the end all the process of law from deposition to settlement are left in tact and the resolution is
presented as a triumph of gumption in a legal setting.
C. The Face of Law on TV
Legal practice is increasingly presented as an expression of real life that can be fully
comprehended rather than as a mystery understandable only to a select few. This process was
popularized by Raymond Williams (1974) as "flow." n99 Part of the flow is the expert
commentary that accompanies television reporting about law and courts. Commentary has
become a new source of authority for law made possible by realist jurisprudence. The discussion
of this development uses Court TV, nightly network news and some of the more famous radio
and print commentators to develop the thesis that expert commentary faithfully follows and
generally supports the realist framework. n100 This framework is evident in the work of Linda
Greenhouse in The New York Times, Nina Totenberg at PBS, Jeffery Toobin's in The New Yorker,
Catherine Crier at Court TV and Greta Van Susteren's with CNN. It has also been true for
Anthony Lewis, writing for The New York Times and in his book Gideon's Trumpet n101 where
he cultivates the image of our rights and liberties depending on the largesse of the courts. But
commentators like Lewis and Van Susteren moved from law coverage and a career identified
primarily with legal issues to more general reporting. That takes them out of the
particular [*1185] focus of this analysis.
Here, my concern is not with how representative the commentary is, although that is often an
issue in a realist frame. It is rather how realism as a foundation for the expert authority of the TV
studio contributes to the authority of law. Legal expertise on television relies on realist
jurisprudence to become part of the authority of law. When Court TV's Catherine Crier of its
nightly one hour law news program "Catherine Crier Live" is described it is as a former lawyer
and judge. n102 The stories on her show have a legal hook in that they involve a case or a crime
and the inquiry has tabloid quality with an emphasis on unusual, topical and celebrity driven
stories such as the Winona Ryder shoplifting trial and verdict in the fall of 2002 or a return to the
story of the Jennifer Levin murder in Central Park from 15 years before as Robert Chambers, who
was found guilty of killing her during "rough sex" is being released from prison. Another story,
on the Los Angeles police department eliminating high-speed car chases in favor of helicopter
tracking involved the attorney for a young woman injured in a chase, the police chief and a
helicopter pilot. It was an important law story done with restraint except for the constant footage
of archival material involving chases and vivid crashes.
Steven Brill proposed Court TV in 1991 with the advent of cable television programming and just
before the O.J. Simpson murder trial would demonstrate the appetite of the American people for
law television. n103 This development of law as network is extraordinary in itself, n104 at least in
comparison to even the recent past where, as we are taught, law was the stuff of highly regulated
courtrooms and its essence was to be found in forbidding tomes. It is certainly no more inevitable
than music television. In fact they are linked. Cable provided the opportunity for specialized
programming like "M" and "Court" TV. Court TV took law as a focus with a very different
economic base. n105 Rather than simply shifting a form of entertainment to a new medium as
MTV did, Court TV has developed the entertainment values in the legal process and concurrently
changed the face of law from that of a marble temple to that of a TV studio or anchor.
[*1186] A dimension of realism about lawyers that is particularly obvious on Court TV is the
lawyer as expert commentator. This is the law from the studio. The role of lawyer as
commentator is a dramatic and central aspect of the current authority of law and it is decidedly
realist. The roots of this institution can be traced back to NBC's Fred Friendly who for years
represented the law on network television and then went on to a second career as advocate for
freedom of expression. While serving as an executive for the network, Friendly developed the
ACLU position on "protecting the thought that we hate". At the same time in television's
adolescence, there began to develop experts in the law. While not as good for a career as
reporting on wars, reporting on law had some of the glamour and little of the risk. Edwin
Newman and Fred Graham were among the first in this form of news and Graham went on to
Court TV. n106 At CNN during the O.J. Simpson trial Greta Van Susteren n107 developed the
genre. In the fall of 2002, Court TV listed 14 "anchors and reporters" on its staff. n108 Among the
aspects of Legal Realism featured on TV is the greater representation of women and lawyers of
color. Court TV has eight women and six men on its staff with the men running to the more
senior positions. n109 And also, like the numerous judge and court programs, there is a lot of
policy discussion and disputing on Court TV and perhaps less attention to the more static
elements of the law. n110 This must be part of its appeal.
The television personality as legal expert draws some of its meaning from the medium. Picking
up on the theses of Lawrence Friedman in his book The Horizontal Society, America seems to
have identified with many facets of law and the system now increasingly operates under an
authority of familiarity. n111 It is this familiarity that accounts for the increasing influence of
correspondents like Anthony Lewis, Fred Graham and Greta Van Susteren. Our sense is that we
know the anchor and, to a lesser extent, the reporter. This is part of the authority that is
transferred to their view of law. When Catherine Crier raises her eyebrows about a case in which
a parent put dog feces in a child's backpack to teach the child to clean up after himself, it is not as
a lawyer or former judge but as a confidant, the [*1187] girl next door. n112 This perspective
seems to be less common with the reporting by Linda Greenhouse on the Supreme Court. Nina
Totenberg's reporting for PBS may be somewhere in between in its reliance on this aspect of
familiarity.
One facet of the lawyer as expert or anchor is that the role becomes much more important than
the legal background. And, like the judge, anchors such as Crier and Van Susteren dominate their
space, their studios. Even when the participants are major figures like the Los Angeles Police
Chief or movie stars like Danny Glover, the anchor sets the pace and rules the time slot. The
camera returns to her for the summation. She has control. In this sense, the TV lawyer uses place
as the basis for her authority. Like the news anchors of the first and second television generations,
the authority of the program becomes the authority of the law.
It is in this sense that the fascination with Greta Van Susteren's face-lift is legitimately part of
Legal Realism on television. When Van Susteren was at CNN, her work on the O.J. Simpson trial
was one of the first of the contemporary, cable driven, courtroom commentaries that could
essentially run 24 hours a day and produce news. In this format, Van Susteren was reality about
law on television. She came on with the look of a lawyer, not a TV anchor. She wasn't perfect. Her
face and speech were a little off but she seemed more like an expert than an anchor. She was real
law and she had become important.
Just the year before she moved to the Fox Network, Van Susteren had delivered the class day
lecture at Harvard Law School. n113 She was both fun to engage as a source of law and famous.
Between network assignments she had a face-lift and apparently misjudged the amount of time it
would take to heal. n114 In addition, the public reacted to a change in her appearance from the
quirky, rumpled face of her CNN days to something more akin to the bland perfection of
Catherine Crier. n115 Though the attention was just a little silly, it was a nod to popular reality in
its silliness and perhaps indicates one of the boundaries of realism on television. [*1188]
III. The Paradoxes of Legal Authority n116
The paradox of legal authority is that the authority of law seems quite strong in this age of
skepticism, perhaps as strong as it ever was. Legal Realism displays the alchemy of enabling
authority to be drawn from cynicism. The Supreme Court is an awesome eminence capable of
ending the ambiguity of the 2000 Presidential election at the same time that scholars decry its
boldly partisan decision-making in that contest. Lawyers and legal themes dominate
entertainment the way Western themes did a generation ago. In the work of important writer
directors such as David Kelley (Ally McBeal, n117 The Practice), n118 Stephen Spielberg
(Amistad), n119 and Stephen Soderberg (Traffic), n120 the law is an important setting that the
public appears drawn to. n121 And, Americans and those who identify with American ideology
throughout the world rush to establish new tribunals promise new appointments to the bench as
a measure of political clout. n122
In the sections that follow I look at what comes "after" the vision in "before" the law, the
commodification of law and conclude by delineating how the authority of realism works.
A. After the Law n123
Recent commentary on television problematizes reality at the same time that it has heralded the
significance of the medium for serious students of culture. John Fiske says a TV show is
""realistic' not because it reproduces reality, which it clearly does not, but because it reproduces
the dominant sense of reality." n124 Driven by markets to touch base with more [*1189] than a
few senses of reality, television refines, incorporates, and spins reality according to a subset of
forces in the society. For Fiske, television realism is middle-class focused and with regard to
radical themes, he points out how TV "incorporates" cultural change such as respect for diversity
with regard to race and gender. n125 This incorporation is inevitably a moderating force since it
is incorporation "into" something that is dominant. While the dominant form changes somewhat,
the incorporated form necessarily changes more. LA Law was clearly a vehicle for this sort of
incorporation and the courtroom was just one of the places where it took place. n126
In matters of law, like in other social forms (such as entertainment and education), patterns of
behavior are shared across professional boundaries. Ways of doing things in one area are often
reflected in others. In this sense, some of the law on TV becomes the law in our lives. Indeed like
Martin Shapiro's notion that the public policy of one generation is the political theory of the
generation before, it may be that the video jurisprudence of one season is the legal practice of the
next. n127 Commentary in The New York Times, a few years after the O.J. Simpson verdict,
concluded that post O.J. trials are responding not to laws made in the traditional hierarchical
fashion but to law made by the commentators and reactions to the verdicts from the public. n128
And, U.S. News and World Report in discussing the prospects for a descendant of LA Law, The
Practice, suggests that in the wake of the O.J. verdict, it is daring to ask the audience to identify
with a defense lawyer. Presumably, the magazine was worried about the reactions of its White
audience.
Commenting on the relationship of form in law to form in another area of social life, David
Bordwell, et al, describe the psychotherapeutic films of the 1940s such as Spellbound and Shadow
of a Doubt as vulgarizations of Freudian theory. n129 This is because they copy the traditions of
the crime drama with their interrogations and often-spontaneous revelations on the witness
stand. n130 In LA Law, those revelations have for the most part been replaced by
characterizations in [*1190] which the power of law is less apt to provide the basis for a
therapeutic catharsis. n131 The show tends more often to affirm the struggles over status within a
plastic culture that heralds identity formation as a transcendent social project. Thus, we get
emotional presentations from Ann Kelsey on her value to the firm when she is demanding to
become a partner and clever remarks about not becoming the "Mexican gardener picking up the
snails" when Victor Sifuentes initially resists entreaties from the firm to become an associate. n132
It is easier to see in these examples why the law might appear attractive as an outgrowth of its
Legal Realism rather than in spite of it. Lawyers on television live well and lead interesting lives.
They are generally attractive and engage with other attractive people. Their workplaces are well
appointed and their work is interesting. Most of all, they are paid well for what they do. Even the
images of scarcity, in a contest over a partnership or a client's difficulty in paying, affirm that for
the most part the money is flowing freely. Law is part of the economy. n133 In identification with
the good life, with wealth and power and even with the mix of turmoil and engagement that are
characteristic of the cutting issues of the day, realism in law becomes its authority. n134
B. Commodity Form
As an outgrowth of the intellectual ferment of the 1960s, a number of scholars offered work on
the commodity form. Work by Isaac Balbus is the subject of this section of the paper. n135 In
response to David Trubek's criticism of the book, The Dialectics of Legal Repression, n136
Professor [*1191] Balbus published "Commodity Form and Legal Form: An Essay on the
"Relative Autonomy' of the Law." n137 This work expressed the jurisprudence of critique that
emerged from 1960s radicalism. n138 Balbus called his essay an autocritique of his earlier work
and suggested that rather than respond to Trubek, scholars might read both works by Balbus and
the Trubek piece and figure out what response Balbus was offering. n139 More likely, Balbus did
not want to be bothered returning to the old manuscript or addressing Trubek directly. Here, we
will eventually do both, but initially it is useful to elaborate the Balbus thesis on commodity form
as a way to construct this theoretical position and, perhaps, suggest its relevance today.
To Balbus, the theory of commodity form entails a simultaneous rejection of both an
instrumentalist, or reductionist approach, and a formalist approach, which asserts an absolute,
unqualified, autonomy of the legal order from this society. n140 This scholarly commentary on
law, the scholarship to which Balbus had access or was attentive, that of the largely EnglishFrench speaking world, fell into these positions. n141 The false dichotomy at the core of the
problem arises from the starting point shared by both approaches, i.e., "the assumption that law
must be judged autonomous to the extent that it functions and develops independently of the
will of extralegal social actors." n142 The examination of new representations of lawyers suggests
that although law is autonomous from the will of the actors, it cannot be autonomous from the
system. The link and foundation is the logic of the commodity form. n143 In the market, money
allows products to assume a formal identity and in this sense they can become "...citizens of that
world [of commodities]". n144 In law, trading on information about what goes on becomes
currency, and accumulations become legal capital. A vivid part of this story is "the fetishism of
commodities" n145 in which the link between commodities and their human origins is masked,
and the commodities themselves take on [*1192] animate qualities. n146 In this respect, they
often dominate the people who make them. n147
Balbus proposed that the logic of legal form has the same qualities as the logic of commodity
form. n148 As products take on the abstract form of commodities, so too, do people take on a
subjective equality as citizens. There can be confusion between the forms, and of course,
sometimes the social or legal form masks the commodity form. I am reminded here of a comment
holding that "Hollywood is not a family drawn closer by giving - it is a marketplace disguised as
a family." n149 Formality as an aspect of law appeared in Marx and in the work of Max Weber,
indeed, throughout the 1970s, interest in Weber was driven by the desire to amplify the
ideological and formal aspects of a materialist framework that were left underdeveloped in Marx.
n150
The commodification of law is a good example of the phenomenon and indicates how we have
revised our perceptions of lawyers under the power of marketing to reconceptualize an activity.
This analysis reflects earlier thinking about the commodification of basketball and issues of race
evident in a book by David Halberstam. n151 That book discussed Commissioner David Stern's
success in transforming the National Basketball Association from a sport that was threatened
with the loss of an audience as its percentage of white players decreased, to a successful
entertainment giant with the most highly marketable athletes in the world. n152 The book
involved the capacity to sell the players, as well as the game, through identification with
products. n153 Court TV has some of these qualities although the television personalities have
not in most cases supplanted those who are not primarily television stars. In the related case of
West Wing however, there was discussion after the 2000 election that its President Bartlet was
much more attractive to many liberals than the candidate of the Democratic Party, Al Gore, and
that this popularity had an [*1193] affect on their perception of Gore. n154 In this same fashion,
Gore appeared on Saturday Night Live the night before he announced he would not run for
President in 2004 and The New York Times covered the appearance as a premonition of what
Gore was going to announce. n155 The process is incremental, but these examples point to the
construction of a coherent commodity that has consequences in the marketplace.
The value placed on a commodity is the social focus that masks the interrelationship between
commodity form and legal form. Like the often difficult to perceive connection between
commodity form and individual consumption, the relationship between the commodity form and
the legal form is a social process, albeit a generally overlooked one. In individual circumstances,
the process involves the tension between identity as a consumer and identity as a person. In
many instances, the person reconstructs himself as a consumer in order to function more fully
and effectively in a consumer society. Thus, students demanding attention in a class because they
are paying for their education stand in opposition to traditional characteristics of student life,
such as collegial commitment to the pursuit of knowledge. In the relationship between the
market and the law, the shift to a market based social activity involves a reconstitution of the law.
The success of law shows on TV in the face of the vanishing presence of a formal legal culture
manifests a shift from an activity experienced occasionally and vicariously to one that is driven
by celebrity and marketing. More like actors than students of the law, television law presents an
image interrupted by commercials and driven by the commercial potential of programs as
products themselves. As in basketball, race and gender are introduced as features of the new
product. One of Halberstam's themes is the victory of commodification over racism. n156 But of
course this victory is only partial and the consequences are part of the story of commodities. n157
This is not to try to turn a game [*1194] like professional basketball into "simply" a commodity
but rather to see the extent to which the marketing aspect has, to use a phrase from FILA ads,
"changed the game." To the extent that it has changed, the game reflects this commodity culture
in law.
In an interesting play on our own insecurities, the "cargo cults" of the South Pacific have become
a widely recognized parody of consumption in industrial societies. The parody serves as a
reflection on the ideological governance of our condition. At the hands of Deborah Bird Rose, an
American-trained anthropologist who has lived with and studied Australian aborigines, the cults
become a basis for understanding Australian consciousness. In her remarkable essay "Ned Kelly
Died for Your Sins," she juxtaposes aboriginal culture against commodity culture in western
societies and examines the paradoxical manifestations of the commodity culture in the "cargo
cults" of the Western Pacific. n158 These inverted cultural forms become a metaphor for
technological devotion that goes unrequited and it may be here that we are able to see the
underside of the commodity form. n159
C. The Authority of Realism
In this discussion of the jurisprudence that TV gives us, realism on TV tells us something about
Legal Realism in law and the other way around. As TV law visits the constructions of law in
society, the familiar courtroom of popular TV shows becomes the even more familiar courtroom
of the O.J. Simpson Trial. Certainly at an aesthetic level we were prepared for the meting out of
justice in the O.J. trial by the long run of Grace Van Owen and her colleagues on the first showing
of L.A. Law on TV. n160 And, it is safe to say that the relatively young, female prosecutor of the
TV show influenced how we saw Marcia Clark in her role as O.J. Simpson's prosecutor. And, the
image of the court building has taken the place formerly occupied by the writings on earlier
courts. It is a referent displayed as part of the semiotic presentation in the primary frame, the
electronic monitor.
Perhaps the greater clarity in the television situation allows us to [*1195] understand what has
generally been difficult with regard to Legal Realism. This is the fact of an allegedly critical
position achieving hegemony in a large and complex system where it has maintained its hold for
generations. In its TV form, law is increasingly depicted in harsh close-ups that give us a sense
that we are participants and knowledgeable. Certainly we can appreciate that Americans and
viewers around the world have learned a great deal of both civil and criminal procedure from the
tube. What we get is the incorporation of our aspirations into a dominant framework as part of
law's more general incorporationist propensity.
New developments are taking the place of adjudication in contemporary American society. They
are represented in the shifting images of justice from religion to business. Some of these
developments are not even courts in the traditional sense, but "more efficient" alternative forms
which are supported by the overall enthusiasm for a shift from justice to process. When the new
forms are compared both functionally and semiotically with the place courts held in the society,
the results are sobering. When the promise of the Supreme Court, revered in its religious guise, is
factored in, the paradoxical authority of legal process may be better understood.
In America, justice is being rationalized and bureaucratized at nearly every level of the legal
process, including within its traditional center, the court. While many legal scholars continue to
operate as if reasoned adjudication of cases is the order of the day by focusing their attention on
questions of justice in appellate opinions, the most characteristic developments for the everyday
application of law are the embrace of efficiency and the promulgation of a doctrine of process.
These facets of modern justice, whether they are evident in friendlier courts, like the one in
Manhattan or "alternatives" like "rent-a-judge" or Endispute, minimize claims on justice in favor
of improved process. In either case, we can see a shift in the face of American justice. In place of
the lawgiver and the blindfolded maiden holding the scales we have computer systems
frameworks and video monitors. This is what is going on in courts today.
Heydebrand and Seron concluded their discussion of the increasing rationalization of justice with
the observation that "...what is squeezed out of the traditional form of law is a locale for a moral
vision and political debate." n161 This is not quite true of the new realism. In shows like LA Law
and The Practice, and in the TV studios with Catherine Crier and Greta Van Susteren, issues are a
driving force. They stand in for the law. Although we hear appeals to the grand tradition in court,
as in the closing [*1196] statement by O.J. Simpson's lawyer in his challenge to a warrantless
search, they ring hollow in contexts where informality and efficiency are the operative concepts.
n162 At the same time, the authority of commodity fetishism dominates the headlines. This
includes the skeptical postmodernism of much public performance of law.
A dimension of contemporary Legal Realism is the critique mounted by Richard Sherwin in
When Law Goes Pop. n163 In a chapter that has the same title as the book, he asserts that in the
period between 1962, when the first Cape Fear was issued with Robert Mitchum and Gregory
Peck as protagonists, and 1991, when Martin Scorsese remade it with Robert DeNiro and Nick
Nolte, America lost her faith in law. n164 A new skepticism, he says, is part of "a growing tide of
disillusionment with American institutions in general, including the institutions of marriage,
politics, mass media, and law." n165 His development of the analysis of law as drawn from the
two Cape Fear movies is provocative.
In the first instance he states that we can learn something about society from movies. n166 In the
second, what we are capable of learning is about change over time. n167 He says, "skepticism
sounds the key note here in a cultural move toward failing faith in the ability of law and lawyers
to do the work that justice requires." n168 This condition is characterized by "the outbreak of
powerful but blind irrational forces - such as chance, fate, rage, and desire" which in turn
"undercut human agency, making meaningful action and judgment all but impossible." n169 It is
in contrast to the J. Lee Thompson, 1962 version of Cape Fear. n170
One fascinating comparison between the two movies is the way Max Cady, the villain, is
introduced. n171 In the original version, he walks across the central plaza of a small town and
into the courthouse. n172 Once there he locates the courtroom where Sam Bowden is arguing
motions in a civil trial. n173 In the Scorsese version, we first see the wall of Max Cady's
prison [*1197] cell with pictures of Stalin, Robert E. Lee and a voodoo doll sitting next to his law
books and a copy of Frederich Neitzsche's Will to Power. n174 Where we see the first Max in a
neat suit and Panama hat, the latter Max is naked from the waist up and heavily tattooed. n175
Clearly it takes more for us to find a man menacing today. While images submerged and caste in
negative light characterize the more recent film the earlier one is as straight forward as Leave it to
Beaver not only because it is in black and white but because the family of the movie is grand
bourgeois. The movies, far from showing our disillusionment, simply provide ample materials
for producing the realist framework itself.
Set against the classic American courtroom with its marble, dark wood and portraits of
distinguished jurists, the first movie is both of the past and somewhat quaint. n176 The newer
version on the other hand represents the law and Cady's rage with the image of prison cell,
guards and the stark contrast between the inside and outside. n177 Both films depict terror that
appears unstoppable because its perpetrator carefully avoids violating the law. n178 But that is
the key to the Legal Realism in these films and their treatment by Sherwin. The law is there; it is
featured in the courthouse and in the prison, and the upstanding member of the community is a
lawyer.
Gregory Peck, in the first film, is familiar from To Kill a Mockingbird which came out in the same
year. We first see him in a courtroom more urban than his last star turn as a lawyer but his appeal
has traces of Atticus Finch. His engagement with Cady was accidental, a chance encounter that
led to obligatory testimony that put the bad guy away. n179 In the later movie, Sam Bowden puts
Robert DeNiro's Max Cady away while serving as his defense attorney. n180 Nolte's Sam, finds
evidence that the woman Cady is accused of beating had numerous affairs. n181 He does not use
that evidence believing that some defendants deserve to go to prison. n182 Cady's plea, and one
of his tropes employing the law, is that he deserved a vigorous defense. n183 To his credit, he is
not content with the plea bargained justice he gets in these circumstances.
[*1198] In both cases, the law is to be used and friends, employees and family help the lawyer to
understand it. In fact, in both movies, the villain schools the lawyer in the law and that is part of
the undercurrent of tension. n184 Cady follows the rules, taking off his hat on entering the
courtroom in the first movie, though with a pause that gives us a chance to wonder if he will.
n185 In both movies he is the victim of harassment and the justification that we all figure is there
is not the sort that the agents of the law seem able to bring to bear. n186
Sherwin's contention about this lack of faith, articulated as disillusionment in the above quote,
represents a contemporary version of Legal Realism. The "old" movie takes the place of
formalism or mechanical jurisprudence and the newer one becomes the complex, psychological
treatment that we expect as a manifestation of the age that we live in. Closer inspection finds
differences in style but not the degree of difference that would suggest a major chance in the
cultural place of law in the last thirty years. In fact, the older film has its own way of presenting
indeterminacy and the menace of the irrational but it does it in a slightly dated fashion. It does it
in black and white, it does it with the courthouse rather than the police station and it does it with
a villain whose swagger looks somewhat quaint in comparison to DeNiro's Max Cady. n187
In a paper co-authored with Jill Meyers, we noted the correlation between market-economy
forces of commodification, which celebrities exemplify, and the law itself. n188 We think of law
as a cultural industry that is linked to celebrity and the popular representation of legal
institutions. n189 Drawing from Friedman, there is the notion that traditional "authority was
vertical, and the higher up the authority, the more stern, distant, and remote [*1199] it was."
n190 Law in America has some of that in the cultural place of judicial institutions increasingly
driven by a celebrity society. In a contemporary realist framework these two aspects work
together rather than being at odds. Like the realist attention to "the cult of the robe" and the
critique of formalism in jurisprudence in favor of behavioral or realist dimensions, both a sense
that we know those in authority and a practical hierarchy operate to constitute the authority of
law. n191
Ultimately it is cultural practice that is law. n192
FOOTNOTES:
n1. Legal Realism, realist jurisprudence and realism in law are used interchangeably to refer to
the jurisprudential position associated with Oliver Wendell Holmes and Jerome Frank which
held that law is what the judges say it is and that the judges and lawyers who work with law are
influenced by interests and politics.
n2. John Brigham & Christine B. Harrington, Realism and Its Consequences: An Inquiry into
Contemporary Sociological Research, Int'l J. Soc. & L. 17, 41-62 (1989).
n3. Id.
n4. Id. In addition to this capacity for reinvention is the parallel structure of Realism which
creates an "other" outside American law that I associate with the work of Peter Fitzpatrick, in The
Mythology of Modern Law. This is to be developed in another paper focusing on images of the
Indian, the Mexican and the Puerto Rican juxtaposed against American forms of law.
n5. Id.
n6. See generally Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship
(1999).
n7. The perspective of The Law and Society Review.
n8. See generally, Austin Sarat, The Law is All Over: Power, Resistance and Legal Consciousness
of the Welfare Poor, 2 Yale J.L. & Human 343 (1990).
n9. L.A. Law (NBC Television Broadcast, 1986-1994). The television series is being italicized
although The Chicago Manual of Style once held that movies should be italicized and television
series placed in quotations. Here, particular episodes of television series will be placed in
quotation marks. Network names will be italicized when used to refer to a channel or broadcast
band (Court TV) and receive no special designation when they are simply references to the
company (Columbia Broadcasting System).
n10. Court TV (Courtroom Television Network, 1991-present).
n11. See generally, Before the Law: An Introduction to the Legal Process (6th ed. 1998).
n12. Franz Kafka, The Trial.
n13. Franz Kafka, Before the Law, in The Penal Colony: Stories and Short Pieces (New York
Schocken, 1961).
n14. Id.
n15. John Bonsignore et al., Before the LAW (1992); Jacques Derrida, "Prejuges Devant La Loi," La
Facultey de Juger (Paris: Editions de Minuit, 1985).
n16. See Kafka, supra note 12.
n17. Kafka, supra note 12.
n18. The critique in Before the Law does indeed play a role in the life of Legal Realism, so in a
sense it is indirectly Kafka.
n19. Pfeiffer's character, a powerful lawyer in the film I am Sam becomes a better person by
becoming less of a lawyer while the institutions of law, child welfare agencies and local
magistrates, are central to the development of the story. I am Sam (Warner Brothers 2001).
n20. Lawrence Friedman, The Horizontal Society (1999).
n21. Id.
n22. Id.
n23. John Brigham, The Constitution of Interests: Beyond the Politics of Rights (1996); John
Brigham, The Cult of the Court (1987); John Brigham, Architectures of Justice, 1 J. Soc. Change &
Critical Inquiry (1999); John Brigham, L.A. Law, 21-33 in Prime Time Law, (Jarvis and Joseph eds.,
1998); John Brigham, Exploring the Attic: Courts and Communities in Material Life, in Special
Issue of Law in Context on Courts, Tribunals and New Approaches to Justice 131-155 (Oliver
Mendelsohn and Laurence Maher eds., 1994).
n24. Stewart Macauley, Non-Contractual Relations in Business: A Preliminary Study, Am. Soc.
Rev. 28 (1963); see also "Sea Change" and the video screen in Architectures of Justice supra note
23.
n25. Roland Barthes, The Eiffel Tower and Other Mythologies, (Richard Howard trans., 1979).
n26. Id.
n27. Id.
n28. See, Christine B. Harrington, Creating Gaps and Making Markets, 10 Law and Policy 293,
293-316 (1988).
n29. Robert Gordon, The Ideal and the Actual in the Law: Fantasies and Practices of New York
City Lawyers, 1870-1910, in. The New High Priests: Lawyers in Post-Civil War America (Gerard
W. Gawalt ed., 1984).
n30. "Lawyers as the American Aristocracy," Holmes Lectures; "The Ideal and the Actual in the
Law": Fantasies and Practices of New York City Lawyers, 1870-1910, in The New High Priests:
Lawyers in Post-Civil War America (Gerard W. Gawalt ed., 1984); Legal Thought and Legal
Practice in the Age of American Enterprise: 1870-1920, Professions and Professional Ideologies in
America (Gerald L. Gelson, ed., Chapel Hill: UNC Press, 1983).
n31. Gordon, supra note 29.
n32. Arnold Paul, Conservative Crisis and the Rule of Law.
n33. Hilary Putnam, The Many Faces of Realism (1987).
n34. Ken Emerson, When Legal Titans Clash, The New York Times Magazine, April 23, 1990, at
27.
n35. Areeda teaches Anti-trust and his traditionalism is associated with wealth and power
against the challenges of the unwashed descendants of Realism. Id; see also, Scot Turow, One L
(Farrar, Straus and Giroux, 1997).
n36. One influential history of law schooling in America actually begins with "Once Upon a
Time." Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s
(Chapel Hill: Univ. of North Carolina Press, 1983).
n37. Laura Kalman, The Strange Career of Legal Liberalism (Yale Universities Press, 1999).
n38. John Brigham, The Cult of the Court (Philadelphia, Temple University Press, 1987).
n39. Id.
n40. See Lawrence Friedman, op. cit; Richard Sherwin, op. cit.
n41. See Brigham supra note 38. Its focus on the places of practice is related to other
contemporary work in the sociology of law such as that by Patricia Ewick and Susan S. Silbey,
"The Architecture of Authority," The Law and Society Meetings, Budapest (2001).
n42. Magali Larson has depicted the rich social context in which architecture is made. Magali
Sarfatti Larson, Behind the Postmodern Facade (Berkeley, University of California Press, 1993).
n43. See Raymond Williams, Television: Technology and Cultural Form (Hanover: Wesleyan
University Press, 1974).
n44. David A. Harris, The Appearance of Justice: Court TV, Conventional Television, and Public
Understanding of the Criminal Justice System, 35 Ariz. L. Rev. 785, 787 (1993).
n45. Id. Harris further points out "The network also presents experts to interpret events.
Presumably, this may make for exactly the informed accountability our democracy needs, and
will also encourage and enrich the public debate on the broader issues raised by the trials
presented. This addition of Court TV to popular culture might mean that the appearance of
justice would more closely resemble reality." Id.
n46. Id.
n47. Id.
n48. David Simon, Homicide 456 (Boston, Houghton-Mifflin, 1990).
n49. Richard Sherwin, When Law Goes Pop: The Vanishing Line Between Law and Popular
Culture (University of Chicago Press, 2000).
n50. Alison Young, Imagining Crime (London, Sage Publications Ltd., 1996).
n51. Id.
n52. Paul Bohannan, The Different Realms of Law, 67 Am. Anthropologist 33, reprinted in
Wilhelm Aubert, The Sociology of Law (1969).
n53. Part of cultural study in law has been essentially pluralist. Here, a constitutive perspective
points to the authoritative nature of culture. Anthony Chase, Toward a Legal Theory of Popular
Culture, 1986 Wisc. L. Rev. 527, 527-569 (1986); see also, Susan S. Silbey, Making a Place for
Cultural Analyses of Law, 17 L. & Soc. Inquiry 39, 39-48 (1992).
n54. In addition to occasional viewing of LA Law during its run and other television watching,
the author conducted research at the Museum of Television and Radio, 25 West 52 St. in New
York City. The museum's LA Law collection includes a symposium on the show produced by the
museum in 1996 for its seminar series. In addition to many of the cast members, the symposium
included Bill Finkelstein, the New York lawyer and producer who wrote for the show.
n55. The People's Court (Warner Bros. 2 1980).
n56. Thomas Confirmation Hearings Before the Senate Judiciary Comm., 103d Cong. (1991); Bork
Confirmation Hearings Before the Senate Judiciary Comm., 103d Cong. (1987).
n57. Jones v. Clinton, 206 F.3d. 811 (Ark. 2000).
n58. LA Law (NBC television broadcast, 1986-1994).
n59. ABC first produced 13 episodes and aired six in the spring of 1997 in the NYPD Blue time
slot. The show starred Dylan McDermott as Bobby Donnell, the head of a small Boston law firm
who had to fight eviction from his low rent office at the same time that he fought for his clients.
The Practice: Pilot (ABC television broadcast, Mar. 4, 1997).
n60. Sherwin supra note 49.
n61. LA Law: Watts a Matter? (NBC television broadcast, Apr. 5, 1990).
n62. Id.
n63. Id.
n64. LA Law (NBC Television Broadcast, 1986-1994); Court TV (Courtroom Television Network
LLC, 1991 to present).
n65. 12 Angry Men (MGM Productions, 1957).
n66. NYPD Blue (ABC Television Broadcast, 1993 to Present).
n67. LA Law (NBC Television Broadcast, 1986-1994); Murder One (ABC Broadcast Television).
n68. Produced by Stephen Bochco (Hill Street Blues and NYPD Blue) and Terry Louise Fisher
with music by Michael Post.
n69. Stephen Gillers, Taking L.A. Law More Seriously, 98 Yale L.J. 1607, 1607 (1989); see also
Robert Eli Rosen, Ethical Soap: L.A. Law and the Privileging of Character, 43 U. Miami L. Rev.
1229, 1229 (1989); Charles B. Rosenberg, An L.A. Lawyer Replies, 98 Yale L.J. 1625, 1625 (1989).
n70. Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977).
n71. LA Law (NBC Television Broadcast, 1986-1994).
n72. LA Law (September 1986).
n73. Id.
n74. LA Law (1986).
n75. Id.
n76. LA Law (NBC Television Broadcast, 1986-1994).
n77. Id.
n78. Id.
n79. Law and Order (NBC Television Broadcast, 1990-Present).
n80. LA Law (NBC Television Broadcast, 1986-1994).
n81. Matlock (TBS Superstation); Perry Mason (CBS Television Broadcast, 1957-1966); LA Law
(NBC Television Broadcast, 1986-1994).
n82. Hill Street Blues (NBC Broadcast Television, 1981-1987); LA Law (NBC Television Broadcast,
1986-1994).
n83. Id.; NYPD Blue (ABC Television Broadcast, 1993 to Present).
n84. There is even considerable difference between Chicago Hope and ER with reference to the
levels of detail portrayed in the room.
n85. See Dianne L. Brooks, The Law of Daytime: Television Soap Operas and Legal Narratives
(Duke University Press, Forthcoming); Julie D'Acci. Defining Women: Television and the Case of
"Cagney and Lacey" (University of North Carolina Press 1994).
n86. Dianne L. Brooks supra note 85.
n87. NYPD Blue (ABC Television Broadcast, 1993 to Present).
n88. With its attention to the day progressing and vivid close-ups, Law & Order combines the
emotional intensity of daytime television with production values more characteristic of prime
time. In this show, the courtroom takes second place to the pores on a witness's face or the sweat
beading on counsel's forehead. And, in another concession to the realities of justice, the "Parts" of
the New York City trial court system come to the screen as venues with no architectural
distinction. They are dirty, crowded versions of LA courtrooms. In this regard, the literary form
is far more prominent than was the case in LA Law or the O.J. Simpson trial for that matter.
n89. The Practice (ABC Television Broadcast).
n90. Cagney and Lacey (CBS Television Broadcast, 1982-88).
n91. LA Law (NBC Television Broadcast, 1986-1994).
n92. Cagney and Lacey (CBS Television Broadcast, 1982-88).
n93. Id.
n94. LA Law (NBC Television Broadcast, 1986-1994).
n95. Released in 1998 and directed by Steven Zaillian.
n96. Released in 2000 and directed by Stephen Soderbergh.
n97. Released in 1998 and directed by Steven Zaillian.
n98. Released in 2000 and directed by Stephen Soderbergh.
n99. Raymond Williams, Television: Technology and Cultural Form (Fontana, 1974).
n100. Court TV (Courtroom Television Network LLC, 1991-Present).
n101. Anthony Lewis, Gideon's Trumpet (Random House, 1964) (The story of Clarence Earl
Gideon, a petty criminal, getting "all the way to the Supreme Court," is a paradigmatic example
of bureaucratic realism).
n102. Court TV (Courtroom Television Network LLC, 1991-Present).
n103. A service of Time Warner Entertainment and Liberty Media Corp., Court TV is headed by
Henry S. Schleiff. Fred Graham is chief anchor and managing editor.
n104. Laura Hatcher suggested that this observation was "post-realist" and I think that is very
exciting but I'm not sure yet what it means or how we would talk about a post-realist
jurisprudence other than to identify the practices of realism as authority. This would mean
characterizing realism so that it stands as we are used to thinking that realism does to formalism.
n105. Court TV (Courtroom Television Network LLC, 1991-Present).
n106. Id.
n107. She began in 1991 at CNN and moved to Fox to do a general public affairs show On the
Record in February 2002. It airs from 10-11 p.m., e.s.t.
n108. Court TV (Courtroom Television Network LLC, 1991-Present).
n109. Court TV (Courtroom Television Network, LLC 2002). As is the case with the made for TV
court shows, from The People's Court and Judge Judy to Judging Amy, television law is more
diverse racially and along gender lines than the law as a whole.
n110. Id.
n111. Lawrence Friedman, The Horizontal Society (Yale University Press, 1999).
n112. Court TV: Catherine Crier Live (Courtroom Television Network, LLC, Dec. 17, 2002).
n113. Greta Van Susteren, Harvard Law School's 2001 Class Day Address (June 6, 2001).
n114. Joe Kovacs, The Eyes Have It: Van Susteren's New Look Prompted by CNN's Benching,
World Net Daily, Feb. 5, 2002, available at http://www.worldnetdaily.
com/news/article.asp?ARTICLE<uscore>ID=26336.
n115. Rich Barger, Let's Kill the Lawyers: The Sequel, Corner Bar Pr, (2003), available at
http://www.cornerbarpr.com/barrooms/bitingcommentary.cfm?article=1 010.
n116. See, John Brigham, The Constitution of Interests: Beyond the Politics of Rights (New York
University Press 1996); Carl Boggs, The Great Retreat: Decline of the Public Sphere in Late
Twentieth-Century America, Theory and Soc'y, 741, 741-80, (1997) (Discusses The Constitution of
Interests and commodification here along with Carl Boggs and his critique of postmodernism in
movies).
n117. Ally McBeal (FOX television broadcast, 1997-2001).
n118. The Practice (ABC television broadcast, 1996-2002).
n119. Amistad (Universal Studios Home Video 1997).
n120. Traffic (USA Films 2000).
n121. Even in The Sopranos where psychology and personal crisis is more central than legal
argument, court cases and the threat of prosecution provide a context through which we can
know the endearing mobsters on the show. The Sopranos (HBO television broadcast, 1999-2003).
n122. See George W. Bush, Press Conference (Nov. 6, 2002) (comments following widespread
victory by Republican candidates in the midterm elections).
n123. The reference is also from the work with Christine Harrington. We used it as the title for a
series of books published by Routledge Press from 1985-1995 which sought to shift attention to
the social forces manifest as "law in society." John Brigham & Christine Harrington, After the Law:
A Series on Law in Society 1-10 (Routledge Press 1995).
n124. John Fiske, Television Culture: Popular Pleasures and Politics 21 (London, Methuen 1987).
n125. Id. at 38-39.
n126. LA Law (NBC television broadcast, 1986-1994).
n127. See, e.g., Martin Shapiro, Courts: A Comparative and Political Analysis (The University of
Chicago Press 1981).
n128. N.Y. Times, May 25, 1997.
n129. David Bordwell, Janet Staiger and Kristin Thompson, The Classical Hollywood Cinema:
Film Style and Mode of Production to 1960 (Columbia University Press, 1985).
n130. Id.
n131. LA Law (NBC television broadcast, 1986-1994).
n132. LA Law: Pilot (NBC television broadcast, Sept. 15, 1986).
n133. John W. Cioffi, Governing Globalization? The State, Law, and Structural Change in
Corporate Governance, 27 J.L. & Soc'y 572-600 (2000); Robert W. Gordon, The Ideal and the
Actual in the Law: Fantasies and Practices of New York City Lawyers, in The New High Priests:
Lawyers in Post-Civil War America 1870-1910 (G.W. Gawalt ed., Greenwood Press 1984).
n134. And in setting up the wonder of the big bucks, whether for a partner, an environmental
crusader or a sloppy old lady, realism in law has an economic base. See William Halton &
Michael W. McCann, Java Jive: Liebeck v. McDonald's as Media Icon, Annual Meeting of the Law
and Society Association, Budapest (2001).
n135. Isaac Balbus, The Dialectics of Legal Repression: Black Rebels Before the American Courts
(Russell Sage Foundation 1973). See also Pat O'Malley, Crime and the Risk Society (Ashgate
Publishing, Ltd., 1998); Adelaide H. Villmoarne, Feminist Jurisprudence and Political Vision, 24 L.
& Soc. Inquiry 443, 455-56 (1999).
n136. Isaac Balbus, The Dialectics of Legal Repression: Black Rebels Before the American Courts
(Russell Sage Foundation 1973); David Trubeck, Complexity and Contradictions in the Legal
Order: Balbus and the Challenge of Critical Social Thought about Law, 11 L. & Soc'y Rev. 520
(1977).
n137. Isaac D. Balbus, Commodity Form and Legal Form: An Essay on the "Relative Autonomy'
of the Law, 11 L. & Soc'y Rev. 571, 571-88 (1977).
n138. Id.
n139. Balbus supra note 135; Trubeck supra note 136.
n140. "Which denies that the legal order possesses any autonomy from the demands imposed on
it by actors of the capitalist society in which it is embedded... ." Id. at 571.
n141. Id. at 571.
n142. Id. at 572.
n143. Id. at 573.
n144. Capital, vol. I 63 (International Publishers, 1967).
n145. Balbus, supra note 137 at 582.
n146. Id. at 574 ("living, human powers").
n147. "Human life under a capitalist mode of production becomes dominated by the passion to
possess the commodity's living power..." Balbus supra note 137 at 575.
n148. Id. at 575.
n149. Tad Friend, The Perfect Gift, The New Yorker, December 21, 1998.
n150. See, e.g., Max Weber, The Protestant Ethic and the Spirit of Capitalism (Scribner's Press
1958).
n151. David Halberstam, Playing for Keeps: Michael Jordan and the World He Made (Random
House 1999) (This book that appears to have been scheduled to be published coincidentally with
the second or third retirement of Michael Jordan from basketball).
n152. See id.
n153. Id.
n154. Stephan Richter, The 2004 Race: Martin Sheen for U.S. President?, The Globalist, Dec. 17,
2002, available at http://www.theglobalist.com/DBWeb/ Story1d.aspx?StoryId=2887.
n155. Katharine Q. Seelye, Going for Laughs on Saturday Night Before Delivering the News on
Sunday, N.Y. Times, Dec. 15, 2002, available at http://www.
nytimes.com/2002/12/16/politics/16QUIT.html (This story included the impact of the sketches
dealing with Gore's choice of a running mate between John Kerrey and Joe Lieberman as having
implications for their presidential campaigns).
n156. See supra note 103.
n157. See Regina Austin, A Nation of Thieves: Securing Black People's Right to Shop and to Sell
in America, 1994 Utah L. Rev. 147 (1994). Discussion of situations, particularly in the Black
community, where the value of goods depends less on use value and inherent quality but to
status codes derived from the names of teams and protected in law.
n158. Id. Deborah Bird Rose, Ned Kelly Died for Your Sins, in Religious Business: Essays on
Australian Aboriginal Spirituality (Max Charlesworth ed., 1998).
n159. See David P. Vandagriff, WordPerfect, You Stole My Heart and Stomped it Flat, available at
http://www.abanet.org/1pm2/newsletters/net2d/w96vandagriff.html (last visited Feb. 11,
2003). The cults are equated to WordPerfect users who wait in vain for a new upgrade. Id.
n160. Grace Van Owen was a young attorney on the television drama L.A. Law played by Susan
Day.
n161. Heydebrand and Seron 1990, at 184.
n162. See People v. O.J. Simpson, Official Transcript, Preliminary Hearing, 1994 WL 733988
(Cal.Mun.Trans.).
n163. Richard K. Sherwin, When Law Goes Pop: The Vanishing Line Between Law and Popular
Culture 171 (University of Chicago Press 2000).
n164. Id.
n165. Id.
n166. Id.
n167. Id.
n168. Id.
n169. Id. at 172.
n170. Cape Fear (Universal Pictures 1962).
n171. See id.; Cape Fear (Universal Pictures 1991).
n172. Cape Fear (Universal Pictures 1962).
n173. Id.
n174. Cape Fear (Universal Pictures 1991).
n175. Id.; Cape Fear (Universal Pictures 1962).
n176. Cape Fear (Universal Pictures 1962).
n177. Cape Fear (Universal Pictures 1991).
n178. Cape Fear (Universal Pictures 1962); Cape Fear (Universal Pictures 1991).
n179. Cape Fear (Universal Pictures 1962).
n180. Cape Fear (Universal Pictures 1991).
n181. Id.
n182. Id.
n183. Id.
n184. Cape Fear (Universal Pictures 1991); Cape Fear (Universal Pictures 1962).
n185. Cape Fear (Universal Pictures 1962).
n186. Id.; Cape Fear (Universal Pictures 1991).
n187. Id.
n188. "The difference between a "celebrity' and an "authority' is fundamental." Friedman, supra
note 20, at 15; see also P. David Marshall, Celebrity and Power: fame in contemporary culture 124
(University of Minnesota Press, 1997).
n189. Turner, et al, in their book Fame Games, write of "cultural industries whose interests are
served by the celebrities promotion." Graeme Turner et al., Fame Games: The Production of
Celebrity in Australia 11 (Cambridge University Press, 2000). "To misunderstand the role of the
popular media is to ignore the fact that the "major contemporary political issues' of today
(environmental, ethnic and sexual youth movements, for instance) all arose outside the
traditional public sphere. Instead of being generated through intellectual, social or political elites,
they were "informed, shaped, developed and contested within the privatized public sphere of
suburban media consumerism.'" Hartley, Popular Reality 157 (St. Martin's Press, 1996), quoted in
Turner et al. 7.
n190. Friedman, supra note 20, at 15.
n191. Sheldon Wolin, The People's Two Bodies, 1 Democracy 11-19 (Jan. 1981); Ernst H.
Kantorowicz, The King's Two Bodies; A Study in Mediaeval Political Theology, (Princeton
University Press 1957); Michael Rogin, Ronald Reagan, The Movie, and other Episodes in
Political Demonology, (University of California Press 1987).
n192. See Macauley, supra note 24.