John Denvir

Copyright (c) 2000 American Legal Studies Association 
The Legal Studies Forum


24 Legal Stud. Forum 279

LENGTH: 8905 words


John Denvir*

*Professor of Law, University of San Francisco School of Law.

... Does Bean qualify as a "law" movie? It all depends on what you mean by "law." ... Of course, Bean is a Hollywood film, and a "family" comedy at that, so David cannot be left free. ... For instance, the film noir genre subverts the "rule of law" assumption, forcing us to reexamine myths about law and America which our commercial culture usually conceals. ... (I'm not kidding!) Brean decides to divert the public's attention from his client's personal problems by providing the American public with a television spectacle-a war which only takes place only on television. ... Unfortunately, the legal melodrama portion of the film doesn't work all that well. ... We also miss the drama of cross-examination. ... The film's plot is simple enough. ... In our next view of Concannon, he is in the same conference room "prepping" one of the doctors for his testimony at the trial. ... He recalls how as a young associate, a senior partner had asked him how he did on a case. ... One episode revolves around the guilt Ellenor experiences when she realizes she has unknowingly employed one of her lawyer "tricks" to the detriment of her friend and colleague, Bobby Donal. ...  


The Bumbler as Anarchist

(December 1997)

Does Bean qualify as a "law" movie? It all depends on what you mean by "law." If, like H. L. A. Hart, you limit the term to rules enforced by the courts, Bean doesn't qualify since there is little in the movie about statutes or trials. But if think about "law" as the socially enforced rules and conventions which actually determine the quality of our lives, Bean is clearly a "law" movie-more accurately an "anti-law" movie. Bean is employed at the National Gallery of Art in London to sit in the museum all day to make sure no one steals the paintings. As a joke (those Brits!), the director of the gallery sends Bean off to an aspiring Los Angeles gallery celebration of its newly purchased portrait of Whistler's Mother at which Bean is to represent the National Gallery. Although Bean (Rowan Atkinson) knows nothing about art except for tossing jelly Beans in the air and catching them in his mouth, the culture hungry Americans accept him as an expert. He then proceeds to destroy the unveiling and much else. Bean is an attractive character. First, there is the juvenile in all of us. The movie glories in jokes about diarrhea and mucous, the type thing which eight year olds (of all ages) find hilarious. Secondly, Bean represents the bumbler in each of us, the little man or woman who moves from faux pas to faux pas without missing a beat. Here is one example. Just before the first meeting with the American gallery's director, Bean stops off at the men's room where he manages to splash water all over his pants. In order to avoid the embarrassment of people thinking he has wet his pants, Bean attempts to dry the pants by gyrating in front of the hand dryer. Suddenly, he notices his rather obscene dance is being witnessed by a gallery employee which leads to still more antics. We've all had such days. More importantly, Bean is a secret anarchist. His supposed inability to follow the ordinary rules of "normal" life turns out to be an act of will, a micro- revolutionary act. He doesn't conform to the expectations of the bureaucratic public culture of which he's surrounded because it's just too bloody boring. We see this when Bean is brought to an American  [*280]  Disney-type amusement park and he rides the "Ride of Doom." All the passengers seem happily and moderately frightened by the experience, but Bean is bored. He asks to ride again, this time surreptitiously "souping up" the computer which controls the ride. As his fellow passenger are thrashed back, forth, and faint from fear, Bean is sublimely content. Bean rejects the "real" world in favor of the world of imagination. For Bean "gunplay" is literally that-playing with an imaginary gun. He soon learns that for a heavily armed Los Angles Police Department, guns are a grim business. It's not easy being imaginative in L.A. where fantasy is big business. The key interaction in the film is between Bean and David Langley (Peter MacNichol), the gallery curator. Langley thinks he lives for art, but he's actually just another middle-level bureaucrat, little different than those found in a law or accounting firm. Like everyone else he judges the value of art by its cost; Whistler's Mother must be great art-it cost sixty million dollars. When he is not being intimidated by his boss, he engages in endless negotiations with his wife and two teenage kids in what seems more a joint venture than a family. He is so busy trying to please everyone he pleases no one, especially himself. Enter Bean. Bean soon solves David's problem by various exploits which result in David losing his job and his family. With nothing left to lose, Bean and David go out to get drunk; they succeed. On the way home, they sing a boozy duet of the old Beatles ballad "Yesterday." The lyrics are sad, the singers happy. For the first time in the film David seems happy. He has nothing to live for, except the fun of living. Of course, Bean is a Hollywood film, and a "family" comedy at that, so David cannot be left free. By a series of improbable but amusing stunts, Bean is able to save the day and at the film's end David regains his job and his family. Bean even gives a little speech about the importance of "family." The audience has its obligatory "happy ending." But for this viewer, the nagging question remains, "Will David ever forgive him?"


(March 1998)

One weaknesses of modern legal education is that it teaches students to view law as the application of rules to particular facts. Many films adopt a similar microcosmic perspective, limiting "law" to what transpires in a courtroom. But law happens not only in courtrooms but as part of the larger culture. For example, most of our daily activities  [*281]  presuppose a political space in which the "rule of law" reigns, and a society not perfect, but perfectible. Some films adopt a larger cultural perspective. For instance, the film noir genre subverts the "rule of law" assumption, forcing us to reexamine myths about law and America which our commercial culture usually conceals. Roman Polanski's Chinatown (aided by a superb screen play by Robert Towne) is such a film. Chinatown can be viewed from two different perspectives. We can see it as a "small" story about the experiences of Jake Gittes (Jack Nicholson), a 1930s private investigator who gets involved in a murder case and a romantic tangle with one of his clients. His attempts to solve the murder and protect the woman backfire and result in a murderer going free, and the woman he seeks to protect being killed. But this is only the surface of a far more interesting film. Chinatown is also a parable about reform in America. The film takes place in the late 1930s as FDR pulled America out of the depression. Interestingly, it takes place in a Los Angeles which has little to do with either the smog town of the 1970s or the lush tropical paradise of so many Hollywood films. Polanski's L.A. is a beautifully bright clean desert which extends right down to the ocean. In fact, the pristine light of this desert city plays a role in Chinatown similar to Monument Valley in a John Ford western-a mythic stage set for the combat of good and evil. Good in Chinatown means the populist reformist ideology we associate with the best parts of the New Deal-a government of, for and by the people. In the film, it is symbolized by Hollis Mulwray, the water commissioner who thinks the "water belongs to the people." Mulwray is murdered when he opposes a dam project which will rob orange farmers of their land and Angelenos of scarce water resources. Evil is represented by Mulwray's former business partner Noah Cross (John Huston), a rich, powerful incarnation of ruthless capitalism, a man crazy in his determination to control the future for no better reason than to show he can do it. Jake Gittes is something like the "last liberal." He is part of the new middle- class that appears in 1930s. He's a snappy dresser in his white suits and Florsheim shoes, justly proud of the Venetian blinds just installed in his office. Most of Gittes work is in the marital area, about which he is a little defensive. But he sees himself in the populist mold, "helping people in trouble," in contrast to the bankers who foreclose on people's homes. Gittes is a true American liberal-someone who wants to do good and do well at the same time. But Gittes is no fool. He's slick and feels he's really in the "know." We see Gittes' cleverness when he steals business cards from an  [*282]  official's office so he can impersonate him later to gain access to "off limits" sites. We marvel at his ingenuity in using a feigned sneeze to drown out the sound as he tears a page from the official records at an office he visits, and the way he bashes in a tail-light of a car he wants to follow at night. Gittes is one smart guy. In fact, he laughs derisively when someone accuses him of being a "innocent man." But as the story transpires, we find out that he is just that-innocent in the sense of naive. Noah Cross warns him that he doesn't have any idea of what he's really dealing with; Gittes dismisses the comment. It is this inability to conceive of the depth and breadth of Cross's depravity which makes Gittes and the woman he's trying to protect such easy prey. Part of Gittes naivete is his All-American individualism. He's the classic American-male loner, unable to trust anyone. Evelyn Mulwray (Faye Dunaway) begs Gittes to trust her but Gittes can't. He has to figure out the riddle for himself. When he finally does, it's too late for both Evelyn Mulwray and himself. The movie's message is a bleak one. Noah Cross has no trouble breaking liberals like Hollis Mulwray and Jake Gittes who assume the system, approached with sincerity and intelligence, will work. Cross knows the real system in America is money. Police officers, judges, legislators all eventually have a price. In the end, the alliance between capital and political corruption rules; it has always ruled. Polanski and Towne want us to compare the clean light of Chinatown to the dull haze of the Los Angeles of 1973 (when the film was made), a city still recovering from the Watts riots. Polanski and Towne present our beloved "rule of law" as a cruel hoax. But is our political future a version of film noir? There are moral lessons to be drawn from Chinatown. The reformer of the 21st century will have to realize that there's no room for naivete or individualism. The victories won (the air quality is better in L.A. in 1998 than it was in 1973) are the consequences of hard-nosed political strategies imple-mented by groups of citizens who understand that the internal values of corporate capitalism are antithetical to both democracy and the public good. Only movies have plots. We make up the future as we go.

Wag the Dog

(February 1998)

Barry Levinson's Wag the Dog is a cynical little gem. Its target, the American political system as it evolved in the Reagan/Bush/Clinton era, or what might be called the post-democratic era in American politics.  [*283]  The focus on the undermining of democratic ideals reminds us of Frank Capra's classic Meet John Doe, but while Capra's vehicle was melodrama, Levinson's weapon is black comedy. He is aided by a brilliant script by Hilary Henkin and David Mamet who devise a plot revolving around the efforts of "spinmaster" Conrad Brean (Robert DeNiro) to respond to a late-breaking story that the President of the United States has been accused of fondling a visiting Girl Scout in the oval office. (I'm not kidding!) Brean decides to divert the public's attention from his client's personal problems by providing the American public with a television spectacle-a war which only takes place only on television. He then enlists the services of Hollywood producer Stanley Motts (Dustin Hoffman) to "produce" the war, or "pageant" as they prefer to call it. The rest of the movie shows us how Hollywood manufactures a war with Albania. It is both hilarious and chilling. The most memorable (and instructive) scene shows us how computer technology can transform an American actress holding a bag of tortilla chips on a sound stage into an Albanian maiden escaping with her calico kitten from a bombed-out city as victims scream and sirens wail. But then Motts decides he needs a bridge to symbolize her crossing over to safety; a few keys are clicked and the bridge appears. The President insists on a white kitten; the computer transforms the calico kitty to a white one. Within hours television networks are playing and replaying this fiction as fast-breaking news. In Meet John Doe there are heroes and villains, but in Wag the Dog, such concepts are irrelevant. Now we only have "production values." Politics has become another branch of "show business." As Hoffman's Motts puts it, the change from being movie producer to President would be "just a change of wardrobe." DeNiro and Hoffman are neither liberals nor conservatives; they're professionals whose jobs, according to Motts, are to create things which are "100% fake but appear honest." At one point, a member of the working group which is busy shaping American foreign policy decides to ask each member of the group if he or she votes. They all reply no. Motts adds that he votes for the academy awards. This is the post-democratic era of American politics. Hoffman's performance ranks with his best, Midnight Cowboy and Tootsie. He shows the narcissistic Motts to be a quite ordinary, if not boring man. His conversations consists of collages of self-congratulatory anecdotes and moral cliches. Yet when he starts to work with a "story line," he is something of a genius. (We are reminded here of the many mutant geniuses of the late 20th century, Stephen Spielberg and Bill Gates among them.)  [*284]  I need not divulge the ending here, but it's impressive that Levinson never tries to sweeten his message with a "romantic angle" or a contrived happy ending. Typical of the movie's bite is a scene in which Motts responds to a criticism of a television speech he has written for the President. The President thinks it's "corny." Motts replies, "of course, it's corny. It's for an American audience." He then insists on having 30 secretaries listen to him read the speech; he reduces them all to tears. Could anything of the sort portrayed in Wag the Dog actually happen? The dialogue suggests it could. We are pointed toward the phony war in Grenada followed by the deaths of 246 Marines in Beirut and the selling of the Gulf War by television's repeated showing of a "smart" bomb finding its way down a smoke stack in Iraq. But of course, we know it couldn't happen here. Or could it?

Red Corner

(November 1997)

Red Corner is part Hitchcock adventure thriller and part legal melodrama. But somehow it never comes off. The "thriller" part works well enough. Richard Gere plays Jack Moore, an American corporate lawyer in Beijing to close a multi-million dollar satellite tv deal. He is all poise and charm, a bargain basement version of Cary Grant in the beginning of North by Northwest. When asked if he became a lawyer because of all the money, he replies "No, I wanted to be in control." But, of course, like Grant he soon loses control when he wakes up one morning soaked in blood next to a dead young female model he met the night before. And that's where the legal melodrama begins as Moore, now accused by the Chinese of killing the model, enters the Kafkian labyrinths of the Chinese legal system. Unfortunately, the legal melodrama portion of the film doesn't work all that well. But the reason it doesn't work is interesting because it shows, in a negative way, what makes good legal melodramas so engrossing. The depiction of the Chinese legal system in Red Corner lacks all the most effective dramatic devices of the conventional Hollywood trial. First, in Moore's trial we don't have a crowded courtroom buzzing with anticipation. Remember Scout and Jem sneaking into the crowded courthouse in To Kill A Mockingbird. Director Jon Avnet shows us a large empty dreary courtroom with no one in attendance except the defendant, judge, and lawyers. Undoubtedly, the scene is meant to dramatize the fact that Chinese trials are not public, but the effect on  [*285]  the drama is pronounced as it makes the trial look like a bureaucratic hearing. While many trials are routine bureaucratic affairs, this is not the staple of Hollywood drama and legal storytelling. Secondly, we don't have the advantage of a jury for the camera to pan for "reaction" shots. In the normal American trial melodrama, the film viewer can check out her reaction with that of the jury-will the jury see what I am seeing? In Red Corner there is no jury. Also, there is no chance for the spell-binding final argument to the jury. Remember Al Pacino in And Justice for All and Paul Newman in The Verdict. Here Moore's lawyer, when she is allowed to argue at all, speaks in respectful tones to a stony-faced judge, not unlike a law professor lecturing to his bored student. We also miss the drama of cross-examination. Remember Jimmy Stewart and George C. Scott grilling opposing witnesses in Anatomy of a Murder. In Red Corner, Gere sometimes breaks the monotony by shouting out a hostile question to a witness, but after the translation everyone just looks at him like he's shown the bad manners- again-of a Westerner. No tearful confessions from hectored witnesses in Beijing. Finally, the key ideological ingredient in the Hollywood portrayal of the American system of justice-the expectation that justice will be served-is missing. People were outraged by the outcome of the O. J. Simpson trial because they want to believe the legal system works. Classic legal melodramas assume that the whole story will be presented to the jury which, in its wisdom, will decide what is true and that, ultimately, justice will prevail. Remember 12 Angry Men. But here Avnet shows a corrupt Chinese system whose purpose is unrelated to justice. This may be true as fact, but it makes for poor drama. If the trial is a farce, why do we bother watching it? The dramatic potential of the American trial raises an interesting question. Is the presence of so many legal dramas (and their trial scenes) explained by the centrality of the quest for justice in America's conception of itself? Or is simply that the dramatic possibilities of the jury trial are so easily exploited?

The Last Wave

(May 1998)

Peter Weir is known for some excellent Hollywood commercial films, including Witness and The Year of Living Dangerously. But as a young man, he made more challenging films in his native Australia. One, The Last Wave, gives a perspective on law we don't find in Hollywood films. The film's plot is simple enough. A young doctor, David Burton (Richard  [*286]  Chamberlain working off his success as Doctor Kildare), lives the bourgeois life to which many law students aspire. He's a tax lawyer with a handsome wife, two beautiful little girls, and a nice house in the suburbs of Sydney. He even does a little pro bono on the side, representing indigents in the criminal courts. Legal Aid asks Burton to represent four Aborigine youths accused of killing another Aborigine in a drunken brawl. Burton accepts the case and as "law" reveals itself, Burton learns something about his own life. First, Burton discovers that his clients are "tribal people" who still practice traditional Aboriginal rituals. In fact, the killing was in retribu-tion for the victim's stealing of sacred stones, and the weapon was not a knife or a gun, but a shaman's pointing of a bone at the victim which caused his heart to stop beating. The first interesting "legal" question is whether pointing a bone at someone with the intent to kill can be "murder" under Australian law. But then we also have a question about the relationship of legal cul-tures since to the Australian government the crime is theft, but to the tribal Aborigines it's sacrilege to be punished by death. But still more interesting is the connection between the temporal secular law of Australia and the law of "dream time"-the atemporal psychic space which the Aborigines experience as more "real" than temporal reality. Burton, pleading with one of the defendants to tell the truth so he can get his clients acquitted, makes a comment any liberal Western lawyer might make: "Surely people are more important than the law." But the Aborigine client quickly corrects him: "No, the law is more important than man." He is, of course, not talking about the penal code, but law in some more ultimate sense. Finally Burton finds out that he too has a connection to that larger "law" with which we seem to have lost touch.

The Verdict

(May 1998)

At first viewing, The Verdict does not appear to be a "law noir" film since the main plot revolves around the redemption of a lawyer fallen on hard times. Frank Galvin (Paul Newman) is a cynical, alcoholic, ambulance chaser whose life is turned around by a personal injury suit. He represents a young woman who is permanently comatose because a doctor gave her the wrong anesthesia. At first, Galvin is ready to accept the offer of a small settlement to avoid a trial against a big Boston defense firm, but finally decides his client deserves her "day in court." A happy ending prevails.

 [*287]  The Verdict, when it focuses on Galvin's adversary Ed Concannon (James Mason), reflects both the genius of the screenwriter, David Mamet, and one of the darkest visions of the large corporate American law firm ever portrayed on film. We first see Concannon as he addresses his law firm "team" of more than a dozen young associates in preparation for the upcoming trial. The setting is a large conference room-a cross between a library in an old mansion, complete with ornate fire place and African- American retainer in a white jacket serving coffee, and a law school seminar room, complete with blackboard and the latest audio-visual technology. Concannon, dressed in a professorial cardigan sweater, makes some rather lame jokes to which the young associates respond with nervous titters. It's clear the associates both respect and fear Concannon. And we soon see why, when he outlines his plans for the representation of the hospital and the doctor who administered the anesthesia to the young woman. In our next view of Concannon, he is in the same conference room "prepping" one of the doctors for his testimony at the trial. The examination takes place before the same group of young associates who now act as a mock jury. The doctor, pompous, and rather taken with himself, and far too pretentious for a man who has effectively ended a young mother's life must learn how to properly present himself at the trial. Concannon ridicules his overly technical language and the way he talks about the situation, so that he can remake the witness and project an image that Concannon feels will help them win the case. The "jury" (of associates) is suitably impressed, but the viewer realizes that the real jury will hear far less what happened in the operating room and more what Concannon has scripted in his own head. We know that Concannon will use every possible legal strategy and tactic to win. He goes so far as to engineer a young woman's romantic involvement with Galvin so he can be better informed about the plaintiff's strategy in the case. For this role, he recruits an attractive woman associate (Charlotte Rampling) who is returning to the firm after a bad divorce. She allows Gavin to pick her up in a bar and begins an affair which takes place throughout the trial. The movie's most affecting scene comes when Rampling makes a late night visit to Concannon's office to pick up her "blood money." In addition to a check placed in her handbag as if she were a "call girl," Concannon also gives her a little lecture on the economics of the large American law firm. He recalls how as a young associate, a senior partner had asked him how he did on a case. To the young Concannon's reply that he did the "best he could," the older lawyer replied: "Your best isn't good enough; we're paid to win." Concannon agrees that lawyers are paid to win and  [*288]  it's their winning that pays for the "perks" of working in a large firm, the glitzy offices and the "pro bono" cases of which young associates are so proud. Winning even pays for the leisure for philosophical chats about "justice" which makes it seem as if the practice of law is something more than mercenary pursuit. Concannon concludes: "You wanted to return to the world. Welcome back!" Of course, The Verdict is a movie and we may not find all that many instances in which high-powered defense lawyers hire femme fatales to infiltrate the adversary's law office. Still, Concannon looks all too real in his queasy combination of aristocratic trimmings (the palatial conference room, the servant in livery) and pseudo-realist rhetoric he used to conceal his hollow core. It really is all about winning and winning is about money. In fact, this is the same taunt Galvin's working class clients throw at him. "You're all the same. It's all about money!" But if it is about money, we might do well to remember that the plaintiffs came to the lawyer to file a lawsuit to recover money. The lawyer is the vehicle, not the driver. And if lawyers work for their money, there's no shame in that. Lawyers have to eat and pay the mortgage like anyone else. But the charge against the legal profession still stings because for Concannon and some lawyers, it is only about money and the talk about justice can sound terribly false. Of course, the public wants law and lawyers to be more than "about money." Of course, so do most lawyers. The problem is how to transform a multi-billion dollar business back into a profession. Unfortunately, law film noir pose provocative questions; they never provide solutions.

The Law of Rules

(November, 1999)

Many students choose the study of law because they see law as an instrument of justice. I know I did. My image of law was shaped by the exploits of civil rights attorneys like Bobby Kennedy in the early 1960s. But I was also influenced by film lawyers like Gregory Peck in To Kill a Mockingbird and James Stewart in Anatomy of a Murder. Today, the connection between law and justice seems much more problematic. Maybe it was always problematic. In To Kill A Mockingbird, Gregory Peck's innocent client, Tom Robinson, was found guilty while Jimmy Stewart's guilty client, Lieutenant Manion, in Anatomy of a Murder was found innocent. And the revisionist historians have shown Bobby Kennedy to be more interested in electing his brother President than in bringing racial justice to the South. His "heroic" acts  [*289]  were really forced upon him by civil rights leaders like Martin Luther King. But To Kill a Mockingbird and Anatomy of a Murder did hold out the possibility that justice might be found by way of law; most Hollywood films present law as an obstacle to justice. In Dirty Harry, Harry Callahan (Clint Eastwood) finally elicits a confession from a psychopathic child killer by utilizing what might be called extra-legal persuasion. When he's called to the District Attorney's Office, Harry expects to receive a commendation. Instead, the District Attorney informs him that he has violated the suspect's constitutional rights. The DA even has a retired judge calmly explain why the law requires that the psychopath be released. Harry warns the DA that the suspect will kill again; and, of course, Harry is right. The released suspect continues to kill until Harry finally shoots and kills him. Violence achieves the justice that law cannot. This is not exactly the kind of story which motivates people to take up the study of law. As a law professor, I'm always looking for positive images of lawyers to present to my students. My current favorite is Antonin Costa-Gavras's political thriller, Z (1969), which presents a relationship between law and justice diametrically opposed to that found in Dirty Harry. In Z we have a legal story in which a competent (and courageous) judge follows established legal procedures and makes the legal system work. Costa-Gavras shows us that the rule of law must also be a "law of rules." The plot is based on an actual political assassination in Greece in the 1960s. A popular democratic leftist politician (Yves Montand) is clubbed to death by thugs allied with the right-wing police force. The police deny any connection with the "accident." A judicial investigation is launched under the supervision of a young magistrate (Jean-Louis Trintignant). Since the young judge comes from the same social background as the police and shares their antipathy for the leftist opposition, he is initially willing to accept their version of the events. But he is also a legal professional, trained in sophisticated procedures for obtaining and evaluating evidence. We see two dramas unfold. One is the judge's slow realization that he is not dealing with an accident, but rather a political assassination followed by an official cover-up. He tries to resist the conclusion demanded by the evidence, but his legal training and his exhaustive interviews with witnesses and the cross-checking of their testimony against official records points him in a different direction. Slowly his fidelity to proper legal method overcomes his social and political prejudice.

 [*290]  The second drama is the insidious manner in which political considerations threaten to undermine the autonomy of the legal investigation. The District Attorney announces that the judge is in complete charge of the investigation, but at first subtly, and then not so subtly, attempts to guide him to a predetermined legal conclusion that will absolve the politically powerful. When attempts at persuasion fail, they are replaced by threats of retaliation. Still the young judge indicts the Chief of Police. What moral is to be drawn from Z? The "rule of law" can produce justice and is a cultural achievement about which we can be proud. But legal procedures do not work automatically. They require lawyers and judges who possess keen intellect and moral courage because law is always in danger of being subverted by politics, and corruption by the politically powerful. Of course, Greece in the 1960s is not America beginning a new millennium, but there are certainly situations in recent American legal history analogous to the events portrayed in Z. The parallels with the Watergate scandal are striking-a politically motivated crime and an official cover-up, which were passed off to us as petty crime. In both Z and Watergate, the attempts at cover-up were defeated by the slow accumulation of evidence by skilled government attorneys. Unfortunately, those who would see justice done do not always prevail. In the 1980s Special Prosecutor Lawrence Walsh and a team of skilled lawyers painstakingly put together a strong case against government officials for subversion of the Constitution in the Iran-Contra scandal. But Attorney General Edwin Meese was able to foil the prosecution in the name of "national security." Politics always threatens the autonomy of law. In fact, a coda to Z explains that the final con-sequence of the young judge's heroic prosecution was a military coup. In Z the young judge's political naivete proved a strength because no one doubted the integrity of his findings. In the impeachment of President Clinton for perjury and obstruction of justice, no such presumption as to the findings could be made, as Special Prosecutor Kenneth Starr did not appear to be an impartial prosecutor. The truth or falsity of Clinton's testimony was quickly lost in the argument over whether or not the impeachment was a Republican vendetta against the President. The relationship between law and justice will always be problematic. But it's a problem which can sometimes be solved by lawyers who are smart, work hard, and are courageous. Contrary to Dirty Harry, it beats lawlessness.


Law's Shadow

When I was a boy I used to listen to a radio show which began with a deep bass voice: "Who knows what evil lurks within the hearts of men? The Shadow knows." Movies know, too. Films make the human psyche visible as heroes and villains act out the scripts we struggle with in our imaginations. Films give us a glimpse of the human psychology in law-breaking and law-making. Alfred Hitchcock's Vertigo is a film which reveals the "dark" side of human nature. When we first meet "Scotty" Ferguson (James Stewart) we immediately recognize him as a man who puts a premium on "control." Not a surprising personality trait in a former lawyer and retired San Francisco police detective. Scotty has little interest in life, and less in sex. His only friend is Midge (Barbara Bel Geddes), whose painfully obvious love for him he ignores; in fact, the only sexual interest he exhibits is a mixture of fascination, fear and disdain when he inspects a bra he finds in her apartment. Scotty seems a harmless, if lonely, man, but Hitchcock shows us he has the potential to be a sadist, a monster whose need to remake the world and people in the image of his fantasies is a march toward violence. During the first hour of the film, Scotty forms an erotic attachment to a frosty blonde aristocrat named Madeleine (Kim Novak) he is hired to follow. He has been told by her husband that Madeleine has threatened suicide and Scotty earnestly tries to save her from that fate, but he is unsuccessful. When she dies, he blames himself for her death and becomes depressed. A year later he sees a young woman on the street who reminds him of his lost love. He follows her to her hotel where she claims to be Judy Barton, a salesgirl in a San Francisco department store. He asks her out and the sadism begins. Hitchcock changes the perspective of the film from Scotty to Judy, his new "love." But the audience quickly sees that Scotty has no interest in Judy other than in recreating her in the image of the dead Madeleine. From Judy's perspective we see Scotty badgering her to change her hair color, hair style, clothes, and every detail of behavior which allows her to be herself. His goal seems to be recreating a necrophiliac fantasy. Eventually he discovers that she is in fact his lost love, and that he has been the victim of a ruse to conceal a murder. Despite her relative innocence and pleas that she has risked discovery only because she loves him, Scotty, incapable of forgiveness, hounds Judy to her death.

 [*292]  Scotty's sadistic treatment of Judy is even more troubling when we consider how he got involved with her as Madeline in the first place. He took the job of following her, not for the money, but because he was intrigued by the story told about her and he wanted to solve the mystery. Then, he became protective of her as a lost innocent whom he wanted to save from a suicidal fate. Finally, he became sexually obsessed with her. So we see Madeleine/Judy transformed in Scotty's mind from a piece in an intellectual puzzle, to an innocent victim, to romantic love, to sexual icon, to duplicitous fraud, to object of revenge. Yet all along, it was just working-class Judy Barton, a woman Scotty never knew at all. This phenomenon of a male character setting out to "save" a woman only to end up as her executioner is found in other films. We see a similar phenomenon in John Ford's The Searchers. Ethan Edwards (John Wayne) undergoes a similar transformation from savior to sadist in his actions towards his niece Debbie (Natalie Wood). The young pre-pubescent Debbie has been kidnaped by Indians and the "search" starts as an attempt to rescue her, but as the years pass and it becomes clear that she has become a woman cohabiting with an Indian warrior, the object of the search to find her changes from saving Debbie to exterminating her because her "purity" has been polluted by sleeping with a non-white. In both films, the audience recognizes that the protagonists are driven by factors beyond their control, or even conscious knowledge. How should we react to these films? The reason we are attracted to film narratives is because in some sense we identify with the characters' emotions. While I would never commit the criminal acts perpetrated by the protagonists in A Simple Plan, it is because I identify with their greed that I find the movie engrossing. There is, then, some element or emotion in these films that fits a corresponding psychic curiosity. Watching films like Vertigo and The Searchers should convince us that, no matter how many times a Torts professor tells you otherwise, there is no such thing as the "reasonable person"; we are all affected by unconscious motivations which color our social interactions. Most likely these unconscious motivations are even stronger when

(October, 1998)

Law, understood in sex and/or race are involved. No matter how strident the denials, the Shadow knows. any sense beyond coercion, presupposes community. We feel morally required to obey

Homicide: Which Side Are You On? the laws of our community  [*293]  while the threat of sanctions is the only motivation for obeying laws promulgated by a government we don't consider our own. But then what constitutes community in a pluralistic society like our own, a society rife with racial and ethnic tension? David Mamet addresses this concern in his haunting mystery Homicide. Bobby Gold is a good man and good cop, but he's finally undone because he can't figure out which tribe he belongs to. Like almost all of us in modern America, he has many tribes to choose from. Is he a peace officer constrained by the law of the State or a member of a close-knit group of homicide detectives linked by mutual loyalty? Or is he is Jew with duties to perform and a responsibility to memory, to repay the indecencies committed against Jews throughout Western history? At the beginning of the film, Gold finds his homicide detective colleagues a true community, especially because of his close friendship with his Irish-American partner, Tim Sullivan. But chance events intervene. On his way to the stakeout of a murder suspect, Gold stops to answer an "officer in distress" signal from a rookie officer and then gets ensnarled in a sticky case. It involves the murder of an elderly Jewish woman in a candy store in an African-American ghetto. Even though the woman's death seems clearly the result of an armed robbery gone wrong, the woman's family uses their political clout to insist that Gold handle the case. They want him because he's Jewish. He's reluctant, but slowly gets involved in the family drama. It appears that they have been involved in gun-running during the formative years of the new Israel and may still be involved in illegal activities in support of Jewish nationalism. They taunt Gold for turning his back on his heritage. One member of the family asks him, "don't you belong anywhere?" The question strikes home because Gold has discovered that no matter how good a cop he is, he'll always be a Jew at the station house. Mamet emphasizes the point when an altercation with an African-American superior results in Gold being subjected to an anti-Semitic epithet. Even his success as a detective seems to be premised on his reputation as a station-house lawyer and hostage negotiator, qualities his friends link with his Jewishness. Twenty citations for valor can't free him from their stereotypical views. When he approaches his partner with his misgivings, even Sullivan impatiently tells him to stop all the Jew stuff and get back to work. Gold starts to think that maybe the Jews are the only community which will ever accept him for himself. In order to win the Jewish group's respect, Gold personally takes part in the firebombing of the store of a publisher of anti-Semitic tracts. To his horror, Gold soon discovers that the group has induced him to  [*294]  commit a criminal act for the sole purpose of blackmailing him in the future. He suddenly realizes that while they may be Jews, they are not friends. Worse yet, he realizes that with his involvement in the bombing he has forgotten a promise to Sullivan to help him at a showdown with the cop killer they have been pursuing. He races to the scene only to discover that he's too late; Sullivan is down, mortally wounded. Gold's search for acceptance as a Jew has resulted in facilitating his friend's death. Sullivan's last words to Gold are about the times they've shared; he makes no mention that Gold has missed the appointment. At the end of the film, Gold is completely isolated, cut off from the Jewish activists, vulnerable to their blackmail, and boycotted by his colleagues at homicide who blame him for Sullivan's death. Richard Sherwin, in his excellent essay on the movie in Legal Reelism: Movies as Legal Texts (1997), accepts Mamet's own view that the movie has no "moral." It's just a tale of the fates working out their caprices. But I think there is a moral, an important one for a multi-cultural society. Friendship is the personal face of community and both friendship and community are fragile and must be nurtured or they undergo entropy. Gold belonged to several communities. First, he was a police detective with a duty to uphold that community's laws. He also was a member of a more close-knit community with his colleagues on the homicide squad, especially Sullivan. This doesn't mean that his fellow officers could avoid seeing him through the lens of ethnicity any more than he could see them as something other than Irish, Italian, or African-American. It's always painful to be the victim of stereotype, but it's also inevitable in a mass society like America. Here at least the stereotypes were not hateful; his colleagues thought Gold was smart and a "good talker," and he was. Gold's tragedy was to ignore this flawed but real community in favor of the fantasy of a mystical nationalism.

Some Pretty Classy Lawyers: The Practice

(November 1998)

David Kelley's The Practice began its television run as a dark horse entry slotted for late Saturday night and went on to win Emmys and lay serious claim to being a classic television "lawyer" series and a worthwhile successor to LA Law and The Defenders. It seems a good time to ask what kind of magic Kelley is working. The opening episode has all the key elements and basic strategy commonly found in The Practice. One part of The Practice is pure Ripley, a "Legal Believe It or Not." The American legal system does a pretty fair job when both sides  [*295]  have equal access to economic resources and are represented by competent lawyers, but there are always blind spots where legal logic leads to absurd results. This first episode centered on two young men accused of killing a teenage girl. Each tells exactly the same story-the other defendant did it. Since they are the only two witnesses, how can a jury find either guilty "beyond a reasonable doubt?" Kelley has a talent for setting up these kind of "believe or not" scenarios, but it's a difficult act to sustain show after show, year after year. I don't think this is the Kelley secret. The second ingredient is Kelly's ambivalence towards the ethics of legal practice. One episode revolves around the guilt Ellenor experiences when she realizes she has unknowingly employed one of her lawyer "tricks" to the detriment of her friend and colleague, Bobby Donal. She is so disgusted by her own "win at any cost" tactics that she indulges herself in a monologue about how lawyers manipulate the system to free guilty defendants so they can return to the streets to rob, rape, and pillage once again. This lawyer angst is another staple of the Kelley touch. Ellenor is usually upset about getting creeps "off." Eugene, another firm lawyer, is angry that innocent poor people are often convicted, and Lindsey, another of their colleagues, is always worrying about her Harvard Law education being used to free drug traffickers. But this angle too is a difficult one to sustain show after show, year after year. The viewer knows that the adversary system has its flaws. Sometimes the guilty are freed and the innocent convicted, but no one, certainly not Kelley, is seriously suggesting alternatives. In this episode, Ellenor is so upset that she asks Bobby for a leave from the firm. He refuses her the leave, which means Kelly can't have Ellenor tend bar in the local legal watering hole which might have made for interesting plot development. She could then taunt her former colleagues with a clean conscience. I suspect that the essence of Kelley's magic is neither his weird plots or lawyer guilt but his ability to play on the American fascination with issues of class. This is all the more interesting since Americans don't believe in "class." But we do assume that the Kennedys and Rockefellers are not like us. In the episode under discussion, Ellenor's disenchantment with law is contrasted with the joy of Rebecca, the office manager, upon receipt of the news that she has passed the Bar exam after five years of study at night law school. We see a similar burst of pride when Bobby Donal shows his father the firm's new conference room. All Bobby's colleagues know is that Bobby's dad worked for a big corporate firm; what they didn't know was that he was a janitor.

 [*296]  The revelation of Bobby's social origins means that the viewer, Bobby, and the other members of the firm, with the exception of Lindsey, are "regulars" who appear to come from working class backgrounds. Usually its Jimmy who gets assigned the role of socially ascendant immigrant who has achieved the American dream. Now, Rebecca will join him in this role. Kelley, with this careful revelation of class, shows us something important about American life; whatever the moral quality of the practice of law, sociologically it means entry into American middle-class. Eugene and Ellenor are one stage beyond Jimmy and Rebecca on the class escalator; they realize that the price of social mobility may well be moral ambiguity. But the two most interesting characters, Bobby and Lindsey, even more tellingly highlight American uneasiness about class. Lindsey is a blue blood who might have wandered in from Ally McBeal. Harvard Law and destined for a big corporate firm, she takes up with Bobby Donal's "street practice" but still attempts to create a more "respectable" image for the firm. Donal is still the "outlaw" who disdains the big corporate lawyers who dishonored his Dad, but whose respect he still craves. If Bobby is the poor kid hanging around outside the country club, Lindsey is the debutante who likes boys who ride motorcycles. Most Americans can identify with one or the other, or both. The central metaphor in the episode becomes the conference room which Lindsey has convinced Bobby the firm needs for its expanding practice. Kelley shows us the newly redecorated room; a combination of institutional modern and fake antique found in any moderately successful PI defense firm in a middle-sized American city. But to Lindsey it now represents the hope that she can have it both ways: the "charge" of Bobby's renegade practice and the social prestige of the corporate law firm. Bobby is smarter than Lindsey on this one; he knows he can't have it both ways. If he becomes a "respected member of the Bar" he loses the "outlaw" status he (and Lindsey) both value so highly. Still he finally succumbs to the conference room. Why? It makes his pop proud. Kelley's treatment of class has good bloodlines, going back at least as far as Frank Capra's It Happened One Night where street smart Clark Gable matches wits with the elegant, but needy Claudette Colbert. The Capra film may have been a romantic comedy, but it was also a depression-era fable about class antagonism and its refinement into New Deal liberalism. So too, Kelley is dealing with a struggle most privileged Americans fight internally-the class war between the James Dean and the Grace Kelly which lurks within each of us. He seems to  [*297]  know an important secret about Americans-class-we can't live with it or without it.

Ally McBeal

(November 1997; January 18, 2000)

Ally McBeal revolves around the trials (mostly personal) of a recent female law school graduate of Harvard Law School who practices with a "boutique" Boston law firm. Ally is talented (of course) as well as beautiful, but somehow unlucky with men. She's a great deal more like Mary Tyler Moore than the Katherine Hepburn of Adam's Rib. And while law is no more central to Ally McBeal than local television news was to the Mary Tyler Moore Show, its images of law are at once powerful and negative. Ally seems all too resigned to the fact she has entered a profession dedicated to greed, and quite comfortable arguing cases she doesn't believe in. At one points she says, "I'm always more persuasive when I don't believe what I'm saying." To be fair, her lack of idealism may be attributed to the greed and sexism she finds pervasive in the profession. Her partners are far more interested in money than justice; she perceives her role as an associate in the firm as more decorative than professional. As Ally puts it after an evening of smiling at potential clients, "three years of law school and what matters most is my teeth." Law actually plays a relatively small role in Ally McBeal. It is clearly not a "law" show (like Law and Order), but a "relationship" show in the Friends vein. The plot often revolves around Ally's quest for an appropriate mate. (Aren't we supposed to assume that women are "relation-oriented"?) However, in focusing on the personal rather than the professional, the series all too knowingly perpetuates a gender stereotype and trivializes Ally's status as a serious professional. * * * The litmus test of good fiction is whether the characters remain with you when you've laid the book aside, left the theater, or turned off the televsion. Judged by this criteria, David E. Kelly's Ally McBeal (Calista Flockhart), rates as one of the most interesting cultural phenomena of the 1990s. My first impression of Ally was not all that favorable; she seemed to me an undernourished Mary Tyler Moore. But I now see that Ally McBeal follows Roseanne in a long tradition of subversive comedy. Ally presents us less with the morality of law as practiced in the United States, but rather its sanity. Ally McBeal challenges us to consider how sane people can live the way lawyers do.

 [*298]  The firm's managing partner, Richard Fish (Greg Germann), is happy, and he's crazy. Kelley has made Fish the living incarnation of everything people hate about lawyers. He's greedy, aggressive, insensitive, crude, and gleeful. Fish has no social conscience, his highest objective in law is the accumulation of large amounts of money. He confessed once to Ally that he becomes sexually aroused while studying his stock portfolio. Fish is a successful lawyer, not despite his limitations, moral and imaginative, but because of them. Ally, on the other hand, only looks insane because she's taken up a profession that surrounds her with absurdity. Ally is clearly not comfortable practicing law. She doesn't deal all that well with the kind of legal discourse and world which creates winners and losers and obsessively focuses on money. Ally is the kind of person attracted to law school because of the moral probity of TV lawyers like Perry Mason and Lawrence Preston (The Defenders) and the wardrobes on LA Law. Ally might be compared to her Kelley doppelganger, Lindsay Dole (Kelli Williams) of The Practice. Ally and Lindsay represent two contrasting reactions to the male- dominated, "gladiator" model of lawyering now in vogue in America. Lindsay represents the "Margaret Thatcher" alternative, the girl next door, a pretty book-worm who has a crush on her boss, the tough street smart litigator, Bobby Donal. But, like Ally, the Lindsay character has evolved. She's discovered she's as good a lawyer as Bobby, and if anything, more ruthless. She's already become Bobby's lover, but one can foresee problems when she realizes that Bobby lacks the ambition she so admires. Week by week her influence in the firm, and the hostility it breeds, increases, but she seems oblivious to what is happening. Lindsay likes being on top. Ally, on the other hand, is not exactly "partner track" material. It's hard to imagine her weekly "billable" hours. Ally's much too busy figuring out life to become a "successful" lawyer. Yet, in many ways she's a much more "revolutionary" figure than Lindsay. Lindsay is following a well-worn path trod by men, a professional rut. If the series lasts long, she'll undoubtedly experience a mid-life crisis and start "hitting" on the law clerks. Ally represents a new breed of lawyer. A key sequence in the series appeared when Ally represented a woman charged with statutory rape for sleeping with an underage male. As the defendant explains her discovery that as boys grow to become men they lose the tender quality which makes them so attractive, an explosion goes off in Ally's head. Successful male lawyers have lost the sweetness which makes life worthwhile, and successful women lawyers like Lindsay are headed in the same direction. Ally is the new type of  [*299]  lawyer-one who cares about emotion more than logic, people more than rules. Kelley makes sure that the new type lawyer is not just a "gender thing' by providing Ally with a alter ego in the character of John Cage (Peter MacNichol). John is a geek's geek, yet has found a way to charm juries. His success comes from his ability to present arguments about love, and the search for and pain of losing it, rather than arguments based on legal rules. Ally and John call into question the edifice of "rational" argument and live as if love took precedence over narrow legal conceptions of law. Their favorite legal philosophers appear to be Al Greene and Barry White. And it works, at least on television. Ally McBeal calls for a whole new concept of law and lawyering- one which gives new meaning to the phrase "legal tender." Of course, it would never work in the "real" world. Or would it?

Prepared: June 16, 2003 - 5:02:29 PM
Edited and Updated, June 17, 2003

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