When Law Goes Pop: The Vanishing Line between Law and Popular Culture.
How trustworthy are American juries? Can the courts be counted on for justice? When Law Goes Pop examines these questions and offers some pessimistic answers. According to the author, current trends in popular culture threaten to undermine public confidence in the legal system.
Richard Sherwin, a professor of law at New York University, thinks that boundaries between law and pop are rapidly disappearing. As a result, public belief in the law's legitimacy is eroding, and so is the public's ability to distinguish truth from fabrication. He locates the causes of this crisis in "an unprecedented convergence" (4) of intellectual, technological, and economic forces:
Constructivist ("postmodern") theory, communications technology, and the needs of the marketplace are coming together with tremendous synergistic impact. As a consequence of this impact we are seeing a marked destabilization in our sense of self, and in our social and legal reality. Legal meanings are flattening out as they yield to the compelling visual logic of film and TV images and the market forces that fuel their production (4).
Sherwin's argument has two parts. In the first, he shows that American trials have always enacted deeply held cultural values. Using Gerry Spence's masterful closing statement in the murder trial of Idaho militiaman Randy Weaver as an example, he depicts trial lawyers as storytellers who rely on myths to reach juries. He extends this analysis by considering the notorious trials of John Brown for the Harper's Ferry raid, Henry Ward Beecher for adultery, and Harry Thaw for the murder of architect Stanford White. In each instance, Sherwin explores how the events contested at trial symbolized central tensions in contemporary society, repressed issues of guilt and desire that the opposing counsels addressed through their stories. The verdicts in these trials, he suggests, turned on whether the public faced up to the issue or retreated into collective fantasy. Notorious trials are thus testing grounds of public sensibility.
Against this backdrop of trial-as-cultural-ritual, Sherwin pursues the second part of his argument, a diagnosis of the present. He uses The Thin Blue Line, Errol Morris's quasi-documentary film about a botched murder case, to describe "the postmodern challenge" (107). Morris creates two frames for understanding the events. The main plot, "causal and linear," is a straightforward expose of the police and prosecutors' frame-up of the defendant. The shadow counterplot, "acausal and nonlinear," raises troubling doubts about the defendant's innocence and, indeed, the validity of "representational order" (126). Sherwin's point is that to be truthful to the real complexity of human conduct, as Morris tries to be, "chance and necessity must also be reckoned with when assessing individual accountability" (116).
This insight leads to the pivotal distinction in his argument between "affirmative" and "skeptical" postmodernism (131). Sherwin believes that the public, more aware than ever of the constructed nature of meaning, may go in one direction or the other, either towards renewed belief or towards disenchanted cynicism. The future of justice depends on the affirmation of meaning through a sense of "tragic wisdom" that "expressly takes into account the contingencies, uncertainties, and limitations of human understanding and the imbalances that exist in particular linguistic interactions" (237). This path represents a "fundamental epistemological shift" away from "the rationalist ideals and repressive impulses of the Enlightenment" (246). Skeptical postmodernism, however, threatens to take society in the opposite direction. It is characterized by "the substitution of virtual (electronically mass mediated, passively received) experience for real life--and the ensuing inability to tell one from the other" (260). Emblematic of this trend in the law is the Supreme Court's 1981 ruling in Estes v. Texas, in which Chief Justice Warren Burger justified the televising of trials. According to Sherwin, Justice Berger's reasoning implies that is not justice but "the appearance of justice that counts most" (158). Sherwin cites a number of instances of "the jurisprudence of appearances" (141), in particular of lawyers manipulating opinion through the media, which he dubs "litigation public relations" (152).
Does When Law Goes Pop prove its case about the perilous conflation of legal and popular realms? Readers who feel that ordinary life is suffering a "leeching out of authenticity" (259) may easily agree that the same process afflicts the legal system. But Sherwin does not support the two parts of his argument equally well. The first part, about narrative and symbolic dimensions of trials, is convincing and at times compelling, with interpretations well grounded in records of actual cases. When Sherwin turns to the effects of postmodernity, though, he uses movies far more than law. (Besides The Thin Blue Line, he does illuminating readings of Lynch's Twin Peaks and Lost Highway, Kieslowski's Red and both versions of Cape Fear.) Maybe he takes this tack in order to introduce postmodern theory to lawyers and law students. Still, there's a paucity of evidence to back up his claim about image eviscerating substance in the legal arena.
This problem becomes apparent when the author tries to show how trial lawyers practice "in hyperreality" (23). His main example is an organized crime case in which attorney Jeremiah Donovan asserts that his client is not a mafia boss (as the prosecution contends), but a wannabe. By this strategy, "Donovan transformed his client into a harmless cartoon character, just like Pulp Fiction" (33). But just because Pulp Fiction makes gangsters so appealing that viewers laugh when they commit violence doesn't mean that Donovan's story is indebted to that ironic sensibility. Rather, Donovan is exploiting an old folk character type: the fool who pretends. To drive this persona home, the attorney relates a tale to the jury about an Irishman at a bar who gets himself beaten to a pulp by claiming to be O'Toole and then proudly announces, "I sure pulled a fast one on that big fella'--I'm not O'Toole at all!" (32) Such use of a stock figure to underpin one's version of events may be sleight-of-hand, but it's hardly proof of a shift "to the hyperreal world of free-floating signifiers" (24). It's a time-honored tactic in the trial lawyers' craft.
For another example of hyperreality, Sherwin points to Johnnie Cochran's exhortation to the jury in the O.J. Simpson trial to "do the right thing" and "keep their eyes on the prize." Sherwin reminds us that "these neatly packaged soundbite phrases" (24) come from Spike Lee's film and PBS's documentary series on Dr. Martin Luther King, Jr. What's hyperreal about that? Smart lawyers recycle phrases that are on people's lips and in their memories.
At the root of what seems strained to me in Sherwin's approach is his view of the source of the stories that matter. "For most people," he says, "the source is not difficult to ascertain. It is the visual mass media.... This vast electronic archive provides us with the knowledge and interpretation skills we need to make sense of ordinary reality" (21). This statement misses the influence of family and friends, of schools and other institutions, of books and other arts, of a person's own life experience. All are sources of meanings different than the common currency of the mass media. Media stories affect us in important ways. But much of who we are and what we know comes from other contexts and traditions.
The trial court is one such context. Skilled trial lawyers, as I found out when I did the fieldwork for my book The Trial Lawyer's Art, make the proceedings a performance that will hold jurors' attention for days or weeks on end. This sort of storytelling is the antithesis of the mass media's slam-bang techniques. True, most people get their notions of what trials are like from the media; yet once they become jurors they are inducted into another sphere with its own practices and expectations. True, lawyers may seize on the latest scandal in the news or the latest technological visual aid if they think these will help their case; yet the main coordinates they work from lie not in the media, but in a centuries' long, still vital craft tradition.
This tradition has evinced much interest in the very matters of contingency that When Law Goes Pop regards as the key to affirmative postmodernism. Read Clarence Darrow's closing statements--the Leopold and Loeb case is a good place to start--and you can see the presence of a double frame of reference: one speaking in blunt certainties, the other circling around painful mysteries of human conduct. A lawyer, after all, has to get the jury to act decisively, but the jury may balk if the account ignores life's complexity. Affirmative postmodernism seems less of a break from past understandings than a continuation. Dilemmas of necessity and freedom have been the most enduring of themes for artistic representation.
The main threat to justice in the United States is not, I think, that the public will lose sight of the difference between image and reality. It is that the system will prove incapable of facing the reality of its failures to offer good legal representation to the poor and otherwise disadvantaged. If the law's direction is complacency rather than repair, cynicism will be well justified.
The Evergreen State College