Microsoft Word - 7_-_Reichman

457

THE PRODUCTION OF LAW

(AND CINEMA): PRELIMINARY

COMMENTS ON AN EMERGING

DISCOURSE

AMNON REICHMAN

I. SETTING THE STAGE:

A. L

IGHTS, CAMERA…

We have come a long way since an American Court determined that

cinema is nothing more than a form of entertainment.

More than half a

century ago it became widely accepted that cinema is a paradigmatic

medium for the communication of ideas, and is thus covered by the First

Amendment.

Currently, we are on a threshold of a new era, in which

cinema—fiction, documentary, and other genres—is perceived not only as

an instrument for the expression of thoughts and reflections, but also as a

sufficiently rich practice from which it is possible to learn about other

practices, and, specifically, about law.

Several law schools include, as part

of their J.D. curriculum, a course on Law and Cinema;

law professors

resort to film in “traditional” classes

and scholarly articles;

and law

* Visiting Professor of Law at the UC Berkeley School of Law (Boalt Hall) and Associate Professor,

Faculty of Law, University of Haifa. I have benefited from comments and contributions of many.

Special thanks are due to Oshrat Albin and Alexis Kelly for their excellent research assistance and to

Ariel Bendor and Shulamit Almog for their valuable comments. I owe also a debt of gratitude to

Laurent Mayali for introducing me to this field and to Robert Post for his inspiration.

The Court found that a film is not a serious medium for discourse concerning opinions, and it can thus

not be seen as constitutionally protected speech. Therefore, the State can ban such “entertainment”

insomuch as it poses a threat to society. Mut. Corp. v. Indus. Comm’n of Ohio, 236 U.S. 230, 242–45

(1915).

See United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948); Joseph Burstyn Inc. v. Wilson, 334

U.S. 495 (1952). For the claim that films—at least some films—are ideas, see J

ACK C. ELLIS, A

HISTORY OF FILM 1 (1979).

See WILLIAM P MCNEIL, LEX POPULI: THE JURISPRUDENCE OF POPULAR CULTURE 61 (2007). See also

ICHARD K. SHERWIN, WHEN LAW GOES POP: THE VANISHING LINE BETWEEN LAW & POPULAR

CULTURE (2000); STEVE REDHEAD, THE BIRTH OF LAW AND POPULAR CULTURE 13 (1995) (offering a

comparative historical analysis).

For example, courses are taught at UC Berkeley School of Law (Boalt Hall) (by Laurent Mayali and

Ticien Sassoubre); Michael Asimow teaches a course at UCLA, based on the course book he co-

authored with Shannon Mader: L

AW AND POPULAR CULTURE (2004) [hereinafter ASIMOW & MADER].

Courses are taught in other law schools across North America, including in Canadian law school (such

as the University of Toronto and Victoria University).

For a discussion of the British context, see Guy Osborn, Borders and Boundaries: Locating the Law in

Film 28 J. LAW & SOC. 164 (2001).

Typically, scholars would refer to a movie as a legal text. For example, in setting the framework for his

discussion of prosecutorial responsibilities, Fred C. Zacharias states the following: “Consider a related,

but perhaps even more difficult question: does a prosecutor have any responsibility to assist persons

458 Southern California Interdisciplinary Law Journal [Vol. 17:457

libraries provide academics with library resources tailored to research the

subject matter.

Conferences are held in this field,

law reviews devote

issues to it,

and books

and articles

explore its various angles. Cinema

and cinematic technology invade courtrooms and classrooms.

With little

fanfare we find ourselves discussing law and cinema, based on the

assumption—itself a focus for serious debate—that there is a sufficiently

common basis between these socio-cultural artifacts to warrant meaningful

discourse. We talk about law in cinema: the manner in which law is

portrayed in various films.

We also talk about the legal regulation of the

cinema.

We inquire into the manner in which cinematic or quasi-

cinematic techniques are used in the legal process.

By extrapolation, we

can also think about law as cinema, by referring to legal practices as a

who are injured by a defendant’s incarceration? An innocent wife or children of a defendant, for

example, may become homeless as a result of his conviction. Does the answer change if the very thrust

of the prosecution was to punish a parent for conduct that injured a child or to remove a parent from the

home?” Fred C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions 58 V

AND. L.

REV. 171, 184 (2005). In the following footnote that usually would point to a case in which the matter

was discussed, Zacharias refers to an episode of the television series The Practice, where a prosecutor

insisted on criminally prosecuting parents of a child who refused to authorize medical attention for their

child because of their religious beliefs. As a result of the prosecution, both loving parents were (at least

in theory) incarcerated, leaving the child homeless and parentless. The Practice: The Cradle Will Rock

(ABC television broadcast Oct. 20, 2002).

The library at the University of Texas at Austin, for example, includes a special collection dedicated to

law and popular culture. The online catalogue for the collection is available at

http://tarlton.law.utexas.edu/lpop/ (last visited Feb. 26, 2008).

See for example the symposium on law and arts, which includes sessions on law and cinema:

http://www.utexas.edu/law/news/colloquium/lawandarts/ (last visited Feb. 26, 2008).

See A Symposium on Film and the Law, 22 OKLA. CITY U. L. REV. 1 (1997); Symposium, Law in

Film/Film in Law, 28 V

T. L. REV. 797 (2004); Symposium, Law and Film, 24 LEGAL STUD. F. 559

(2000); Symposium, Law and Popular Culture, 48 UCLA L. REV. 1293 (2001); Symposium,

Documentaries & the Law, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 707 (2006).

Recent publications include LAW AND POPULAR CULTURE (Michael D. A. Freedman ed., 2005);

MELANIE WILLIAMS, SECRETS AND LAWS (2005); MARGARET THORNTON, ROMANCING THE TOMES:

POPULAR CULTURE, LAW AND FEMINISM (2002); RICHARD K. SHERWIN, POPULAR CULTURE AND LAW

(2006).

For a recent and interesting examination of the interaction between law and cinema, see Daphne

Barak-Erez, The Law of Historical Films: In the Aftermath of Jenin Jenin, 16 S. CAL. INTERDISC. L.J.

495 (2007); Ed Morgan, Cannibal Holocaust: Digesting and Re-Digesting Law and Film, 16 S.

CAL.

INTERDISC. L.J. 555 (2007).

Cinematic technology has become ever more present in court rooms. The moot courtroom in the

National Judicial Council in the University of Reno, Nevada, where state court judges often practice, is

a fine example. In many jurisdictions videos are presented to juries and judges and, in some

jurisdictions, oral arguments are broadcasted to the public. Many classrooms have also been modified to

allow video presentations. Short documentaries, lectures and, sometimes, fiction movies have joined the

syllabus as well. Moreover, it has become standard practice to film moot courts, and it is often the case

that first year law students learn basic techniques of oral argument by watching themselves argue a case

on video as a part of their moot court instruction.

See, e.g., Barbara Allen Babcock & Ticien Mary Sassoubre, Deliberation In 12 Angry Men, 82

HICAGO-KENT L. REV. 633 (2007).

Regulating cinema is almost as old as cinema itself, and seems equally universal. See, e.g., Gregory

D. Black, H

OLLYWOOD CENSORED: MORALITY CODES, CATHOLICS, AND THE MOVIES (1996); Matthew

Bernstein (ed.), C

ONTROLLING HOLLYWOOD: CENSORSHIP AND REGULATION IN THE STUDIO ERA

(2000); Stephen Prince, C

LASSICAL FILM VIOLENCE: DESIGNING AND REGULATING BRUTALITY IN

HOLLYWOOD CINEMA, 1930-1968 (2003); LAW’S MOVING IMAGE (Leslie Moran, Emma Sandon, Elena

Loizdou eds., 2004), esp. part III; Stephen Vaughn, F

REEDOM AND ENTERTAINMENT: RATING THE

MOVIES IN AN AGE OF NEW MEDIA (2005); Keith A. Rosten, Legal Control of the Soviet Cinema: The

Scenario Writers Contract, 14 RUTGERS L. J. 115 (1982).

Richard K. Sherwin, Introduction: Picturing Justice: Images of Law and Lawyers in the Visual

Media, 30

U.S.F. L. REV. 891 (1996); Richard K. Sherwin, Celebrity Lawyers and the Cult of

Personality, 46 N.Y. LAW SCHOOL L. REV. 517, (2003) 521-522.

2008] The Production of Law (and Cinema) 459

specific type of cinematic-dramatic practices.

It would follow that we can

address cinema as law, by treating cinematic practices as a specific type of

practices that perform law-making or adjudicative functions (or functions

analogous thereto).

Lastly, we can place law alongside cinema, thereby

using the practices as windows for gaining a glimpse at the human

condition.

Is it that we, the jurists, have finally seen the light? Have we

finally realized the similarities between the various aspects of the cinematic

world—the script, the staging, the location, the aesthetics, the performance

(to name a few of its characteristics)—and the legal world? This article

proposes to examine the emerging discourse, its limits and promising

potential.

The first part of this article will address the case for the law-and-

cinema discourse. More specifically, this part will examine the elements

law and cinema share—elements that enable using films to understand the

law, using law to understand the cinema, or using both to understand

aspects of modern social life (or the human condition more generally). This

section will also examine whether law-and-cinema adds anything to the

law-and-literature discourse or whether it merely extents the insights

gained from narrative-based theories.

The second part of this article will take a closer look at some

methodological difficulties the discourse faces, and caution against too fast

(and furious) claims made about “the law”, “the cinema” and the law-and-

cinema interplay.

In the third part of the article, the scholastic lens will focus on a

possible mapping of the emerging discourse. More specifically, three

clusters, or “families” of conversations will be identified. The first is

comprised of propositions about the manner in which cinematic and

judicial practices qua practices are “structured”. The second cluster

includes the ubiquitous use of films and law to illuminate something about

culture (or the use of film to understand the law, and the use of law to

understand film). The third centers on the normative claims regarding how

the law should be, based on insights gleaned from cinema, or how cinema

should conduct its business, based on normative arguments underlying

legal doctrines.

The fourth and final part of this article will abandon the somewhat

aloof vantage point of the musing spectator and call for action. The

particular claim this paper will advance is that cinematic theory can tell us

Sanford Levinson & J. M. Balkin, Law, Music, and Other Performing Arts, 139 U. PA. L. REV. 1597

(1991) (suggesting that law can be approached as a performing art). Sherwin, critically, argues that by

processes of social diffusion the law is being transformed into a form of cinema, and legal procedures

are being reconfigured to match the logic of image and appearances. S

HERWIN, supra note 3, at 142.

Orit Kamir, for example, rightly recognizes that the camera “judges”. ORIT KAMIR, FRAMED: WOMEN

LAW AND FILM (2006). It is unclear, however, whether the cinematic “judgments” are as linear or as

binary as legal judgments.

See Shulamit Almog & Ely Aharonson, Law as Film—Representing Justice in the Age of Moving

Images, 3

CAN. J. LAW & TECH. 1 (2004); Edward Mussawir, The Cinematics of Jurisprudence: Scenes

of Law’s Moving Image, 17 CARDOZO STUD. L. & LIT. 1371, 1371 (2005).

460 Southern California Interdisciplinary Law Journal [Vol. 17:457

something meaningful about the production of law—a heretofore under-

appreciated aspect of the legal phenomena.

But before turning to method, taxonomy and production, it is necessary,

as mentioned above, to say a few introductory words on the “stage” shared

by law and cinema, namely culture, and a few words on “words,” namely

the distinction between the law and cinema discourse and the law and

literature discourse. Those who have tired from detailed introductions or

who have come to view the law and cinema discourse as a fact that requires

no further elaboration, will, no doubt, find the next section stating the

obvious; yet, because a few eyebrows are still raised among respectable

jurists at the mention of cinema as a serious source from which legal

insights can be gleaned, the following is necessary.

B. C

ULTURE!

For a law-and… discourse to operate, an axis shared by the law and the

other practice (or system) must be established.

The law and cinema

discourse rests on the observation that both the law and the cinema reside

in the same social domain—culture—and therefore each practice influences

(and is influenced by) the other.

As sound as this observation may be,

culture—legal, popular and legal-popular—is one of those concepts which

definition is ever-more elusive, even though its contours are intuitively

evident to members of society.

Rather than attempting to define the full ambit of the cultural plane law

and cinema share,

it suffices, for the purposes of grounding the

interdisciplinary discourse of law and cinema, to highlight the role both the

law and the cinema play in forming (and maintaining) society’s ‘framework

narratives’.

These are the narratives that provide the background meaning

against which ordinary—and unordinary—events are instantly interpreted

and become meaningful. They are the paradigmatic accounts of

experiences—cases, or stories—that infuse social interactions with context:

we know what is going on around us (and how to understand the

Law and economics share the notion that both the law and the market (and market incentives)

regulate (and are regulated by) incentives; the law-and-literature discourse focuses on the uses of text

central to both practices; law and critical theories rests on the realization, central to law and to

sociology, that political power (and its distribution) matters. One can conceive of other systems with

which law shares a central feature (such as sports) but the onus remains: to establish the contours on the

element the law and the other practice share.

For the general observation, see Lawrence Freidman, Law, Lawyers and Popular Culture, 98 YALE L.

J. 1579 (1989). Some have identified a closer link between law and cinema. As Suzanne Shale claims,

“Law and the cinema are both theaters of conflict, spectacles through which we understand essential

aspects of our humanity and society.” Suzanne Shale, The Conflicts of Law and the Character of Men:

Writing Reversal of Fortune and Judgment at Nuremberg, 30 U.S.F.

L. REV. 991, 991 (1996).

For an illuminating discussion of culture as providing a “tool kit” for action, see Ann Swidler, Culture

in Action: Symbols and Strategies, 51 A

M. SOC. REV. 273 (1986). For the difficulty of defining culture,

see Naomi Mezey, Approaches to the Cultural Study of Law: Law as Culture, 13 Y

ALE J.L. & HUMAN.

35 (2001).

In that respect, I share Adler’s concerns: Amy Adler, The Folly of Defining Art, in THE NEW

GATEKEEPERS: EMERGING CHALLENGES TO FREE EXPRESSION IN THE ARTS 90 (2004).

Sherwin, Picturing Justice, supra note 15; Philip N. Meyer, "Desperate for Love II": Further

Reflections on the Interpenetration of Legal and Popular Storytelling in Closing Arguments to a Jury in

a Complex Criminal Case, 30 U.S.F.

L. REV. 931, 932 (1996).

2008] The Production of Law (and Cinema) 461

motivation and behavior of the players around us) because we have, in the

back of our minds (and sometimes in the forefront) this very basic outline

of how people behave in a situation like the one we are confronting. We can

thus easily surmise where the various actors are coming from (or going to);

in light of the framework narrative, we ascribe motivation to their behavior.

For example, each culture has a paradigmatic story of a robbery, or a rape,

or an election, or going to law school, and, in relation to this framework

narrative, we, as members of the society (and consequently as participants

in its culture) fill in the blanks and link those segments of an interaction to

which we are privy into a greater whole, the social meaning of which is

readily accessible to us. These framework narratives are often

communicated (and culturally maintained) through symbols: visual and

audio-visual images, signs and notes, the representation of which carries a

set of cognitive and emotional connotations.

Such framework narratives

participate in forming social conventions (and are, of course, formed by

conventions). They play a role in the shaping of individual and group

identity and in the formation of collective memory. They may also play a

part in formulating certain moral positions: it is against certain

paradigmatic stories that we become aware of—or construct—what we

stand for; it is against these stories that we hone our sense of justice and

determine right from wrong (or allocate blame or empathy). These

framework narratives are obviously not random: they fit contemporary

power structures as they participate in the processes of stratification and re-

stratification of society. They cannot be simply scripted (or narrated): they

must be a part of long-standing ritualistic behaviors, often relying on

common history and collective memories.

At the same time, these

framework stories are not static; in the processes of their communication,

they evolve, for reformulation often (if not always) occurs.

The cinema and the law participate (along with other expressive social

practices) in the organization, communication, generation, and regeneration

of these cultural building blocs. Legal cases (and, to a degree, statutes)

interact and correspond with existing framework narratives, and take part in

their evolution, either by refining elements of the storyline (including

adding layers to the makeup of the characters or to their social

environment) or, on occasion, by transforming the framework altogether.

Consequently, this cultural plane has long attracted the attention of scholars

interested in the broader aspects of legal phenomenon.

Among law and

culture aficionados, it is understood that law is greater than the sum of the

rules, orders, and decrees generated and issued therein, and therefore

Compare Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture in CLIFFORD

GEERTZ, THE INTERPRETATION OF CULTURES: SELECTED ESSAYS 3-30 (1973), with EDMUND LEACH,

CULTURE AND COMMUNICATION: THE LOGIC BY WHICH SYMBOLS ARE CONNECTED (1976), in which

Leach, interestingly, refers to the performing arts—the symphony orchestra—as an organizing

metaphor.

See William J. Everett, Ritual Wisdom and Restorative Justice, 2004 HAMLINE J. PUB. L. & POL. 347,

348 (2004).

See Austin Sarat & Thomas R. Kearns, Beyond the Great Divide: Forms of Legal Scholarship and

Everyday Life, in L

AW AND EVERYDAY LIFE 21 (A. Sarat & T. Kearns eds., 1993); SHERWIN, supra note

462 Southern California Interdisciplinary Law Journal [Vol. 17:457

simply reading the rules (or the cases that announced them) cannot tell us

enough about the law. The formation of notions such as legitimacy,

fairness, moral rights, and the like—which arguably reside outside black-

letter law—plays an important role, because these notions breathe

contextual life into the law; they are central ingredients in law’s framework

narratives.

If we accept these observations, then the manner in which the practice

of law (and the operation of legal rules) are perceived and depicted by other

expressive practices is significant. Understanding law in the domain of

culture—that is, understanding the law in its culture and as culture

—

requires that jurists take the neighboring expressive practices, such as

cinema, seriously. These depictions, the basic theme goes, are not merely

descriptive; they also carry formative elements, as they participate in

shaping our professional and lay consciousness, the understanding of our

roles within the system, and the expectations of professionals and the

general public from the law.

Given the pervasiveness of the cinematic

medium, movies (and the industry’s culture) influence the general culture

and apparently the legal culture (and the practice of law) as well. The vice-

versa may also be true: given the pervasiveness of law, legal culture plays a

role in the formation of popular culture. As Carol Cover has noted,

Hollywood’s fascination with the legal process, and primarily with the idea

of juries, played a central role in the development of American cinema.

What we know about the law, and, to an extent, what we have come to

expect from the law, is partly shaped, it would seem, by the cinematic

representation of the legal process, and, conversely, the legal process may

influence the cinematic world (not only via the actual regulation of

production but also by introducing adjudicative images into the framework

narratives that undergirds cinematic genres).

Outlining this aspect of the field that law and cinema share will not be

complete without noting the significance of the means that are utilized both

See generally, PAUL W. KAHN, THE CULTURAL STUDY OF LAW (1999); ANTHONY G. AMSTERDAM,

MINDING THE LAW (2000). Culture, it has been argued, is important for understanding any social field.

See H. G. Gadamer, The Problem of Historical Consciousness, in INTERPRETIVE SOCIAL SCIENCE—A

SECOND LOOK 82, 93–95 (1979).

For the importance of lay persons’ expectations from the law, see William L.F. Felstiner, Richard L.

Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15

AW & SOC’Y REV. 631 (1980–1981); ROBERT ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS

SETTLE DISPUTES (1991). For the importance of professional expectations from the law, see DUNCAN

KENNEDY, A CRITIQUE OF ADJUDICATION (1997). For the debate in the context of law and cinema, see

Austin Sarat, Exploring The Hidden Domains of Civil Justice: "Naming, Blaming, And Claiming" in

Popular Culture, 50 D

EPAUL L. REV. 425 (2000); Jessica M. Silbey, What We Do When We Do Law and

Popular Culture, 27 L

AW & SOC. INQUIRY 139 (2002); Victoria S. Salzmann & Philip T. Dunwoody

Prime-Time Lies: Do Portrayals of Lawyers Influence How People Think About the Legal Profession?,

58 SMU

L. REV. 411 (2005) (finding little evidence to the “realist” claim that portrayals in fact change

expectations).

See, e.g., Carol J. Clover, Movie Juries, 48 DEPAUL L. REV. 389 (1998). To the extent that academic

discourse has focused on the (presumed) effect of law on the creation of cinema, it has been mainly

through analysis of intellectual property rules, distribution agreements, and the regulation of expression.

With few notable exceptions (such as Colver), little has thus far been written on the cultural effect the

law (and legal culture) may have on the practices that comprise the cinema. Law could very well be in

the business of regulating culture, not only through explicit rules that deal with product placement,

personality rights and the like, but also through generating certain framework stories that influence the

legal culture and inform the production of other cultural domains, such as cinema.

2008] The Production of Law (and Cinema) 463

in the realms of the law and the cinema for the production and reproduction

of the framework narratives. For example, both law and cinema apply a

rich system of self-references, and, to a degree, a system of cross-

references.

Furthermore, some would say that both use poetic and

aesthetical tools to create an illusion by which the audience will see what

you want them to see.

This inquiry into the “how they do it” may

illuminate something about law or cinema by revealing the internal

mechanisms through which these practices generate social meaning. Such

an inquiry can also tell us something more general about the mechanics of

culture, namely how the “stage” (shared by law, cinema, and other

expressive practices) is constructed.

C. L

AW, LITERATURE, AND CINEMA

(OR THE IMPORTANCE OF “IMAGE” AND “EXPERIENCED

PERFORMANCE”)

Having based the link between law and cinema on the concept of

framework narratives and their formative cultural role, one is tempted to

describe the relation between law and cinema as merely an extension of the

relation between law and literature.

This “accusation” has something to it,

and it appears that the theoretical foundation literature offers is rich enough

to encompass the cinema as well. However, the fact that we can

conceptualize the law-cinema relationship in a manner similar to the law-

literature relationship should not necessary lead to the conclusion that

cinema is but a type of text, and, therefore, the treatment of law and cinema

can be reduced to a particular case of law and literature (or law and

narrative).

Cinema has at least two inter-related features that sets it apart from

literature: performance and image. In this respect, cinema is more closely

aligned with photography—for its reliance on the depictions by the

camera

—and with other performing arts—for its reliance on performance.

It has more in common with the theatre than with literature. Paying closer

attention to the concept of performance reveals that whereas literary text

demands little by way of physical attributes—words have to be

communicated via some physical medium, but beyond pen and paper little

else is required—performance has a defined spatial (or geographical)

dimension. Films are shot in an actual location (even if this location is a

See, e.g., AUTOPOIETIC LAW: A NEW APPROACH TO LAW AND SOCIETY (Gunther Tuebner ed., 1988)

[hereinafter A

UTOPOIETIC LAW].

Sherwin, Picturing Justice, supra note 15, at 893.

See Rebecca Johnson & Ruth Buchanan, Getting the Insider’s Story Out: What Popular Film Can Tell

Us About Legal Method’s Dirty Secret, 20 W

INDSOR Y. B . ACCESS JUST. 87, 94 (2001). David A. Black

claims that there is a “family connection” between the legal and literature fields and the scholarly work

in the field of law and cinema. See D

AV I D A. BLACK, LAW IN FILM: RESONANCE AND REPRESENTATION

13–31 (1999). For more on law and literature, see, e.g., J

EROME BRUNER, MAKING STORIES: LAW,

LITERATURE, LIFE (2002); Sunil Rao, Making Sense of Making Stories: Law, Literature, Life, 95 LAW

LIBR. J. 455 (2003).

Seymour Chatman, What Novels Can Do That Films Can’t (and Vice Versa), reprinted in FILM

THEORY AND CRITICISM: INTRODUCTORY READINGS 445 (Leo Braudy and Marshal Cohen eds., 6th ed.

2004).

464 Southern California Interdisciplinary Law Journal [Vol. 17:457

studio) and are screened (at least for the time being) in a specific place.

Furthermore, performance has a unique socio-active dimension: actors (and

many other functionaries) have to do something—act their role—and, at

least in fictional, non-animated cinema, that means that actual interactions

are taking place (or events occur) for the purpose of their capture on film.

Moreover, cinematic performance is rarely a one-person project; unlike

writing a book, which may be a solitary exercise, producing a movie—not

a short clip for the internet, but a full-length feature—is usually a social

activity that requires collective cooperation. Equally important is the fact

that the practice of cinema assumes an audience, which experiences the

screening collectively: people sitting together and participating in the

practice as spectators.

As for image, it would be trite to note that the cinema is unique

because it projects an actual image—a moving image, interlaced with

sound—rather than its literary account. A documentary, which may depict

the beauty of Mount Everest, is different from a verbal description of the

mountain because words have their own, distinct essence.

These characteristics, which enable us to set cinema apart from

literature (and place it much closer to theatre) are directly relevant for the

law-and-cinema discourse: they offer an opportunity to develop a unique

conceptual language which fits the non-textual dimensions of law and

cinema. First, cinema and law are dramatic practices that transcend text, in

the sense that both practices are experienced: they are viewed (and heard).

As mentioned, in a movie theater (and in court), we are physically present,

most often with other people. A film (or a judicial proceeding) is therefore

not merely a narrative, but is rather a social occurrence or event, in which

we participate. The public nature of law and cinema is not accidental, but is

rather a key element in the structure of these social practices: it produces a

unique type of poetics.

Second, as mentioned, cinema, the art of the moving image, is

organized on framing, shot, and montage,

as well as sound, color, and

lighting. We may thus address cinema as premised in part on a non-verbal

language with its own idioms, “concepts” and structure. Such non-verbal

mode of expression and communication is distinct from the literary mode,

precisely because it is not restricted to words and thus cannot be fully

translated or transformed into words. The moving images on the screen are

not something words can fully capture, and the dynamic layers of video and

audio present a medium capable of transcending the plane where verbal

narratives reside.

Whereas events in documentary films do not occur, one would hope, for the purpose of their

documentation on screen, but they still occur, so the socio-active dimension is present (although we

must recognize the difference between acting for the sake of the film, and the film capturing actions that

would have occurred irrespective of the film). At the very least, the socio-active dimension in

documentaries is present with respect to the actions of the production team, which places itself in the

vicinity of the actions it seeks to capture (with various degrees of separation between subject and

object).

See generally, LAW’S MOVING IMAGE, supra note 14. For an illuminating review, see generally,

Mussawir, supra note 18, at 1371.

2008] The Production of Law (and Cinema) 465

The case for treating law as something greater than its text is not as

trivial, but further consideration reveals its merits. It would require us to

acknowledge that law is broader than the practices of writing judgments or

statutes (that do seem to revolve around text); it also includes the practices

of adjudication, negotiation, and the political deliberation and bargaining

that leads to legislation, which may all include dramatic elements that are

not merely text driven, and which cannot be fully translated into the

language of words and narratives. The practices of law, properly

understood, are greater, it would seem, than the texts around which they

evolve.

Beyond the opportunity to develop a unique set of concepts with which

to capture the non-narrative dimensions of law and cinema, the law-and-

cinema discourse expends the law-and-literature’s approach by presenting

the possibility to put forward research questions unique to the interaction

between the law and the cinema. To whom does the space in which the film

is photographed (or projected) belong? How is this space designed and

regulated? Who controls it? Similarly, we can inquire about the socio-

active dimension: how, or to what extent, does the law govern cinematic

performance? And via which institutions do (or ought to) societies exercise

such governance? As for the notion of image, again, questions are abound:

how does the law capture an image? What are, and should be, the laws of

the image? And what about law’s image(s)? Is law itself an image of sorts?

Who controls law’s images—who produces them, and what are the

aesthetic conventions that govern the production of legal images?

The argument that law and cinema is not but an extension of law and

literature should not, of course, lead to an overly strong conclusion, namely

that the insights of law and literature are irrelevant to the law and cinema

discourse. For example, narrative theory can certainly inform the analysis.

The cultural world is sufficiently complex to enable, if not to require, the

use of theories developed in the field of law and literature as well, provided

that the differences are noted.

Having briefly touched upon “the stage” that the law and cinema share

(and its uniqueness), it is time to expand on some of the limitations of this

discourse.

II. METHODOLOGY: SOME LIMITATIONS OF THE DISCOURSE

A. “T

ALKING ABOUT” CINEMA (AND LAW)

Perhaps the most obvious methodological difficulty the law-and-

cinema discourse faces stems from the limit of words. The experience of

talking about something (such as an event or a practice) is fundamentally

different from the experience involved in participating in that something. It

Such analysis is certainly prominent in the study of cinema. See, e.g., Ella Shohat, Master

Narrative/Counter Readings: The Politics of Israeli Cinema, in R

ESISTING IMAGES: ESSAYS ON CINEMA

AND

HISTORY 251 (Robert Sklar & Charles Musser eds., 1990).

466 Southern California Interdisciplinary Law Journal [Vol. 17:457

seems that this point was at the core of Stanley Fish’s observation regarding

the distinction between theory and practice.

The position taken here is

slightly different: when we engage in a conversation regarding a practice,

we are in fact participating in a practice distinct from the practice we are

seeking to analyze.

Somewhat ironically, this practice can be termed “the

practice of theorizing,” which may be distinguished from the practice about

which we are theorizing.

Therefore, addressing cinema by writing about it is limited by its very

nature. The turn to speech in order to describe aspects of particular

practices or certain experienced artifacts is conducted under the internal

limitations of the use of written (or spoken) language. The multilayered

richness of an experience is compressed (and thus reduced) into a word.

Much has been written about the fact that words are not transparent; they

do not just describe.

Sometimes they are opaque, and, in any case, they

generate their own gravitational pull, an associative weight that is liable to

divert the discussion to other spheres and to blur the clarity of the actual

experience as it was directly felt (or as it was captured without resorting to

words).

This shortcoming applies all the more to a printed academic journal,

where, at least for the time being, it is impossible to incorporate video and

audio as an element in the presentation of an argument.

No wonder,

therefore, that classes addressing law and cinema themes are almost never

confined exclusively to written materials; without a film, or scenes from

films, such a class would fall short of fully addressing the subject-matter.

STANLEY FISH, DOING WHAT COMES NATURALLY 372–78 (1989).

For the definition of “practice,” see ALASDAIR MCINTYRE, AFTER VIRTUE: A STUDY IN MORAL

THEORY 187–95 (1994).

For more regarding this matter, see generally, LUDWIG WITTGENSTEIN, PHILOSOPHICAL

INVESTIGATIONS (G.E.M. Anscombe trans., Macmillan Publishing 3d ed. 1968) (1953). As he

mentioned, “Colloquial language is a part of the human organism and is not less complicated than it.

From it, it is humanly impossible to gather immediately the logical of language. Language disguises the

thought . . . . The silent adjustments to understand colloquial language are enormously complicated.”

UDWIG WITTGENSTEIN, TRACTATUS LOGICO-PHILOSOPHICUS 61–63 ¶ 4.002 (C.K. Ogden trans.,

Routledge & Kegan Paul 1983) (1922).

Words have a tendency to judge while they attempt to describe. A discussion of anything, including

cinema, frequently (and maybe always) includes a certain judgmental load. Indeed, words are not

unique in this; non-verbal forms of expression, communication, and reference are also judgmental. Yet,

the judgmental load involved in “talking about” something is an additional weight added onto the

existing value judgments already interwoven into the cinematic presentation. This added weight may

obscure or may otherwise interfere with the value-judgments expressed by the cinematic representation.

Furthermore, words judge in a manner that is unique to them. Judgments in cinema are spread out over

several levels, some of which are non-verbal: the angle of camera, the light and shadows, the sound

score, the setting, the silences, etc. The richness of the medium enables us to convey and perceive

complex and sometimes dialectical ethical positions (in addition to the possible dialectics of the verbal

dialogues or the narrated story). Accessing the cinematic value-laden expression by using words (i.e.,

by “talking about” the cinema) is liable to be lacking and even misleading. This limitation, it should be

stressed, is not unique to a discussion of cinema, and is valid also with respect to “talking about” other

practices, but this by no means detracts from its significance.

Cf. NICHOLAS NEGROPONTE, BEING DIGITAL 7–8 (1996).

On the use of cinema for teaching law, see, for example, STEVE GREENFIELD, GUY OSBORN & PETER

ROBSON, FILM AND THE LAW 6–11 (2001); Johnson & Buchanan, supra note 32, at 93; Donald H.J.

Hermann, The Law in Cinema: An Emerging Field of Study, 42 N.Y.L.

SCH. L. REV. 305, 322–29

(1998); James R. Elkins, Reading/Teaching Lawyer Films, 28 V

T. L. REV. 813 (2004); Alan A. Stone,

Teaching Film at Harvard Law School, 24 LEGAL STUD. F. 573 (2000).

2008] The Production of Law (and Cinema) 467

If so, why bother to write an academic essay dealing (even in part) with

cinema? Wouldn’t this article, according to the aforesaid, be seriously

lacking? And more importantly, why bother to read such an article?

The answer, it seems, corresponds to the position that we are dealing

with different practices. An analysis of cinema does not directly compete

with watching a movie or participating in the making of one. Rather, this

analysis—conducted in words and thus limited by words—is part of the

practice of theorizing about cinema. Active participation in this practice

could reveal hidden elements, organize salient elements in an innovative

fashion, and may enrich the experience of participating in the practices that

form the cinema itself. It is because the landscape photographer is limited

in her ability to capture the full extent of the experience she encounters that

she is forced to choose which part to focus on, how to present the scene,

and how to organize the parts of the composition. This new creation, if it is

successful, will enrich our experience the next time we come to view the

landscape in an unmediated way, or even when we come to look at

something that does not have that much in common with the landscape.

Similar things, at least to a certain extent, can be said about the

academic treatment of law. Talking about law is not equivalent to practicing

the practices of law (i.e. litigating, judging and/or legislating).

But—one

would hope

—if we have done our work diligently enough, legal

scholarship is not as detached from legal practice as some might worry.

After all, theoretical analysis of doctrine and underlying principles, but also

of the kind undertaken by law-and-cinema scholars, may yield some

practical insights.

While the academic research may—and perhaps

should—entail some loss of innocence (as the by-product of exposing the

real impact of a certain legal rule or the power-structure underlying a

certain practice), it is difficult to ignore the potential of such analysis to

If we have done our work faithfully, if in our research of cinema we have revealed certain aspects

which we did not notice earlier, we stand a chance to be more aware in our next encounter with the

movies of those hidden elements. This awareness might come at a price. Possibly, we may sometimes

prefer to ignore certain aspects of the cinematic experience. For example, a mystery book writer would

never read mystery books in the same way these books are read by a person who is not privy to the

behind-the-scenes of literary work. A certain measure of innocence is lost the more we become aware of

various aspects of the work that is in front of us. But this loss of innocence may nonetheless be worth it,

as a richer world may be revealed and illuminated.

See, e.g., Wade H. McCree, Jr., Partners in a Process: The Academy and the Courts, 37 WASH. &

LEE. L. REV. 1041 (1980).

But see Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 166 (1990).

For the relationship of legal practice and legal academia, see recently Amnon Reichman, The

Dimensions of Law: Judicial Craft, Its Public Perception, and the Role of the Scholar, 95 C

AL. L. REV.

1619 (2008); Lawrence Baum, JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR

(2006).

“There is nothing more practical than a good theory,” said Kurt Lewin, and, if that is so with respect

to the social sciences, it stands to reason that the same would apply to legal analysis as well. K

URT

LEWIN, FIELD THEORY IN SOCIAL SCIENCE: SELECTED THEORETICAL PAPERS BY KURT LEWIN 169

(1951). For recent application of this approach to cinema, see Henry Breitrose, There is Nothing More

Practical Than a Good Film Theory,

http://7www.agrft.uni-lj.si/conference/Ljubljana/Henry_Breitrose.pdf (last visited March 10, 2008).

468 Southern California Interdisciplinary Law Journal [Vol. 17:457

transform our understanding of doctrine, underlying principles, or the legal

project more generally.

Law-and-cinema discourse, therefore, like any other discourse, is

limited by the nature of words, but such methodological limitation need not

doom the project. It requires maintaining the distinction between the

various practices at hand: law, cinema, and theorizing about law and

cinema.

In that context—i.e., in dealing with the limits of verbal analysis of law

and cinema—a second-order limitation should be noted: the inability to

“talk about” law and cinema in their totality. Law, cinema (and perhaps all

other practices) contain a social domain that can be termed “behind the

scenes.” The law, like any other social construct, hides the scaffolding that

holds its segments together; the construct is likely to collapse if exposed as

a mere construct. Such scaffolding includes, among other tools, metaphors

that “breath life” into a “legal universe” where “reasonable people” reside,

where “reasonable doubts” can be measured, where legislation has purpose

and legislatures have intent. These metaphors are part of the devices the

practice deploys to maintain its boundaries and set itself apart from

neighboring practices, such as politics or the market. A court of law thus

insists (i.e., the people who work in the legal profession insist) on a certain

language and decorum (which supports and reinforces the logic internal to

the legal process). The cinema also uses devices to conceal its scaffolding

and to ensure that the construct “works”. Were we exposed to the director’s

orders and to the stage setting as part of the film, the artifact would become

undone. In fact, it is doubtful that we can conceive of cinema unbounded

by frame.

At the very least, we must recognize the limits of our ability to talk

about all aspects of law and cinema at once. For the “talking about” to be

meaningful (i.e., for the conversation to have a sufficiently distinct subject

matter), some aspects of law and of cinema must be, at any given moment,

taken as a given. Surely these aspects themselves may become the object of

inquiry, but for that to happen other aspects must rescind to the “taken for

granted” and become part of the behind-the-scenes. Another way of stating

the same methodological limit rests on the realization that a “view from

nowhere” is unattainable. The “behind the scenes”—or segments thereof—

would remain hidden because our human gaze is directional, and it casts its

own shadows. While we may shift our gaze and shed light on a heretofore

hidden element, by so doing we would lose sight of the elements that are

outside the frame of our gaze, and therefore some elements of the practices

are bound to stay unseen.

For the dialogue between judges and academics, see Abner J. Mikva, For Whom Judges Write, 61 S.

CAL. L. REV. 1371 (1988); Abner J. Mikva, The Role of Theorists in Constitutional Cases, 63 U. COLO.

L. REV. 451 (1992); Ira C. Rothgerber, Jr., Conference on Constitutional Law, Constitutional Theory

and the Practice of Judging, 63 U.

COLO. L. REV. 291, 451–56 (1992). Also of great importance is the

input of practicing lawyers; it is often lawyers that reveal the dirty secrets of practice and thus partake

in the unveiling of legal myths.

The claim is not that law and cinema are necessarily unique, nor that the relation between them is

necessarily unique. It is possible to expose, reveal, develop, and understand any practice in itself.

2008] The Production of Law (and Cinema) 469

“LAW” AND “CINEMA”

Another methodological difficulty that should be acknowledged is the

ever-shifting definition of the practices under consideration. The practice

that is termed in loose language “law” is actually a collage of several

interrelated practices. The law, as we know it, is not a single, uniform

practice, but rather includes several sub-practices. What family law lawyers

do is quite different from what corporate lawyers do, which is still different

from the business of legislative aids, confronted, for example, with drafting

legislation regulating insurance companies. Using a different matrix, we

can appreciate that the common law is profoundly different from statutory

law. Constitutional law is intrinsically different from statutory law even

though both are part of “the law.”

Moreover, each of these components of

the law itself incorporates several practices. Common law, for instance,

juxtaposes litigation (i.e., advocacy), judicial decision-making, and

academic discourse (that affects legal education, advocacy, and judicial

reasoning). It is difficult to analyze the common law, without referring to

these three practices. Surely, these practices are distinct: what lawyers do is

different from what judges do, and these two practices are different from

what academics do; yet these practices nonetheless intersect.

Similarly,

when talking about statutory law, it is difficult to ignore the practice of

legislation and the practice(s) of bureaucratic enforcement and policy

formation in addition to the practices mentioned above. In coming,

therefore, to analyze ‘law’ in the law and cinema discourse, we should first

identify the practices at the core of our analysis, including their internal

procedures and outcomes (or products).

As easy as this might seem,

identifying the contours of the practices under analysis is far from trivial,

and thus far few scholars—and this author is no exception—have taken the

time to carefully define what they mean by ‘law’. But for the analysis to be

sound such an exercise may prove to be indispensable.

It should be stressed that law, at least pursuant to certain theories of

law, is (much) broader than the judgments that interpret or apply any

specific law.

The law is not merely the creation of judgments by judges or

legislators, and it does not take place only in a courtroom (or the legislative

halls). The practice(s) of law include alternative ways to resolve disputes

Furthermore, we could find other practices that are better suited for the task of illuminating the behind-

the-scenes of law than the practice of cinema, and vice versa. But that does not negate the benefit or the

validity of the discourse of law and cinema. The existence of a field of discourse does not depend on the

fact that through it, it is possible to optimally illuminate or to fully apply all possible insights to the

examined practices. It is just one more inquisitive venue of doing so.

Amnon Reichman, Formal Legal Pluralism, OUTLOOK 24–27 (Spring 2003).

Cf. Robert Post, Legal Scholarship and the Practice of Law, 63 U. COLO. L. REV. 615 (1992).

As stipulated by Professor Silbey, “I am offering only that which may seem obvious but which is

rarely done in studies of law and popular culture: that we circumscribe our inquiries by explicitly

naming the conception(s) of law which we rely so that we can proceed with our analysis with a measure

of clarity . . .” Silbey, supra note 28, at 145. See A

NTHONY CHASE, MOVIES ON TRIAL 3–6 (2002).

But see JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW 84 (1963) (“The law of the

State or of any organized body of men is composed of the rules which the courts, that is, the judicial

organs of that body, lay down for the determination of legal rights and duties.”).

470 Southern California Interdisciplinary Law Journal [Vol. 17:457

which are often conducted out of court (even if under its shadow).

The

term ‘law’ also covers many practices that consist of legal acts carried out

by “the authorities” (namely, state agencies) and by other entities, including

“private” persons (who contract, write wills, and generally act in light of

legal rules).

The law, according to one dominant approach, is all-

encompassing,

and therefore the need to identify what is meant by the

legal phenomena is ever more acute. Some may claim that this problem is

not as pervasive in defining the contours of cinema. While it would be

possible to argue that in every interaction we participate in law, it is not

clear that it is possible to claim that we participate in cinema in an identical

manner. According to this view, life is not a film, even if we sometimes feel

like actors in someone else’s script. However, others may argue that “[a]ll

the world's a stage, and all the men and women merely players”

and that

the cinema (like the theatre) offers a rich-enough conceptual language with

which it is possible to understand social relationships off-screen as well.

Time will tell whether the development of such a terminology will prove

fruitful, and whether there is merit in analyzing social interactions and

practices in general by resorting to the language of “directing,”

“production,” “stage setting,” “casting,” “image editing” and other

cinematic features.

In any event, even if we reject the claim that the cinema is all-

encompassing, questions regarding the boundaries of the practice are

abound. Should we refer to a television series as “cinema”?

What about a

film produced for theaters but released directly to video and television?

How should we relate to commercials made for and screened on the silver

screen? Does “cinema” include novel creations, including films of various

lengths circulated on the Internet?

As alluded to above, it appears that there is something unique in a film

that is screened in movie theaters just as there is something unique in a trial

that is conducted in a courtroom. But this somewhat intuitive position is far

from trivial. Developments in the film industry also liberate it from a

certain physical-social space in which the film director and the cameraman

are omnipotent. The transition to television, video, and the Internet

provides the spectator with a choice to view a film in her own space and on

See generally Mark Galanter, Justice in Many Rooms: Courts, Private Ordering and Indigenous Law,

19 J.

LEGAL PLURALISM 1 (1981).

Lauren Edleman, The Legal Lives of Private Organizations, in The Blackwell Companion to Law and

Society (Austin Sarat ed,) (2004) 231; Orly Lobel, The Fall of Regulation and the Rise of Governance

in Contemporary Legal Thought, 89 M

INNESOTA LAW REVIEW 342 (2004).

Sarat & Kearns, supra note 26, at 21.

WILLIAM SHAKESPEARE, AS YOU LIKE IT (first printed in 1623), Act II, Scene 7, available at

http://www.shakespeare-literature.com/As_You_Like_It/

In the last years, the blur between reality and perception and between life and fiction has received

attention by cinema itself. See T

HE TRUMAN SHOW (Paramount Pictures 1998); WAG THE DOG

(Baltimore Pictures 1997); ED

TV (Imagine Entertainment 1999). Certainly reality television is also part

of that genre. For analyzing the secret of the success of one Australian reality television show, see

generally, TONI JOHNSON-WOODS, BIG BROTHER: WHY DID THAT REALITY-TV SHOW BECOME SUCH A

PHENOMENON? (2002).

Cf. BLACK, supra note 32, at 6–7.

2008] The Production of Law (and Cinema) 471

her own time. More recent interactive developments grant the viewer the

power to participate in setting the pace, if not in molding the plot itself.

The evolving boundaries of the cinema bear on the precision with

which we pursue our research questions within the realm of the popular

perceptions of the law. A key question warranting empirical research

addresses the portrayal of the law on screen and its reception among

different viewers.

It seems that a television series such as L.A. Law or

even the series The Paper Chase, influenced the popular perception of law

not less, and maybe more, than many films, including the film The Paper

Chase, which served as the inspiration for the television series, or the film

L.A. Law, which was produced in the wake of the television series. What

are the elements that distinguish the cinematic experience from that of

television? We could, of course, point to many differences. But a theory

explaining the relation between these differences and the influence of

cinema or television on popular culture, including the creation of

framework narratives has not yet surfaced. Consequently, at this stage the

law and cinema discourse is not developed enough to enable us to make an

informed choice on whether to focus on films screened in theaters or

whether we should expand the focus to include related types of media as

well. Therefore, while we may focus on theater-films, we should be

mindful that we may be covering but a portion of the relevant practices (or

artifacts).

Identifying the practices with a sufficient degree of precision is

important for yet another reason: it enables an empirical research of the

ideal types

that inform the practitioners of the professional standards

definitive of the practice. Adopting a viewpoint internal to the practice

allows us to examine the makeup of heroes or villains as well as artifacts

(films, legal cases) that are taken by the practice to be emblematic of a

certain way of thinking.

Such an inquiry need not base itself solely on a

literary analysis of the representations; it may also resort to a law-and-

society tool-kit.

One very basic realization that stems from identifying the contours of

the practices under consideration is somewhat self-reflective: the role

academic discourse plays in the practices that form “the law” is quite

different from the role played by academic discourse in the cinematic

world. As aforesaid, the common law, while resting on judicial decisions,

Compare, in a more general context, Michael Schudson, How Culture Works: Perspectives from

Media Studies on the Efficacy of Symbols, 18 T

HEORY & SOCIETY 153 (1989).

For a discussion of the “ideal type,” see MAX WEBER, THE METHODOLOGY OF THE SOCIAL SCIENCES

89–95 (1949).

For further discussion on the internal perspective, see B.Z. Tamanaha, The Internal/External

Distinction and the Notion of ‘Practice’ in Legal Theory and Sociological Studies, 30 L

AW & SOC’Y

REV. 163 passim (1996); H.L.A. HART, THE CONCEPT OF LAW 86–87 (1961).

Cf. Charles B. Rosenberg, The Myth of Perfection, 24 NOVA L. REV. 641, 642–43 (2000). For

suggesting that the law-and-cinema discourse is most helpful in reexamining ideal types (with one eye

to the ideal and the other to the possibility of holding up to this ideal in reality), see James R. Elkins

Symposium: Popular Culture, Legal Films, And Legal Film Critics,

40 LOY. L.A. L. REV. 745 (2007).

Cf. JOHN FISKE INTRODUCTION TO COMMUNICATION STUDIES (1982) ch.8. For a different approach,

see GRAEME TURNER, FILM AS SOCIAL PRACTICE (1989).

472 Southern California Interdisciplinary Law Journal [Vol. 17:457

engages both legal practitioners (who put forward their claims about what

the law is and how it should apply to the case before the court), and the

academics who evaluate the judicial output, provide possible interpretation

as to its meaning, and offer possible alternatives as to the way the law

ought to be interpreted and applied. These alternatives then appear—one

would hope

—in the arguments of counselors and in the materials soon-to-

be advocates—i.e., law students—and judges read. The role academia plays

in civil law systems is even more pronounced.

This is not necessarily so

when it comes to the cinematic practices. While academic writing is, at

least to a certain extent, part of law, cinematic analysis, as written by

scholars, is not necessarily part of the cinematic practice (notwithstanding

the occasional representation of academics on screen).

It is thus easier for

us to confuse legal theory and the law, because the law itself contains an

element of theory. This type of confusion is not necessarily so acute in the

sphere of cinema.

C. L

AW, CINEMA, AND SOCIAL REALITY (OR THE IMPORTANCE OF

ASSUMPTIONS)

A third set of methodological difficulties that face law-and-cinema

scholars relates to the relation between law, cinema and “reality”. As

mentioned above, law and cinema participate in the construction of the

framework narratives within which we organize social life, form our

identity, shape our collective memory, and engage in meaningful public

life. It is often mentioned that both the law and the cinema generate

specific kind of framework narratives—those that inform our perception of

justice

and fairness, rights and the manner of their realization, and our

general expectations from our fellow citizens and from the State. However,

caution is advised lest an oversimplified picture is painted. Neither law, nor

the cinema are the only (or even the main) sources for ethics-shaping

framework narratives.

Let’s look at law: one would expect that to the extent that our sense of

fairness and justice is rule-based, the primary practice that would shape our

sense of being rule-bound would be the law. However, anecdotal

experience teaches us that other practices deal with the formation of our

rule-based sense of justice and fairness to no lesser a degree. For example,

the practices of sport ostensibly shape our notion of procedural fairness and

The actual effect of academic writings is a bit of a mystery: should it have an effect or should it

simply seek to discover a heretofore hidden element or create a new way of understanding? Some

lawyers, judges, and scholars still look, for whatever reason, for the most important or the most

influential book or law review article. See, e.g., Michael L. Closen & Robert J. Dzielak, The History

and Influence of the Law Review Institution, 30 A

KRON L. REV. 15 passim (1996).

R.C. VAN CAENEGEM, JUDGES, LEGISLATORS AND PROFESSORS: CHAPTERS IN EUROPEAN LEGAL

HISTORY 53–54, 155–57 (1987).

David Ray Papke Symposium: Law In Film/Film In Law: Crusading Hero, Devoted Teacher, And

Sympathetic Failure: The Self-Image Of The Law Professor In Hollywood Cinema And In Real Life,

Too, 28 V

T. L. REV. 957 (2004).

Analyzing theories of adjudication (and their relation to theories of justice) as reflected in the cinema

receives consideration both in scholarly research and in teaching of professional responsibility. See, e.g.,

Teresa G. Phelps, Atticus, Thomas, and the Meaning of Justice, 77 N

OTRE DAME L. REV. 925 (2002).

2008] The Production of Law (and Cinema) 473

impartiality quite profoundly; one could argue that our sense of legalism is

related to sports more than to law.

We should be equally careful with our assumptions about the

framework narratives constructed by the cinema. As mentioned above,

literature, theater, television programs, the Internet, the press—all of these

deal with framework narratives, including the framework narratives that

inform our ethical thinking. It is not clear that the relative power of cinema

in shaping consciousness is greater than that of contemporary television;

cinema is but one source of framework narratives, often dwarfed by the

volume of other media and the centrality of other formative arenas, such as

politics and sports.

The problem of multiple variables is related to the problem of

causation: it is quite difficult to ascertain with a sufficient degree of

academic rigor which cultural component cause what effect. Consequently,

any claim regarding the manner or the power through which law and

cinema shape our consciousness is but a supposition. Although it is fairly

safe to assume that the stories of the Bible, for example, influenced the

notions of legality in western society, other assumptions, such as those with

respect to the general influence of cinema or of any particular film, are not

necessarily factually true, and their validity needs to be demonstrated

empirically. In any case, it seems that the most that can be said at this stage

of the discourse about law and cinema’s influence on the creation and

refinement of the framework narratives is that while we may assume such

influence exists, we know very little about how exactly it operates or what

different social processes partake in it.

This, obviously, is not enough to pull the rug from under the law and

cinema discourse altogether. We simply have to be clear about our

assumptions, and shy away from presenting hypothesis as fact. In other

words, assuming that law and cinema indeed do participate in the creation

of social and individual consciousness, there is room to examine the

connection between the two.

The presence of other practices in the

shaping of the framework narratives does not negate the possible role of

law, cinema, or both; there is plenty of room for addressing the role of other

practices as well.

The importance of being clear about one’s assumptions is reinforced

when two other leaps common in the law and cinema discourse are

Cf. e.g., ALLAN C. HUTCHINSON, IT’S ALL IN THE GAME: A NONFOUNDATIONALIST ACCOUNT OF LAW

AND

ADJUDICATION (2000).

For example, David Ray Papke claims that American trial movies in the sixties were an important

ingredient in forming the national American consciousness. “Why were so many important law-related

films produced and distributed in this period [the late 1950s and early 1960s]? My contention is that

Hollywood grew increasingly determined to assert its ‘Americanism.’ One way to do this was to

promote lawyers, legal proceedings, and the rule of law to a public which had itself become convinced

that a faith in law was one thing that distinguished the United States from the Communist countries,

especially the Soviet Union.” David Ray Papke, Law, Cinema, and Ideology: Hollywood Legal Films of

the 1950s, 48 UCLA

L. REV. 1473, 1487 (2001).

Michael A. Baldassare examines that assumption in Cruella De Vil, Hades, and Ursula the Sea-Witch:

How Disney Films Teach Our Children the Basics of Contract Law, 48 D

RAKE L. REV. 333 passim

(2000).

474 Southern California Interdisciplinary Law Journal [Vol. 17:457

identified: over-generalization and treating the representation (i.e., the

image) as if things are actually so. By over-generalization, I mean that

based on a couple of films, or a couple of cases, assertions are made about

the cinema, or about the law. The fact that in a certain film the director

presents a certain scenario, or the fact that a judge allocates blame in a

certain manner in a given case (with or without referring to “the way things

are”), only says that there exists such a film or such a case that presents a

certain claim about reality while taking up a certain ethical position with

respect to this claim about reality. This by no means attests that things are

in fact so, or even that a framework narrative exists, as part of the common

cultural reservoir of a given society, according to which such things occur

around us or could occur routinely.

Likewise, we should distinguish between a normative claim contained

in a case or in a movie from the determination that this claim is correct. It is

certainly not enough that the film exists to make us accept the ethical

positions of the film’s creators. In the same manner, the fact that a certain

judicial ruling exists does not say anything more than that a certain case

was decided a particular way, on the basis of the evidence and the

arguments presented to the judge and jury. From these occurrences there is

still a long way to a general statement about the law or about the

framework narratives in society. Therefore, focusing on a specific film or

even on a group of films and their analysis vis-à-vis a specific precedent (or

other sources of law, such as plea-bargain agreements, divorce settlements,

and the like) can hardly bear the heavy burden of such statements about

“the law” or “the cinema” in general or with respect to the general

relationship between them. All we can do, when faced with a film or a case,

is to raise a conjuncture that the state of social reality (the law, the

framework narratives in society, etc.) might be such as represented by the

film or the legal decision; the artifacts (the case, the film) are merely an

indication that this postulation could be correct. Given that exhaustive

research that sufficiently covers a phenomenon by examining a large

number of legal and cinematic sources seems to be the exception, it appears

that the law and cinema discourse is primarily concerned with suggesting

ways of interpreting the social reality in which we live, while indicating

possible patterns of thought, action, collective consciousness, and other

ingredients of the framework narratives. Yet, the fact that we contain

ourselves with raising hypotheses with respect to the “bigger picture” and

the fact that these hypotheses are liable to be rebutted in the future

obviously cannot negate the value of raising them. Speculations are

important for their own sake. Moreover, case studies—detailed analysis of

a specific film or a specific case—are worthy because they tell us

something important about the “little picture”, namely the specific film or

case, from which we can learn about how culture—legal or cinematic—

‘worked’ in a specific instance.

Lastly, we should recognize that methodologically the act of examining

culture (or aspects thereof), like any other anthropological endeavor, may

alter the object under examination. The process of engaging with the

2008] The Production of Law (and Cinema) 475

practices of law and cinema is creative not only because the law and the

cinema are creative practices, but also because the discourse itself—so goes

the hypothesis—generates the possibility of new symbols and perhaps even

new framework narratives. Put simply: by talking about law and cinema we

partake in shaping the meaning of law, cinema, and that which connects

them. By raising a certain hypothesis about the relation between law and

cinema or about a certain framework narrative, we, the participants in these

practices, might think a bit differently about various aspects of the

practices, or of social reality as a whole. For example, we might read cases

a bit differently or formulate certain positions with respect to this or that

legal procedure or even adopt a normative position about a legal outcome

of one kind or another. In the same manner, as has already been said above,

it can be expected that as a result of the arguments made within this

interdisciplinary discourse—persuasive arguments, obviously—our manner

of watching motion pictures, if not the manner by which we relate to the

cinematic experience in general, might also change. We may also alter our

specific interpretation of this or that movie. Such an influence may modify,

albeit minutely, the framework narratives, and perhaps even cause us to act

or interact differently. While chances are slim that major modifications in

legal, popular, or popular-legal culture will in fact occur pursuant to the

emergence of the law-and-cinema discourse, it nonetheless important to

note that possibility (for better or worse).

D. L

AW VS. CINEMA (OR “PERFORMANCE AND IMAGE—TAKE 2”).

And there is this one last methodological issue that cannot be

overlooked: are not the differences between law and cinema too profound

to warrant meaningful discourse? Assuming we are careful to distinguish

between talking about something and experiencing it, and assuming that we

define properly the objects of discussion and are careful about our

assumption about reality and its representation in (or by) the law and the

cinema, is there enough in common to enable solid analogies, comparisons

or the sound use of one artifact to shed light on another? Or put more

concretely: accepting that law and cinema, as segments of modern culture,

partake in generating and regenerating framework narratives (and thus

influence and are influenced by each other), and accepting that law and

cinema are distinct for their performative dimension—is that enough? The

methodological point this section makes is that yes, it is enough, provided

we tone down the metaphoric use of the inter-disciplinary jargon.

It would clearly be trite to note that law and cinema are different in

essence. Law is concerned with conflict resolution and the regulation of

behavior through the ultimate use of the coercive power that rests

exclusively with the State. That is the law’s raison d’être. Cinema is a form

of art, the institutionalized segment of which operates as an industry, i.e.,

for the purpose of profit (although not exclusively).

It would thus be

But like any art, cinema exists as an expression of our humanity, without a necessarily ulterior,

utilitarian purpose. Commercial art is also a form of art, or at least it is recognized as a creation which is

not only instrumental. See, e.g., Mazer v. Stein, 347 U.S. 201, 205 (1953).

476 Southern California Interdisciplinary Law Journal [Vol. 17:457

methodologically ludicrous (and unlawyerly) to state that “law is like film”

or that “film is like law”; as one (helpful) anonymous reviewer of this

article noted: one might as well ask why law is like or not like a bicycle, a

beetroot jar, etc. However, unlike comparing the practice of law to beetroot,

comparing law to cinema yields some interesting insights regarding the

thread that connects these practices as performative practices. The danger

we should avoid—and hence the methodological warning sign—is the

“language-game” trap which may result in concepts becoming slippery and

analogies over-extended. Here are some examples, all relating to aspects of

“performance”.

1. Performance as “Thou Shall Perform”

The law includes a performative element, and at its edge lies a decree

to act (or not act) in a certain way; that decree is backed by the coercive

power of the State. Thus, in law, words can kill. A legislative act and/or

court order are not just a story, an idea or a moving image, and the

characters are not fictitious. Legislation and judicial decisions have a direct

impact on the lives of real flesh and blood persons—the actual parties to

the case as well as potential litigants—in a manner that grants a unique

moral significance to the choices of judges and legislatures.

A film is not performative towards its viewers in the same manner.

The closest equivalent we find to the coercive power of the lawmaker or

the adjudicator is the power a director may have over her cast (and some

would say—the powers the studios wield over those operating in the

industry), because disobedience is accompanied by sanctions of sorts

(ultimately backed not only by law but also by the internal codes by which

the industry self-governs, such as reputation). Putting it that way reveals

that it is conceivable to examine the codes governing cinematic productions

and the “orders” the director issues as “law”—because the official law

plays a part in regulating the scene but also because the term “law” can be

expanded to include “softer” norms, namely social norms that perform a

role very similar to law in regulating behavior.

It is exactly at this point

From this distinction stems another obvious difference between law and cinema. For it to operate, the

law demands that in a given jurisdiction its status as the exclusive normative apparatus of the State will

not be challenged. The rule of law demands a monopoly on official norms, and a certain loyalty that is

authoritatively binding. On the other hand, in art in general—and specifically in cinema—there is no

need for such exclusivity. Competition is not only tolerated but expected among different genres which

may undermine each other. While conflict-of-law rules are essential in the legal domain, no such rules

are called for in the cinematic arena. As a matter of concepts, then, law and cinema are worlds apart.

However, in practice, this difference should not be over-played. The cinematic industry produces soft

(yet blunt) rules that regulate poetic standards. Moreover, cinema itself is not free from conventions and

certain genres certainly behave as if governed by defined rules. However, it is true that the authority of

these standards is different than legal authority. While undermining legal authority is by definition not

tolerated (but for situations of civil disobedience), there is no conceptual or moral reason for not

undermining cinematic rules. Yet, practically it remains to be seen whether it is easier to reform legal

rules than cinematic rules.

The term “soft law” is primarily used to denote norms that apply within organizations or by bodies

that are otherwise authorized to issue binding law but chose to issue “softer” norms. However, it is

suggested that cinema by be seen as generation a form of soft law, to the extent that the cinema can be

conceived as participating in the processes of cultural governance. “‘[S]oft law[s,]’ include [those]

regulatory instruments and mechanisms of governance that, while implicating some kind of normative

commitment, do not rely on binding rules or on a regime of formal sanctions.” Anna di Robilant,

2008] The Production of Law (and Cinema) 477

that we should be careful, lest everything becomes “law” (with various

degrees of “softness”). It is difficult to see how a director can instruct

persons who have not explicitly subjected themselves to her authority, since

those engaged in the production of a movie are bound by the director’s

command of their own volition—one would hope

—whereas the

jurisdiction of the judge is usually not a matter of choice.

Maintaining the distinction between “law” and “softer law” allows us

to appreciate the interplay between the two. Although a film does not

instruct anyone to do anything in the way a legislative or a judicial

ordinance does—and not even in the way informal corporate codes or

“understandings” reached with state officials do—still it is possible to

claim (provided empirical support is produced)

that motion pictures

project an image of “desirable” ways of behaving (and reasoning) and

thereby may participate in generating social norms and codes of behavior.

In that sense, films may be part of social governance. Put differently, the

cinematic image may be indirectly performative, by affecting social

consciousness. Such consciousness, if internalized by members of society,

may become a fashion—what to wear—but it may also become a certain

social attitude, a linguistic attitude, and perhaps even an ideological

attitude. As such it may effect behavior (and attitudes towards behavior)

which may be backed by social sanctions that exert pressure on deviation

from the “normative” or the “expected”. It is precisely because of this

power that the movie industry has attracted the attention of legislatures and

censorship agencies,

and it is because of this feature that ethicists, social

scientists and jurists worry about pornography, violence and drug use on

screen.

In that respect, law and cinema may either compete with each

other—the cinema being subversive or the law being oppressive—or may

complement each other (as appears to be the case with respect to the norms

of consumerism).

Genealogies of Soft Law, 54 AM. J. COMP. L. 499, 499 (2006). See also Jacob E. Gersen & Eric A.

Posner, Soft Law, 61 STAN. L. REV. (forthcoming), available at SSRN:

http://ssrn.com/abstract=1113537.

To the extent that actors participate in the production of films out of coercion or without meeting the

ethical requirements of informed consent, the movie-industry becomes a form of servitude, as is the

case with pedophile films and as was the case with the production of some pornographic movies, such

as “Deep Throat”, according to Linda Lovelace who participated in that film.

In the context of affecting professional attitudes, see Nancy B. Rapoport, Dressed For Excess: How

Hollywood Affects the Professional Behavior of Lawyers, 14 NOTRE DAME J. L. ETHICS & PUB POL’Y

49 (2000); Victoria S. Salzmann & Philip T. Dunwoody, supra note 28.

For example, the original version of LES NOUVEAUX MESSIEURS, which represented criticism of the

French parliamentarians, was prohibited from being shown in public in 1929 by the French censor.

(Feyder Studios 1929). In the United States, the attention McCarthy paid to Hollywood is well

documented. See, e.g., R

ICHARD M. FRIED, NIGHTMARE IN RED: THE MCCARTHY ERA IN PERSPECTIVE

(1990); R

OBERT GRIFFITH, THE POLITICS OF FEAR: JOSEPH R. MCCARTHY AND THE SENATE (1987).

See Andrea Dworkin, Pornography is a Civil Rights Issue in DEBATING SEXUAL CORRECTNESS

(Adele M. Stan ed., 1995); Catherin MacKinnon, J

UST WORDS (1996), sections I and III; Catherin

MacKinnon, F

EMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1988) section III; Susanne

Kapler, The Pornography of Representation (1986); Craig A. Anderson et. al., The Influence of Media

Violence on Youth, 4 P

SYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST 81 (2003); Susan Villani,

Impact of Media on Children and Adolescents: A 10-Year Review of the Research, 40 J.

AM. ACAD.

CHILD & ADOLESCENT PSYCHIATRY 392 (2001); John P. Lovell (ed.) INSIGHTS FROM FILM INTO

VIOLENCE AND OPPRESSION: SHATTERED DREAMS OF THE GOOD LIFE (1998).

478 Southern California Interdisciplinary Law Journal [Vol. 17:457

Just as the relationship between law and softer law is important when

examining the concept of performance, so is the relationship between the

visual image and the social image. Eliciting performance through images

(or imagery) is not limited to cinema; the law may also resort to “image” in

the sense of a certain social perception (or a symbol). Law cannot rely

solely on formal enforcement mechanisms by state officials; the system of

enforcement would be overwhelmed (and most likely collapse) if the law

would actually have to be enforced by the relevant agency in each human

interaction (or even with respect to each dispute). The legal system efficacy

relies on an image it projects regarding enforceability and the message it

communicates regarding legitimacy. However, there is a difference between

cinematic images and legal “images”. “Images” in case-law are produced

via words (i.e., images conjured by invoking the legal imagination). To the

extent that the courtroom produces actual images, for such images to reach

a crowd that resembles the crowd exposed to cinematic images the

courtroom images need to be broadcasted, either by the news media or via

documentaries, and since these intermediaries operate according to their

own (poetic) logic (even if the placement of the cameras is strictly

regulated), the legal images of modern-day are filtered. The legal spectacle

of old days, which certainly entailed non-mediated audio-visual elements,

resides primarily in our collective memory. The presence of contemporary

intermediaries (which cover “newsworthy” trials and thereby turn them into

“events” or “shows”) and the ubiquitous background of cinematic

courtroom dramas (which forms the reference point for the lay-persons’

grasp of the legal process) incorporate the legal image into the stream of

images that comprise popular culture as one more image among others.

Consequently, if we keep our language precise enough, and acknowledge

the various meaning of the term “image”, examining the processes of

image construction and projection in both practices may prove

illuminating.

2. Performing by the Rules (and the Matter of Judgment)

If movie directors generate “soft law” it is tempting to relate their

activity to that of a judge, which under the common law system is also in

the business of generating norms via rhetorical and poetic tools. Such an

analogy has something to it because it allows us to explore the cultural

limits placed on such an activity—both a judge and a director are

constrained, it seems, in important dimensions—but for the law-and-

discourse cinema to be sound it must acknowledge that the judge and the

director operate within two different paradigms of “rules”. As an ideal type,

the law requires the judge to decide on the basis of legal rules, in response

to a motion put forward by the litigants’ claims. The decisions made by a

film director are not necessarily rule driven in the same manner and not

necessarily reactive. However, to portray the cinema as rule-free would be

grossly misleading. A director’s creative environment is far from lawless

See, e.g., ALISON YOUNG, JUDGING THE IMAGE: ART, VALUE, LAW (2004), especially Chapter 4.

2008] The Production of Law (and Cinema) 479

because the cinema is one of the more legally regulated forms of art,

and

soft law is also pervasive in the modes the industry deploys to self-

regulates both process and product.

But beyond law or soft law, other

“rules” are at play: the leveling pull of the market to “high concepts”

cannot be ignored.

And the rules of the genre are compelling.

It is

difficult to understand the cinema without understanding the cinematic

“rules”—and here the term is used to signify non-legal rules—that could

be, and are, studied in cinema schools, such as rules of photography, ways

of editing a film, maintaining the flow of a plot, etc. The duty to obey these

internal norms rests on pragmatic considerations of funding (and peer-

pressure mechanisms),

as well as on cultural conventions—whether

general or specific to the cinematic world. In a deeper sense, such a duty is

a demand that the film director places upon herself. On the other hand,

depicting the production of film as if it is rigidly governed by rules would

also be inaccurate. At a very basic level art does not, or should not,

conform to rules. Some would say that the more original and innovative the

artistic idea, or the more it transgresses on established norms, the more the

film is considered to have a creative value.

Thus, the consequences of

violating established rules would be different. In cinema, pushing the

boundaries of the envelope is considered an appropriate form of innovative

and appreciated work (as long as it corresponds to the cultural horizon of

Unlike in the United States, in most jurisdictions, the rating function is performed by the state. See for

example the legal regulation in Ontario, Canada and the Film Classification Act of 2005, Chapter 17.

Similar provincial statutes empower boards in other provinces as well:

http://www.media-

awareness.ca/english/resources/ratings_classification_systems/film_classification/canada_film_classific

ation.cfm. Moreover, the law in most jurisdictions, including the United States, governs almost all steps

of production, ranging from copyrights to distribution agreements and to labor agreements.

The US review board is a clear example. See the critical depiction in THIS FILM HAS NOT BEEN

RATED (Director: Kirby Dick, 2006).

“High concepts” is a mode of organizing a script (and the pitch thereof to a studio). High concepts are

those that can be stated very succinctly, usually by juxtaposing two famous movies or by using a short

sentence that captures the script’s basic story, its uniqueness and its genre affiliation.

Leo Braudy, Genre: The Conventions of Connections, in FILM THEORY AND CRITICISM:

INTRODUCTORY READINGS 663 (Leo Braudy & Marshal Cohen eds., 6th ed. 2004); Thomas Schatz,

Film Genre and Genre Film, in FILM THEORY AND CRITICISM: INTRODUCTORY READINGS 691 (Leo

Braudy & Marshal Cohen eds., 6th ed. 2004); Jim Leach, The Screwball Comedy, in FILM GENRE:

THEO RY AND CRITICISM 75–89 (Barry K. Grant ed., 1977).

John G. Cawelty, Who’s Running This Show? Ideology, Formula, and Hegemony in American Film

and Television, in MOVIES AND POLITICS 31–54 (James Combs ed., 1993).

Aristotle’s view, in his book, POETICS, was that art, like biology, can be listed and sorted by species.

(John Baxter & Patrick Atherton eds., George Whalley trans., 1997). Every type of art, such as tragedy

or comedy, is based on a system of specific and clear rules which define its structure. The artistic value

of a creative work is therefore measured by its adherence to the rules that define the genre to which it

belongs. Innovation and revolution in art are therefore not of positive value. Immanuel Kant, in his

book T

HE CRITIQUE OF JUDGMENT, agreed that art is based on a set of rules which instruct how to

produce it. (J.H. Bernard trans., 2000). However, Kant believed that creating art according to artistic

rules is not enough. A masterpiece created by a genius does not stem from wisdom or knowledge of

rules. The art genius does not create only according to existing rules but part of his or her creation is

“legislating” new rules. An artist therefore cannot teach a fellow artist how to create, since rule-making

talent is personal and spontaneous and cannot be transferred or reconstructed (as opposed to a scientist

who is able to teach others how to reach the same result he did). “There is no science in beauty, there is

only critique” See id. at 18. In fact, the essence of the word genius according to Kant is based on

originality, not rule-following. See id. at 189–206. See also the Platonic dialogue where Socrates

explains how the creation is governed by inspiration that comes mysteriously and uncontrollably to the

artist, until it drives him out of his mind. P

LATO: COMPLETE WORKS 937 (John M. Cooper ed., 1997).

The conclusion is that there is no place for rules or studying as far as art is concerned. See id. at 941.

480 Southern California Interdisciplinary Law Journal [Vol. 17:457

the audience). Not all artists are confined to for-profit studios and

independent cinema seeks to challenge the “establishment”. In law, on the

other hand, the breach of norms by judges leads (or ought to lead,

according to the “rules of the game”) to sanctions or invalidation. While

judges are “independent”—at least on the Federal level—over-

independence (in attitude and deeds) is highly discouraged by the

profession and may even result in pressures from neighboring systems,

such as the media or politics, for impeachment. Whereas a degree of

creative judicial performance is not rejected per-se, its scope (and

accompanying style) is quite different. Law, in general, is in the business of

regulating change by placing checks on its pace, and therefore judicial

innovation is only occasionally respected (as long as it is not too

iconoclastic so as to deem it overly “activist”; a slow, marginal progression

is usually preferred to a “revolution”).

The question of “performing by the rules” could be viewed from a

different angle: as a matter of interpretation. As Balkin and Levinson noted,

adherence to rules—legal or otherwise—entails an interpretative dimension

(in law as in other performing arts). It thus raises the question of fidelity: is

the judge faithful to the law? Is the conductor to the piece as written by the

composer? Is the actor to the instruction to the director? Or the director to

the essence of the script or to the poetic principles in light of which she

operates?

Such fidelity is gauged by the audience but also by the

performers themselves, including not only those who perform on stage—

the lawyer or the actor—but also those who perform by instructing others

how to perform, namely the director and the judge. Ultimately, evaluating

the fidelity of one’s performance is a matter of self-reflection: the judge

and the movie director are required to judge their own performance.

Yet

once again we should, of course, note that judgment in law is different from

judgment in cinema, not because the human faculties engaged are

necessarily different, but because the meaning of “adherence” may be

different, given the different attitude towards “creativity” and the different

meaning of “rules”. Placing cinema alongside law could therefore

illuminate what it means to “perform by the rules”, as long as we do not

succumb to the erroneous notion that all rules are of the same ilk.

Sanford Levinson & J. M. Balkin, Law, Music, and Other Performing Arts, supra note 16, at 1619;

see also Carol Ann Weisbrod, Fusion Folk: A Comment on Law and Music, 20 C

ARDOZO L. REV. 1439

(1999).

While it seems as though the film director reviews the routine work of the actors, scriptwriters,

photographers, and other participants, ultimately it is her own work that she judges (according to artistic

criteria). The judge in a court of law is required to pass judgment on the acts of others—including other

state agencies—while remaining neutral and above the fray (or so is the ethos). However, upon closer

inspection it becomes apparent that in every normative decision the judge also judges herself, or at least

she should be aware that her actions can be viewed in this manner. See, e.g., D

AV I D DYZENHAUS,

JUDGING THE JUDGES, JUDGING OURSELVES; TRUTH, RECONCILIATION AND THE APARTHEID LEGAL

ORDER (1998). Consequently, the differences between law and cinema are not differences that prevent a

comparative analysis, but are rather differences that have the potential to serve as fertile ground for

discussion.

2008] The Production of Law (and Cinema) 481

3. Performance as Acting

To perform is also to play a role.

To suggest that appearing before a

judge or jury can be seen as a performance, or more precisely, that when

one participates in adjudication one is acting, would seem trivial to legal

practitioners. Lawyers, expert witnesses, judges, and other functioners are

actors in the sense that they all put on a show, as their role requires. Their

performance is measured by their ability to act their role in a credible

manner, in other words, to appear as adhering to the ideal type in the light

which the role is constructed. Again, we should recognize that performance

in law means something different than performance in the cinema: “acting

one’s role” in law—by lawyers, judges or legislatures—is not valued for its

own sake, nor is the practice designed to encourage double-play. Whereas

in cinema an actor is valued for his ability to detach from aspects of his

own personality and assume someone else’s—like a chameleon—a lawyer

who looses his self in his role risks betraying the ideal type of the

profession. At the end of the day, actors in law often direct their own acting

on the legal stage, and have to own up, ethically, to their conduct. The role

morality of acting as a lawyer is therefore different from the role morality

of acting one’s role as an actor. It would therefore be stretching the concept

of acting to suggest that Shakespeare should be taken literally. But neither

can we ignore the affinity between the two forms of performance

(providing we proceed with sufficient methodological caution).

The performative dimension of law is relevant not only to the officials,

practitioners, and other players in the courtroom, but also to the consignees

of the judicial decree (or legislative act). The judicial order requires

performance. The addressees (and, for that matter, the audience that

observes the proceeding) are not required to feel that the instruction is

necessarily justified (that is, that the judge necessarily “got it right”), or

otherwise internalize the motivation expected of them. In this sense, the

litigants are like actors in a cinematic production: they are required to

follow the instructions, as directed. The outside world needs to see their

performance for it to be “performed,” but the players—the litigants

performing under a court order (or legislative act) need not necessarily

identify morally with the actions they were ordered to perform as their

own, since these actions were not fully voluntary.

Clearly, unlike acting in

a cinematic production, the “act” the litigants perform is obviously “for

real,” in other words, it is not performed under a moratorium in which the

action has no significance beyond the sphere of the performance.

Nevertheless, conceptualizing the similarity and the difference of this

performative element in law and cinema stands, it seems, to reveal some

valuable insights as to the way culture operates, especially when it comes

to the performance of “the general public”.

For a discussion on social life and social roles as performance, see ERVING GOFFMAN, THE

PRESENTATION OF SELF IN EVERYDAY LIFE 17–76 (1959).

Consider, for example, a judicial order requiring that one party apologize to the other; the party

publishes in the paper an apology that begins, “Pursuant to the court order, I hereby apologize.” The

inherent difficulty of legally mandated apologies is central to T

HE STORY OF QIU JU (Sil-Metropole

Organization 1992).

482 Southern California Interdisciplinary Law Journal [Vol. 17:457

4. Performance and the Suspension of Disbelief (Or the Relationship

between Image and Imagination)

One of the basic criteria for determining whether a fiction movie is

good is the extent of its ability to suspend disbelief—the extent to which it

enables the audience to accept what is being presented to them as a possible

reality, at least for the duration of the film.

After all, the film is a creation

of fantasy, a fiction. Films usually do not pretend to reflect the truth, and

when they do, such as is “this film is based on a true story,”

or in

documentaries, the claim is only to capture part of the truth, as seen by the

director.

Some suspension of disbelief is required in law as well: we have

to believe that truth is ascertainable, or at least, in adversarial systems, that

there are no great disparities between the parties with respect to their ability

to ascertain and then portray the truth. We also have to treat the image of

truth, presented in Court, as comprehensive enough: we know the jury is

liable to see only a portion of the truth—the segment not only deemed

relevant but also found to have been attained without violating other

norms—and we have to believe these “facts”, namely the representation

thereof, are sufficiently indicative of the entire picture. Other elements in

law also have to be “assumed”—for example, that the political process

fairly represents the will of the people and therefore has a legitimate claim

for obedience. Elements of performance are required to maintain the

suspension of disbelief: processes have to be “orchestrated,” “staged,” or

otherwise mis-en-scene. We can therefore assume a certain affinity between

law and cinema, but if we treat the processes of legislation or adjudication

as a mere show we have gone too far. A good trial at least aspires to be

based on truth. Similarly, the political process, which clearly has something

in common with the cinema, given its staged and scripted theatrical

dimension and vulnerability to the lure of the image-generating photo-ops,

nonetheless would go awry were it to function as a form of show-business.

A film is not required to hold certain ethical positions or to broadcast

necessarily good or morally positive values. A film can support the villains

but still be considered a good film or a film that is worthy of artistic

esteem. A movie can simply entertain.

A good judicial decision should not

As an example of the way the world of cinema suspends disbeliefs, we could refer to the common

practice among actors to assimilate into an environment they later have to depict on-screen, or

experience in the real world an event they are about to present as actors.

For an interesting discussion of this genre, see Jessica M. Silbey. Truth Tales and Trial Films, 40

OYOLA OF LA L. REV. 551(2007). See also Charles Musser, Symposium: Picturing Justice: Images of

Law and Lawyers in the Visual Media, Film Truth, Documentary, And the Law: Justice at the Margins,

U.S.F. L. REV. 963, (1996).

A closer look at the genre reveals that it is hard to avoid at least a degree of advocacy in

documentaries. Michael Moore’s Fahrenheit 9/11 and Errol Morris’s Fog of War are clear examples, but

even documentaries designed to demonstrate that a confession was free from coercion are suspect. See

Jessica M. Silbey, Filmmaking in the Precinct House and the Genre of Documentary Film, 29 C

OLUM.

J. OF LAW & ARTS 107 (2005); Jessica M. Silbey. Videotaped Confessions and the Genre of

Documentary, 16 F

ORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT L. J. 789 (2006).

Cf. MacCabe, Theory and Film: Principles of Realism and Pleasure, in NARRATIVE, APPARATUS,

IDEOLOGY 179 (Philip Rosen ed., 1986); Jean-Louis Baudry, The Apparatus: Metapsychological

Approaches to the Impression of Reality in Cinema, in F

ILM THEORY AND CRITICISM, supra note 83, at

206, 219-220; Miriam Hansen, Pleasure, Ambivalence, Identification, in FILM THEORY AND CRITICISM,

2008] The Production of Law (and Cinema) 483

only be factually credible but, equally importantly, a good judicial decision

(and certainly a good statute), should comply with moral standards. We

evaluate a legal norm as good insofar as the choices it realizes are ethical

and to the extent that the behavior implemented by the norm fulfills ethical

standards.

It is plausible that these features are external to the art of

suspending disbelief which focuses on the “how” belief is suspended and

not the “why” we choose or led to do so, and therefore the differences may

not necessarily detract from the possibility of analogizing between law and

cinema. But it is equally plausible that the reverse is true, and the “how”

may not so easily be detachable from the “why”.

Films invite us to suspend our disbelief not only for the purpose of

entertainment: artistic films provide us the opportunity to experience

something unique, emotionally and cognitively, by engaging our verbal and

non-verbal senses and stimulating our imagination. The relationship

between law and imagination has long attracted the attention of law-and-

literature scholars,

who focused, as one would expect, on the literary

imagination, but whose work is relevant to the visual and audio-visual as

well.

The relationship between image and imagination can, it seem, enrich

our understanding of law’s makeup, provided we are not seduced to ignore

the differences forms of imagination. Good cinema inspires the

imagination. It is not at all clear that good law—a good judicial decision or

a good piece of legislation—is also required to stimulate the imagination in

the same manner. Whereas it is plausible that for law to operate it must rely,

to an extent, on our imagination, but it is equally plausible that in the run-

of-the-mill cases for a judge, counselor, witness or juror to kindle our

imagination would be to act in a manner inconsistent with the system’s

internal mode of operation. While imagination plays in important role in

allowing us to appreciate the complexities of the cases

—including the

run-of-the-mills cases—it seems that law is much more ambivalent in its

relation to imagination. Examining the art of illusions in law may benefit

from cinematic theory only if an eye is kept on the danger of suggesting

that imagination acts the same in law and in cinema. Ignoring the possible

difference may lead us to turn a statement that might be partially correct—

litigation has elements of show business

or a component that relies on

imagination—into a reductive statement, as if there is nothing in law

beyond show business

or as if imagination in law is as pervasive as it is in

other performing arts.

supra note 83, at 634; Laura Mulvey, Visual Pleasure and Narrative Cinema, in FILM THEORY AND

CRITICISM, supra note 83, at 837.

See, e.g., JEREMY WALDRON, THE DIGNITY OF LEGISLATION (1999).

JAMES BOYD WHITE, THE LEGAL IMAGINATION (1985); MARTHA NUSSBAUM, POETIC JUSTICE (1995),

ANTHONY G. AMSTERDAM & JEROME BRUNER, MINDING THE LAW (2001).

Alison Young, 'Into the Blue': The Image Written on Law, 13 YALE J. OF LAW & HUMANITIES 305

(2001).

Amnon Reichman, Law, Literature, and Empathy: Between Withholding and Reserving Judgment, 56

J. LEGAL EDUC. 296 (2006).

The movie CHICAGO illustrates this point. (Miramax 2002).

Some may claim that famous trials, like that of O.J. Simpson, are to an extent “show trials,” which

are perceived by the public as a modern substitute for circus shows in the Roman Empire. Indeed,

writers tried to understand the American fascination with O.J. Simpson’s trial. Darnell Hunt claims that

484 Southern California Interdisciplinary Law Journal [Vol. 17:457

5. Performance, Drama and Conclusion

Some cinematic genres rely on drama. It is usually these genres that

directly address the legal process—primarily adjudication, but, on

occasion, legislative business as well

100

—by dramatizing (if not

sensationalizing) the “legal plots”. This mainly American cultural

phenomenon is quite fascinating (and will be addressed in a different

context below) but in terms of the methodology of the law-and-cinema

discourse it relates to the point of dramatic performance. Performance in

non-documentaries, accompanied by other cinematic elements such as

sound and the work of the camera, is often stylized so as to evoke drama:

conflicts, high-powered action, the thrill of romance, etc. Performance in

law is often purposefully non-dramatic (despite the contrary representation

in cinema). The work of the corporate lawyer, if done well, should not lead

to dramas. Even litigators would often steer away from drama, since drama

may raise the stakes and increase uncertainty. Judges certainly seek to

process their cases by resorting to drama in rare occasions only. Not only,

as Sherwin notes, does the transportation of the “cinematic lawyer” into the

real courtroom create practical problems (as lawyers are pressured to meet

cinematic expectation by “over acting”),

101

but such transportation is in

tension with the theory of client-representation as well, since the best

interest of the client are not necessarily served by upping the dramatic ante.

Moreover, artistic films aside, performance in law and in cinema is

directional: it is geared towards some destination. In law successful trial

resolves a conflict, both between the parties and, to an extent, between

competing policies. Obviously, an opening is left for future examination,

but all in all we expect the law to settle things. Negotiation—the more

common mode of resolving legal disputes—is geared even more toward the

comprehensive conclusion of the conflict. Good cinema may embody a

similar choice, but not necessarily. It seems that cinema—fictional and

even documentary

102

–which raises questions, encourages reflection, and

motivates us to see other aspects of the issue is just as worthy, if not more.

Good cinema, as rare as it may be, includes a non-judgmental element, in

the sense that a director or a certain film may call on us not to be so swift in

seeking moral or ethical resolution of the conflict.

103

In other words,

whereas performance in law seeks a resolution, performance in cinema

often seeks to stir disturbance. The upshot of this refers back to the notion

the public interest is more profound than a “media circus” that fed the public hunger for entertainment.

He termed this interest ritualistic in nature. See D

ARNELL M. HUNT, O.J. SIMPSON FACTS & FICTIONS:

NEWS RITUALS IN THE CONSTRUCTION OF REALITY 17–48 (1999). Another interesting phenomenon that

illustrates the importance of trials to our historical consciousness is the “classical trials” genre of books.

See, e.g., F

RANK MCLYNN, FAMOUS TRIALS: CASES THAT MADE HISTORY (1995); GREAT WORLD

TRIALS (Edward W. Knappman ed., 1997).

100

A great example is ADVISE AND CONSENT (Otto Preminger, 1962).

101

SHERWIN, WHEN LAW GOES POP, supra note 3.

102

“The documentary films that I most respect don’t come to closure and don’t produce audiences of

compassionate spectators of the dilemmas of others.” Regina Austin, Symposium: Documentaries & the

Law, The Next “New Wave:” Law-Genre Documentaries, Lawyering in Support of the Creative

Process, and Visual Legal Advocacy, 16 F

ORDHAM INTELL. PROP. MEDIA & ENT. L.J. 809, 837 (2006)

(emphasis added).

103

Cf. Amnon Reichman, Law, Literature and Empathy, supra note 97.

2008] The Production of Law (and Cinema) 485

of performance: if we jump too quickly between law and cinema, we might

ignore the different vectors of performance in law and cinema, which may

lead us yet again to a language-game trap.

In conclusion of this part, it is worthwhile to reiterate that both the

legal and cinematic practices contain a communicative component (the

transmission of messages) and a representative component (representation

of reality or of a possible reality). Both practices deal with clashes of

values, the formation of normative judgments, and generally, with aspects

of the human condition. But the perception of law as part of “show

business” (in the sense that the entire essence of the law is nothing but an

image and the marketing of expectations, not to say illusions) or the

perception of cinema as “legislative” (in the sense that cinema creates a

universe of norms which the audience views as binding) is exaggerated. At

the very least, the use of expressions such as “show business” to describe

law or “legislation” to describe cinema rests on a language-game that

perceives the law in a much wider sense than the law of the State, and show

business not only as the familiar collection of plays, musicals, and other

such artifacts and events. A sociological approach that expands the

concepts of “law” and “legislation” to the cinematic action and, conversely,

portrays the law as show business, illuminates certain similarities but such

an approach is liable to obscure significant differences between the

practices. It seems therefore, that when discussing law and cinema, it

would be wise to tread with appropriate methodological and conceptual

caution. In particular, when we import the vocabulary native to one practice

to another practice, we should acknowledge the different meaning the terms

gain, and the limited scope of the possible analogies.

III. PRELIMINARY TAXONOMY OF ARGUMENTS IN LAW AND

CINEMA

Having touched upon some of the methodological mines spread in and

about the field, it is high time to observe how the field is organized. This

section will offer a tentative classification of the possible claims thus far

put forward as part of the law and cinema discourse. The classification

sketched here is rendered in broad brush only and, needless to day, is far

from exhaustive; other ways of organizing the field are possible,

104

and

more nuanced analysis of the key concepts advanced here (and their

relation to narratologie in general)

105

would certainly refine this rough

taxonomy. It appears that the law and cinema field may be organized in a

three-dimensional matrix. On one axis lies the subject matter of the

conversations. As will be developed below, we can identify three such

clusters of conversations: structural (i.e., concerned with articulating the

104

See, e.g., Douglas J. Goodman, Approaches to Law and Popular Culture, 31 LAW & SOC. INQUIRY

757 (2006).

105

A more fine-tuned analysis will have to address the possible distinctions between narrative

(understood as the recounted chain of event and the structure of the recounting), argument (understood

as an attempt to persuade the audience of some proposition) and description (understood as the

evocation of properties of objects for their own sake). See S

EYMOUR CHATMAN, COMING TO TERMS:

THE RHETORIC OF NARRATIVE IN FICTION AND FILM 3–9 (1990).

486 Southern California Interdisciplinary Law Journal [Vol. 17:457

various devices around which law and cinema are “engineered”), cultural

(i.e. concerned with describing the social phenomenon of law and cinema

as components of a given culture) and normative (i.e., concerned with

examining the moral foundations or implications of legal codes and

cinematic artifacts). On the second axis lies the object of the examination:

the artifacts of law and cinema (movies, cases, statutes) or the actual

behavior of key players in the legal and cinematic worlds as observed not

only by looking at their output. The more we turn our attention to the actual

workings of the players, the more we adopt law-and-society terminology

and tools and thus the accent turns sociological. The more we move to the

other side of the spectrum, where the focus is the artifact, the more we rely

on analysis of narrative, image and other dimensions of the performing arts

and thus the hue turns humanistic.

106

The third axis refers to the

interdisciplinarity (or the filters we use to examine the law, cinema or

society in general). As mentioned earlier, we may place the legal lens

parallel to the cinematic lens; we may examine law in cinema or cinema in

law by using legal and/or cinematic lenses; and we can approach law as

cinema or cinema as law by adopting a filter sensitive either to the legal or

the cinematic phenomena (provided, as mentioned earlier, that we are

sensitive to the “language game” involved). This matrix may sound

confusing, but were law reviews accompanied with video, it would be

rather simple to demonstrate the workings of the conceptual device and its

effects in mapping the field. This part of the article will focus on the first

axis—the subject matter of the conversations. It should be noted that while

the clusters are detailed here as the three distinct families, conversations

may often include trails or prongs in all three bases, with arguments

corresponding on various fronts. A couple of examples will be provided at

the end of this part.

A. C

ONCEPTUAL ENGINEERING: THE FAMILY OF STRUCTURAL

ARGUMENTS

The string of conversation defined here as “structural” is interested in

the how performing and performative social practices, such as law and

cinema, are “built”. These conversations could be understood as variations

on Lhumann’s “system theory”

107

—even if reference to this theory is rarely

explicitly made—in so far as the their focus is the internal mechanisms

designed to govern communication with other practices, the flow of

106

The notion that there is a spectrum that connects the humanities and the social sciences rests on the

possibility of examining a certain phenomenon as it is, its representation, and their relation. For

example, Austin Sarat first identified (with others) a cultural phenomenon that organizes our attitude

towards filing a lawsuit. Felstiner, Abel, & Sarat, The Emergence and Transformation of Disputes:

Naming, Blaming, Claiming, supra note 28. He then proceeded to identify the representation of that

phenomenon on screen. Sarat, Exploring The Hidden Domains of Civil Justice, supra note 28. Future

research could examine the relation between the phenomenon and its representation either by looking at

the effect of the presentation on the phenomenon, or by looking at the “humanistic” aspect of the

phenomenon, such as its ideal type and narratological manifestation, by using tools such as

ethnographies and narrative analysis.

107

NIKLAS LUHMANN, SOCIAL SYSTEMS (John Bednarz, Jr. with Dirk Baecker trns., 1995); NIKLAS

LUHMANN, ART AS A SOCIAL SYSTEM (Eva M. Knodt, 2000); NIKLAS LUHMANN, THE REALITY OF THE

MASS MEDIA (Kathleen Cross trns., 2000).

2008] The Production of Law (and Cinema) 487

information within the practices and the possessing of this information into

knowledge, justification and action. At an abstract level, these

conversations deal with the building blocs of social practices: their

boundaries, entrance and exit, processes of absorbing and generating

images, etc. This cluster is not concerned so much with whether a certain

feature of the practice—such as certain product, process or institution—is

morally just, nor is the cluster attuned to the particularities of the social

context (beyond the distinction between system and environment). The

language is primarily conceptual and the purpose of the structural

arguments is to reveal aspects of the social makeup of the practices qua

practices.

For example, it has been argued that both law and cinema are

constructed around enclaves, in which the characters—the actors—

operate.

108

These enclaves are created through the use of aesthetic and

rhetorical means. Such enclaves include the singularity of the courtroom,

109

the uniqueness of a legislative hall, or the distinctiveness of a movie

theater. Location is a key concept both in cinema and in law, as it allows us

to parse away interactions that are taking place in other locations. Enclaves

are not, of course, only a matter of physical space; enclaves also have an

emotional and symbolic dimension. In broad terms it could be said that

both law and cinema demarcate social domains or social arenas in which

meaningful action and interaction are enabled. The uniqueness of such

enclaves, goes the argument, is that they also enable ethical or legal

judgment. Without these enclaves we would possibly lack those contextual

elements that guide us when we come to deal with the ethical aspects of

social life.

Along similar lines the practices of law and cinema operate so that a

certain social domain integral to their operation remains “behind the

scenes.” As mentioned earlier, both law and cinema would operate quite

differently—if at all—should this space be eliminated. The practices of

legislation, negotiation, adjudication, and judicial decision-making all

contain parts that are internal or hidden, and that would have to be

dramatically altered if they were to become part of the public domain or

were to be exposed to the gaze of other domains. Put somewhat blatantly,

the “behind the scenes” of the law, if unveiled, would stand in rather stark

contrast to the “seen” law. Likewise, if there will no longer be an area that

the camera does not capture, cinema will no longer be the cinema that we

know; the “magic”

110

—a romantic term for “perceptive illusion” will

disappear.

If the “behind the scene” is a structural element shared by law and

cinema, so is the “seen”, or more accurately, the “represented”. As a matter

108

Shulamit Almog & Amnon Reichman, Casablanca: Judgment and Dynamic Enclaves in Law and

Cinema, 42 O

SGOODE HALL L.J. 201, 206 (2004).

109

For an analysis of legal space (mostly courtrooms) as shown on cinema, see GREENFIELD, OSBORN

ET AL., supra note 42, at 31–53; BLACK, supra note 32, at 73–81.

110

Cf. Katherine Biber, Book Review, Law’s Moving Image, 15 SOCIAL LEGAL STUDIES 607 (2006);

Rebbecca Johnson, Book Review, Judging Magic: Can You See the Sleight of Hand, 105 M

ICH L. R.

1343 (2007).

488 Southern California Interdisciplinary Law Journal [Vol. 17:457

of structure, representation relies on operational closure and cognitive

openness. Operational closure allows each practice to retain its perceived

autonomy and its commitment to “playing by its own rules” (without which

representations within the practice would become meaningless, or would

attain multiple meanings and thus become meaningless). Cognitive

openness is essential for the practices to absorb representations from other

practices. Yet maintaining this structure of closure and openness is

challenged once the boundaries of the practices are no longer clear. If

indeed the legal process “turns pop”, as Sherwin suggests, if fact (as

represented in law) and the image of fact (as projected on screen) become

interlaced,

111

the structure of law is threatened at least in so far as its

aspiration to ensure due process becomes hollow. Similarly, should the law

invade the creative space of cinema (for example, by imposing intellectual

property rules that are powerful enough to change the logic of the domain

from one premised on innovation to one premised on defensive—or

offensive—legal representations) the structure of cinema would be

threatened. It would thus follow that a structural analysis of law and cinema

would look at what “representation” means, since it is through

“representation” that practices regulate the communication with

neighboring practices.

The family of structural arguments, more abstractly, is premised on

examining the mode of operation—the available moves—within each

practice. For example, both the cinema and the law are self-referential.

112

Both cinema and law establish the ethos and the rationale for action in the

frame of their practice. They do not depend on any external base for their

action, but rather provide the justifications and standards for measuring

excellence from within the practice itself. A law-and-society investigation

into structure would compare, as an empirical matter, how information

enters and then represented in the law and in the cinema (and also in the

media that covers both law and cinema).

113

It would also examine the social

mechanisms that play as gatekeepers (with respect to information but also

with respect to people who seek to assume—or withdraw from—offices

within the practice). Richard Sherwin, for example, documents the possible

ways of diffusion between the legal and the cinematic worlds in term of

representation and perception.

114

Further work may address the mobility of

professionals between these two worlds.

115

A law-and-humanities

examination would look into the system of internal citations in law and in

111

“In an image-saturated society, representations are not of reality, but a part of it.” John Fiske,

Admissible Postmodernity: Some Remarks on Rodney King, O.J. Simpson, and Contemporary Culture,

30 U.S.F.

L. REV. 917, 928 (1996).

112

Cf. AUTOPOIETIC LAW, supra note 30, at 2; ART AS A SOCIAL SYSTEM, supra note 107, especially

Chapter 5.

113

John Fiske, Admissible Postmodernity, supra note 111.

114

SHERWIN, WHEN LAW GOES POP, supra note 3; Richard Sherwin, Law in Popular Culture, in THE

BLACKWELL COMPANION TO LAW AND SOCIETY 95 (Austin Sara ed., 2004).

115

Some lawyers end up working in companies that produce audio-visual evidence. See, e.g., Avi J.

Stachenfeld & Christopher M. Nicholson, Symposium: Picturing Justice: Images of Law and Lawyers

in the Visual Media, Blurred Boundaries: An Analysis of the Close Relationship Between Popular

Culture and the Practice of Law, 30 U.S.F.

L. REV. 903 (1996). Others, such as Otto Preminger, end up

as movie directors.

2008] The Production of Law (and Cinema) 489

cinema

116

—at the level of the artifact, not the social occurrence—and

identify the construction of authority, meaning, connotations and even

validity that follows. Cinematic theory is rather sensitive to the structure of

the cinema, and therefore insights of theorists—primarily European—serve

as important sources.

117

In addition to placing law alongside cinema the discussion of structure

could adopt any of the other modes of interdisciplinary, depending on the

focus of the examination. For instance, we may examine the structure of

the aesthetic devices used by law and cinema to conjure an image. True, the

law doesn’t make use of cameras, studios, and special effects in the same

manner the cinema industry does (although it should be noted that modern

technologies have now blurred the boundaries and videotaped evidence,

video-conferences, and other cinematic tools are available in courtrooms,

118

legislative halls, and lawyers’ offices, as many law and cinema scholars

have noted). Similarly, cinema doesn’t resort to the exact same rhetorical

and aesthetical devices definitive of law, such as special customs for the

participants (robes), special architecture where the practices are performed

(a courtroom with an elevated dais for the judge, a box for the juries, etc.),

special parlance (legal terminology), and procedures to establish legal truth

(distinguished from scientific truth) which include ritualistic elements, such

as an oath. Yet, despite the different devices, they nonetheless may have

similar functions: for example, they sway us to accept the viewpoint of the

Court

119

or the Camera

120

as the only sensible viewpoint. Hence we may

examine legalistic devices in the poetics of the cinema, or cinematic

devices in the poetics of law, and so on. These rhetorical and aesthetic

devices establish the necessary conditions for the stories of the characters

to be persuasive, and analyzing these devices can be seen as a subclass of

structural arguments, as they are the “plumbing”—the tools with which the

practice is “maintained” or is operationalized.

Another example of aesthetic and rhetoric devices that are built into the

practices are the devices that participate in the formation of empathy (or

disempathy, namely blame) towards the characters; empathy, it has been

argued, plays an important part in ethical (and legal) judgment.

121

Again, a

jurist has a different arsenal than a filmmaker. The latter has at her disposal

scriptwriters, camera-people, sound and lighting experts, as well as the

make-up artists. All these tools – perhaps especially the camera – are

116

There are a lot of examples, such as Carol Reed’s reference in THE THIRD MAN (London Film

Productions 1949), to the famous balloon scene of Fritz Lang in M (Nero-Film AG 1931).

117

For important collections of essays, see FILM THEORY AND CRITICISM, supra note 83; NARRATIVE,

APPARATUS, IDEOLOGY, supra note 93; see also ROBERT STAM, FILM THEORY: AN INTRODUCTION

(2000).

118

Lawrence Douglas, Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg

Tribunal, 105 Y

ALE L.J. 449 (1995); Christopher J. Buccafusco, Gaining/Losing Perspective on the

Law, or Keeping Visual Evidence in Perspective, 58

U. MIAMI L. REV. 609 (2004); Ann Kibbey, The

Semiotics of Photographic Evidence, 5 LTC 157 (2001).

119

Robert Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 109 (1984).

120

Christian Metz, The Imaginary Signifier, in FILM THEORY AND CRITICISM, supra note 83, at 820,

stating that the spectator can do no other than identify with the camera.

121

See, e.g., MARTHA NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND PUBLIC LIFE

(1995); KAMIR, FRAMED, supra note 17.

490 Southern California Interdisciplinary Law Journal [Vol. 17:457

unique to film. But the former—the jurist—also has a couple of useful tools

to build or undermine empathy, as classes in legal advocacy, moot trials,

and similar courses demonstrate.

122

Understanding the processes by which

empathy is elicited requires the understanding of the rhetorical modes

utilized in a certain film or a certain statutory of judicial authorities.

123

These examples of the discussion of the structural aspects of law and

cinema are, of course, only partial examples. They are not exhaustive. Their

presentation was intended only to outline a certain dimension in this field

of discourse, and invite further discussion.

DESCRIBING CULTURE: CONVERSATIONS ABOUT REPRESENTATIONS

PERCEPTION AND RECEPTION)

1. Using Cinema to Explore the Law (and Culture)

The second family of conversations in the law and cinema field is

occupied not so much with structure but with characters and processes in a

given society and their representation in legal sources and in cinematic

artifacts. At bottom, this exercise is an attempt to better understand human

culture: its institutions and ideologies.

124

This conversation will look at the

representation of fathers (and children),

125

deviant families,

126

women,

127

the corporation

128

or any other entity that resides in the various systems that

comprise society. We would want to get to know these characters better:

who they are (i.e., how are they described or depicted), where they come

from (as represented in law and in cinema), what is their psychological

make-up (ditto), under what ideal-types are they operating, etc. The focus

may also be the processes these characters undergo—their interactions and

relationships—and how these are treated in law and in film. Of interest, for

example, is how property is acquired.

129

Less tangible human phenomena,

122

Since the pen and the word are the only “weapons” of the lawyer, it is no surprise that the most

powerful “weapon” for identity-building in law is the narrative. See, e.g., Kim L. Scheppele, Foreword:

Telling Stories, 87 MICH. L. REV. 2073 (1989); Jan M. Van Dunne, Narrative Coherence and its

Function in Judicial Making and Legislation, 44 A

M. J. COMP. L. 463 (1996). For the centrality of

narrative in law and cinema, see BLACK, supra note 32, at 13–31.

123

Black makes a connection between the testimony of a witness in court and the operation of a camera

in a cinematic creation. See B

LACK, supra note 19 at 99–103. See also KAMIR, FRAMED, supra note 17,

at 3–4.

124

Naomi Mezey & Mark C. Niles, Screening the Law: Ideology and Law in American Popular Culture,

COLUM. J.L. & ARTS 91 (2005).

125

Austin Sarat, Presidential Address, Imagining the Law of the Father: Loss, Dread, and Mourning in

the Sweet Hereafter, 34 L

AW & SOC’Y REV. 3 (2000); Austin Sarat, Symposium: Law/Media/Culture:

Legal Meaning in The Age of Images, Living in a Copernican Universe: Law and Fatherhood in a

Perfect World, 43 N.Y.L.

SCH. L. REV. 843 (2000).

126

Rebecca Johnson, Leaving Normal: Constructing the Family at the Movies and in Law, in NEW

PERSPECTIVES ON DEVIANCE: THE CONSTRUCTION OF DEVIANCE IN EVERYDAY LIFE 163 (Lori Beaman

ed., 2000).

127

KAMIR, FRAMED, supra note 17.

128

Anthony Chase, Civil Action Cinema, 1999 L. REV. M.S.U.-D.C.L. 945 (1999); Anthony Chase,

Symposium, Subterranean Government, Underground Film, 22 OKLA. CITY U.L. REV. 167, 182-

83 (1997).

129

See, e.g., David M Seymour, Representation and the Framing of Modernity, 10 GRIFFITH L. REV.

259 (2001).

2008] The Production of Law (and Cinema) 491

like emotions

130

may also be examined, and attention could be paid to the

manner in which identity and collective memory are constructed via

cinematic and legal representations.

131

Parallel to the humanistic

investigation into character and image, a social-science perspective would

inquire into the accuracy (or comprehensiveness) of the representation and

the effect representation of an entity in one system has on the other are

common. The purpose is to challenge a representation – ubiquitous in one

or more films—by juxtaposing it with an alternative image or with data

collected via scientific methods. This process of challenging the

representation may also include uncovering a less conspicuous and

sometimes even partially hidden images that nonetheless play a central role

in the representation of the examined character, institution, process etc (or

the in manner it is “judged” by the camera).

The examination may also undertake a diachronic approach by

examining the evolution of the representation of a certain social character

or institution over time. References to social context, power structures,

dominant ideologies and cultural and technological horizons are an integral

part of the conversation.

It is within this family of conversations that the American cinematic

fascination with law—criminal and civil—is addressed.

132

The pull of

conflicts to the domain of lawyers and courts, identified early in American

life by de Tocqueville,

133

is reinforced by the American cinema (read: the

cinema in the United States)

134

and its depiction of lawyers,

135

law-firms,

136

130

Hila Keren & Kathy Abrams, Law in the Cultivation of Hope (Bepress Legal Series, Working Paper

No. 1205 2006), available at

http://law.bepress.com/cgi/viewcontent.cgi?article=5762&context=expresso (last visited March 10,

2008).

131

See, e.g., Ruth Elizabeth Burks, Back To The Future: Forrest Gump And The Birth Of A Nation, 15

HARV. BLACKLETTER L.J. 83 (1999).

132

Nicole Rafter, American Criminal Trial Films: An Overview of Their Development, 1930–2000, 28 J.

LAW & SOC, 9 (2001); Mariana Valverd, LAW AND ORDER: IMAGES, MEANINGS, MYTHS (2006); Jessica

M. Silbey A History of Representations of Justice: Coincident Preoccupations of Law and Film, in

EPRESENTATIONS OF JUSTICE 131 (Antoine Masson & Kevin O’Connor, eds.) (2007); CHASE, supra

note 52, discusses the way the different fields of law are represented on screen. He thus reviews the

representation of constitutional law, criminal law, civil law (mainly torts), international law, and

comparative law.

133

“[S]carcely any political question arises in the United States that is not resolved, sooner or later, into

a judicial question,” wrote Alexis de Tocqueville. A

LEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA

280 (Phillips Bradley ed., 1945. It would not be surprising if as a consequence the legal process grained

considerable public visibility.

134

The relationship of U.S. cinema to Canadian cinema or to the European continent has also attracted

the attention of scholars. See Stefan Machura & Stefan Ulbrich, Law in Film: Globalizing the

Hollywood Courtroom Drama, 28 J. LAW & SOC 117 (2001) (for a law-and-society perspective); Ed

Morgan, The Mild, Mild West: Living by a Code in Canadian Law and Film, 2 L

AW, CULTURE AND THE

HUMANITIES 115 (2006); Guy Osborn Steve Greenfield & Peter Robson, Genre, Iconography and

British Legal Film, 36

U. BALT. L. REV. 371 (2007) (for a law-and-humanities perspective).

135

John Brigham, Representing Lawyers: From Courtrooms to Boardrooms and TV Studios, 53

YRACUSE L. REV. 1165 (2003); David Ray Papke, Symposium, Cautionary Tales: The Woman as

Lawyer in Contemporary Hollywood Cinema, 25 U.

ARK. LITTLE ROCK L. REV. 485 (2003); Louise

Everett Graham & Geraldine Maschio, A False Public Sentiment: Narrative and Visual Images of

Women Lawyers in Film, 84 K

Y. L.J. 1027 (1996); Carole Shapiro, Women Lawyers in Celluloid: Why

Hollywood Skirts The Truth, 25 U.

TOL. L. REV. 955 (1995).

136

Michael Asimow, Symposium: Law And Popular Culture, Embodiment of Evil: Law Firms In The

Movies, 48 UCLA L. REV. 1339 (2001)

492 Southern California Interdisciplinary Law Journal [Vol. 17:457

judges,

137

and the legal process could be a testament that the attraction to

the law, and the underlying notion that we are all juries,

138

has far from

abated. Law and its minions—prosecutors,

139

defense lawyers,

140

the

corporate bar,

141

family lawyers

142

et al—are often depicted as both the

solution and the problem,

143

and the idea that we cannot do without the law

but that justice is ultimately achieved outside its boundaries (or in violation

of its processes) is a theme many films flirt with.

144

Whether it is the notion

that in the absence of aristocracy or an organic all-American community,

law is the medium for managing social conflicts (lest we succumb to fist

law);

145

whether it is the notion that the ultimate resolution of important

conflicts must be reflected in law (or in the constitution) as the civil

religion;

146

whether it is the personal history of the early Hollywood film

moguls who sought the rule of law but were equally captivated by

unrestricted freedom;

147

or whether it is simply the fact that the adversarial

system easily lends itself to dramatization

148

—the prominence in legal

figures and process on the silver screen has been identified by the law-and-

cinema scholars and consequently receives great attention.

149

A slightly different use of interdisciplinary studies within this family is

more instrumental (or pedagogical): using the cinema to understand a

certain legal doctrine.

150

The family of arguments that uses the cinema to

137

David Ray Papke, From Flat to Round: Changing Portrayals of the Judge in American Popular

Culture, 31 J.

LEGAL PROF. 127 (2007).

138

Carol J. Clover, Movie Juries, supra note 29; Phil Meyer, Why a Jury Trial is More Like a Movie

Than a Novel, 28 J. LAW & SOC. 133 (2001).

139

See, e.g., Roger Berkowitz, The Accusers: Law, Justice and the Image of Prosecutors in Hollywood,

13 GRIFFITH L. REV. 131 (2004).

140

J. Thomas Sullivan, Symposium, Imagining The Criminal Law: When Client and Lawyer Meet in

The Movies, 25 U.

ARK. LITTLE ROCK L. REV. 665 (2003); Rob Atkinson, Liberating Lawyers:

Divergent Parallels in Intruder in The Dust and To Kill A Mockingbird, 49 DUKE L.J. 601 (1999); John

Jay Osborn, Jr., Symposium: Picturing Justice: Images of Law and Lawyers in The Visual Media,

Atticus Finch - The End of Honor: A Discussion of To Kill a Mockingbird, 30

U.S.F. L. REV. 1139

(1996); Francis M. Nevins, Symposium: Picturing Justice: Images of Law and Lawyers in the Visual

Media, Man in the Middle: Unsung Classic of the Warren Court, 30 U.S.F. L. REV. 1097 (1996).

141

William J. Wernz, The Ethics of Large Law Firms—Responses and Reflections, 16 GEO. J. LEGAL

ETHICS 175 (2002).

142

Michael Asimow, Divorce In The Movies: From The Hays Code To Kramer Vs. Kramer, 24 LEGAL

STUD. FORUM 221 (2000).

143

Steve Greenfield, Hero or Villain? Cinematic Lawyers and the Delivery of Justice, 28 J. LAW & SOC.

25 (2001).

144

Even films that portray the lawyer as a great hero are more skeptical about the law. See, e.g., TO KILL

A MOCKINGBIRD (Brentwood Productions 1962).

145

For the proposition that Hollywood courtroom dramas are a guise for addressing social problems, see

Matthias Kuzina, The Social Issue Courtroom Drama as an Expression of American Popular Culture,

J. LAW & SOC 79 (2001).

146

Robert N. Bellah, Civil Religion in America, 96 J. AM. ACAD. ARTS & SCIENCES 1 (1967).

147

Simcha Jacobovici, HOLLYWOODISM: JEWS, MOVIES AND THE AMERICAN DREAM (TV, Associated

Production 1997), based on N

EAL GABLER, AN EMPIRE OF THEIR OWN: HOW THE JEWS INVENTED

HOLLYWOOD (1989).

148

Michael Asimow, Symposium, Popular Culture and The Adversary System, 40 LOY. L.A. L. REV.

(2007).

149

Austin Sarat, Lawrence Douglas, & Martha Merrill Umphrey, On Film and Law: Broadening the

Focus, in L

AW ON THE SCREEN (Austin Sarat, Lawrence Douglas, & Martha Merrill Umphrey eds.,

2005).

150

“[F]ilm provides perspectives on law that the traditional legal canon ignores.” J. Denvir, One Movie

No Lawyer Should Miss, 30 U.S.F.

L. REV. 1051, 1051 (1996). For example, cinema can reflect on the

complexity in lawyer-client relationship often from a perspective unavailable in traditional legal

2008] The Production of Law (and Cinema) 493

explore the law argues that a certain legal norm (doctrine, executive decree,

statutory provision, etc.) could be better (i.e., more comprehensively)

understood by discussing that segment as it is represented in a film.

151

Such

a discussion may quickly shift to the normative (the third family, discussed

below), but may also remain at the level of the “is”, i.e., at the level of

trying to understand the doctrine (or the legal character) as it is, without

either justifying or criticizing it. It has become commonplace that civil

procedure, contract theory, constitutional judicial review, tort law, and

professional ethics, to name but a few examples, are approached by

screening a certain film (in class, before lawyers, judges, legislatures, or

any other professional audience).

152

Such use of a film does not necessarily

rest on the assumption that the movie puts forward an empirical claim

(about how things in the world necessarily “are”) or expresses normative

criticism.

153

The appeal to a film is made because it presents a hypothetical

story from which it is possible to draw certain assumptions or positions that

are relevant to the clarification of certain points in legal theory. The use of

a cinematic artifact as an illustration, or as raising a hypothesis, is often

useful, as it allows us to examine relationships governed by law afresh, as

well as a tool for sharpening our understanding of a legal norm by detecting

its violation or misrepresentation in the movie.

154

An interesting question that arises when we come to use a film as a

basis for a discussion of legal or extra-legal paradigms focuses on the

considerations that have led us to choose that particular film. Is it important

for us to choose a legally-oriented film, namely a film that presents legal

proceedings? Is the focus of our discussion the legal process, or perhaps

would we be better off with a film that does not present any proceedings,

and from that seemingly unrelated starting point analyze the social

interactions their legal relevance? In justifying our choice we shall need, it

discourse. See J. Thomas Sullivan, Imagining the Criminal Law: When Client and Lawyer Meet in the

Movies, 25 UNIV. ARK. LITTLE ROCK L. REV. 665, 667–68 (2003).

151

See, for example, Margaret Y.K. Woo’s discussion of the film THE STORY OF QIU JU, supra note 89,

as part of the discussion of the Chinese legal system. Margaret Y.K. Woo, Law and Discretion in the

Contemporary Chinese Courts, 8 P

AC. RIM. L. & POL’Y J. 581, 613 (1999).

152

See, e.g., Melissa Cole, Approaches to Teaching Civil Procedure: Projecting Civil Litigation

Through The Lens of Film Theory, 47 S

T. LOUIS L.J. 21 (2003); John Jay Osborn, Jr., Atticus Finch—

The End of Honor, 30 U.S.F. L. REV. 1139, 1141 (1996); Tonja Haddad, Silver Tongues on the Silver

Screen: Legal Ethics in the Movies, 24 NOVA L. REV. 673, 674–75 (2000); Norman L. Rosenberg,

Constitutional History and the "Cultural Turn": Cross-Examining the Legal-Reelist Narratives of Henry

Fonda, in C

ONSTITUTIONALISM AND AMERICAN CULTURE: WRITING THE NEW CONSTITUTIONAL

HISTORY (Sandra F. VanBurkleo, Kermit L. Hall, and Robert J. Kaczorowski eds., 2002), especially

Chapter 12.

153

Lawrence Friedman claims that, “Popular culture, as reflected in the media, is not, and cannot be

taken as an accurate mirror of the actual state of living law.” Lawrence M. Friedman, Popular Legal

Culture: Law, Lawyers and Popular Culture, 98 Y

ALE L.J. 1579, 1588 (1989). See Sullivan, supra note

150, at 668; Silbey, supra note 28, at 152–58; G

REENFIELD, OSBORN ET AL., supra note 42, at 55–84.

154

For example, the movie DEATH AND THE MAIDEN (Canal 1994), analyzed in Kamir’s book, supra

note 17, at 185, allows us to examine the difference between “private” legal order and the official legal

process, the advantages and disadvantages of reconciliation procedures in the collective and personal

realms in relation to other alternatives such as active struggle or opting for the criminal law model. One

basic element in reconciliation procedures is the full confession—a confession from the mouth of the

perpetrator that includes a request for forgiveness. The movie provides us with such a confession—in an

artificial way—and thus makes us wonder whether the knowledge of what “really” happened helps us to

reach reconciliation and at what price. One possible conclusion is that all the characters are punished or

end up paying a price for their actions, including their desire to achieve justice.

494 Southern California Interdisciplinary Law Journal [Vol. 17:457

seems, to refer also to the issue of genre: what is considered a “law

film”?

155

Take Rashomon,

156

a film that presents a legal process but does

not at all present accepted procedural elements—is our ability to discuss

the film in the context of a criminal procedure undermined by that, or does

this help us to better expose elements present in conventional criminal

procedure?

Another recurring theme in the family of conversations centered

around “describing culture” is the issue of historical context. A certain film,

or a certain genre, is located in a certain historical context in which politics,

economics, ideology, etc., are intertwined.

157

We are therefore able to

discuss, as a descriptive matter, the moral and ideological perceptions as

represented at a certain period towards a legal question, as we can discuss

the representation of social reality in a given era (i.e., as it was perceived

when the movie was made). Contextual insights can therefore be drawn

regarding theory—legal or political—that was commonly held at that

time.

158

The film To Kill a Mockingbird was made during a certain period,

and therefore can be taken as an indication of the existence of certain

perceptions (with respect to a certain law, the law in general, or legal

proceedings, etc.) during that period. In the same manner, it would be

possible to examine how a certain historical period (including its laws) was

perceived and represented by different generations (provided, of course,

such perceptions or representations are corroborated). Again, the film To

Kill a Mocking Bird, produced in the 60s, reflects back on the 20s and thus

allows us to examine how the 20s were considered in the 60s (at least by

the director). Similarly, the Western films of the 60s reflect, in one way or

another, a certain attitude towards the law (towards violence, towards

women, towards minorities) which Hollywood thought was prevalent

during the period of the “wild west.” It is therefore possible to discuss

Western films as representations of the period in which they were made, as

well as representing perceptions regarding the period during which the

plots are situated.

155

For an outline of the law and cinema scholarship focusing on that which defines “law films,” see

REENFIELD, OSBORN ET AL., supra note 42, at 14–24. In their opinion, “. . . law films are always

concerned with the enforcement of justice in some shape or form and that is a crucial starting point.” Id.

at 24.

156

RASHOMON (Daiei Motion Picture Company 1950).

157

ROBERT A. ROSENSTONE, VISIONS OF THE PAST : THE CHALLENGE OF FILM TO OUR IDEA OF HISTORY

194–95 (1995); TONY BARTA, SCREENING THE PAST: FILM AND THE REPRESENTATION OF HISTORY

(1998); Norman Rosenberg, Symposium: Law and Popular Culture, Looking For Law In All The Old

Traces: The Movies Of Classical Hollywood, The Law, And The Case(s) of Film Noir, 48 UCLA

L. REV.

1443 (2001); David Ray Papke, Symposium: Law And Popular Culture, Law, Cinema, And Ideology:

Hollywood Legal Films Of The 1950s, 48 UCLA

L. REV 1473 (2001).

158

Cf. Rennard Strickland, The Cinematic Lawyer: The Magic Mirror and the Silver Screen, 22 OKLA.

CITY U. L. REV. 13, 22 (1997); Richard K. Sherwin, Cape Fear: Law’s Inversion and Cathartic Justice,

30 U.S.F.

L. REV. 1023 (1996); Naomi Mezey & Mark C. Niles, Screening the Law: Ideology and Law

in American Popular Culture, 28 C

OLUM. J. L. & ARTS 91 (2005). To this it should be added that there

is a developing taxonomy that relates films to political eras. We can thus identify “Bush films”

(meaning films, fictional and documentary, which focus on the Bush Administration), “Clinton films,”

September 11

films, Watergate films, etc. This allows not only the study of the effect political events

had on the cinema, but equally, and perhaps more interestingly, we can analyze films as political events

that broadcast and consolidate ideological concepts. See, e.g., Alan Nadel, God's Law and the Wide

Screen: The Ten Commandments as Cold War "Epic", 108 PMLA 415 (1993).

2008] The Production of Law (and Cinema) 495

Context, of course, is not just time-sensitive, but also culture-

dependant. It would not be surprising if the film Rashomon was perceived

in the West differently compared to the meaning ascribed to it in the

East.

159

The discussion of cinema and law could thus include a comparative

dimension: we could examine how films from different cultures perceive

(reflect, criticize) various aspects of the legal world in their culture (or in

other cultures). We can also compare how native films (or cases) are

perceived by foreign jurisdictions. Consequently, hypotheses or

speculations can be put forward with respect to similarities and differences

among the different popular-legal cultures or between popular-legal

cultures during different periods. If indeed there is a relation between law

and popular culture, such research could also tell us something about the

law itself in a given cultural context.

It should be noted, however, that historical and geographic context do

not necessarily limit the field of discourse. Certain films raise problems

that are not dependant on a specific historical or geographic context. For

example, some of the arguments raised by the film Rashomon are not

limited to a historical period (even if an understanding of the historical-

political background certainly illuminates important aspects of this film).

Our ability to understand reality is limited today in the United States and

was limited in the 1950s in Japan as it was limited in the thirteenth century

(where the legend is situated). It is obviously reasonable to assume that we

would have dealt with the problem of Rashomon differently had the plot

been situated in the present—by resorting to different technology to

determine the truth—or had it been situated in France or in Canada. But the

challenge at the basis of the film would have remained the same challenge,

because any legal system is required to deal with human limitations when

inquiring into the truth. Treating Rashomon in that fashion brings it closer

to the structural domain, as issues of truth are issues all practices, as

practices, must deal with.

160

2. “Cultural Jurisprudence”: Transporting Legal Philosophy To the Final

Frontier

An interesting sub-sector in the cluster of conversations that examines

cinema for its culturally embedded legal themes focuses not on the

representation of legal doctrine or process neither on exploring cultural

unstated assumptions as represented in film and in law. Rather, cinema is

used as a virtual field with which we can play with basic themes of legal

philosophy by plucking them from their “natural” locus and transplanting

them in the fictional world a movie creates. As stated by one of the

159

Rashomon was made immediately following WWII, and thus we could hear the Camera telling the

audience that although we think we are looking at reality heads-on, we are in fact caught in our own

historical and cultural horizon. The movie depicts a legend from the 13

century, but the fable is clear:

allocating blame for past actions will lead to a loss of faith in human nature, whereas focusing on future

and healing is the honest thing to do. This lesson addresses Japan’s honor and shame culture—which is

very much past looking—as well as the West’s justice-seeking mentality, but it is clear that the movie

will be understood differently by a Japanese and an American.

160

Cf. Jessica M. Silbey, Truth Tales and Trial Films, 40 LOY. L. A. L. REV. 551 (2007).

496 Southern California Interdisciplinary Law Journal [Vol. 17:457

discussants: “The first tenet of [t]his [approach] is that popular texts can be

viewed as animating concepts and themes from jurisprudence. The second

is that talking jurisprudentially through popular culture opens a space for

critical engagement with jurisprudence, a space that is liberated from the

accretions of the discipline's formal lexicon and institutional forms.”

161

This work often addresses the more stimulating genres of the cinematic

art—science fiction

162

(although an embryonic version of the genre

addressed European masters and their affinity to CLS legal concepts).

163

The idea of this philosophical game is not only to achieve better

dexterity with legal philosophy by playing with its concepts in alternative

worlds such as that created by a film, but also to reflect back on key

questions and concepts from a different perspective. So key concepts like

the grundnorm

164

or sovereignty

165

are examined in an alien context

precisely because this context provides an opportunity to examine the

“essence” of these concepts. In that respect, this family of conversation

could be classified as belonging to the “structural” or “conceptual” family,

as it seeks to take a closer look at the conceptual structure of the law.

Equally interestingly, this “game” allows us to understand film better, to the

extent that the philosophical concepts reflect some truth that transcends

conventions of the legal system. This sub-group of conversations is well

aware of the language game involved in borrowing concepts, and

stimulates our thought also with respect to what it means to compare,

borrow or transplant.

3. Using the Law to Understand Cinema

As cinema could prove useful for the understanding of law and legal

doctrine, so can the law prove useful for the understanding of cinema (as

was just noted). However, it appears that this family of arguments has thus

far been less developed. For starters, we could investigate the influence of

the law on cinematic creation.

166

Intellectual property rights, distribution

161

Kieran Tranter, “Frakking Toasters" and Jurisprudences of Technology: The Exception, The Subject

and Techne in Battlestar Galactica,19 L

AW AND LITERATURE 45, 46 (2007) (describing the work of

William P. MacNeil and aligning himself therewith).

162

William P. MacNeil, One Recht to Rule Them All! Law's Empire in the Age of Empire, 34 STUDIES IN

LAW, POLITICS AND SOCIETY 279 (2004); William P. MacNeil, PreCrime Never Pays! Law and

Economics in Minority Report, 19 C

ONTINUUM 201 (2005). And see also his writings on the edge of

good science fiction: William P. MacNeil, 'You Slay Me'!: Buffy as Jurisprude of Desire, 24 CARDOZO

L. REV. 2421 (2003); William P. MacNeil, 'Kidlit' as 'Law and Literature': Harry Potter and the Scales

of Justice, 14 L

AW AND LITERATURE 545 (2002).

163

Jeffrey L. Harrison & Amy R. Mashburn, Jean-Luc Godard And Critical Legal Studies (Because We

Need The Eggs), 87 M

ICH. L. REV. 1924 (1989).

164

Kieran Tranter & Bronwyn Statham, Echo and Mirror: Clone Hysteria, Genetic Determinism and

Star Trek Nemesis, 3 L

AW, CULTURE AND THE HUMANITIES 361 (2007).

165

Jason Bainbridge, "This is the Authority. This Planet is Under Our Protection" — An Exegesis of

Superheroes' Interrogations of Law, 3 L

AW, CULTURE AND THE HUMANITIES 455 (2007).

166

By providing First Amendment protection, the Constitution isolates the creative process from direct

governmental interference. Yet the First Amendment may clash with other constitutional rights,

including the fundamental right to property. Sometimes, a compelling state interest may appear. Clearly

the issue of classification is alive—is film political speech, worthy of full protection, or mainly

commercial speech? Law regulates art by defining its border and allowing private actors and

governmental actors to control the distribution of art. In that respect, the regulation is negative, in the

2008] The Production of Law (and Cinema) 497

agreements, age restrictions (of audience and performers), constitutional

limitations on the freedom of expression and other legal doctrines

influence—at least that is the assumption—filmmaking in a manner that is

not always transparent.

167

Even the form of contract—the famous oral

agreement—matters.

168

The cultural product we receive, the empathy,

identity, and collective memory that are generated by a certain film or by

cinema in general, are an outcome not only of the director’s creativity, but

also of the legal environment and specific laws within which she

operates,

169

including the “soft law” applied by market forces and key

players in the industry.

170

The regulatory environment in which the director

operates and in which the distributive and screening licenses are located,

including the norms that govern the employment of personnel in the

various fields (i.e., labor law), influence the cultural product and are thus

worthy of research.

171

Such research could enrich our abilities to

understand the possible reasons for certain cinematic developments, and

could even provide a reference point for normative critique of specific

cinematic trends.

sense that there is no duty to create, nor is there an entitlement that the government provides access to

the creative process.

167

The influence of law on the creative process was discussed in a number of films. For example, the

lawyers in David Mamet’s film STATE AND MAIN (Filmtown Entertainment 2000) play leading roles in

presenting different concepts regarding “who owns Main Street,” namely the production of culture. The

influence of the lawyer behind the scenes is of no small importance. Steven Spielberg, the director of

MISTAD, was sued for copyright violation. Compl. Chase-Riboud v. Dreamworks ¶ 9. Because the

terms of settlement remain undisclosed, we cannot estimate what influence the lawsuit had on the film

itself. See Chase-Riboud v. Dreamworks: “The Amistad Case,” C

OURTTV.COM (1999), available at

www.courttv.com/trials/amistad. In order to receive an R rating rather than an NA-17, one scene in

Stanley Kubrick’s film, E

YES WIDE SHUT, was altered digitally by blurring masculine sexual organs. As

noted by Donald Hermann, “[i]ssues of film censorship, particularly the influence of the American film

industry’s Production Codes, on film content can provide a rich basis of inquiry.” Hermann, supra note

42, at 329.

168

Michael S. Bogner, The Problem with Handshakes: An Evaluation of Oral Agreements in the United

States Film Industry, 28 COLUM. J.L. & ARTS 359 (2005).

169

It is difficult to imagine the film industry without copyright law and intellectual property law in

general. See, e.g., Nick Gladden, When California Dreamin’ Becomes a Hollywood Nightmare:

INTELL. PROP. L. 359, 360 (2003); Douglas Y’Barbo, Aesthetic Ambition Versus Commercial Appeal:

Adapting Novels to Film and the Copyright Law, 10 ST. THOMAS L. REV. 299 (1998); K.L. Greene,

Motion Picture Copyright Infringement and the Presumption of Irreparable Harm: Toward a

Reevaluation of the Standard for Preliminary Injunctive Relief, 31 R

UTGERS L.J. 173 (1999).

170

Lucille M. Ponte & Jennifer L. Gillan, From Our Family To Yours: Rethinking The "Beneficial

Family" And Marriage-Centric Corporate Benefit Programs, 14 COLUM. J. GENDER & L. 1 (2005)

(addressing corporate sponsorship of TV programs); BRUCE A. AUSTIN (ED.) CURRENT RESEARCH IN

FILM: AUDIENCES, ECONOMICS, AND LAW (Vol 3) (1987).

171

While official censorship is jurisdiction specific, some themes are universal. In some states

censorship is exercised by national state agencies, while in others it is carried out by local agencies or

by the industry itself, through self-regulation. Nicholas Pronay, The First Reality: Film Censorship in

Liberal England, in F

EATURE FILMS AS HISTORY 113 (K.R.M. short eds., 1981). For the realities of film

censorship in the United States, see T

HIS FILM IS NOT YET RATED (British Broadcasting Corporation

(BBC) 2006). For a brief historical review of U.S. practices, see A

SIMOW & MADER, supra note 4, at

22–24. For an attempt to exercise film censorship in the United States—overturned by the judiciary—

see the case of the L

AST TEMPTATION OF CHRIST. Associated Press, Judge Overturns Ban on Film, N. Y.

TIMES, Sept. 11, 1988, at 34. It should be noted screenings of that film in Europe resulted in fierce

clashes. For example, the theatre that showed the film in Paris was burnt. See Paul Webster, French

Police Find Web of Extremist Violence: Le Pen and Lefebvre Linked to Cinema Attacks, T

GUARDIAN, Nov. 1, 1988.

498 Southern California Interdisciplinary Law Journal [Vol. 17:457

Beyond an examination of the influence of positive law on the process

of cinematic creation and its products, including the manner in which these

products are woven into the general cultural fiber, law can serve as a point

of origin for shedding light on blind spots in a film or a group of films.

Equipped with a legal lens, we would be able to examine how a director in

a given film perceives the law.

172

Is the director justified in making the

legal claims contained in the film or in her approach to the law in general?

Is the story developed in the film reliable from a legal perspective? This

could tell us something interesting about the film, and could, if

corroborated, tell us something interesting about popular culture. Further,

in law we are usually rather sensitive to the phenomenon of normativity:

what makes a certain behavior a norm? Legal insights could be brought to

bear in examining the cinema’s take on these questions. How does the

director perceive normativity in general and legal norms in particular? Or

more broadly, what is the film’s take on the relationship between social

norms and legal norms? Is the film aware of the theories developed in law

(and the sociology of law) regarding the relevant processes? Lastly, the law

(legal theory, legal doctrine) allows us to inquire into the ethical dimension

of a movie (or of several movies): have the ethical-moral understandings

that have been consolidated over the course of years in the legal tradition

with respect to a certain field of activity been seriously considered by the

director?

For example, in the film Death and the Maiden, Milos Forman chose to

deviate from Dorfman’s excellent play and “solve” for us the factual

question (is the doctor guilty of rape and abuse?) in an unambiguous

manner, which reaches the spectators by means of a confession from

nowhere. According to the director, such an ending “is more

satisfactory”;

173

but it could be argued that at least legally it is not

persuasive.

174

To this we could add the obvious tension between the process

that led to the confession and the requirements of due process that govern

criminal proceedings since the demise of the Inquisition.

175

It seems that

172

In the United States, for example, the director often places the camera, on behalf of the audience, as

they jury (as if we are all 12 Angry Men). See Carol J. Clover, Movie Juries, supra note 29.

173

Others, it seems, may disagree, and yet others may wonder whether “satisfaction” is an adequate

criterion for evaluating possible narratives. The play leaves the spectators with a strong sense that the

doctor is guilty but a (reasonable?) doubt remains. A question therefore is presented: what would you do

in this situation? Milos Forman decided to steer away from such an ending—an ending that is typical of

real judicial events. Instead, Forman provided us all the facts and reminded us that the director is

omnipotent, unlike ordinary fact finders. The advantages of such an ending have been discussed by Orit

Kamir, supra note 17, and some were also mentioned here: we are able to evaluate our positions

regarding the consequences of judging and the ethical meaning of following different types of

procedures. The disadvantages are also clear, chiefly pulling the sting out of the real-life dilemma

associated with fact finding.

174

KAMIR, supra note 17, at 210–11.

175

Perhaps the exact interpretive conclusion called for is that because criminal law is obligated to

preserve procedural justice, it is not capable of reaching substantive justice on all occasions. Kamir

suggests that we should update procedural rules by allowing identification by scent, assuming such

identification meets the requirements of rationality (namely that the procedure is capable of repetition

and corroboration). Yet, the ethical stance according to which even the most heinous criminal deserves

the procedural safeguards set to ensure that the process does not offend his or her dignity entails that

even if scent-based evidence is admitted, the above tension is not fully resolved. It could very well be

that Forman’s Death and the Maiden may be taken as a film about the ever-tainting consequences of

2008] The Production of Law (and Cinema) 499

this perspective, an examination of the plot, including the rhetorical devices

used from a legal perspective, was internalized by the industry, at least

partially. It is now common that in television series (as well as in films)

screen-writers and directors turn to professional legal consulting, so as to

ensure that the cinematic narrative does not clash with framework

narratives that organize the legal practice. From a law-and-society

perspective this is a rather fascinating phenomenon, as it expands the role

of lawyers in society. To the extent that modern society is indeed a republic

of images, the various lawyers who work in the industry—on IP rights,

distribution agreements and providing counsel on legal doctrine and the

workings of the legal process—are perhaps not the priests of the old but

neither are they lost. Behind the scenes they play a pivotal role, even if

their on-screen image has fallen into disrepute.

176

As part of examining the cinema with a legal lens we can also say

something about the ability of the cinema, in view of its constitutive

elements, to deal satisfactorily with certain issues, compared (or contrasted)

to the manner in which the legal practices deal with these issues. This

discussion may teach us something about the limitations of the cinema in

comparison with those of other practices, such as the law. As mentioned

earlier, key to some genres in cinema is that drama must be present;

otherwise the movie might simply be considered boring. Legal

proceedings, in real life, would often shy away from drama (at least in

certain areas of the law). Cinema would therefore be a rather limited

medium to address aspects of social life not strife with drama, and hence

very few movies are made on the various methods of designing a value-

added-tax system (despite the obvious importance of the issue).

177

Looking

solely at cinema to understand what matters to society, then, would be just

as partial as looking solely at law.

Finally, as part of the family of arguments that focus on law and the

cinema as reflecting culture, we should also note the possibility of referring

to films as statistical data, in the same manner that the repository of

adjudication and legislation can be viewed statistically. Such an exercise

would examine, for instance, how many films were made on a certain issue

and in how many films a certain issue was presented in a certain way, in

comparison, for example, with the number of times that issue was

adjudicated and the number of times the decision was made in a certain

way. The conclusions from such a quantitative statistical analysis could

torture: once unleashed into society the dignity of all—victims, torturers, investigators, arbiters,

judges—is compromised.

176

Examples to this sentiment abound. See, e.g., David Margolick, Film: The Cinematic Law Firm of

Greedy, Vain & Immoral, NY

TIMES, July 4, 1993: “Something there is in the American psyche that is

fascinated with lawyers, and, not surprisingly, that fascination has frequently found its way onto film.

But if lawyers are a constant in American cinema, the character of those lawyers is not. The heroic type

immortalized a generation ago by Gregory Peck as Atticus Finch in “To Kill a Mockingbird” has fallen

victim to everything from the anti-authoritarianism of the Vietnam era to the lawyer-infested world of

Watergate to America's diminished standing in the world economy (for which Dan Quayle blamed the

bar) to the growing ubiquitousness, and vulnerability, of lawyers themselves.” See also Tim Appelo,

Atticus Doesn't Live Here Anymore, 12

CALIFORNIA LAWYER 174 (1992).

177

But see Erik M. Jensen, The Heroic Nature Of Tax Lawyers, 140 U. PA. L. REV. 367 (1991)

(discussing John Grisham’s The Firm).

500 Southern California Interdisciplinary Law Journal [Vol. 17:457

indicate parallel patterns within legal and cinematic practices, or could

indicate whether the law has any effect on the perception of the movie

industry of the legal workings. Other statistical examinations could be

mentioned, among them the extent of exposure to the cinema vis-à-vis the

extent of exposure to case law and legislation, as well as data that indicates

whether mounting a legal challenge is more effective than mounting the

same campaign via the cinematic media. It is too early at this stage to refer

to the possible validity of such statistical-quantitative analysis, mainly

because so far no adequate discussion of the field has been conducted.

C. L

AW, CINEMA AND NORMATIVE CRITIQUE

The Third Custer of conversations we can identify in the field of law

and cinema is explicitly normative. It is concerned with reforming the law,

or reforming cinematic attitudes, or perhaps reforming both (provided an

Archimedean point upon which to establish such critique is established).

178

Here the main theme is one of moral or ethical critic. The question is “is it

just”? or “does it achieve the purpose it is set to achieve?” or “can we think

of a better way to approach the matter”? Whereas the second cluster is

concerned with understanding the “is”—which of course includes a

reformative dimension, for the “is” isn’t obvious, and once our perception

changes the “is” gains new meanings—this cluster directly deals with the

“ought” by calling for change in the way we do things (including the way

the law is written on the books or is applied, or the way a certain movie

depicts certain characters or the movie industry as a whole treats a certain

issue). The political hue of the discussion is usually pro-human rights

among law-and-society and law-and-humanities aficionados alike. The idea

is to counteract the “cold” economic analysis of law and focus on the

human in the social, on solidarity and equality.

179

Cinema may serve as a platform from which to criticize the law to the

extent that the moral judgment embedded in a film is more convincing, or

that the film assists in exposing the internal inconsistencies in the legal

treatment of a matter. In other words, the film is used a rhetorical device,

not necessarily as a claim about occurrences in the world. It could very

well be that the cinematic expression merely represents the director’s

position, her artistic preference or the commercial interests of the studio.

180

178

David M Seymour, Film and Law: In Search of a Critical Method, in LAW’S MOVING IMAGE, supra

note 14, at 107.

179

As put by Balkin and Levinson in the context of law and literature: “Contemporary legal scholars

like James Boyd White and Patricia Williams use the humanities not to uphold the values of the legal

establishment, but rather to criticize those values in the name of more egalitarian sensibilities which

they (correctly or incorrectly) link to a humanist approach. Contemporary law and literature scholars

now offer the humanities as an antidote to, or an escape from, a legal world which, they believe, has

become all too technocratic and divorced from any human values save economic efficiency.” Jack M.

Balkin & Sanford Levinson, Law and the Humanities: An Uneasy Relationship, 18 Y

ALE J.L. & HUMAN

155 (2006).

180

Commercial reality directs filmmakers towards dramatic stories, and stimulates them to enlarge the

dramatic construction of the story they choose. It should be remembered that basically the film industry

is working for profit. Therefore, filmmakers often use their creative freedom as they wish, to present the

attorney’s work or how law operates in general. In this context, Allen K. Rostron mentions, “Truly

realistic portrayals of lawyers’ work would hardly make for entertaining or interesting movies. Few, for

2008] The Production of Law (and Cinema) 501

Lacking independent, reliable empirical data, any reliance on films would

be merely speculative; but films can breathe life into data already known,

or encourage the gathering of such empirical data, as part of a critical

discussion of the prevalent law.

181

More importantly, such analysis could

prompt us to consider how consciousness is manipulated and whether such

manipulation is ethical or beneficial.

The result of such a discussion can be a call to a certain legal reform,

including a call to a reform in legal training or education. If reading books

could expand our relevant skills and attitudes,

182

so can cinematic artifacts.

Similarly, the result can be a call for the reform of certain cinematic

practices, such as the abuse of performers’ rights or the use of coercive

pressures by the studios.

183

As mentioned above, such a call can also be

directed at the expressive “message” or “judgment” contained in a movie

(or in a cluster of movie), to the extent that such a message reinforces

stereotypes, misunderstands the social conditions within which the fictional

characters interact or is otherwise unethical.

Beyond direct critique, the normative discussion may also lead to a

better or more complete understanding of the limits of the law or its ability,

in view of the basic assumptions on which it is established, to deal in an

ethically satisfactory manner with social problems of one type or another.

184

A better acquaintance with the limitations of the law could illuminate the

possible tension between the rhetoric that is sometimes used by the law and

its agents, as if the law is omnipotent, and the cultural reality, at least as it

is perceived from the director’s perspective, according to which law is far

instance, would line up to see a film titled ‘Adventures in Document Production or the Man Who Did

Due Diligence.’” Lawyers, Law & the Movies: The Hitchcock Cases, 86 CALIF. L. REV. 211, 214

(1998).

181

As Rostron mentions, both legal and cinematic scholarship are a fertile ground for critical theories:

Alongside their corrosive, demystifying core, critical legal and film studies share

a common progressive element. In film studies, Marxist, feminist, and other

critics have searched for repressed meanings that disrupt Hollywood movies’

reactionary themes. In law, the Legal Realism and Critical Legal Studies

movements have included a ‘utopian enterprise in which Realist writers have

attempted to reimagine law, to adumbrate a vision of what legal institutions might

look like in a just society.’

Id. at 232 (1998).

182

Cf. NUSSBAUM, supra note 121.

183

Thus far the literature reveals little joint conversations between advocates for performers’ rights and

law-and-cinema scholars, but attention is paid to questions relating to IP rights by law-and-cinema

scholars, and representation of IP related matters on screen certainly provide an opportunity worth

examining in closer detail for possible normative conclusions. The recent writers’ strike is equally

fascinating from a law-and-cinema perspective, as we can only hope for law-and-society inquiry into its

underlying dynamics and law-and-humanities look into its representation.

184

The limits of law are apparent in many movies. TO KILL A MOCKINGBIRD (Brentwood Productions

1962) is perhaps the most famous example. A less obvious example is D

EATH AND THE MAIDEN, supra

note 154 The lawyer in that movie cannot surrender his “neutral” position, especially when faced with

the rape of his wife. Indeed, Mel Gibson fans would probably want to see the lawyer take the law into

his own hands. Others would want to see a lawyer who prefers loyalty to his wife over loyalty to the

rules of evidence. In the film, however, the director shows the price of adhering to professional norms

in private life by refusing to determine guilt until any reasonable doubt has been removed. By adopting

this approach the lawyer loses the little respect his wife (the victim of the crime) felt for him. Yet, as a

human rights activist, the lawyer cannot forgo his commitment to the rights of the accused. His

approach is presented as a weakness, yet, perhaps it is because the law is so powerful, that limits are

incorporated to its rules and also internalized by legal practitioners.

502 Southern California Interdisciplinary Law Journal [Vol. 17:457

from a magic wand. Recognition of this tension (between promise and

deliverance, or between the “ought” and the “is”) could lead students of the

law to a different reading of legal sources, and could also inform the

performance of legal actors by altering their legal writing. At least, such

recognition could lead to an adjustment of expectations of professionals

and laypersons from the law.

185

This is not to say that we should make any

allowances for the law; we should not give up the expectation that the law

should pursue justice. But neither should it be regarded as the one and only,

exclusive cluster of practices through which this purpose can be attained, or

even the most effective one.

186

Similarly, such conversation may inquire into the ethical responsibility

of the movie industry regarding the images it projects and the type of

considerations that influence the production of such images. Surely, we

would not wish to exercise censorship over the industry nor would we seek

to impose stifling norms of political correctness. But such aversion from

“disciplining” art and the artistic process does not mean that the industry is

immune from normative critique. Is the creative process indeed “free”, or

are there mechanisms in place – economic or otherwise—that already

exercise forms of silencing or that already channel the creative processes

towards certain avenues (and away from others)? Assuming that indeed art

occupies a unique social space, which “irritates” the logic of neighboring

systems, what ethical norms should govern this space? And equally

importantly: is this space—where popular culture resides—so powerful?

Or, as might be the case with the law, we might be over-estimating the

force of culture?

IV. BEYOND TAXONOMY: THE PRODUCTION OF LAW, CINEMA

AND THE LAW-AND-CINEMA DISCOURSE

Stepping out of the role of the observer and putting down the

taxonomer’s kit, this section assumes the position of an active participant

by calling for action. This article’s substantive contribution to the discourse

lies in noting that some key components of law and cinema have thus far

not received sufficient attention in the scholarship (and legal education, for

that matter), but their influence should not be overlooked. In a nutshell, we

have overlooked production. For a film to exist it has to be financed, all the

technical-organizational details have to be at a certain place at a certain

time for the event to happen, people have to be ready and know their role,

etc. Law (both litigation and legislation) is at least to a certain extent also

produced. The law suit has to be financed, and there is certain logic to the

market of financing law suits.

187

Furthermore, strategies have to be

185

See the recent debate regarding the ability of the constitutional doctrine to curb “too much” political

influence on the process of districting. Vielth v. Jbelire, 541 U.S. 267 (2004). Justice Scalia states that “.

. . it is the function of the courts to provide relief, not hope.” Id. at 304.

186

Hila Keren & Kathy Abrams, Law in the Cultivation of Hope, supra note 130; Howard J. Vogel, The

Terrible Bind of the Lawyer in the Modern World: The Problem of Hope, the Question of Identity, and

the Recovery of Meaning in the Practice of Law, 32 S

ETON HALL L. REV. 152 (2001).

187

See, e.g., Douglas R. Richmond, Other People’s Money: The Ethics of Litigation Funding, 56

MERCER L. REV. 649 (2005); Susan Lorde Martin, The Litigation Financing Industry: The Wild West of

2008] The Production of Law (and Cinema) 503

coordinated among the different parties whose interests are aligned (or at

least aligned to a degree). It would be naïve—or, put mildly, typically

scholastic—to assume that legal arguments simply appear before a court of

law. It will be equally partial to imagine that witnesses simply appear

before a jury or a tribunal, without having been prepped and without the

logistics of the appearance at the right time and in the right place (dressed

properly, having had a glass of water, etc.) have been attended to. And

physical evidence, well, needs to be produced as well. Similarly, for an

advocacy group to promote a legislative amendment—be it primary

legislation, regulations or bylaws—it cannot ignore the element of

production. Things usually do not happen on their own; legal things are no

exception. The cinematic world has long recognized the importance of

production, components of which are ingredients of the mis-en-scene, but

little novel sociological examination of its actual working has penetrated

the law-and-society camp. Nor have law-and-humanity scholars focused on

the meaning of production by examining its representation in the

performing arts or by delving into its conceptual importance.

Or put in the terminology this article offers: a conversation about

production would engage all three families of conversations: it contains a

structural component, because production is an ingredient of all social

practices qua practices. It contains a cultural dimension that calls for

examining what production is or how it is carried out in context. And it

certainly invites normative and critical analysis. Moving from the object of

the conversation to the tools or methods, examining the element of

production invites the recourse to empirical sociological tools that examine

the social phenomenon, but it also calls for engaging the humanistic

apparatus, for examining production for its ethical, aesthetical and

rhetorical dimensions, as well as for examining the representation of

production. And as for the interdisciplinarity axis, the study of production

and its terminology can place law alongside (or parallel to) literature, can

look for cinematic production in law or legal production in the cinema—

actual production and/or the representation of production—or it can

examine law as cinema or cinema as law (provided the methodological

warnings detailed in the first section are addressed). In short, the

conversation about production would fit the three-dimension conceptual

device proposed by this paper by involving each of the three axes.

Realizing the element of production both in law and cinema opens up

a window to a wealth of know-how, available in both practices at various

degrees, but equally importantly, such realization highlights the need for

further research into the theory (or methodology) of production as well as

into its practice. This study can illuminate heretofore under-theorized

aspects of the making and unmaking of laws, as well as aspects of

implementation of legal norms.

Finance Should be Tamed Not Outlawed, 10 FORDHAM J. CORP. & FIN. L. 55 (2004); ERIN

BROCKOVICH (Universal Studios 2000); A CIVIL ACTION (Paramount Pictures 1998).

504 Southern California Interdisciplinary Law Journal [Vol. 17:457

The term “production” of course requires clarification. We can talk

about production with a small p, namely the work of the executive producer

in charge of coordination, organization and administration, as well as the

input of the producer in terms of finance. And then we can talk about

Production with a capital p, which includes all other elements of the mis-

en-scene, such as the staging, the use of the camera, the sound and the

special effects, as well the acting and directing. If the world of cinema can

teach us something about small production, it can certainly teach us

something about directing, scriptwriting,

188

and staging.

189

It seems that it is

difficult to ignore the directing and staging component required in most

legal events—both in the proceedings of litigation as well as in the annals

of legislation (to say nothing of procedures for creating other types of

norms constitutive of national identity, such as the signing of multinational

treaties, peace agreements, and the like). Again, the claim here is that not

only will the know-how developed in cinema prove useful for lawyers, but

also, if not primarily, that the different theories developed in the cinematic

context about the role and methods of directing, scriptwriting, and staging

might tell us something of value about the phenomena of law and legal

practice. Understanding appearance is important.

190

Take, for example, two very basic devices applied by directors in

instructing their camera-people: the zoom-in and the zoom-out. Zoom-in

allows us to connect to the character and identify with him or her, to feel

his or her emotions and, depending on the angle, lighting, makeup, and the

like, to form a certain attitude towards the character. This technique is often

used in law (even though it is generally not done with the aid of a camera,

but via other rhetorical devices). Lawyers arguing a case and judges writing

their decisions often choose to focus closely on a party (or a witness, or

another player); such legal close-ups can generate a certain emotional

attitude (attachment or disgust) towards the object of the examination. This

applies, mutatis mutandi, to a close-up on a certain event. Of equal

importance is the analysis of the zoom-out, a technique that enables an

examination of a comprehensive totality in a somewhat detached manner.

But not only are the techniques of photography relevant. Investigation of

the legal “set” would probably lead also to important insights with respect

to the modes of operation of law in society, as well as the theory of

188

Intuitively, it seems as if the scriptwriting doctrine is relevant not only for writing political speeches,

but also for writing deposition drafts and preparing witnesses for cross examination regarding those

depositions. Different lawyers prepare a script for different situations in which the other side is going to

act one way or another, and prepare an alternative script so the different actors can know their parts and

understand where they come from and where they are headed.

189

Staging raises serious ethical issues. In everyday parlance a staged trial, or mock trial, is antithetical

to professional ethics, since such an event is only a trial in name (or appearance), not in essence; the

outcome is pre-determined on grounds that are inconsistent with due process or other substantive

norms. Yet, staging may have less invidious meaning. A “mock trial”—now often referred to as a “moot

trial”—is a staged trial held as part of a law course in which students act as advocates in a fictional case

before a fictional panel. In appearing before a real court, some staging and directing is unavoidable. If

arguments and testimony have to be brought forward, there is often more than one way to present it, and

therefore staging and directing insights are relevant, not to subvert the factual truth or the normative

claim, but rather to present it in its clearest possible light.

190

See generally, Richard K. Sherwin, The Jurisprudence of Appearances, 43 N.Y.L. SCH. L.REV. 821

(1999).

2008] The Production of Law (and Cinema) 505

costume-design, lighting, sound, and special effects. All these are worthy of

attention if we are serious in our desire to understand how the legal process

operates. Much has been made in this article about the aesthetics of

courtrooms. A visitor to the newly designed marble-clad courtrooms in

some parts of the worlds, or the other courtrooms that resemble corporate

boardrooms, undoubtedly understands that the effect produced by the

architectural props cannot be ignored, just as any analysis of legal

proceedings should be aware of possible uses of various dramatic devices,

from the erection of a screen between the accused and the plaintiff to the

use of video and computerized presentations.

191

Since this section already reads as promoting the inclusion of cinema

101 to the law school curriculum, we might as well acknowledge again the

centrality of acting and performance in the world of the law. Members of

Parliament who deliberate before the public, lawyers, judges, witnesses,

and other functionaries of the legal process can also be assessed by means

of insights drawn from various theories of acting. If there is anything

substantial in the research of the art of rhetoric, there is also something

substantial in studying the art of performance. The connection between the

manner in which people are required to act and the role they are required to

fulfill could potentially be a fruitful field of research, if only to assist us in

learning where the manipulation lies.

Furthermore, an integral element of production is marketing. The

media—the creation of the relevant spin or buzz—is an inherent

component of the public face of law (and cinema). Many lawyers claim that

we would do well if we properly studied the relation between the law and

the media (if only to neutralize it). In this area as well we could draw

insights from the world of the cinema and its relation to the electronic and

printed media. If there is substance at all in these claims—and this article

only raises this as a possibility that still needs to be proven—then it could

be said that the discourse on law and cinema is not only unique, but also

beneficial.

192

Finally, a sharp zoom-out would put into focus the law-and-cinema

discourse itself; it also has to be produced. Fora for discourse have to be

established (conferences, journals interested in the matter, perhaps a book

series); a professional association has to be founded; funding available for

serious research needs to be secured. Strategic questions regarding its

future production are wide and deep, and include the incorporation of film

theorists and practitioners as active participants in the conversations,

broadening the conversation beyond the English-speaking common law

world (and thus beyond Hollywood or, for that matter, Sundance), and

taking a serious look into expanding the media through which the discourse

takes place to include cinematic tools as well.

191

Richmond, supra note 187, at 654.

192

This, it seems, would be the right place to note once again the qualifications belabored at the

beginning of this essay; law is not about entertainment, and the cinema is not law. Immense differences

separate these practices. Yet these differences ought not preclude us from studying the similarities or

developing analogies, even if we do not care at all about theory, only about being effective lawyers (or

movie directors).

506 Southern California Interdisciplinary Law Journal [Vol. 17:457

V. INTERIM CONCLUSION

Analyzing the law and cinema discourse could, in fact, be classified as

a family within the discourse; it is a discourse on discourse. This family is

naturally limited, all the more so, when the discourse that it studies is yet to

become canonized.

193

Although the law and cinema discourse has been

around since the 80’s, in many respects it is still in its infancy. This article

sought to highlight some methodological difficulties associated with the

discourse, and then offered a possible taxonomy of the conversations which

currently inhabit the field. It is too early to say whether the law and cinema

discourse will overcome the many obstacles in its path and will succeed in

creating modes of analysis that are capable of withstanding conceptual,

empirical, and ethical critique. Ornamenting our jurisprudential analysis

with a reference to a particular film or attaching an analysis of a film to a

legal or moral statement

194

may ultimately be but a transient fashion. Yet,

the conclusion that the discourse of law and cinema is doomed to be just a

fad is equally hasty. Prima facie, there are theoretical axes which connect

some of the structural and normative aspects of the law and the cinema in

the fields of culture, art and language; these axes could prove solid enough

to sustain serious analysis.

195

Furthermore, this article has put forward the claim that law entails

elements of production, thus far left under-theorized and scantly

documented. It would be worthwhile, it was further argued, to pay close

attention to this dimension. The law and cinema discourse offers a

promising launching pad for such an endeavor.

Only time (and films, essays, case law, and other cultural elements)

will tell whether the insights drawn from an examination of law and cinema

shall turn out to be fruitful.

196

Even if the answer to this question turns out

to be negative, it seems that those who engage in the discourse enjoy it. It is

beyond the ambit of this article to fully develop the argument, but perhaps

the ability of the law, just like the ability of the cinema, to generate

consciousness (identity, memory) and even symbolic capital (social esteem)

is not disconnected from the attitude of those who participate in the

discourse. Put differently, maybe we should give greater credence to the

pleasure principle.

197

In any event, it may very well be that as long as this

193

For the importance of canonization, see Austin Sarat (ed), THE BLACKWELL COMPANION TO LAW

AND

SOCIETY (2004), especially Chapter 1.

194

Specifically, the influence of cinema (and other creations of art) on politics, is interesting. Ronald

Reagan used to interweave lines from films in his political speeches. Recently, the influence of the show

business on politics was analyzed in Frank Rich’s book, T

HE GREATEST STORY EVER SOLD: THE

DECLINE AND FALL OF TRUTH (2006).

195

See Richard K. Sherwin, Nomos and Cinema, 48 UCLA L. REV. 1519, 1521–22 (2001).

196

For possible future developments in the law and cinema field, see GREENFIELD, OSBORN ET AL.,

supra note 42, at 189–203.

197

Colin MacCabe, Theory and Film: Principles of Realism and Pleasure, in NARRATIVE, APPARATUS,

IDEOLOGY 179 (Philip Rosen ed., 1986); Jean-Louis Baudry, The Apparatus: Metaphsychological

Approaches to the Impression of Reality in Cinema, in NARRATIVE, APPARATUS, IDEOLOGY 206, 219-

220 (Philip Rosen ed., 1986); Miriam Hansen, Pleasure, Ambivalence, Identification, in N

ARRATIVE,

APPARATUS, IDEOLOGY 634 (Philip Rosen ed., 1986); Laura Mulvey, Visual Pleasure and Narrative

Cinema, in NARRATIVE, APPARATUS, IDEOLOGY 837 (Philip Rosen ed., 1986).

2008] The Production of Law (and Cinema) 507

attitude remains—as long as people share their appreciation of law and of

cinema—the interdisciplinary discourse of law and cinema is here to stay.

508 Southern California Interdisciplinary Law Journal [Vol. 17:457