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Ÿþm I C R O S O F T W O R LAW ON THE SCREEN Amherst Series in Law, Jurisprudence, and Social Thought edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey Law on the Screen Edited by AUSTIN SARAT LAWRENCE DOUGLAS MARTHA MERRILL UMPHREY STANFORD UNIVERSITY PRESS Stanford, California, 2005 Stanford University Press Stanford, California © 2005 by the Board of Trustees of the Leland Stanford Junior University All rights reserved Printed in the United States of America No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press Library of Congress Cataloging-in-Publication Data Law on the screen / Edited by Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey. p. cm. — (Amherst series in law, jurisprudence, and social thought) Essays originally presented at a conference entitled Law’s Moving Image, held April 11–12, 2003, at Amherst College. Includes bibliographical references and index. isbn 0-8047-5162-5 (alk. paper) 1. Justice, Administration of, in motion pictures—Congresses. I. Sarat, Austin. II. Douglas, Lawrence. III. Umphrey, Martha Merrill. IV. Series. pn1995.9.j8l39 2005 791.43'6554—dc22 2004022528 This book is printed on acid-free, archival-quality paper Original printing 2005 Last figure below indicates year of this printing: 14 13 12 11 10 09 08 07 06 05 Designed and typeset at Stanford University Press in 10/14.5 Minion To Benjamin (AS) To my boys Theo and Dash (MU) This page intentionally left blank Acknowledgments The essays contained in this book were originally prepared for and presented at a conference entitled Law’s Moving Image at Amherst College on April 11– 12, 2003. We are grateful to our Amherst College colleagues Catherine Sanderson, Helen von Schmidt, Andrew Parker, Marisa Parham, and Nasser Hussain, as well as to Burlin Barr and Jessica Silbey, for their insightful com- mentary on the papers presented at that conference. We thank our students in Amherst College’s Department of Law, Jurisprudence and Social Thought for their interest in the issues addressed in this book. We would like to ex- press our appreciation for generous financial support provided by the col- lege’s Charles Hamilton Houston Forum on Law and Social Change and to Amherst’s former dean of the faculty, Lisa Raskin, for her interest and sup- port. This page intentionally left blank Contents contributors xi On Film and Law: Broadening the Focus 1 austin sarat, lawrence douglas, and martha merrill umphrey Part I. Studies of Representation Cinematic Judgment and Jurisprudence: A Woman’s Memory, Recovery, and Justice in a Post-Traumatic Society (A Study of Polanski’s Death and the Maiden) 27 orit kamir The Racial-Spatial Order and the Law: Devil in a Blue Dress 82 michael j. shapiro Anti-Oedipus, Lynch: Initiatory Rites and the Ordeal of Justice 106 richard k. sherwin Part II. Studies of Reception Reproducing a Trial: Evidence and Its Assessment in Paradise Lost 153 jennifer l. mnookin A Case for Corrective Criticism: A Civil Action 201 diane waldman “Everyone Went Wild over It”: Film Audiences, Political Cinema, and Mr. Smith Goes to Washington 231 eric smoodin 255 This page intentionally left blank Contributors lawrence douglas is Associate Professor of Law, Jurisprudence and Social Thought at Amherst College. orit kamir is Lecturer in Law at the Hebrew University of Jerusalem. jennifer l. mnookin is Professor of Law at the University of Virginia. austin sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science and Professor of Law, Jurisprudence and Social Thought at Amherst College. michael j. shapiro is Professor of Political Science at the University of Hawaii. richard k. sherwin is Professor of Law at New York Law School. eric smoodin is Professor of American Studies at the University of Cali- fornia, Davis. martha merrill umphrey is Associate Professor of Law, Juris- prudence and Social Thought at Amherst College. diane waldman is Professor in the department of Mass Communica- tions at the University of Denver. This page intentionally left blank LAW ON THE SCREEN This page intentionally left blank On Film and Law: Broadening the Focus austin sarat lawrence douglas martha merrill umphrey The proliferation of images of law, legal processes, and officials on television and in film is a phenomenon of enormous significance. Mass-mediated im- ages are as powerful, pervasive, and important as are other early-twenty-first- century social forces—for example, globalization, neo-colonialism, and hu- man rights—in shaping and transforming legal life. Law lives in images that saturate our culture and have a power all their own, as the moving image provides a domain in which legal power operates independently of law’s formal institutions. As Samuel Weber observes, “the ‘world’ itself has be- come a ‘picture’ whose ultimate function is to establish and confirm the centrality of man as the being capable of depiction.”1 In this age of the world as picture, the proliferation of law in film, on television, and in mass-market publications has altered and expanded the sphere of legal life. “Where else,” Richard Sherwin asks, “can one go but the screen? It is where people look these days for reality. Turning our attention to the recurring images and scenarios that millions of people see daily projected on TV and silver screens across the nation . is no idle diversion.”2 The moving image also reminds us of the contingencies of our legal and social arrangements. It always casts what Saul Morson calls a “sideshadow” on “realities” outside itself,3 realities with which legal scholars, like the people we study, may have grown quite comfortable.4 According to Morson, film is not just a mirror in which we see legal and social realities reflected in some more or less distorted way.5 Instead it always projects alternative realities that are made different by their filmic invention or the editing and framing on which the film image depends. Seeing images projected, no matter what their subject matter, is a reminder that: 2 SARAT, DOUGLAS, AND UMPHREY alternatives always abound, and, more often than not, what exists need not have existed. Instead of casting a foreshadow from the future, [they cast] a shadow “from the side,” that is from other possibilities. Sideshadows conjure [a] ghostly presence . [in which] the actual [what we know of the world] and the possible [what film shows of that or other worlds] are made simultaneously visi- ble. A present moment subject to sideshadowing ceases to be Ptolemaic, the unchallenged center of things. It moves instead into a Copernican universe: as there are many planets, so there are many potential presents for each one actual- ized.6 The moving image attunes us to the “might-have-beens” that have shaped our worlds and the “might-bes” against which those worlds can be judged and toward which they might be pointed. In so doing film contributes to both greater analytic clarity and political sensitivity in our treatments of law. It opens up largely unexplored areas of inquiry as we chart the movement from law on the books to law in action to law in the image.7 Studying Law in Film Yet scholars have only recently begun to examine how law works in this new arena and to explore the consequences of the representation of law in the moving image.8 Over a decade ago, Stewart Macaulay urged that attention be paid to what he called “images of law in everyday life.”9 Because people learn important lessons about law from a variety of sources, none more important than “film (and) television,” he called on legal scholars to become “partici- pant observers of . mass cultures.”10 Like any good practitioner of cultural studies, Macaulay drew attention to what some might dismiss as “low” or “popular” culture,11 and, in this way, Macaulay helped to decanonize the tra- ditional subjects of legal scholarship. At the same time, the mission Macaulay charted for legal scholars of film—to provide a form of “corrective criticism”12—was rather traditional. According to Macaulay, scholars should police images presented on televi- sion and in movies, identifying those that, when weighed against what we know about the law in action, would seem “oversimplified, garbled, con- flicting, or misleading.”13 Writing at about the same time, Lawrence Friedman, like Macaulay, tried to open up the moving image as a subject for legal research. Friedman noted ON FILM AND LAW 3 that the “study of popular legal culture is a relatively new field of inquiry”14 and observed that television and movies would “shrivel up and die without cops, detectives, crimes, judges, prisons, guns, and trials.”15 While insisting that “popular culture, and popular legal culture, in the first sense, are [like the sociology of law itself] of fundamental importance in constructing social theories of law . theories of law whose premises deny, altogether or in large part, any notion of legal autonomy,”16 Friedman, like Macaulay, worried that “the products of popular culture are wildly off-key with respect to those parts of the legal system that they deal with obsessively.”17 Before Macaulay and Friedman, however, Stuart Hall and his colleagues at the Centre for Contemporary Cultural Studies at the University of Bir- mingham had already provided a remarkable study of the social life of law’s images, showing in Policing the Crisis how images of crime in general and mugging in particular came to Great Britain from the United States and were disseminated in the mass media.18 Hall’s work analyzed the role of those im- ages in the construction of a political crisis that articulated, even as it dis- placed, discontents that Hall traced to stresses in the reproduction of capi- talism.19 More recently, Alison Young has shown how feminism, psycho- analysis, critical criminology, and film theory can be used to explore law as it “appears and reappears in the cinematic text.”20 In this effort Young asks us to consider not just the representation of law in film, but “‘how cinema is ju- risprudence,’”21 how law exists both in, as well as outside of, the image.
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