Norman Rosenberg

Copyright (c) 2001 The Regents of the University of California
UCLA Law Review

August, 2001

48 UCLA L. Rev. 1443

LENGTH: 12249 words


Norman Rosenberg*

* DeWitt Wallace Professor, Macalester College ( Emily Rosenberg provided invaluable assistance in sorting out my ideas about cultural studies and about daily life. The many people who participated in the UCLA Law Review Symposium, Law and Popular Culture - especially David Papke, Michael Epstein, Michael Asimow, Lawrence Friedman, Judge J. Howard Sunderman, Jr., and Kenneth Karst - provided concurrences, dissents, and overrulings that found their way into this version of my symposium presentation. The editors at UCLA Law Review - particularly Pei Pei Tan, Lisa Stimmell, Sarah Armstrong, Ted Maya, Nicole Gordon, Stephanie Lasker, Tim Whalen, and Jennifer Oshima expertly turned a manuscript into an article, while several generations of Macalester students, especially Kathryn Anderson, helped me see old Hollywood movies in new ways. This Essay, my first project in a number of years that is not indebted to the scholarly insight and friendship of Richard W. Steele, is dedicated to his memory.

... Invoking literature from cinema, cultural, and legal studies, this Essay urges a research frame that looks closely at how classical Hollywood produced representations of law. ... " Although images of law within classical Hollywood movies such as these share a common cultural context with other legal representations, the motion picture industry generated filmic representations through its own, materially grounded professional practice. ... Even though, as James Naremore argues, film noir no longer signifies an agreed-upon set of cinematic characteristics or a clearly delineated body of motion pictures, the term does sustain cultural conversations that extend far beyond Hollywood cinema. ... Hollywood movies represent things legal through a very different type of professional practice, with very different kinds of consequences in very different contexts, than law professors, legal advisors, courtroom litigators, or judges. ... Moreover, Hollywood's own "legal" system - the Production Code - also leaves its imprint on the movie. ... No filmic traces have yet surfaced to supplement the 1948 release version of Force of Evil, but the recent publication of an annotated edition of director-writer Abraham Polonsky's script provides evidence for another case study of how Hollywood used and discarded images of law. ... Polonsky and Ira Wolfert, in adapting the latter's 1943 novel for the screen, planned an opening courtroom sequence. ...  


I. Introduction: Law Within Movies
In contrast to the well-established law and literature movement, n1 the fledgling project of studying law's visual domain is only beginning to generate the kind of scholarly work needed to construct an interdisciplinary research tradition. n2 Although law-related essays began to analyze Hollywood films, n3 including those released during the "classical" era (1930-1960), n4 more than a decade ago, few initially used frameworks familiar to students of cinema and cultural studies. n5 As an increasingly interdisciplinary literature on the intersection between law and culture begins to emerge, n6 however, the nature of legal scholarship on commercial movies is changing. n7

 [*1445]  Invoking literature from cinema, cultural, and legal studies, this Essay urges a research frame that looks closely at how classical Hollywood produced representations of law. n8 It focuses on the contingent representations of legal discourse and law-related practices within classical Hollywood cinema, or for shorthand, "law within movies." n9 This framework can support the study of a wide range of commercial motion pictures that represent "law" - the process of investigation and detection, discussion involving the expertise of attorneys, trials and trial-like hearings, and the modes of punishment meted out to those ultimately judged responsible for "illegal" acts. n10 This frame of law within movies also assumes the fragmentary, contingent, and multivocal nature of legal representations in Hollywood's representational commodities. n11

In order to provide a specific example of how this framework might work in the case of classical Hollywood cinema, this Essay looks closely at  [*1446]  the 1945 and 1946 versions of The Big Sleep, n12 and Force of Evil (1948). n13 These movies offer prominent examples of film noir, a group of motion pictures released during the 1940s and 1950s that foreground images of "things legal." n14 Although images of law within classical Hollywood movies such as these share a common cultural context with other legal representations, the motion picture industry generated filmic representations through its own, materially grounded professional practice. Attempts to see law within movies, this Essay argues, might well begin by trying to outline the process through which classical Hollywood produced legal imagery. n15

II. Representations of Law Within Film Noir
The categories now used in legal studies - such as legal film, trial film, and films about law - are retrospective ones that have been constructed by scholarly discourse postdating the movies characterized. n16 The classical Hollywood movie industry did not use labels such as these, and this practice generally continues outside of academic circles. n17

 [*1447]  In contrast, film noir, also a retrospective term, n18 now serves as a widely adopted genre marker in both academic and nonacademic conversations, including those within the movie industry itself. Cinephiles in France began talking about film noir shortly after the Second World War. n19 They were trying to categorize a group of American-made movies of the 1940s that Hollywood itself generally called "detective-mystery melodramas," "social problem crime films," or "psychological thrillers." n20 As the scholarly literature proliferated, film noir acquired additional meanings and, by the 1970s, began to influence how cinema scholars, movie reviewers, and motion picture audiences consumed "classical noirs," such as The Maltese Falcon n21 released between about 1940 and the late 1950s, and "neo-noirs" such as Chinatown n22 produced after the mid-1970s. n23 Moreover, as movies such as Body Heat n24 signaled, the idea of noir came to shape how Hollywood itself would make and market certain kinds of movies.

 [*1448]  Even though, as James Naremore argues, n25 film noir no longer signifies an agreed-upon set of cinematic characteristics or a clearly delineated body of motion pictures, n26 the term does sustain cultural conversations that extend far beyond Hollywood cinema. n27 Noir has become one of the keywords for organizing the cultural history of the past sixty years. n28 The current situation, then, is somewhat paradoxical. On the one hand, film noir, though "only a discursive construction," has come to have "a remarkable flexibility, range, and mythic force ... ." On the other hand, "debates over whether specific films are "truly' noir, or over the problem of what makes up a film genre [can] become tiresome." n29 In hopes of avoiding a similarly tiresome trek by trying to define a "legal film," it seems more fruitful to begin with the obvious. Hollywood's major goal has never been to dispense correct lessons in legal procedure or to devise legally viable solutions for everyday problems. n30

Hollywood movies represent things legal through a very different type of professional practice, with very different kinds of consequences in very different contexts, than law professors, legal advisors, courtroom litigators, or judges. n31 On the one hand, a Hollywood drama cannot represent legal procedure in ways that seem entirely incorrect or implausible. No drama would likely contain a courtroom sequence in which opposing lawyers jot their arguments on small cards and then flip them toward a hat on the judge's bench, with only the arguments whose corresponding card reach the hat deemed admissible. Although this procedure might pass muster in a  [*1449]  comedy such as Bananas, n32 it would hardly seem realistic to viewers expecting a drama with courtroom sequences. n33

On the other hand, the representation of law within any motion picture has always mattered to commercial filmmakers. Images of things legal can help to make a movie a more pleasurable product for its audience - and, thus, a more profitable one for its producer and distributor. n34 The dominant model for screenwriting has long decreed that a cinematic drama must create goal-oriented characters who confront a series of obstacles, conflicts, complications, and crises before the movie provides some kind of resolution. n35 Although obstacles and complications - as in the famous case of Humphrey Bogart's Rick Blaine in Casablanca n36 - can be inner, psychological ones, a screenplay must also create external ones: "antagonists" who "personify the protagonist's obstacles" and concrete problems that require practical solutions. n37 Characters associated with the law, such as police officers or attorneys, and concrete legal problems, such as arrests or trials, have long provided filmmakers with a wide array of realistic obstacles to place in front of goal-oriented characters. In Casablanca, Rick's self-absorbed pursuit of his initial objective - remaining neutral during the Second World War - encounters formidable external obstacles connected to the (imagined) legal system in North Africa. n38

Representations of the force of law, especially in a court trial, can also help to resolve a movie's narrative. Concluding a narrative within a diegetic courtroom, for instance, can inscribe the claim that the judiciary provides a unique, neutral public forum in which to forge reasoned settlements, if not always perfect justice, for social and cultural disputes that  [*1450]  otherwise seem insoluble. Classical Hollywood often employs this trope, and even the screwball comedy Lucky Partners n39 inserts a lengthy courtroom episode to help resolve its thinly plotted narrative. n40

The Hollywood pictures now identified as films noirs offer an almost obsessive concern with law-related obstacles and resolutions. n41 The Big Sleep and Force of Evil provide suggestive examples of law during Hollywood's classical era. n42 In the former, Raymond Chandler's hard-boiled detective, Philip Marlowe (Humphrey Bogart), confronts numerous obstacles, including both the criminal elements that infest Los Angeles and the city's legal system, while doggedly pursing a case. In Force of Evil, Joe Morse, a lawyer played by John Garfield, also becomes caught between agents of the law and those of organized crime as he pursues his goal: converting an illegal numbers racket into a lottery operation officially licensed by the state of New York. Marlowe, who understands the ways of the law, as well as those of the outlaw, seems to maneuver around every obstacle. In contrast, Joe Morse stumbles into the legal pitfalls placed before him; he not only fails to achieve his goal but manages to lose both his family and his lucrative law practice.

 [*1451]  Students of law can see films noirs such as these in many different ways. An already familiar framework for academics with training in law-related disciplines is to find an overriding "point of law" or legal principle that a movie is said to articulate. This approach, which parallels the way in which traditional legal scholarship approaches an appellate opinion, might conclude that Force of Evil stands for the principle that any attempt, particularly by a lawyer, to defy the law will result in a dramatic demonstration of the legal system's power. n43

Projects within this general framework, borrowing from the law and literature enterprise, often employ a related frame that compares the normative value of the legal discourse in movies with that in court opinions and legal treatises. Thus, students of law in Hollywood movies have argued that motion pictures such as It's a Wonderful Life n44 or Casablanca offer richer and even more "correct" uses of legal-constitutional ideas than decisions of the U.S. Supreme Court. Similarly, Pierre Schlag's justly famous analysis of the television drama L.A. Law n45 claims that a particularly well-crafted episode provides a better view of how the judicial system processes criminal cases than competing forms of legal analysis. n46

Scholarship in these two related frames - in which a film stands for a legal proposition and/or provides a more nuanced view of legal issues than an appellate decision or treatise - can also be very useful as a heuristic device in law-related teaching. n47

 [*1452]  These ways of looking at law in movies, however, might fail to do justice to either the complexity of movie texts themselves or the professional practice that produces them. Stanley Fish, well-known for his critique of foundationalist legal writing, n48 for instance, gently chides Pierre Schlag, a fellow antifoundationalist, for comparing "the actual practice of law unfavorably to the presentation of the practice of law" by members of the firm of McKenzie, Brackman, Chaney, & Kuzak. n49 Unlike a judge, an attorney, or a law professor, Fish argues, most viewers of a movie or television program are not interested in whether a lawyer cites the proper precedent or makes a technically correct argument. Instead, they are concerned with how a Hollywood attorney's particular action, within a specific representation of law, fits into "the larger drama (most of which concerns matters outside the courtroom)" that is constructed in a television program such as L.A. Law or a film such as Force of Evil. n50 Thus, "the theater of the courtroom is a theater within a theater, and the vocabulary of the law acquires values and meaning in the context of concerns" that are grounded in the discourses and practices of watching movies, not in those of doing law. n51

Similarly, recent media scholarship suggests that viewers tend to consume - and seek pleasure from - motion pictures from a variety of perspectives and tend to see representations of law within movies in a multiplicity of ways. n52 The Big Sleep, for example, contains a famous scene in which Marlowe and Vivian Rutledge, characters played by the star duo of Humphrey Bogart and Lauren Bacall, joke with an unseen (and unheard) police officer, Sergeant Reilly. A study of the oeuvre of The Big Sleep's director, Howard Hawks, sees the couple's "jocular doubletalk" representing "the spiritual similarity" of the heterosexual couple "who can play together so spontaneously and complementarily." n53 Another analysis, focused on images of law, views this scene as one example, among many in the movie,  [*1453]  of Marlowe's ability to maintain "his position of [superior] power when dealing with agents of the law." n54

Although screenwriters might see a law-related neo-noir such as Chinatown as offering a carefully constructed narrative in which everything is clearly and efficiently set up in the first ten pages of a script, n55 recent work in cinema studies complicates this view of "the perfectly closed text." n56 A commercial movie, according to studies grounded in a materialist view of Hollywood cinema argue, is less concerned with "producing coherent interpretations" of a tightly constructed narrative than "with promoting "multiple avenues of access' to it, so that it will "resonate as extensively as possible in the social sphere in order to maximize its audience.'" n57 Studies of how audiences consume movies increasingly look at how meanings might be "generated by text segments of different lengths at many different levels, not just to the claimed significance of whole works." n58 In seeking to make sense of a motion picture, a spectator may focus on only one or several segments and completely ignore what other spectators might see as its major story or even its ending. n59 Using The Big Sleep and Force of Evil, I would like to expand on this idea of looking for law in the individual sequences and traces of commercial motion pictures.

III. The Big Sleep (1946)
The Big Sleep, released to movie theaters in 1946 after an extended production process, features two complicated and intertwined story lines. n60  [*1454]  One concerns the budding relationship between Marlowe (Bogart) and his client's daughter, Vivian Rutledge (Bacall). This familiar Hollywood story of heterosexual romance - which brings together a real-life Hollywood couple, Bogart and Bacall, and recalls their first reel-life coupling in To Have and Have Not n61 - positions its male protagonist as a goal-oriented character whose detective work, from the position of feminist theory, concerns "patriarchal law." n62

The Big Sleep, like so many other noirs, requires a male hero to solve the mystery of "the feminine." Marlowe confronts a series of "transgressive" women, including Vivian and her younger sister Carmen Sternwood (Martha Vickers). Both of General Guy Sternwood's daughters have strayed from the (always lax and now impotent) law of their Father. Marlowe immediately judges the vampiric Carmen beyond redemption, n63 and he rebuffs her sexual overtures. Increasingly drawn to Vivian, however, he begins to investigate whether or not she is "his kind of woman." n64

The other major story line, indebted to the Raymond Chandler novel of the same name, n65 features Marlowe's quest to fulfill his legal relationship to the aged General Sternwood, a politically powerful oil baron who is now an invalid. Sternwood initially hires Marlowe, at the suggestion of the District Attorney's office, because Arthur Gwynn Geiger, a book dealer, is trying to blackmail him over Carmen's gambling debts. Marlowe senses that the general really wants him to tackle another case - that of his surrogate  [*1455]  son, Sean Regan. A former bootlegger with whom Marlowe had crossed paths when he himself worked in the D.A.'s office and who later was employed by General Sternwood, Regan has suddenly disappeared. The general wants to find him and be assured he is not part of Geiger's scheme. Vivian, unaware of Geiger, worries that her father has hired Marlowe to locate Regan, and her own investigation of this possibility leads to the romance with her father's sleuth. n66

The Big Sleep liberally uses representations of law to construct obstacles and complications to Marlowe's investigation. In addition to the initial solicitation from Geiger, Marlowe encounters several other cases of blackmail, a pornography racket concealed by Geiger's book business, a host of other illegal activities linked to gambling czar Eddie Mars (John Ridgely), no less than six murders with accompanying police investigations, and several other law-related problems that threaten Marlowe's goal-oriented search.

Moreover, Hollywood's own "legal" system - the Production Code - also leaves its imprint on the movie. On the one hand, the code, the industry's system of self-regulation, meant that a motion picture of the 1940s could not contain just any representation of law and justice. The code decreed that "law, natural or human, shall not be ridiculed, nor shall sympathy be created for its violation." n67 Although the agency that enforced the code, the Production Code Administration (PCA), was permitted to recognize that "crimes against the law naturally occur in the course of film stories," n68 it was to see that "law and justice" were not "made to seem wrong or ridiculous." n69 During the 1940s, the PCA's standard report form asked a number of specific questions about how a movie represented things legal. On the face of this form, it might seem, a novel such as The Big Sleep simply could not be filmed. n70

On the other hand, recent scholarship no longer sees the code as merely a set of law-like restrictions, rigorously enforced by the PCA and intermittently challenged by "heroic" filmmakers who pursued first amendment values. n71 The emerging view of movie censorship sees the classical  [*1456]  Hollywood production system, working in concert with the male members of the Catholic Church who drafted and administered the code, embracing self-regulation as a mechanism that could help fend off hostile governmental legislation and facilitate the insertion of potentially controversial representations into motion pictures. n72

The motion picture industry worked, for instance, with the PCA to devise an extensive array of cinematic codes and conventions through which Hollywood movies could represent code-regulated issues such as law and sexuality. n73 Fading to a dark screen after a heterosexual couple embrace, to take a familiar example, could signal (at least to sophisticated spectators) that the two "had done it" during the time signified by the fade. Conventions such as this allow The Big Sleep to portray a "quickie" between Marlowe and a bookstore clerk (Dorothy Malone), a homosexual relationship between Geiger and his assistant, and Carmen Sternwood's sexual transgressions.

The PCA, which initially wondered how a novel with so much "depravity" could become a motion picture, n74 ultimately helped to script the screen version of The Big Sleep. Most obviously, it focused on images of people casually defying the law - Geiger running a pornography business, Carmen using illegal drugs and flaunting dominant sexual norms, men loving other men, and women openly expressing their sexual desires. n75 Certain proposed scenes, the PCA decreed, must be modified to conform with established filmic codes and conventions. More important, the PCA itself suggested the outlines of the scene that ultimately closed the movie's legal-mystery narrative. n76 The PCA, as The Big Sleep demonstrates, could  [*1457]  become something of an enabling mechanism for classical Hollywood movie making.

As a result of a Hollywood studio's need for a romantic ending and the PCA's ideas of how to represent law and justice, the movie version of The Big Sleep ends differently than Raymond Chandler's novel. In the book, Marlowe discovers that Vivian Sternwood and Eddie Mars have conspired to float a rumor about Regan running off to Mexico with Mars's wife, Mona, in hopes of concealing what readers and Marlowe ultimately learn: that Carmen Sternwood had killed Regan. Once he detects Regan's killer, Chandler's Marlowe is free to impose his own, higher notion of justice. He orders Vivian to take Carmen "somewhere far off from here where they can handle her type, where they will keep guns and knives and fancy drinks" out of her grasp. n77

The movie has a different ending and a different murderer. Calculating that the PCA would likely not approve a movie that ends with Marlowe dispensing his own form of justice and letting a murderer escape the grip of the law, screenwriters tried several different scenes closing with Carmen's death. The PCA curtly rejected them. n78 Instead, suggestions from the PCA itself helped conclude the film: Eddie Mars - whom the PCA would allow to be gunned down mistakenly by his own henchmen - replaces Carmen as Regan's killer. n79 No longer a murderer in the eyes of the law, Carmen can be sent away in hopes that her drug use and sexual permissiveness might be cured. With the obstacles of Eddie Mars and Carmen removed, Bogart and Bacall can, as the trailer and opening credits for The Big Sleep had promised film viewers of 1946, finally be reunited on screen as a romantic couple.

Although the Bogart-Bacall love story concludes the movie, The Big Sleep also depicts representations of the force of law in its revised ending. After Marlowe orchestrates Mars's death, he phones the police and sets in motion yet another legal investigation, one that promises to conclude the tangled set of detections begun by Geiger's blackmail note to General  [*1458]  Sternwood. The novel, in contrast, ends without any acknowledgment of the formal legal authority of the state. Marlowe simply announces his private, law-like judgment and, alone, heads to a bar for a couple of double scotches. n80

IV. The Big Sleep (1945) v. The Big Sleep (1946)
Some of the most interesting new work in film studies rests on the availability of textual traces, fragments of scripts, and unreleased footage, once buried in studio archives and film vaults. The study of noir has particularly benefited from excavating these entombed treasures. There is now a "reconstructed" version of Railroaded, n81 a so-called "Directors Cut" of Orson Welles's Touch of Evil, n82 a "prerelease" version of The Big Sleep, and what might be called an "edited" version of Force of Evil.

The availability of long-lost scripts and film footage underscores the claim that movie making, like other narrative-based practices including law, n83 involves conscious - and unconscious - choices about story construction. New evidence about how a filmic text might have been assembled differently brings into clearer focus the complicated process of movie production. Even some of the earliest, pre-Hollywood movies have been interrogated on the basis of recently discovered archival traces. n84 Thus, the release of alternative versions of films like The Big Sleep supports the claim that attributing meanings to a commercial movie is an interpretive enterprise that involves much more than looking for the major point of a perfectly closed text. n85 In the case of The Big Sleep, the search for how a classical Hollywood movie uses legal images can now proceed by comparing one Big Sleep against another. n86

 [*1459]  Most obvious, the prerelease, 1945 version of The Big Sleep tilts more toward Marlowe's legally sanctioned investigation, and less toward the Bogart-Bacall romance, than the familiar 1946 theatrical release. On the one hand, the 1946 movie becomes more of a heterosexual love story because of the post-production addition of several new scenes, including the famous, double-entendre-laden, "horse race" conversation between Marlowe and Vivian. On the other hand, the romance story gains prominence because of the excision of a nearly six-minute sequence set in the office of D.A. Taggart Wilde (Thomas Jackson) that had been in the prerelease version. This deleted footage not only helps to clarify the detective storyline but represents, in far richer fashion than the release print, the complex negotiations between Marlowe and the formal legal system of Los Angeles.

Although the prerelease Big Sleep was not, of course, called a legal film, it includes more representations of things legal than the release print. The law, in one sense, appears as more of an obstacle to Marlowe's goal-oriented quest than in the 1946 version. In another sense, however, the 1945 print portrays his role as private detective, more clearly than does the theatrical release, as a kind of semi-official adjunct to the legal system of Los Angeles. And it seems to suggest more overtly than the subsequent version that Los Angeles's legal system will cooperate with Marlowe in assisting wealthy and powerful people such as General Guy Sternwood and members of his dysfunctional family. n87

The 1945 version, following Chandler's novel, contains a lengthy sequence that sends Marlowe to the D.A.'s office after three people turn up dead. n88 Marlowe's old friend from the D.A.'s office, Barney Ohls (Regis Toomey), warns Marlowe that another police officer, Captain Cronjager (James Flavin), embarrassed because his Homicide Division has no explanation for Los Angeles's mounting death toll, is urging the D.A. to prosecute Marlowe. During a brief scene in a car headed for the D.A.'s office, Ohls  [*1460]  promises Marlowe he will "needle" Cronjager in hopes of deflecting the legal force that the captain intends to apply. The next, much longer scene in the D.A.'s office might be seen as a trial-like hearing. A relatively passive and cinematically decentered Marlowe goes on trial; Cronjager and Ohls act as prosecutor and defense attorney respectively; and D.A. Wilde assumes the role of a hardly disinterested judge. Even though the sophisticated viewer recognizes that Marlowe must be "acquitted" - so that he can continue his quest - the 1945 version elaborately integrates this trial-like episode into its detection-investigation narrative.

In the early part of the scene, the camera moves back and forth among the parties. Cronjager threatens to suspend Marlowe's license and charge him with a criminal offense. Ohls defends Marlowe, as he had promised, by attacking Conjager's own legal performance. Marlowe has not only solved murders that the Homicide Division barely knows about, but he has uncovered Geiger's pornography operation. Eventually, Marlowe submits his own "testimony," which a stenographer officially records in a notebook. As Cronjager cross-examines Marlowe, the detective concedes that he "was probably wrong, but ... wanted to protect [Marlowe's] client," whom he knows to be an old friend of the D.A. Apparently convinced that Marlowe will shield the general and his family, Wilde joins Ohls in attempting to convince - rather than simply to order - Cronjager to press no legal charges against Marlowe. Ohls offers to let the captain take credit for Marlowe's work, and the D.A. warns Cronjager that letting Marlowe's story get into the papers will likely do his own reputation little good. Out-maneuvered, Cronjager renders his own judgment: He gives up and drops his case against Marlowe.

Having helped to clear Marlowe of Cronjager's charges, the D.A. then asserts his legal authority. He tears up Marlowe's official, written statement and asks for one that omits any reference to the Sternwoods. Still concerned about his old friend, General Sternwood, the D.A. unofficially empowers Marlowe, now in his debt, to press on and ease Sternwood's mind about the activities and whereabouts of Sean Regan.

Deletion of this law-related material from the 1946 version of The Big Sleep can be seen in different ways. Most important from the 1945 perspective of Warner Brothers, there was a need to find filmic space for inserting new footage of the Marlowe-Vivian romance. n89 Since a preview audience of  [*1461]  U.S. servicemen apparently thought the scenes involving the D.A.'s office delayed what they wanted to see - sparks flying between Bogart and Bacall - images of men talking about the law could easily be jettisoned. n90 More important to a student of legal culture, the scene in the D.A.'s office seems to undercut Marlowe's independence by emphasizing the force of the law, especially that of D.A. Wilde. The detective's perspective dominates virtually every other scene in the film. The 1946 movie is constructed, one film scholar argues, as if the camera had been buried inside of Marlowe so that viewers see "nothing that his head could not also see ... ." n91

During the 1945 scene in the D.A.'s office, however, the perspective might be seen as temporarily shifting toward the force of law personified by D.A. Taggart Wilde. The D.A.'s eyes are constantly darting back and forth as he measures the conflicting testimonies and legal arguments offered by Ohls, Cronjager, and Marlowe. He conspicuously twirls a letter opener, a mini-version of the sword of justice. n92 And when Marlowe begins to tell his story, there is a high-angle shot of the stenographer's notebook, with its indecipherable hieroglyphics, that could not possibly represent Marlowe's point of view. Rather, this shot, arguably, gives viewers a top-down, eye-of-God legal gaze that is certainly unavailable to Marlowe. n93 Marlowe never directly challenges the D.A.'s legal authority; he even confesses that he expected to have "both of his ears cut off" and acknowledges how Ohls and Wilde, during the confrontation with Cronjager, helped negotiate how Marlowe's admittedly questionable actions might be defined legally. n94

Several subsequent scenes in the prerelease version, which link Marlowe with the D.A.'s office, also highlight both the force of law and the discursively constructed and always-under-negotiation quality of this force. Marlowe discovers, during a later meeting with Ohls, that the D.A. now wants him, at the request of Vivian Rutledge, to drop the Sean Regan  [*1462]  case. n95 Of course, the movie cannot allow the Regan matter to end here, but Marlowe does not openly defy the D.A.'s order. Instead, he and Ohls continue to negotiate a legal relationship. "No law says a man can't work on a case without a client, you know, just to keep his hand in," Marlowe replies. n96 And he signals that he will protect the legal position of Ohls by assuring the D.A., if need be, that his police-officer confidant had indeed relayed Wilde's demand that he lay off. n97

Neither version of The Big Sleep, then, portrays Marlowe as merely a "private" detective who operates in some Lockean world in the "shadow of public law." n98 Rather, the traces of legal representation within these two movies show Marlowe as someone whose activities - and very identity - are constituted through the force of law. Indeed, the insertion and removal of legal images suggest law works to construct the fabric of daily life in contingent ways that can be negotiated and contested but not, even for a male hero as potent and independent as Philip Marlowe, simply ignored. The darkly-lit traces of legal imagery in these two films noirs represent their detective hero, no matter how well he can bargain, operating within, not outside of, law's force.

V. Force of Evil (1948)
No filmic traces have yet surfaced to supplement the 1948 release version of Force of Evil, but the recent publication of an annotated edition of director-writer Abraham Polonsky's script provides evidence for another case study of how Hollywood used and discarded images of law. n99

 [*1463]  Polonsky and Ira Wolfert, in adapting the latter's 1943 novel for the screen, n100 planned an opening courtroom sequence. Special Prosecutor Lincoln Hall (Arthur O'Connell) asks Joe Morse (Garfield), the shyster-lawyer whose primary client is the numbers-racketeer Ben Tucker (Roy Roberts), to tell "the whole story, to the best of your recollection." n101

Morse recounts finding his brother's body "at the bottom where they had thrown it away, on the rocks there by the river ... like an old dirty rag nobody wants." n102 After an approximately eighty-minute flashback that shows precisely how Leo Morse (Thomas Gomez) died, this movie was slated to end in the same courtroom in which it had begun.

In the proposed ending, Hall presses Morse to confess, admitting legal responsibility for his brother's death. Morse's lawyer successfully objects, but Morse ignores this legal victory. "I want to help here in every way that I can, so that everybody who deserves it gets punished." n103

Hall then asks: "[When serving as Ben Tucker's attorney, you were] for all legal purposes, for all moral purposes ... a killer along with the other killers, weren't you? A gangster?"

Looking directly into the camera Morse replies: "I was one of Tucker's people." The picture then fades out, and the movie, which went into production under the title Tucker's People, was supposed to end. n104

Force of Evil arrived in theaters, however, without either courtroom scene. Shortly after shooting the scripted opening, Polonsky later recalled, a courtroom setting seemed "all wrong." He discarded the footage that had been shot and never filmed the proposed, concluding sequence. He later claimed that he wanted "a narrative which isn't a conventional narrative,  [*1464]  but which is a thought thing going on." n105 As a result, the finished movie does not show Joe Morse brought before any court of law, and Special Prosecutor Hall (like D.A. Taggart Wilde in the 1946 version of The Big Sleep) simply disappears from view. n106 Yet, arguably, the very absence of the courtroom imagery helps to shape this noir's approach to law in the movies.

Force of Evil is one of many noirs in which a flawed hero challenges the law. n107 A product of the "slums," Joe Morse now enjoys a Wall Street partnership with Hobe Wheelock (Paul McVey), n108 a socially prominent graduate of Harvard Law School whose legal practice depends on Morse's fees from Tucker, a one-time bootlegger who has reinvented himself as a numbers-racket impresario. Wheelock worries about his partner's ethics. He cautions Joe that lawyers "are not protected from the law," but he reminds himself that "it's the business of lawyers to protect a lot of people. They even teach that at Harvard." n109

Joe Morse harbors no qualms about his professional life, but his personal relationships - particularly with his older brother Leo - are another matter. Having abandoned his own goal of becoming an attorney in order to finance Joe's legal education, Leo Morse struggles against ill-health, bribe-hungry police officers, and Ben Tucker to keep his own small numbers "bank" afloat. Although Leo's enterprise, popularly known as "policy" because low-income people divert money from their insurance policies in hopes of striking the right number, is illegal, Force of Evil represents Leo as the better of the two brothers. "I could have been the lawyer," he angrily tells Joe. "You're a crook, a cheat, a gangster." n110 At the same time Joe is trying to help his brother and represent Tucker, he pursues a romantic relationship with Doris Lowry (Beatrice Pearson), a young woman who had worked for Leo. n111

 [*1465]  Lacking Leo's self-critical insight, n112 Joe blindly trusts his command of legal language. His legal specialty is talking, representing Ben Tucker's view of how the numbers racket, and its relationship to the law, should be constructed. Working together, Joe and Tucker devise an ambitious plan. They will rig the Fourth of July drawing so that the winning number will be 776, a popular choice for Independence Day betters. As a result, Tucker's smaller competitors will likely go belly up and leave his operation with a virtual monopoly. Meanwhile, Joe will be employing his rhetorical skills to pursue his goal of redrawing the boundaries that separate the "illegal" from the "legal" through the instrumental discourses of the law and the power of the state. If he can successfully lobby for a change in the law, the numbers racket will become a legal lottery and Ben Tucker's enterprise a legitimate, market-based business that resembles, according to the legal vision of Force of Evil, the contracts made on Wall Street. Questions of morality or of the public interest never enter Joe's views of the lottery issue.

Joe does worry, though, about what might happen to Leo when his hand-to-mouth operation goes down with the other small banks. Joe convinces Tucker to bring his brother into their new, corporate operation, but Leo initially rebuffs the plan. Without hesitation, Joe invokes the force of law and orchestrates a police raid on Leo's operation in hopes of gaining additional leverage over him. n113 Just as Joe cannot manage his own brother, Tucker cannot control an old bootlegging partner, Bill Ficco (Paul Fix), who wants to enter the numbers racket. Conflict between Tucker and Ficco leads to gang warfare. Caught in the middle, Leo Morse is kidnapped by Ficco's goons and dies of a heart attack. During these events, Joe finds his legal prowess cannot help Leo or prevent his own loss of power. Finally, Joe tries to remasculinize himself the old-fashioned way: He grabs a gun, confronts Tucker and Ficco, and kills both of them in a western-style gunfight. n114

 [*1466]  Although excision of the courtroom sequences that were initially to frame this narrative might seem to elevate Joe's personal problems - and his personal solution - over legal ones, "the law" remains a powerful, if largely invisible force in the finished film. It is hardly surprising that Polonsky, who earned a degree from Columbia Law School before arriving in Hollywood, included courtroom sequences in the shooting script for Tucker's People. How might the elimination of images of a court of law and Joe's confessional discourse before judge and jury affect the ways in which representations of law are inserted into Force of Evil?

Many films noirs, especially those focused on a damaged hero such as Joe Morse, do feature representations of the judicial system, n115 but Force of Evil employs different imagery. Joe Morse's final voice-over is accompanied by an iconic image of modern life, the towering bridge than spans the refuse-strewn river into which Leo Morse's body had been dumped. Thus, Joe's final soliloquy, adapted from dialogue originally written for a final courtroom sequence, is now divorced from any legal setting. n116 It addresses no diegetic spectator, particularly no legal officer such as Link Hall. Instead, it speaks only to the filmic audience, all of the anonymous people watching in silence - and "in the dark." n117

In addition, this voice-over jettisons the confessional discourse of the shooting script. A familiar trope in many movies, a confession (like a trial)  [*1467]  can help to assure viewers that the legal machinery produces only correct solutions. n118 In the final sequence as it had been initially imagined, Joe Morse was to accede, over the objection of his own attorney, to Special Prosecutor Hall's demand that he confess his guilt and thereby accept the legal labels of murderer and gangster. In this sense, Joe's confession would confirm his status as a "legal subject" whose identity and future rest on categories and definitions framed through the discourses and force of the law. n119

Although the final voice-over in the theatrical release of Force of Evil does announce an intention to cooperate with Hall's investigation, n120 Joe can be seen as employing legal discourse in the same amoral, instrumentalist way that he had earlier tried to use it to transform the numbers racket into a state-authorized lottery. No longer seeking money and power, he now wants to continue avenging the death of his brother and is even willing to cooperate in his own punishment (and, in this limited sense, become a legal subject) if by doing so he can strike back at everyone whom he holds responsible for Leo's death. He continues to see law as a game-like activity, similar to the numbers racket, which he can manipulate. Joe now desires "the destruction of everyone who destroyed him and his brother," n121 and he turns to the unseen Hall to achieve this new goal. n122

 [*1468]  Elimination of the framing courtroom sequences, as suggested earlier, also eliminates the image, though certainly not the brute force, of Lincoln Hall from the movie. Hall's presence, though entirely a product of the discourse of characters in the filmic frame, still leaves its imprint throughout the narrative. Early on, when Joe learns that Hall is targeting Ben Tucker, he hopes that Wheelock, an old society friend of Hall, can persuade Hall to shift his prosecutorial gaze elsewhere. In one of the film's most imaginatively staged sequences, Edna (Marie Windsor), Ben Tucker's femme fatale spouse, tells Joe that Hall has tapped his and Tucker's telephones. n123 Later, Joe secretly uses Tucker's allegedly tapped phone in hopes of relaying an incriminating conversation among Tucker, Ficco, and himself to Hall.

The character of Special Prosecutor Hall, then, provides a structuring absence that helps to link the separate traces of legal surveillance the movie introduces at various points. These diegetic images of surveillance, it might be argued, inscribe the extradiegetic scrutiny that surrounded the production of Force of Evil.

The Production Code, of course, provided one external source of surveillance. This movie, like The Big Sleep and every other production of its era, was put together with the PCA looking on. In the case of Force of Evil, though, the PCA's gaze hardly seems intense. Filmed quickly on tight budgets, B-movies such as this often attracted less attention from the guardians of the code than bigger-budget production such as The Big Sleep. Even Abraham Polonsky once recalled that crime thrillers allowed filmmakers considerable latitude for representing controversial issues. n124 Consequently, Force of Evil retains much of the anticapitalist imagery of Tucker's People. By being able to call the illegal numbers operations "banks," for example, Polonsky claimed that viewers could see that his movie is about the corrupt, exploitative nature of the entire social-economic system, and that its specific "context is Wall Street." n125

 [*1469]  The search for "subversives" in Hollywood during the late 1940s offered another extradiegetic source of surveillance. Force of Evil went into production just as anticommunist investigators were scrutinizing movies and their producers in search of leftists. n126 Their activities placed members of the Hollywood left such as Polonsky and Garfield under considerable pressure, and the two suffered fates ironically similar to those of Joe and Leo Morse. After writing the screenplay for I Can Get It for You Wholesale, n127 Polonsky was called before the House Committee on Un-American Activities, where he refused to provide any names of suspected subversives. Hollywood, in turn, blacklisted him for nearly two decades. n128 For his part, his admirers continue to speculate that the pressure on Garfield from red-hunters contributed to the actor's death from a heart attack in 1952. n129

The crucial scene in which Edna Tucker claims that Hall's office might be listening to Joe's phone conversations seemingly inscribes, more powerfully than any other images in the movie, the anticommunist legal probes into Cold War Hollywood. After learning that his office phone could be tapped and responding to Edna's taunts that she wanted to find out "what kind of man you ... really are," n130 Joe listens for the "little click" that, according to Edna, will confirm her claim that Hall is monitoring his conversations with Tucker. Although the film shrewdly does not reveal whether or not Edna is correct, Joe does hear the "little click" that she had predicted. He at least thinks that his phone has been tapped and believes that Hall has him under continual surveillance. This scene also underscores how the choice to deny viewers any image of Hall might help to magnify the intrusive, possibly even sinister, nature of the prosecutor's  [*1470]  surveillance activities. Faced with the force of Edna's sexual and Hall's legal challenge, Joe becomes impotent. What incriminating things might he have said over his telephone? If Hall can tap a private phone line, the voice-over concluding this sequence warns, "a man could spend the rest of his life trying to remember what he shouldn't have said." n131

Force of Evil, like The Big Sleep, thus employs brief, powerful traces of law that appear and reappear at different points throughout the movie. This pattern complicates the representation of relationships between "law" and "culture" in these movies and frustrates any attempt to see them standing for any single "point of law."

VI. Representing the Law Within Hollywood Movies
The organizing claim of this symposium is that popular representations are an important part of the cultural study of law because law's own discourses and practices are embedded in larger cultural structures and forces. Still, as this Essay seeks to emphasize, what might be called the legal academic gaze is not the only cultural lens through which to look at works of popular culture. Many spectators, as Warner Brothers initially expected, continue to view The Big Sleep primarily for the Bogart-Bacall romance or, perhaps, for the "star turn" of Bogie himself. People may still approach Force of Evil through the tragic star image of John Garfield or the artistic style that this movie brings to the familiar gangster genre. n132 More broadly,  [*1471]  it may be, as Rosemary Coombe argues, that Hollywood products such as these two noirs suggest why the "relationship between law and culture should not be defined" and why "an ongoing and mutual rupturing - the undoing of one term by the other - may be a more productive figuration than the image of relationship or rejoinder." n133

As the case of the two Big Sleeps and Force of Evil might suggest, Hollywood films, even less than appellate court opinions, have never been coherent, closed texts that can reveal authoritative points about law. n134 Rather, motion pictures have long provided sites at which Hollywood mobilizes all of its visual and story-construction skills to create images of law that are ambiguous, contradictory, and contestable, particularly to the audiences that continue to watch them in search of the many different kinds of pleasure that movie-viewing can produce.

To adapt one of the most famous lines in all of American legal culture, we should never forget that it is a movie we are seeing n135 - even as we go about the task of looking for law in all of the old filmic traces.

n1. See, e.g., Guyora Binder & Robert Weisberg, Literary Criticisms of Law (2000); Wai Chee Dimock, Residues of Justice: Literature, Law, Philosophy (1996); Martha C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (1995); Richard Weisberg, Poethics and Other Strategies of Law and Literature (1992); Stanley Fish, Response: Interpretation Is Not a Theoretical Issue, 11 Yale J.L. & Human. 509 (1999); Gary Minda, Law and Literature at Century's End, 9 Cardozo Stud. L. & Lit. 245 (1997); Richard Posner, What Has Modern Literary Theory to Offer Law?, 53 Stan. L. Rev. 195 (2000); James Seaton, Law and Literature: Works, Criticism, and Theory, 11 Yale J.L. & Human. 479 (1999).

n2. A self-reflexive literature about the relationship between law and visual culture is beginning to take shape. See, e.g., Rosemary J. Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (1998); Richard K. Sherwin, When Law Goes Pop: The Vanishing Line Between Law and Popular Culture (2000); Marjorie Garber, Cinema Scopes: Evolution, Media, and the Law, in Law in the Domains of Culture 121-59 (Austin Sarat & Thomas R. Kearns eds., 1998) [hereinafter Law and Culture]; Jonathan D. Rosenbloom, Social Ideology as Seen Through Courtroom and Courthouse Architecture, 22 Colum.-VLA J.L. & Arts 463 (1998); Richard K. Sherwin, Law/Media/ Culture: Legal Meanings in the Age of Images, 43 N.Y.L. Sch. L. Rev. 653 (1999-2000); Richard K. Sherwin, Picturing Justice: Images of Law & Lawyers in the Visual Media, 30 U.S.F. L. Rev. 891 (1996). On the concept of a research tradition, see David Bordwell, On the History of Film Style 8-9 (1997).

n3. See, e.g., Legal Reelism: Movies as Legal Text (John Denvir ed., 1996).

n4. See David Bordwell et al., The Classical Hollywood Cinema: Film Style & Mode of Production to 1960 (1985).

n5. David A. Black, Law in Film: Resonance and Representation 126 (1999), notes that virtually all of the early "legal scholarship on film" simply fails to address "the "specifically cinematic'" aspects of cinema. Most of the movies discussed in law review articles "might just as well have been novels." Id.

n6. On the relationship between law and culture, see, for example, Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (1999), Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 Stan. L. Rev. 1149 (1997), Austin Sarat, Redirecting Legal Scholarship in Law Schools, 12 Yale J.L. & Human. 129 (2000), and Symposium, A New Legal Realism? Cultural Studies and the Law, 13 Yale J.L. & Human. 3 (2001).

n7. See, e.g., Michael Asimow, Bad Lawyers in the Movies, 24 Nova L. Rev. 533 (2000); Orit Kamir, Feminist Law and Film: Imagining Judges and Justice, 75 Chi.-Kent L. Rev. 899 (2000); Allen K. Rostron, Lawyers, Law, and the Movies: The Hitchcock Cases, 86 Cal. L. Rev. 211 (1998); Austin Sarat, Living in a Copernican Universe: Law and Fatherhood in a Perfect World, 43 N.Y.L. Sch. L. Rev. 843, 847 (1999-2000); Austin Sarat, Presidential Address: Imagining the Law of the Father: Loss, Dread, and Mourning in The Sweet Hereafter, 34 Law & Soc'y Rev. 3 (2000); Jessica Margaret Silbey, The Subjects of Trial Films (1999) (unpublished Ph.D. dissertation, University of Michigan) (on file with author).

n8. Cultural studies literature, including work on law, assumes that these representations ultimately generate meanings as a result of semiotic negotiation between producers and receivers, a dialogic process conceptualized and explained through "reception theory" or "new audience studies." See, e.g., Martha Merrill Umphrey, The Dialogics of Legal Meaning: Spectacular Trials, the Unwritten Law, and Narratives of Criminal Responsibility, 33 Law & Soc'y Rev. 393, 403-05 (1999). On the problematics of audience studies, see Alan Durant, What Future for Interpretive Work in Film and Media Studies, 41 Screen 6, 10-14 (2000). See also infra note 40.

n9. The term "within" is designed to signify that representations of law are embedded within a commercial practice that is different from that of doing law. The term does not, however, suggest that the social-cultural process of meaning-making that surrounds these representations is contained "within" the movie. For a brief overview of recent, conflicting, cinema-studies frameworks for "making meaning," see Durant, supra note 8, at 6-15. See also David Bordwell, Making Meaning: Inference and Rhetoric in the Interpretation of Cinema (1989); Austin Sarat & Jonathan Simon, Beyond Legal Realism? Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship, 13 Yale J.L. & Human. 3, 13-14 (2001) (noting that in a world of images, power of law may be found in the image itself).

n10. Here, I follow, in part, Black, supra note 5, at 5 passim, Austin Sarat, The Cultural Life of Capital Punishment: Responsibility and Representation in Dead Man Walking and Last Dance, 11 Yale J.L. & Human. 153 (1999), and Silbey, supra note 7. On the contingency of any definition of "law," see, for example, Albert W. Alshculer, Law Without Values: The Life, Work, and Legacy of Justice Holmes 158-72 (2000), and John T. Noonan, Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson and Wythe as Makers of the Masks, at ix (1976).

n11. Following Richard Maltby & Ian Craven, Hollywood Cinema: An Introduction (1995), this Essay uses the term "movie" to "refer to the stream of images" that spectators "consume as both narrative and spectacle when the material is projected" and the term "film" to signify "the physical, celluloid material on which images are registered and a sound track recorded ... ." Id. at 2.

n12. The Big Sleep (prerelease version) (Warner Bros. 1945) [hereinafter Big Sleep 1945]; The Big Sleep (Warner Bros. 1946).

n13. Force of Evil (Enterprise & MGM 1948).

n14. The phrase "things legal" comes from Karl Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931).

n15. My view of the differences between "law" and other cultural practices is indebted to the work of Stanley Fish. See, for example, Stanley Fish, Theory Minimalism, 37 San Diego L. Rev. 761 (2000) and works cited infra note 48. My view of the similarities, as well as the differences, owes a similar debt to Laura Hanft Korobkin, Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery 44, 90, 145- 51 (1998). Black, supra note 5, at 34-51, contains a useful discussion of the similarities and differences between law and film as "narrative regimes."

n16. "Cause lawyering" is another example of such a retrospective category, now widely used in legal discourse. See Terence C. Halliday, Politics and Civic Professionalism: Legal Elites and Cause Lawyers, 24 Law & Soc. Inquiry 1013, 1015 (1999).

n17. Here, for example, is how one prominent movie guide characterizes three examples of film noir that might all be called trial films: Fury (MGM 1936) is a "powerful drama," The File on Thelma Jordan (Paramount Pictures 1949) is a "murkily plotted melodrama," and Knock on Any Door (Columbia Pictures 1949) is an "empty melodrama." Halliwell's Film Guide 422, 379, 621 (John Walker ed., 8th ed. 1991). Even 12 Angry Men (Studio One 1957), a movie entirely concerned with representing the jury deliberations that will determine the outcome of a murder trial, qualifies only as a "brilliantly tight character drama." Halliwell's Film Guide, supra, at 1162. All four of these movies are discussed as "trial films" in Norman Rosenberg, Hollywood on Trials: Courts and Films, 1930-1960, 12 Law & Hist. Rev. 341 (1994).

Movies such as 12 Angry Men (and the scholarly commentary surrounding them), arguably have helped to construct a genre, the trial film, that is now recognized, at least in legal studies scholarship. See, e.g., Paul Bergman & Michael Asimow, Reel Justice: The Courtroom Goes to the Movies (1996); Carol J. Clover, God Bless Juries!, in Refiguring American Film Genres: History and Theory (Nick Browne ed., 1998) [hereinafter Clover, God Bless Juries!]; Carol J. Clover, Law and the Order of Popular Culture, in Law and Culture, supra note 2, at 97-119; Silbey, supra note 7.

In contrast, the contemporary television industry apparently does use terms such as "legal drama" and "trial shows." See also Inside Television Legal Drama, Panel Discussion at the UCLA Law Review Law and Popular Culture Symposium (Feb. 23, 2001) (transcript on file with UCLA Law Review). See generally Prime Time Law: Fictional Television as Legal Narrative (Robert M. Jarvis & Paul R. Joseph eds., 1998).

n18. "As an object or corpus of films, film noir does not belong to the history of cinema; it belongs as a notion to the history of film criticism ... ." Marc Vernet, Film Noir on the Edge of Doom, in Shades of Noir: A Reader 26 (Joan Copjec ed., 1993); see also Steve Neale, Genre and Hollywood 152-53 (2000).

n19. See, e.g., Ginette Vincendeau, Noir is Also a French Word: The French Antecedents of Film Noir, in The Book of Film Noir 49-58 (Ian Cameron ed., 1993) [hereinafter Book of Noir]. Although many films called noir had been released in the United States years earlier, World War II delayed their arrival on screen in France. See also Neale, supra note 18, at 169. The scholarship on noir was part of a broader, postwar movement in French cinema culture, known as la nouvelle critique. See generally Bordwell, supra note 2.

n20. Richard Maltby, The Politics of the Maladjusted Text, in Book of Noir, supra note 19, at 39-48. The category of noir has been associated with particular thematic, narrative, and stylistic markers such as flawed characters, intricate storylines, and lighting patterns initially used in German expressionist films of the 1920s. See Michael Walker, Film Noir: An Introduction, in Book of Noir, supra note 19, at 8-38.

n21. The Maltese Falcon (First National Pictures Inc. & Warner Bros. 1941).

n22. Chinatown (Paramount Pictures et al. 1974).

n23. See James Naremore, More Than Night: Film Noir in Its Contexts 5-6, 9-39 (1998). On "neo-noir," see also Foster Hirsch, Detours and Lost Highways: A Map of Neo-Noir (1999), and J.P. Telotte, Fatal Capers: Strategy and Enigma in Film Noir, 23 J. Popular Film & Television 163 (1996).

n24. Body Heat (The Ladd Co. 1981).

n25. Naremore, supra note 23, provides the first comprehensive, cultural history of the body of movies now labeled film noir and of how the evocative term "noir" has been used in a wide range of academic and popular conversations.

n26. See id. at 5-6, 9-39.

n27. See, e.g., David Cochran, American Noir: Underground Writers and Filmmakers of the Postwar Era (2000); Mike Davis, City of Quartz: Excavating the Past in Los Angeles (1990). As James Naremore suggests, "[a] fully historicized account of the category [of noir] needs to range across the twentieth century imagination." Naremore, supra note 23, at 39.

n28. On the role of keywords in cultural discourse, see Raymond Williams, Keywords: A Vocabulary of Culture and Society (rev. ed. 1983).

n29. Naremore, supra note 23, at 276.

n30. See, e.g., David Ray Papke, The American Courtroom Trial: Pop Culture, Courthouse Realities, and the Dream World of Justice, 40 S. Tex. L. Rev. 919, 930-32 (1999) (questioning whether or not a ""reality aesthetic' [should] control" commentary on "pop cultural and actual courtroom trials").

n31. See Fish, supra note 15, at 769-70; Fish, supra note 1, at 512-13. The familiar citation for the difference between legal discourse used by institutions of the state, which can legitimately deploy (subject to the "rule of law") violence, and legal discourse articulated at other sites, is Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986). See also Austin Sarat & Thomas Kearns, Making Peace with Violence: Robert Cover on Law and Legal Theory, in Law's Violence, 211-50 (Austin Sarat & Thomas R. Kearns eds., 1992).

n32. Bananas (United Artists et al. 1971).

n33. On the conventions of representation that construct Hollywood's "sense of the real," see Graeme Turner, Film as Social Practice 180-82 (3d ed. 1999).

n34. For a discussion of role of "pleasure" in movie-going as a social practice, see id. at 142-43, 182-83. For a "materialist" view of Hollywood Cinema, which stresses how the industry's "commercial aesthetic" operates to create the "sequence of audience responses" integral to Hollywood's economic motivation, see Maltby & Craven, supra note 11, at 7 passim. And for an argument that stresses how the production of law, like that of motion pictures, operates as "an aspect of the functioning of a market economy rather than an escape from it," see Binder & Weisberg, supra note 6, at 1219.

n35. See Linda J. Cowgill, Secrets of Screenplay Structure: How to Recognize and Emulate the Structural Frameworks of Great Films (1999); see also Syd Field, Screenplay: The Foundations of Screenwriting (3d ed., 1994). More broadly, see Bordwell et al., supra note 4, at 13-18, 29-33, 40-41, 178-81.

n36. Casablanca (Warner Bros. 1942).

n37. Cowgill, supra note 35, at 9-11.

n38. For a brief overview of legal representations in Casablanca, see Norman Rosenberg, A Word Is Just a Word: Bringing Classical Hollywood Films into Legal Studies Classes, 7 Focus on L. Stud. 2 (1992).

n39. Lucky Partners (RKO Radio Pictures 1940).

n40. Viewing legal representations in this performative way - looking at what roles these representations play in producing a cinematic narrative - sidesteps the important research project of trying to compare the possible legal-cultural meanings of such representations against those produced at other cultural sites.

Although this type of project about the case(s) of film noir is one for another study, it would surely begin with the claim that representations of law within movies should not be seen as corrupted, mumbo-jumbo - like versions of those produced by courts, legislatures, and other state-sanctioned institutions. See Umphrey, supra note 8, at 394. As Martha Merrill Umphrey argues, for example, the spectacular, mass-mediated "show trials," such as those of Harry Thaw (a turn-of-the-century socialite) and O.J. Simpson, help to produce representations that are part of "legal consciousness," a broad "domain of legal meanings that extends beyond the boundaries of legal institutions." Id. at 395 n.2. On "legal consciousness," see Patricia Ewick & Susan S. Silbey, The Common Place of Law: Stories from Everyday Life (1998).

Scholarship in this social-cultural mode, then, urges students of law to take seriously legal representations from many different sites. For a succinct and powerful statement of the claim that even people "trained in law ... still have a hard time not mediating at least some substantial part of their knowledge [about law] through popular culture," see William Ian Miller, Clint Eastwood and Equity: Popular Culture's Theory of Revenge, in Law and Culture, supra note 2, at 199. On the role of what might be called "folk knowledge of law," the "pictures of law that people carry around with them," see Benjamin D. Steiner et al., Folk Knowledge as Legal Action: Death Penalty Judgments and the Tenet of Early Release in a Culture of Mistrust and Punitiveness, 33 Law & Soc'y Rev. 461, 463 (1999). More broadly, see Rosemary J. Coombe, Contingent Articulations, in Law and Culture, supra note 2, at 21-64, and Naomi Mezey, Law as Culture, 13 Yale J.L. & Human. 35 (2001).

n41. See, e.g., Norman Rosenberg, Law Noir, in Legal Reelism, supra note 3, at 280-302.

n42. Neither movie, of course, was released as a film noir or as a motion picture about law. The Big Sleep might be called a "complicated, moody thriller" and Force of Evil an "atmospheric melodrama." Halliwell's Film Guide, supra note 17, at 113, 401.

n43. This type of formulation is not limited to work in legal studies. The "point" of Force of Evil offered above, for example, closely follows one that a student of cinema offers as "the meaning" of another classic film noir, a movie in which representations of law are constantly inserted as obstacles to a protagonist's goal, The Woman in the Window (International Pictures, Inc. 1944). See Frank Krutnik, In a Lonely Street 157 (1991).

The way in which noirs such as Force of Evil and The Woman in the Window reverse the usual narrative trajectory of classical Hollywood cinema, in which a male hero successfully struggled toward his goal, is one of the elements in dramas of the 1940s and 1950s that first attracted critics in France. Film noir seems to offer a critique of the American Dream. See, e.g., J.P. Telotte, Voices in the Dark: The Narrative Patterns of Film Noir 2-4 (1989). Such films also, arguably, mount an investigation of female sexuality. See, e.g., Janet Bergstrom, The Mystery of the Blue Gardenia, in Shades of Noir, supra note 18, at 97-120; Pam Cook, Duplicity in Mildred Pierce, in Women in Film Noir 69-80 (E. Ann Kaplan ed., 2d ed. 1999) [hereinafter Women in Noir]; see also sources cited infra note 64.

n44. It's a Wonderful Life (Liberty Films & RKO Radio Pictures 1946).

n45. L.A. Law (NBC television broadcast, 1986-1994).

n46. See John Denvir, Capra's Constitution, in Legal Reelism, supra note 3 (using It's a Wonderful Life to criticize the work of U.S. Supreme Court); Pierre Schlag, Normativity and the Politics of Form, 139 U. Pa. L. Rev. 801, 852-70 (1991) (using L.A. Law to critique the "normative" legal discourse of Ronald Dworkin); Aviam Soifer, Complacency and Constitutional Law, 42 Ohio St. L.J. 383 (1981) (using Casablanca to critique Mobile v. Bolden). For a critique of this form of cultural criticism of law, as risking "the twin dangers of skepticism and sentimentalism," see Binder & Weisberg, supra note 6, at 1151-52.

n47. See, e.g., Black, supra note 5, at 110.

n48. See, e.g., Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989); Stanley Fish, The Trouble with Principle (1999). On a non-or anti-foundationalist account of law and Fish's work, see, for example, Michael Robertson, Picking Positivism Apart: Stanley Fish on Epistemology and Law, 8 S. Cal. Interdisc. L.J. 401 (1999). More generally, see Stephen M. Feldman, American Legal Thought from Premodernism to Postmodernism: An Intellectual Voyage 152-55 (2000).

n49. Fish, supra note 15, at 769. McKenzie, Brackman, of course is the fictional law firm featured on L.A. Law.

n50. See id. at 770.

n51. Id.

n52. See Durant, supra note 8, at 15-16. This Essay also notes that the claim that texts are "polysemous" hardly provides a solution to locating the source of the multiple possible meanings or measuring one possible meaning against its competitors. See id. at 13-16.

n53. Gerald Mast, Howard Hawks, Storyteller 284 (1982).

n54. Kathryn Anderson, Betwixt and Between: Liminality in The Big Sleep (unpublished seminar paper, New York University) (on file with author). Neither this analysis nor that of Mast, supra note 53, reduces The Big Sleep to simply a "legal film."

n55. See, e.g., Field, supra note 35, at 73-94. For a critique of this claim, see Norman Rosenberg, Film It Again, Sam: Neo-Noir and the Reimagination of American Law, Address at the UCLA Law Review Law and Popular Culture Symposium, (Feb. 23, 2001).

n56. Maltby & Craven, supra note 11, at 334.

n57. Id. (footnote omitted) (quoting, in part, Barbara Klinger, Digressions at the Cinema: Reception and Mass Culture, 10 Cinema J. 28 (1989)).

n58. Durant, supra note 8, at 14.

n59. See John Fiske, Power Plays, Power Works 3-5 (1993).

n60. The plot in The Big Sleep, Howard Hawks once claimed, "didn't matter at all. All we were trying to do was to make every scene entertain. I can't follow the story." Peter Bogdanovich, Who the Devil Made It 336 (1997).

Drawing on the structural framework of Vladimir Propp, however, Annette Kuhn, The Power of the Image: Essays in Representation and Sexuality (1985) dismisses this ex post facto testimony by Hawks and argues "that at the level of narrative, the film's renowned confusion is more apparent than real." Id. at 77. Gerald Mast concedes the incoherency of the movie's detective narrative but insists that this hardly matters since any crime detection is "merely a context and pretext for the real narrative ... Marlowe's and Vivian's discovery of one another." Mast, supra note 53, at 276. I will suggest, infra, that the way in which legal imagery is inserted - and removed - from The Big Sleep can help to shape any judgment about the coherency of its narrative(s).

n61. To Have and Have Not (Warner Bros. 1944).

n62. On images of patriarchal law in films noirs, see, for example, Claire Johnston, Double Indemnity, in Women in Noir, supra note 43, at 100-11. More generally, see Kaja Silverman, Male Subjectivity at the Margins 52-121 (1992).

n63. Marlowe is constantly rendering judgments, often instantaneously, on the moral (and sexual) worth of the women whom he encounters in the film.

n64. One film in the classical noir cycle, starring Robert Mitchum and Jane Russell, actually carries this title: His Kind Of Woman (RKO Radio Pictures 1951). On how noirs often revolve around an investigation of "the feminine," particularly female sexuality, see, for example, Cook, supra note 43, at 69-80. See also Christine Gledhill, Klute 1: A Contemporary Film Noir and Feminist Criticism, in Women in Noir, supra note 43, at 20-34; Kate Staples, The Postmodern Always Rings Twice: Constructing the Femme Fatale in 90s Cinema, in Women in Noir, supra note 43, at 164-82, 172-74; Jack Boozer, The Lethal "Femme Fatale" in the Noir Tradition, J. Film & Video, Fall-Winter 1999-2000, at 20.

n65. See Raymond Chandler, The Big Sleep (1939). On the novel, see, for example, Charles J. Rzepka, I'm in the Business Too": Gothic Chivalry, Private Eyes, and Proxy Sex and Violence in Chandler's The Big Sleep, Mod. Fiction Stud., Fall 2000, at 695. For an overview of detective literature and its relationship to legal culture, see Sean McCann, Gumshoe America: Hard-Boiled Crime Fiction and the Rise and Fall of New Deal Liberalism 5-30 (2000), and Lawrence M. Friedman, Illegal Fictions: The Mystery Novel, Law and Popular Culture, 48 UCLA L. Rev. 1411 (2001).

n66. Marlowe immediately senses that he is, in effect, being put on trial and observes that Vivian is trying to cross-examine him. In the novel, there is sexual attraction but no lasting romance between Marlowe and Vivian, who is twice divorced and married to Regan when he disappears.

n67. Thomas Doherty, Pre-Code Hollywood: Sex, Immorality, and Insurrection in American Cinema, 1930-1934, at 361 (1999). This was part one of the Production Code's three "General Principles." For the entire code, see id. at 347-67.

n68. Id. at 356 (emphasis omitted).

n69. Id.

n70. The first page of this form is reprinted in Naremore, supra note 23, at 97.

n71. See, e.g., Clayton Koopes, Film Censorship: Beyond the Heroic Interpretation, 44 Am. Q. 643 (1992).

n72. See generally Controlling Hollywood: Censorship and Regulation in the Studio Era (Matthew Bernstein ed., 1999); Lea Jacobs, The Wages of Sin: Censorship and the Fallen Woman Film, 1928-1942 (1991); Movie Censorship and American Culture (Francis G. Couvares ed., 1996); Richard Maltby, The Spectacle of Criminality, in Violence and American Cinema 117-52 (J. David Slocum ed., 2001). More broadly, see Censorship and Silencing: Practices of Cultural Regulation (Robert C. Post ed., 1998); Sue Curry Jansen, Censorship: The Knot that Binds Power and Knowledge (1988).

n73. See Jacobs, supra note 72, passim.

n74. Mast, supra note 53, at 278.

n75. There was, to repeat, no insurmountable problem, within Hollywood's familiar codes and conventions, with showing the "sophisticated" viewer that Geiger was gay or that Marlowe casually passed a rainy afternoon "in bed" with a bookstore clerk The trick in such representations, as Richard Maltby and Ian Craven so nicely observe, was to devise "codes of representation in which "innocence' was inscribed into the text while "sophisticated' viewers were able to "read into' movies whatever meanings they pleased to find, so long as producers could use the Production Code to deny they had put them there." Maltby & Craven, supra note 11, at 43.

n76. See Kuhn, supra note 60, at 83; Todd McCarthy, Howard Hawks: The Grey Fox of Hollywood 381-84 (1997).

n77. Chandler, supra note 65, at 217.

n78. In the second version, Marlowe sends Carmen out the door of Geiger's bungalow to be gunned down by Mars's hoods. The Production Code Administration (PCA) refused to approve a script in which Marlowe, the film's hero, is responsible (albeit indirectly) for Carmen's death. See Kuhn, supra note 60, at 82; Mast, supra note 53, at 273-74.

n79. Here, the PCA permitted, in the case of Mars, what it would not allow in the case of Carmen Sternwood: Marlowe's complicity in the death of a murderer. Mars intends to have Marlowe himself gunned down when he leaves the house in which he and Marlowe were meeting. Instead, Marlowe begins shooting at Mars and forces him out the door, into his gang's line of fire. The Big Sleep seems to justify this act by means of an earlier trial-like scene in which Marlowe, in effect, indicts and "convicts" Eddie Mars before a jury of his own wife, Mona, his one-time friend, Vivian Sternwood, and the movie's spectators of murder. On the positioning of spectators as jurors, see Clover, God Bless Juries!, supra note 17, passim.

n80. See Chandler, supra note 65, at 218-19. The movie version of The Big Sleep even subtly inscribes the law into its final image of the Marlowe-Vivian love story. After finishing his call to the police, Marlowe embraces Vivian. Just as the Bogart-Bacall romance is finally visualized, their union is interrupted when, on the soundtrack, there is yet another sign of the law: the piercing wail of a police-car siren.

n81. Railroaded (Producers Releasing Corp. 1947).

n82. Touch of Evil (director's cut) (Universal Pictures 1998).

n83. See generally Law's Stories: Narratives and Rhetoric in the Law (Peter Brooks & Paul Gewirtz eds., 1996).

n84. See Bordwell, supra note 2, at 129-30 (account of the debate engendered by discovery of two versions of E.S. Porter, Life of an American Fireman (1903)).

n85. See supra notes 54-59.

n86. In a broader sense, the VHS edition the 1945 prerelease cut invites the savvy viewer to compare this version against the later one and see if he or she can figure out which scenes were cut for the 1946 theatrical release. See The Big Sleep: 1945/1946 Comparison, in Big Sleep 1945, supra note 12.

n87. As one cinema scholar suggests, Marlowe operates less as an independent "private" investigator who is trying to solve a mystery than as a legal agent of Sternwood, whose primary goal is to neutralize, or eliminate, threats to his family. See Michael Walker, The Big Sleep: Howard Hawks and Film Noir, in Book of Noir, supra note 19, at 201; see also McCann, supra note 65, at 166-67.

n88. Marlowe has been concealing from the police the fact that Carmen was a witness to Taylor's murder of Geiger. Taylor's fate has long been a subject of controversy among Chandler scholars. Although it seems fairly clear, on a second viewing of the film, that Joe Brody killed Taylor, neither the 1945 nor the 1946 version make this explicit. Dialogue written for the prerelease version, however, does have the D.A. explicitly fingering Brody for the Taylor murder, but this dialogue is not in the print as released in 1997. On the "Taylor mystery," see Gene D. Phillips, Creatures of Darkness: Raymond Chandler, Detective Fiction, and Film Noir 64 (2000), and Jonathan Rosenbaum, Fresh Clues to an Old Mystery, available at (last visited Apr. 20, 2001).

n89. Charles K. Feldman, the influential Hollywood agent who represented both Lauren Bacall and Howard Hawks, pressed Warner Brothers to redo the movie by beefing up the Bogart-Bacall romance. Movie reviewers panned Bacall's performance in her second film, Confidential Agent (Warner Bros. 1945), and Feldman helped convince Warner Brothers that The Big Sleep - in its 1945, prerelease version - would earn her equally dismal notices (and destroy her marquee value) if there were not more sequences highlighting the "insolent" quality of her on-screen relationship with Marlowe/Bogart. See Big Sleep 1945, supra note 12.

n90. See McCarthy, supra note 76, at 382.

n91. Mast, supra note 53, at 279-82.

n92. This scene exemplifies what cinema scholars call "decoupage." In this style of editing, a "spatio-temporal whole" - in this case, the D.A.'s office during Marlowe's "trial" - is broken down into a series of smaller views. Bordwell, supra note 2, at 51-52. Here, the use of this editing style, which directors such as Hawks first employed during the 1930s, tends to shift the focus away from Marlowe himself and onto the criss-crossing legal maneuvering among Cronjager, Ohls, Wilde, and Marlowe.

n93. This shot, of the "written evidence" Marlowe is placing before the D.A.'s ad hoc "court," might be contrasted with an earlier one in the film that shows a notebook, which also contains hieroglyphic-like traces, in which Geiger had encoded "evidence" about the patrons of his pornography business. This earlier shot, in contrast to the one in the D.A.'s office, is clearly from Marlowe's point of view.

n94. In the novel, Marlowe takes a more confrontational approach to the law.

n95. In the 1946 version, the image of the D.A. never appears - the 1945 scenes in which he puts Marlowe on "trial" and suggests he investigate the disappearance of Sean Regan having been eliminated - but the scene with Marlowe and Ohls, which combines footage from the 1945 version with new material, still conveys the legal force of the D.A.'s words.

n96. Big Sleep 1945, supra note 12 (emphasis added).

n97. These images do not, of course, appear in the 1946 version, which still represents the force of law as something to be negotiated rather than simply obeyed or defied. The revised Big Sleep re-shoots and re-edits much of the Marlowe-Ohls meeting while retaining the earlier view of the ambiguous, contingent nature of legal commands. Ohls tells Marlowe that the D.A. wants him, at Vivian's request, to drop his interest in Sean Regan. Marlowe first explains that he is falling in love with the "wonderful" Vivian but still worries that the "not-so-wonderful" Carmen may bring harm to the ailing general. Then, Marlowe asks if Ohls still wants him to lay off the case. That is what the D.A. wants, but Bernie cagily replies, "you do all right following your own hunches." The ambiguity inscribed in both the 1945 and 1946 versions complicates any claim that Marlowe simply ignores or challenges "the law" by continuing to pursue the Regan case.

n98. I adapt this term from Brook Thomas, Review Essay: Michael Grossberg's Telling Tale, 23 Law & Soc. Inquiry 431, 454-56 (1998).

n99. Even this carefully edited and annotated version of Force of Evil's script cannot show the movie's visually and aurally complex "mixture of genre and art." Paul Buhle, Abraham Lincoln Polonsky's America, 49 Am. Q. 877 (1997). A "new" video edition of Force of Evil contains no additional footage, only a brief introduction by the director, Martin Scorcese. See The Martin Scorcese Presentation of Force of Evil (1990) [hereinafter Scorcese].

n100. See Ira Wolfert, Tucker's People (orig. ed., 1943; reprint 1997).

n101. Force of Evil, supra note 13. This character in the novel was based on real life Special Prosecutor Thomas E. Dewey. A character based on Dewey, and played by Humphrey Bogart, also appears in an early film noir, Marked Woman (First National Pictures Inc. & Warner Bros. 1937). See Charles Eckert, The Anatomy of a Proletarian Film: Warner's Marked Woman, in 2 Movies and Methods 407, 409-29 (Bill Nichols ed., 1985).

n102. Abraham Polonsky, Force of Evil: The Critical Edition 145-46 (John Schultheiss & Mar Schaubert eds., 1996).

n103. Id. at 148.

n104. Id. at 149. Although Leo Morse and his "bank" employees are arrested twice and forced to appear in "Magistrate's Court," the movie offers no representation of either of their court appearances. On both occasions, Force of Evil employs a crowded and chaotic mise-en-scene to represent the chaotic space outside of the courtroom. This space might be regarded as a liminal one in which attorneys, police officers, criminal defendants, mobsters, and a variety of unidentified hangers-on freely congregate. On "liminality" in noir's representation of law, see Anderson, supra note 54.

n105. Polonsky, supra note 102, at 123. Polonsky's recollections are from a 1990 interview.

n106. In this sense, Lincoln Hall, who embodies the force of law, is a cinematic construction, much like Sean Regan in The Big Sleep, created entirely by dialogue and filmic style. The novel contains many more representations of legal actors than the film, but Link Hall only appears in one passage, a sequence in which Joe imagines that he is on trial. See Wolfert, supra note 100, at 450-52.

n107. See Krutnik, supra note 43, at 136-44.

n108. Wheelock's first name in the novel is Henry, and he has no partner. The Joe Morse character in the movie is a composite of the novel's Joe Morse (who was not an attorney in Wolfert's book) and Wheelock, who surfaces as Joe's law partner.

n109. Force of Evil, supra note 13.

n110. Id.

n111. On a Hollywood movie's need for a heterosexual romance, "in the presence of the law," see, for example, Tom Gunning, The Films of Fritz Lang: Allegories of Vision and Modernity 234 (2000).

n112. Leo's insights, however, do him no good. He, no more than his younger brother, can escape the force(s) of evil that surround him. In this sense, Force of Evil resembles many of the movies of Fritz Lang in which the combined forces of modernity, including the many technologies of the law, come together to determine the fate of goal-oriented characters. Id. passim.

n113. Here, as everywhere else, Joe's instrumentalist use of the law does not help him achieve his goals: The raid exacerbates Leo's health problems and gives Doris a police record.

n114. On the idea of "remasculinization" and "regeneration" through violence, see, for example, Susan Jeffords, Hard Bodies: Hollywood Masculinity in the Reagan Era (1994), Susan Jeffords, The Remasculinization of America: Gender and the Vietnam War (1989), Richard Slotkin, The Fatal Environment: The Myth of the Frontier in the Age of Industrialization, 1800-1890 (1985), Richard Slotkin, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (1992), and Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier, 1600-1860 (1973). On westerns, law, and revenge, see, for example, Miller, supra note 40, at 161-202. On the tendency of other noirs to reject the trope of regeneration through violence, see Paul Arthur, Murder's Tongue: Identity, Death and the City in Film Noir, in Violence and American Cinema, supra note 72, at 153, 160-61.

n115. A few suggestive titles: A Few Good Men (Columbia Pictures 1992) (military courtroom); Fury (MGM 1936) (courtroom); Knock on Any Door (Columbia Pictures 1949) (prison); The Postman Always Rings Twice (MGM 1946) (prison); Talk of the Town (Columbia Pictures 1942) (U.S. Supreme Court); They Won't Believe Me (RKO Radio Pictures 1947) (courtroom); 12 Angry Men (United Artists 1957) (jury room); The Wrong Man (Warner Bros. 1956) (police station); and The Young Philadelphians (Warner Bros. 1959) (courtroom).

n116. Joe Morse appears to have been brought down as much by the "evil" forces that are, ironically, set in motion by his own legal discourses as by the force of law. Odds Against Tomorrow (HarBel Productions 1959), a film noir whose script was anonymously completed by Abraham Polonsky, while he was formally blacklisted, employs a similar narrative framework: A bank-robbery scheme fails more because of another force of evil, racial antagonism among the team of robbers, than because of any response by agents of the legal system. See also supra note 99. In 1996, the Board of Directors of the Writers Guild of America belatedly awarded Polonsky formal credit for the screenplay. See Three Blacklisted Writers Receive Credit for Screenplays, available at (last visited Apr. 20, 2001).

n117. This phrase suggests the ending of another classic noir, Billy Wilder's Sunset Boulevard (Paramount Pictures 1950), in which a demented former silent film star tries to speak to her lost audience - "you lovely people out there in the dark." Id. Here, Joe's language resembles that of another "outlaw hero," Clint Eastwood's William Muney in Unforgiven (Warner Bros. 1992), in that his language "detaches itself from the context and seems to reflect a kind of cynical despair regarding the justice of his own actions ... ." Miller, supra note 40, at 195.

n118. For a filmic example, see Young Mr. Lincoln (20th Century Fox 1939); for an example from television, see any of the 271 episodes of the original Perry Mason (CBS television broadcast, 1957-1966). On "confessional discourse," see Sara Mills, Discourse 80-85 (1997). See also Sarat, supra note 10, at 176-77 for a discussion of how confessional discourse and the discovery of the "truth" are inscribed in Dead Man Walking (Polygram Filmed Entertainment et al. 1996). See generally Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature (2000).

n119. For a broad, suggestive overview of the construction of "legal subjectivity," see W.T. Murphy, The Oldest Social Science: Configurations of Law and Modernity (1997).

n120. After telling of finding his brother's body, Joe's voice-over continues "I turned back to give myself up to Hall. Because if a man's life can be lived so long and come out this way, like rubbish, then something was horrible and had to be ended one way or another, and I decided to help." Polonsky, supra note 102, at 174.

n121. Id. at 180. Polonsky himself later claimed that Joe Morse remains aloof from the legal system and that his final voice-over is "existential. Committing to law and order is liberal, is a [Frank] Capra ending. Which is okay, but I didn't write a Capra picture." Id.

Of course, it is possible to argue that neither Polonsky's nor Joe's "intentions" affect Hall's attempt to prosecute a criminal conspiracy and that Joe's personal motives for cooperating are separable from the public's interest in seeing justice done. This interpretation of Force of Evil, though certainly plausible, gains little support from the movie's cinematic construction. Viewers are encouraged, in every possible way, to see issues from the point of view of Joe Morse (and of the film's charismatic star, John Garfield), and they are not given even a glimpse of the shadowy Hall.

n122. In this sense, the ending of Force of Evil resembles that of Fury. Although this earlier movie does conclude in a court room setting, its protagonist, Joe Wilson (Spencer Tracy), makes it clear that he, like Joe Morse, will cooperate with legal officials for entirely personal, not public, reasons. See Gunning, supra note 111, at 231-34; Rosenberg, supra note 17, at 352-59.

n123. There is no comparable sequence, at least featuring a femme fatale figure, in Tucker's People. The sequence involving Edna seems to have been suggested, though, by two passages in which Tucker's attorney, again named Henry Wheelock, learns, from Tucker himself and from one of Tucker's henchmen that Link Hall has been using wiretaps. See Wolfert, supra note 100, at 189-90, 373-77. In Force of Evil, the threat of being surrounded by hidden legal surveillance is given additional force through its connection with images of a castrating, transgressive femme fatale and through the noir styling that marks the sequence. On the "crisis of masculinity" inscribed in many noirs, see Robert J. Corber, Homosexuality in Cold War America: Resistance and the Crisis of Masculinity (1997), and Krutnik, supra note 43.

n124. See Brian Neve, Film and Politics in America: A Social Tradition 150 (1992). See generally Bryan D. Palmer, Night in the Capitalist Cold War City: Noir and the Cultural Politics of Darkness, 5 Left Hist. 57 (1997).

n125. Polonsky, supra note 102, at 126.

n126. There is an immense literature on this era in Hollywood. See, e.g., Larry Ceplair & Stephen Englund, The Inquisition in Hollywood: Politics in the Film Community, 1930-1960 (1983); Gerald Horne, Class Struggle in Hollywood, 1930-1950: Moguls, Mobsters, Stars, Reds, & Trade Unionists (2000); Patrick McGilligan & Paul Buhle, Tender Comrades: A Backstory of the Hollywood Blacklist (1997); Victor Navasky, Naming Names (1980). For a brief interpretation of the production of Force of Evil framed within this literature, see Eddie Muller, Dark City: The Lost World of Film Noir 22-25 (1998). On the difficulty of distinguishing in contract law between "legitimate" business transactions and "wagers," see Roy Krietner, Speculations of Contract; Or, How Contract Law Stopped Worrying and Learned to Have Risk, 100 Colum. L. Rev. 1096 (2000).

n127. I Can Get It for You Wholesale (20th Century Fox 1951).

n128. In addition to co-scripting Odds Against Tomorrow, Polonsky anonymously wrote television dramas, particularly for You Are There (CBS television broadcast, 1953). See To Illuminate Our Time: The Blacklisted Teleplays of Abraham Polonsky (John Schultheiss & Mar Schubert eds., 1997).

n129. See, e.g., John Garfield Tribute, at (last visited Apr. 20, 2001).

n130. Force of Evil, supra note 13. Joe, in this sense, suddenly comes under a "double investigation." While Hall is inquiring into his identity as a lawyer, Edna is interrogating his potency as a male.

n131. Here, it is tempting to speculate on how the sequence in which Joe Morse suddenly realizes that he is under surveillance, and especially the line about trying to remember something that shouldn't have been said, inscribes the legal situation in which Polonsky, Garfield, and other Hollywood leftists found themselves during the late 1940s. See Norman Rosenberg, The "Popular First Amendment" and Classical Hollywood, 1930-1960: Film Noir and "Speech Theory for the Millions," in Freeing the First Amendment: Critical Perspectives on Freedom of Expression 143-68 (David S. Allen & Robert Jensen eds., 1995). Many other cultural products of the time, including works as different from Force of Evil as J.D. Salinger, The Catcher in the Rye (1951), involve a protagonist who must try to recall, while being pressed by unseen surveillance mechanisms, what they had earlier done or merely said. See Alan Nadel, Containment Culture: American Narrative, Postmodernism, and the Atomic Age (1995). Although Force of Evil similarly features several characters who end up informing on someone else. Polonsky remained an implacable foe of any Hollywood cultural worker, such as the director Elia Kazan, who did testify before any body investigating left-wing activities in the film capital. See, e.g., David Walsh, Director Abraham Polonsky, at 1999/feb1999/polo-f24/shtml (last visited Apr. 20, 2001); see also Paul Buhle & David Wagner, A Very Dangerous Citizen: Abraham Lincoln Polonsky and the Hollywood Left (2001).

n132. Martin Scorcese's introduction to the VHS edition of Force of Evil frames the movie as a B-gangster picture that manages, because of its stylistic touches, to transcend the usual limits of this genre. See Scorcese, supra note 99. For a preliminary report on the role of star imagery in representations of law within movies, see Norman L. Rosenberg, Constitutional History After the Cultural Turn: Cross-Examining the Legal-Reelist Narratives of Henry Fonda, in Constitutionalism and American Culture: Writing the New Constitutional History (Sandra VanBurkleo et al. eds., forthcoming 2001).

n133. Coombe, supra note 2; see also Mezey, supra note 40, at 57.

n134. For a theoretical account of how the construction of a judicial opinion involves confronting a series of obstacles, conflicts, and complications, see Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518 (1986). For a historical account, based on a variety of textual traces, of the negotiations involved in the construction of the opinion in Brown v. Board of Education, 347 U.S. 483 (1954), see Mark Tushnet & Katya Lezin, What Really Happened in Brown v. Board of Education, 91 Col. L. Rev 1867 (1991). The distinction, as Pierre Schlag frames it, might be seen as one between "contradiction" and "coherence" accounts. See Pierre Schlag, Politics and Denial, 22 Cardozo L. Rev. 1135, 1142- 43 (2001). Coherence accounts, of course, still appear in the analysis of filmic as well as legal texts. See, e.g., Lary May, The Big Tomorrow: Hollywood and the Politics of the American Way (2000). In contrast, this Essay suggests seeing movies, with their traces of things legal, much like one tradition in legal studies sees law - as "not a "thing' but an activity that judges [like movie makers] do ... ." Steven L. Winter, The Next Century of Legal Thought?, 22 Cardozo L. Rev. 747, 757 (2001).

n135. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819) ("We must never forget, that it is a constitution we are expounding." (emphasis added)).