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Ideology and Law in American Popular Culture Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2005 Screening the Law: Ideology and Law in American Popular Culture Naomi Mezey Georgetown University Law Center, [email protected] Mark C. Niles American University This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/197 28 Colum. J.L. & Arts 91-185 (2005) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Law and Society Commons GEORGETOWN LAW Faculty Publications February 2010 Screening the Law: Ideology and Law in American Popular Culture 28 Colum. J.L. & Arts 91-185 (2005) Naomi Mezey Mark C. Niles Professor of Law Professor of Law Georgetown University Law Center Washington College of Law [email protected] American University [email protected] This paper can be downloaded without charge from: Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/197/ Posted with permission of the author Screening the Law: Ideology and Law In American Popular Culture Naomi Mezey' Mark C. Niles+ TABLE OF CONTENTS Introduction ............................................................................................................ 92 II. Cultural Theory ................................................................................................. 97 A. "Popular" Culture and "Mass" Culture ......................................................... 97 B. The Classic Critique of Culture: Ideology & the Frankfurt School ............ 101 C. Rethinking the Critique: Agency & the Binningham School ..................... 105 III. What's Showing? .......................................................................................... 110 A. Law on Television ...................................................................................... 114 l. A Brief History of Legal Ideology on T.V .............................................. 114 2. What's On? ............................................................................................. 121 a. The West Wing, Law & Order, The Practice and Grit ......................... 121 b. Ally McBeal, The Simpsons and Humor .............................................. 127 B. Law at the Movies ....................................................................................... 133 l. A Brief History of Legal Ideology in Film .............................................. 133 2. What's Playing? ...................................................................................... 140 a. The Man Who Shot Liberty Valence, The Sweet Hereafter and the Costs of Law ...................................................................................................... 141 b. The Verdict and the Role of the Lawyer. ............................................. 153 c. Cool Hand Luke and the Outlaw Genre ............................................... 161 C. Making Sense of the Differences Between Television & Film ................... 166 1. Profit and Production Structure ............................................................... 167 2. Narrative Structure .................................................................................. 175 * Associate Professor, Georgetown University Law Center. B.A., Wesleyan University, 1987, M.A., University of Minnesota, J.D. Stanford University, 1995. + Professor and Associate Dean for Academic Affairs, American University, Washington College of Law. B.A., Wesleyan University, 1988; J.D., Stanford University, 1991. The authors wish to thank Muneer Ahmad, Pamela Bridgewater, Christine Haight Farley, Mitu Gulati, Lisa Heinzerling, Vicki Jackson, Jason Loviglio, Penny Pether, Nina Pillard, Mike Seidman, Rebecca Tushnet and Leti Volpp for their comments on earlier drafts, as well as the extremely helpful suggestions received at the Georgetown Summer Workshop and the Virginia/Georgetown Junior Faculty Exchange. We are especially indebted to our research assistants: Kim Einzig, Emily Friedman, Brian Frye, Jette Gebhart, Melissa Millikin, Andrea Stover, Sarah Westergren, Carol Willette and Debra Wolf. 91 HeinOnline -- 28 Colum. J.L. & Arts 91 2004-2005 92 COLUMBIA JOURNAL OF LAW & THE ARTS [28:2 IV. Why This Matters to Democracy .............................................................. 176 Conclusion ............................................................................................................ 184 "With regard to the screen, the critical and the receptive attitudes of the public coincide. "- Walter Benjamin l "You know, so much of the time we are just lost. We say please, God, tell us what is right, tell us what is true. There is no justice. The rich win, the poor are powerless. We doubt ourselves, we doubt our beliefs. We doubt our institutions. And we doubt the law. " - Frank Galvin in "The Verdict" 2 "I can't believe it, the system works!" - Lisa Simpson in "The Simpsons ,,3 INTRODUCTION Imagine for a moment you are watching television: a detective you know and trust from previous episodes brings a young black man into the interrogation room to tell him that his friend has already confessed, implicating him; the detective lets him know they have good prints. You can usually tell by casting and costume, and sometimes by musical score, whether they have the right guy, and if they don't, you know he won't go to jail. If they do have the right guy, he probably will go to jail. If he doesn't, it will be because of some identifiable and fixable failing in the legal process. You know when the show begins how it will end, you have the formula memorized without even thinking about it; the fun is in how you get there, or perhaps in the comforting familiarity itself. Now imagine watching a similar scene in a movie theater. Depending on the kind of film and the director, there may be considerably less confidence about the defendant's guilt or innocence, and if those are established, there are usually still more narrative possibilities. The guilty might go free and the innocent might still be implicated. In its portrayals of criminal law and civil law alike, film offers the possibility of less sanguine images of law's failures. This Article is an attempt to think critically about the pop cultural life oflaw, to investigate the legal and ideological messages that cultural images of law bear, and to explore how, why and to what extent television and film differ in their portrayals of law. While many legal scholars have addressed the legal content of popular culture in recent years, few have explored the field expansively or interrogated the significant differences in the images of law and legal institutions produced in the different popular media. Some scholars have traced one legal theme through popular culture generally, others have focused on one legal theme within either film or television or literature, and most take one or two specific popular texts as the I. WALTER BENJAMIN, ILLUMINA nONS 234 (Hannah Arendt ed., Harry Zohn trans.) (1969). 2. THE VERDICT (Fox 1982) (From the closing argument of Attorney Frank Galvin). 3. The Simpsons: Mr. Lisa Goes to Washington (Fox television broadcast, Sept. 26,1991). HeinOnline -- 28 Colum. J.L. & Arts 92 2004-2005 2005] IDEOLOGY AND LAW IN AMERICAN POPULAR CULTURE 93 subject of their investigation. In this article we take seriously the differences in legal content between film and television and attempt a broader and more theoretically-informed account of the differences and similarities between the these two important media. American popular culture is saturated with legal themes. The "courtroom drama" has been a staple of American commercial cinema for more than 60 years.4 "Private eye" and "cop" shows, and the "lawyer" shows they spawned, have always been reliable dramatic devices well suited to network television.5 These shows have proliferated in recent years to the effective exclusion of other dramatic 6 television genre. As Lawrence Friedman has quipped, "television would shrivel up and die without cops, detectives, crimes, judges, prisons, guns, and trials."? Furthermore, law and legal issues play a central though sometimes subtler role in the plot development of an impressive percentage of the films and other television shows produced by mainstream Hollywood studios and producers every year.8 There are various explanations for the prevalence of legal themes in modern American popular culture, including the profit motives and inertia of popular culture producers.9 It has never hurt that legally themed shows, and most notably 4. See generally PAUL BERGMAN & MICHAEL ASIMOW, REEL JUSTICE (1996). 5. See discussion infra pp. 114-33. 6. Of the thirty seven original dramatic shows aired by the four major networks in the 2003 Fall season, thirty-one (CSI, CSI Miami, Third Watch, Skin, NYPD Blue, Navy NCIS, the Guardian, Judging Amy, Law & Order, Law & Order: Special Victims Unit, Law & Order: Criminal Intent, 24, Karen Sisco, The Brotherhood ofPoland New Hampshire, Ed, The West Wing, Threat Matrix, Without a Trace, Tru Calling, The O.c., JAG, The Handler, Miss Match, Boomtown, LA Dragnet, Hack. The District, JO- 8, Alias, The Practice and Lyon's Den) had elected officials, lawyers, police officers, former police officers who are now vigilantes, or forensic officials as main characters. Of some of the remaining dramatic shows, one is the longest running television drama (ER), two involve the lives of high school age
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