LAW AND POPULAR CULTURE
UCLA LAW REVIEW
Copyright (c) 2001 The Regents of the University of California
UCLA Law Review
48 UCLA L. Rev. 1443
LENGTH: 12249 words
SYMPOSIUM: LAW AND POPULAR CULTURE: LOOKING FOR LAW IN ALL THE OLD TRACES: THE MOVIES OF CLASSICAL HOLLYWOOD, THE
LAW, AND THE CASE(S) OF FILM NOIR
* DeWitt Wallace Professor, Macalester College (firstname.lastname@example.org).
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,
"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
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
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.
[*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
n10 This frame of law within movies also assumes the fragmentary, contingent, and
multivocal nature of legal representations in Hollywood's representational
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
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.
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.
[*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
"social problem crime films," or
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
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
"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
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.
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,
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
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
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
"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
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
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.
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.
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
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.
[*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
"the actual practice of law unfavorably to the presentation of the practice of
law" by members of the firm of McKenzie, Brackman, Chaney,
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.
"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.
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
"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."
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
"multiple avenues of access' to it, so that it will
"resonate as extensively as possible in the social sphere in order to maximize
n57 Studies of how audiences consume movies increasingly look at how meanings
"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
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.
[*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
n61 - positions its male protagonist as a goal-oriented character whose detective
work, from the position of feminist theory, concerns
The Big Sleep, like so many other noirs, requires a male hero to solve the
"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."
The other major story line, indebted to the Raymond Chandler novel of the same
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.
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.
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
"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.
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
"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
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
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
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.
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.
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,
"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.
[*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
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.
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 ... ."
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
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
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
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.
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.
[*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."
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
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
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.
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
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.
[*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
"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.
[*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."
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
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
"legal subject" whose identity and future rest on categories and definitions framed through
the discourses and force of the law.
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.
[*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
"context is Wall Street."
[*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
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.
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
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
"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."
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
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
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
"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
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
"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
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
"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
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
"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
"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
"brilliantly tight character drama." Halliwell's Film Guide, supra, at 1162. All four of these movies are discussed
"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
"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).
"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
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
"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
& 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
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
"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
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
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
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.
n52. See Durant, supra note 8, at 15-16. This Essay also notes that the claim that
"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
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
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).
& 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
"General Principles." For the entire code, see id. at 347-67.
n68. Id. at 356 (emphasis omitted).
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
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 http://www.chireader.com/movies/archives/0697/06207.html
(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
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
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
"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
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.,
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
"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
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
n109. Force of Evil, supra note 13.
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
"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,
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
http://www.wga.org/pr/0796/blacklist.html (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
"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
n119. For a broad, suggestive overview of the construction of
"legal subjectivity," see W.T. Murphy, The Oldest Social Science: Configurations of Law and
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
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
& 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 http://www.janee.com/garfield/html (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 http://www.wsws.org/articles/
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
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
"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
"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).
McCulloch v. Maryland, 17 U.S. 316, 407 (1819) ("We must never forget, that it is a constitution we are expounding." (emphasis added)).