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Cape Fear: Law's Inversion and Cathartic Justice Symposium: Picturing Justice: Images of Law and Lawyers in the Visual Media Richard K

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Cape Fear: Law's Inversion and Cathartic Justice Symposium: Picturing Justice: Images of Law and Lawyers in the Visual Media Richard K digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1995 Cape Fear: Law's Inversion and Cathartic Justice Symposium: Picturing Justice: Images of Law and Lawyers in the Visual Media Richard K. Sherwin New York Law School Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Recommended Citation 30 U.S.F. L. Rev. 1023 (1995-1996) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. Cape Fear: Law's Inversion and Cathartic Justice By RICHARD K. SHERWIN* "[T]he truth tragedy tells is that we cannot protect ourselves, neither through the wisdom of self-control nor through the magic of wish. There is no defense against the self in its fate."' "[T]he outbreak of "real" violence is conditioned by a symbolic dead- lock. Real violence is a kind of acting out that emerges when the sym- '2 bolic fiction that guarantees the life of a community is in danger." "And o, steering spirits of law, goddesses of destiny .... 3 THREE DECADES is a long time in the history of modem film. Stories change, as does the storytelling process itself. These changes can tell us a good deal about the society we live in and who we are as a people. Popu- lar films often yield profound insight into the dominant social conflicts of the time and the changing beliefs and expectations that inform mainstream culture. This is certainly the case with respect to film depictions of law, lawyers, and the shifting currents of social justice. Consider, for example, the 1962 and 1991 film versions of Cape Fear.4 To judge by director J. Lee Thompson's 1962 version, the law's- and by extension, society's and our own characterological-center holds even in the face of irrational violence. Thompson's plot is straightforward, his message neat. It can be simply summarized: law has its limitations, and so does rational self-restraint; but in the end, law and reason prevail. By contrast, director Martin Scorsese's version rejects the inclination to see in law a reliable safeguard against severe societal, familial, and charactero- logical dysfunction. The alternative, Scorsese's film suggests, lies in our * Professor of Law, New York Law School. J.S.D., Columbia University, 1989; LL.M., Boston College, 1985; J.D., Boston College, 1981; B.A., Brandeis University, 1975. I. RICHARD KUHNS, TRAGEDY: CONTRADICTION AND REPRESSION 7 (1991). 2. Slavoj Zizek, Ideology Between Fiction and Fantasy, 16 CARDOZO L. REV. 1511, 1517 (1995). 3. AESCHYLUS 1,THE EUMENIDES 183 (David Grene & Richmond Lattimore eds., Rich- mond Lattimore trans., 1967) (citizens of Athens addressing the Furies). 4. CAPE FEAR (Universal/Amblin/CappafTribeca 1991) (directed by Martin Scorsese); CAPE FEAR (Universal-Intemational/Melville-Talbot 1962) (directed by J. Lee Thompson). UNIVERSITY OF SAN FRANCISCO LAW REVIEW (Vol. 30 accepting the trauma-induced lessons of tragic wisdom-lessons that in- struct us on law's fundamental limitations and on the dangers associated with the temptation to legitimate through law pathological violence. For Thompson, the story goes like this: immediately upon his release from prison, Max Cady (Robert Mitchum) tracks down the man who testi- fied against him in court eight years earlier. That man, an upstanding law- yer by the name of Sam Bowden (Gregory Peck), happened to witness Cady's violent assault upon a young woman in a parking lot. Ever since his conviction, Cady has been plotting his revenge against Sam. For seven years he has fantasized Sam's death. By his eighth year of prison, however, Cady has managed to go a step further: the lawyer's death will no longer suffice. That would be too simple, too easy. No, Sam Bowden, that exem- plary citizen and family man, will have to undergo something more painful than that. He is going to have to suffer, the way Cady has suffered. And that means Sam is going to have to witness the violent loss of family. Cady's plan for revenge is as simple as it is sinister: he'll track Sam down, violate Sam's wife and fifteen year old daughter before Sam's tor- tured eyes, and then, presumably, finish Sam off with a fitting death. As the film proceeds, we see Cady's plan put into action. First he introduces himself to Sam, insinuating the menace that he has in mind for Sam and his family. Cady then kills the family dog, unseen but known. Next, he stalks Sam and his family. He seeks out Sam's daughter in front of her school, and he explicitly threatens Sam and Leigh Bowden with spe- cific acts of violence. As the Bowdens' terror mounts, Sam (and the audi- ence which cannot but sympathize with his plight) realizes that the law is simply unable to handle this kind of threat to normal, civilized life. As the town's sheriff tells Sam, "It's a dictatorship to arrest someone for what they might do." Sam gradually comes to grip with the fact that it is up to him to stave off Cady's menace. But Cady is smart. He has used his prison years to educate himself, to study up on the ins and outs of the law. He hires an attorney hot against local police efforts to "harass" his client and violate Cady's civil rights with strip searches, vagrancy allegations, and station house lineups. The police are stymied by the law, and as Cady's threats .mount, Sam finally succumbs to the need for unofficial, unlawful action. He hires three thugs to send Cady a message: it's a message armed with chains and sticks. But Cady overcomes the paid assailants' attack, and when one of the assailants "talks" to the authorities about who hired his services, it is Cady now who has the legal upper hand, and he knows it. Cady's lawyer moves quickly to institute disbarment proceedings against Sam Bowden. Summer 1996] PICTURING JUSTICE SYMPOSIUM Hamstrung by the law he has served his whole professional life, Sam now moves to set a trap for Cady. Sam lures Cady to his houseboat on the river Cape Fear. Using his wife and daughter as bait, Sam, armed with a gun, waits for Cady to show. Cady takes the bait. He confronts Sam's wife on the boat, threatens to rape her, and then leaves in order to pursue the Bowdens' young daughter. Sam goes after him, and when he finds Cady, the two men fight. Sam gains the upper hand, gets the gun, trains it on Cady, but doesn't fire. No, death would be too simple, too easy, says Sam, consciously echoing Cady's own threatening words to Sam. It's prison for life, Sam tells Cady. Life in a cage, that'll be Cady's just deserts. And so the film ends, with Cady evidently on his way to a criminal trial that'll put him away for good. The film's message is not hard to decipher: even the most upstanding citizen, a dutiful attorney committed to the lawful demands of due process, a man beloved by wife and daughter, a well-respected member of his com- munity, can be driven toward unrestrained, unlawful violence. All of us, the film seems to be telling us, are capable of such fury under the right circumstances. Yet, in the end the film leaves us with a significant assur- ance: even when such fury is provoked, it can be checked by reason, and the law can then take its proper course. We do not have to act on our rage; we do not have to kill. Like Sam Bowden, we can depend on law to do the work of retribution without the need for self-help. In this way, law appears to be properly calibrated to meet our felt need for punishment in proportion to the menace and outright violence perpetrated by the likes of Max Cady. In short, the original 1962 version of Cape Fear presents a picture of violent rage and the law's inability to stave off its threat. Law clearly has its limitations; it cannot insulate us completely from the risk of antisocial violence. But it can do justice when such violence ultimately erupts. None of these assurances survive the ensuing twenty-nine years from Thompson's original Cape Fearto Martin Scorsese's brilliant and far more unsettling remake. The world has changed radically from what it was: for now, neither law, nor family, nor the virtues of individual character, nor even justice itself can be trusted to prevail in the face of irrational violence. The force of corruption has grown pervasive. And the shadow world from which Max Cady emerges has now become a place to which none of us can claim to be a stranger. According to Scorsese's vision, we are all living at least partly submerged in the shadow of violence, guilt, and denial. Max Cady (Robert De Niro) too has changed. He has become a far more complex symbol than in his former incarnation. The early sexual, violent menace now mixes with biblical prophecy, Nietzschean philosophy, and an empathic (self-described "feminine") sensitivity to the life of the UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol., 30 emotions. Cady now threatens us not only with irrational violence; he is also, at least at times, a faithful guide to worldly and unworldly suffering, a self-described Virgil, Sam Bowden's (Nick Nolte) mentor-at times Cady is an oracle of truth. This role is perhaps at its most lucid and symbolically revealing when Max instructs Sam's fifteen-year-old daughter (Juliette Lewis): "Every man carries a circle of hell around his head like a halo...
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