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The Culture: Legal Fictions

By Annie Gausn | Sep. 2, 2006

Law Office Management

Sep. 2, 2006

The Culture: Legal Fictions

For the past 25 years Hollywood and the cognoscenti have either glorified or vilified the legal profession. How did lawyers become part of the culture wars? By Chris Lehmann

By Chris Lehmann
      Death of Common Sense. The Case Against Lawyers. Out of Order. Contempt. The Abuse Excuse. Don't Pee on My Leg and Tell Me It's Raining. Just to skim the titles of these best-selling jeremiads against law and lawyering, judges and crime coddling, is to marvel that any part of the American justice system manages to function at all. The cumulative message of these severe indictments is unmistakable: Unto its innermost parts, the law trade is in a state of permanent crisis.
      The most common shorthand for this condition is the notion that some key feature of the American justice system is "out of control." Take your pick: jury verdicts or the defense bar; indulgent liberal judges or vengeance-minded prosecutors; shifty jury consultants or corrupt corporate counsel; the ever more right-leaning U.S. Supreme Court, or the occasionally leftist Ninth Circuit U.S. Court of Appeals.
      This past 25 or so years' worth of law-baiting is a subject of no small astonishment to many practicing attorneys. As the law has bulked larger in the nation's moral imagination, it has, as a matter of daily practice, shrunk into a collection of recondite procedural niceties, rarely yielding the thunder and redemption of our great fables of the criminal law. Indeed, it would be a backhanded sort of compliment for most attorneys to believe that they had the power, once they lifted their heads groggily from an intellectual property contract, to rob the republic of its bedrock moral legitimacy.
      How did a profession so amply supplied with dutiful Walter Mittys become overstuffed with so many shifty and-one must suppose-charismatic Rasputins? One obvious explanation is that the law has been paying a lot more public attention to itself over the past quarter century. When Steven Brill launched American Lawyer in 1979 and Court TV in 1991, he consolidated the notion of law as media property, something as matter-of-fact in the broader cultural and political landscape as a drive-time talk-radio broadcast.
      Other crossover publications abetted this shift, including, of course, the one you're holding in your hands. But with the advent of freestanding law-themed mass media, Americans started experiencing the law as a mass spectacle, something in which everyone possessed some symbolic stake, or at the very least, a lively opinion, and, as tabloid-style attention to the law dramatically ramped up, many of the signature trials and legal proceedings of the past 25 years followed distinct tabloid-style narratives. It seems unthinkable that earlier generations could fathom, say, the 1991 Clarence Thomas confirmation hearings, in which senators were quoting passages from The Exorcist on C-SPAN, or the peculiar SoCal melodramas that unspooled before, during, and after the Rodney King, Menendez brothers, and O. J. Simpson trials. The concept of Kato Kaelin alone would require a whole hermeneutical SWAT team.
      Of course, such high-profile legal proceedings aren't themselves anything new, as any chronicler of the Henry Ward Beecher scandal will attest. What is new, however, is the notion that so many of our latter-day legal agons convey a fundamental truth about the state of the nation's soul. There are far more searching inquiries into our racial attitudes when a Duke University lacrosse scandal beams through our living rooms than when Congress reauthorizes the Voting Rights Act. There are much more serious reflections on the nature of guilt, or the power of a controlling male charisma, when a Scott Peterson or O. J. Simpson dominates news cycles for months on end than when a legislator introduces a bill to curb spousal abuse. The tabloid-era understanding of the law has indeed evolved to the point that tabloid victims lend their names to bills and projects enacting a tabloid form of justice, whereby publicity and shame-bolstered by the not-so-subtle threat of vigilante justice-are thought to advance a moral consensus: Megan's Law, Amber Alerts, the Polly Klaas Foundation.
      These spectacles are not exactly serious Justice with a capital J, to be sure; they yield few meaningful precedents, and most of them have produced verdicts squarely at odds with public opinion-as in the Simpson, King, and Michael Jackson verdicts, as well as the protracted spectacle of the Clinton impeachment. But they are symptoms of a wider distemper that does betray something serious about American attitudes toward the legal system: a steady effort to will it into the image of popular sentiment. In this regard, our disenchantment with the law in large part mirrors our disillusion with other central institutions of public life: corporations, universities, the media-these and most other repositories of public discourse have, so the populist-tabloid consensus has it, been the agents of a concerted flight from our commonsense preferences. They have become redoubts in our culture wars, and the law is very much of a piece with them all.
      Indeed, by its nature the law is woven into all the outposts of cultural conflict, and it serves as one of the principal instruments of grievance through which culture wars are waged. Who, after all, convened the heavy-breathing, national porn inquisition of the late '80s but Reagan attorney general Ed Meese? And who but a gaggle of similar half-prurient, half-puritanical legal minds on the other end of the political spectrum drafted the infamous Oberlin College PC speech codes of the same era? Who challenges the words "under God" in the Pledge of Allegiance-or, for that matter, who sends former Alabama Supreme Court chief justice Roy Moore's giant stone tablets up and down the steps of various appellate courts? Who choreographed the surreal Terri Schiavo abridgment of the separation of powers in 2005? Indeed, lest anyone think it's gross hyperbole to highlight the law's role in fanning the culture wars, just recall that the true Grand Guignol of all culture fracases, the Clinton impeachment, marked the first foray onto the best-seller list by an ambitious, self-styled constitutional- law expert named Ann Coulter. (Indeed, La Coulter's now all-but-forgotten tract was titled High Crimes and Misdemeanors-itself prefiguring the indictment-by-title swagger that is a trademark of her nearly decadelong publishing franchise.)
      This is all a considerable shift from the more orderly seeming march of law through our earlier history. True, the hierarchies of the courts have never been as tidy as they looked to be in the civics texts-especially in the still sorely divisive matter of racial justice. But in most instances, you could ascribe a certain lapidary authority to American legal institutions: They would chart, for better or worse, the realm in which Americans felt empowered and entitled to preserve old privileges and assert new rights. That, indeed, is why many signal moments in our political history are handily referenced by the U.S. Supreme Court decisions that brought them forcefully into view: Dred Scott, Brown v. Board of Education, Griswold v. Connecticut, Roe v. Wade. In most such cases, the law supplied the leading edge of policymaking and public deliberation. Again, in the key realm of racial justice, it's no accident that Brown institutionalized the idea of desegregation a full ten years ahead of Congress's ratification of the Civil Rights Act.
      Now, however, the old polarities are reversed, and the stuff of broader culture controversy seems to have besieged our thinking about the law-so much so that the bench furnishes many a culture-combat site of first resort, be it the tear-stained confirmation hearings of Samuel Alito or the "nuclear option" filibuster fights in the Senate over President Bush's stalled conservative appointees to the federal bench.
      It's easy to bemoan this shift as the mere "politicization" of the law, but that misses the larger point. (Besides which, when exactly has the law not been political?) Annexing the law to the sprawl of culture conflict is a way of insisting that our legal institutions more soundly intuit our will and refashion themselves in our image. Here is a fairly standard "J'accuse" in this high-populist register, courtesy of Court TV talk show host (and the nation's leading authority on all things Scott Peterson) Catherine Crier: "In barely a generation, lawyers, politicians and bureaucrats have taken the palace without firing a shot. These groups control the creation and enforcement of law. Their ability to write rules and manipulate them at will has established a new tyranny in America ... We have abdicated our freedom, literally our democracy, to the rule makers. Our institutions now serve these masters."
      The broad rhetoric of Crier's book The Case Against Lawyers, like the scores of similar cases mounted across the entire pundit fraternity, seeks to render sinister and elitist the chief institutional virtue of the law: its frank protection of minority interests. The law is not in fact "the great cornerstone of our democracy," as Crier argues; it derives its power not from the consent of the governed, but rather by resisting majority views in all manner of questions, from civil rights to criminal procedure. In doing so, it is certainly prey to idiotic fads and ideological distortions, as are all human institutions. But how is this tantamount to a bloodless coup, as Crier contends? And, really, if one is to play the coup card, why do so against lawyers as a class, and not against, say, Florida Secretary of State Katherine Harris in 2000? Indeed, it is surpassingly odd that so many of the wide-swinging takedowns of the legal system have so very little to say about Bush v. Gore, one of the most outrageous misinterpretations of the 14th Amendment's due process clause since 1886, when the U.S. Supreme Court ruled that a corporation is a person in the standing of the law.
      Then again, perhaps it's not odd at all. The unfettered exercise of the voting franchise-which most certainly is a cornerstone of our democracy-is simply too boring for tabloid TV. With its dreary march through precinct voting rolls, felon purges, and polling booth technologies, voting rights furnish some of the worst imaginable fodder for ratings-famished cable crusades.
      Instead, the present populist rhetoric of the law now cannily asserts that ordinary people are excluded from meaningful participation in public life in precisely those spheres where they have the least at stake. The courtroom sagas of drugged, violent, and debauched celebrity wrongdoers are but the bread-and-circus part of this equation. Look more closely at the alleged wronged parties in many of today's broader legal crusades, and a far more curious picture emerges: They tend not to be the aggrieved plain people of the republic but rather the resource-rich interests who were called, in more robust days of American trust-busting, malefactors of great wealth.
      Consider what is perhaps the trademark theme of the law-crisis industry: the "lawsuit explosion." A great rallying cry among cable anchors and corporate chieftains alike is the notion that huge plaintiffs-side class action judgments have drained much of the lifeblood from American business-and so by extension driven up prices and reduced services for the American consumer.
      The only problem is that there's been no discernible boom in said plaintiffs judgments. In 2004 law professors Theodore Eisenberg and Geoffey P. Miller studied more than 400 federal and state class action judgments handed down between 1992 and 2003, the supposed height of the litigation explosion. Their study, independently funded and published in the admirably named Journal of Empirical Legal Studies, found that the average class action settlement held at about $100 million when adjusted for inflation over the entire period studied-a time that included some historic awards such as the 1998 multibillion-dollar tobacco-industry settlement, which one would expect to ratchet dramatically upward the average award. But Eisenberg and Miller discovered that, when adjusted for inflation and balanced with low-performing years in the plaintiffs annals, "the mean client recovery has not increased over the last decade."
      It's the same story for attorneys fees, they found. Despite all the prominent attacks on the excesses of the tassel-loafered predations of the tort-attorney class, the authors reported "no real-dollar increases in the level of fee awards in major cases" when the figures were adjusted for inflation. Altogether, Miller and Eisenberg concluded, "we find no robust evidence that either recoveries for plaintiffs or fees for their attorneys as a percentage of the class recovery increased."
      Nevertheless, plaintiffs attorneys-who are, we can amiably grant, not always the most unalloyed specimens of human virtue-remain the virtual poster children for everything now wrong with American law in our time, even though they are not going about their business in any noticeably different way than they did for the many years preceding the alleged "litigation explosion" of the 1990s.
      One does, of course, see ordinary people getting the system to work on their behalf in what Americans are increasingly urged to see as the truest outlets for their grievances-the imaginary tribunals of our popular culture. Here, indeed, there is a genuine litigation explosion, with plaintiffs attorneys almost always on the side of the angels: A Civil Action, Erin Brockovich, The Verdict, Runaway Jury, The Insider-virtually every big-screen imagining of the law's workings depicts the courts as the only recourse open to people grievously wronged by profit-mad corporations.
      Meanwhile, the prime-time TV crime drama has quietly morphed into a long series of set pieces in equally populist criminal procedure, wherein Fred Thompson's assistant DAs in Law & Order (or their frisky young progeny in NBC's spin-offs) exact gritty justice from New York's criminal law system, especially against wealthy offenders with tattletale working-class doormen.
      But lawyers shouldn't be too quick to absorb the glamour and flattery that come with attaching their identities to Sam Waterston or Julia Roberts. Because, at bottom, these fictions aren't offering redemptive tales of the legal profession per se: They are, rather, morality plays about juries, i.e., the most populist arm of the justice system, the plain and trustworthy deliberators of fairness and balance who are most like American citizens, exercising their native gifts of judgment and common sense.
      The message of these influential fictions rises in a one-note chorus: Juries, it turns out, are the universal solvent for corruption in the courts-precisely because they're as close as the courts ever come to acknowledging the popular will. Even in a pop-cult plaintiffs fable featuring neither trial nor jury-for example, the gigantic arbitration case at the heart of the movie Erin Brockovich-every conceivable precaution is taken to distance the lead players from the gaudy vices of professional lawyering. The defining moment in Steven Soderbergh's chronicle of the Herculean effort to bring PG&E to justice is not so much the triumphant final ruling in favor of those who suffered ghastly health problems from the utility giant's contamination of a town's groundwater. It is, rather, an earlier set piece, in which a snobby and slick associate from a marquee plaintiffs firm-brought onto the case over paralegal Brockovich's fervid objections-is simpering in horror as she realizes she has to cross a patch of a stockyard, and thereby risk exposing her pricey wardrobe to ruin, to interview one of the case's would-be litigants. This is the cue for Brockovich-portrayed with crowd-pleasing gusto by Roberts-to charge into the dust and excrement to nail the plaintiff's signature to the arbitration petition. She reassures the poisoned citizen that, no, she's not a lawyer, and therefore she can be trusted to help steer the case through in the people's best interest. Hailed at the time of its release as a vindication of the law's capacity to do good, Erin Brockovich far more effectively dramatized the good to be accomplished by continually denying that one is a credentialed officer of the court.
      But the mother-text in the populist idolatry of the American jury is Sidney Lumet's 1982 film The Verdict. There, the alcoholic, world-weary plaintiffs attorney Frank Galvin, played by Paul Newman, delivers a heartfelt closing argument, just after the trial judge has ruled that the most damning piece of evidence supporting his medical malpractice case must be stricken from the record. "You know, so much of the time, we're just lost," Galvin laments, and then he continues in the cadence of a latter-day biblical prophet: "There is no justice. The rich win; the poor are powerless. We become tired of hearing people lie. And after a time, we become dead. A little dead. ... We become weak; we doubt ourselves; we doubt our beliefs; we doubt our institutions; and we doubt the law." The only place to find salvation, Galvin concludes, is within-in the hearts of his audience: "But today you are the law," he tells the jury. "You are the law. Not some book, not some marble statue, or the trappings of the court. See, those are just the symbols of our desire to be just. They are, in fact, a prayer. ... If we are to have faith in justice, we need only to believe in ourselves and act with justice. See, I believe there is justice in our hearts." Indeed, in assessing damages, the jury goes well beyond Galvin's prayers, delivering a judgment much higher than that originally sought.
      Galvin's speech is a stirring, and prototypically American, bid to engineer the people's salvation by an end run around cumbersome, corrupt, and fallen human institutions and a resurgence of uncomplicated, small-scale participatory democracy. Political scientist James A. Morone has labeled this recurrent theme in our history "the democratic wish." And, on paper, a jury is the perfect vessel for this wish, composed of ordinary Americans from all walks of life and invested with an awesome power.
      Unfortunately, however, such anti-institutional tales of legal redemption are about as far afield from the actual practice of American law as can be imagined. To begin with the most obvious point, fewer and fewer civil cases make it as far as a jury trial anymore; most are settled or sent into binding arbitration. As University of Wisconsin Law School professor Marc Galanter observes, fewer federal civil cases end up in trial now than did in 1962, and a similar decline has occurred among state civil cases. To deliver the bulk of the law's moral authority into the hands of a jury, in other words, is to set it steadfastly against its own actual place within the legal system. There may be justice in jurors' hearts, but if few jurors are around to channel it, justice will not be much served.
      For another thing, as the number of trials diminish-and the stakes in each individual trial become correspondingly greater-jury selection has emerged as the legal system's greatest arena of technological and demographic manipulation. Indeed, juries are increasingly counter-representational bodies of deliberation, argues Stephen J. Adler in his 1994 book The Jury: "Just as jury-service laws have been changed to allow a broader cross section of people into the jury room, technology has evolved to exclude new groups on the basis of their demographic characteristics, values, and psyches. Juries are thus rendered less representative of their communities. And many well-qualified individuals become disappointed in a system that, despite its promise of inclusion, rejects them as jurors precisely because they would be fair and thoughtful decision makers."
      However, the most insidious feature of the populist cult of the jury is that it sustains the myth of mass redemption within the law even as some of the most critical functions of the legal system drift into the orbit of unaccountable executive power. Consider Bush's Justice Department's desperate efforts to conjure a "unitary presidency"-an executive branch all but immune from the rule of law and separation-of-powers oversight-out of the U.S. Constitution. Stripped of its casuistry, this doctrine-which has been adopted to rationalize every sort of executive trespass, from detainee torture to warrantless wiretaps-reverses the traditional purpose of the attorney general's office. Rather than advising the executive branch on how it can remain within the law's strictures, Alberto Gonzales's office instead fashions paper-thin rationales for how it can most conveniently break the law.
      Consider as well the way the actual makers of law in Congress increasingly turn its powers toward the crafting of feckless campaign accessories, such as the Schiavo resolution-which, of course, sought to supersede the jurisdiction of the Florida Supreme Court-and the entirely symbolic constitutional amendments to ban gay marriage and flag burning. An engaged citizenry wouldn't tolerate the empty charade of the people's representatives treating such craven pandering as the "people's business." Then again, an engaged citizenry would know better than to imagine that its interests are served by full-throated assaults on the plaintiffs bar, or by the mirror-image reverie of populist playacting on civil juries. Engaged citizens would know, indeed, that their best legal protector remains the elite document known as the U.S. Constitution-and couldn't help lamenting that it has lately joined them as the most routine collateral casualty in the law-cum-culture wars of the past quarter century.
      Chris Lehmann ( writes for the New York Observer and other publications. He is a former editor at California Lawyer.
      Time Capsule Sidebar
      Time Capsule ? 2000
      Insurance Commissioner Chuck Quackenbush resigns following a corruption scandal tied to property insurers after the Northridge earthquake.
      Erin Brockovich, starring Julia Roberts, is released.
      Time Capsule ? 2001
      In response to rolling blackouts, Gov. Gray Davis takes emergency measures to ensure energy supplies; Pacific Gas & Electric Co. files for bankruptcy.
      The Ninth Circuit rules in favor of the recording industry, leading to the end of Napster as a free song-sharing service.
      Legally Blonde, starring Reese Witherspoon, is released.
      Time Capsule ? 2002
      John Walker Lindh is sentenced to 20 years in prison for assisting the Taliban in Afghanistan.
      Pop guru Mike Batt is sued for stealing a song called ?A One Minute Silence,? which consists of only silence. The plaintiff?s lawyers claim Batt?s silence sounds exactly like a 50-year-old piece by the late composer John Cage.
      ?Frankly, I thought there was almost too much publicity in the Enron case. I certainly thought there was too much publicity on me.? ?securities class action attorney Bill Lerach
      Time Capsule ? 2003
      Gov. Gray Davis is recalled in October; Arnold Schwarzenegger is elected governor.
      Brobeck, Phleger & Harrison, the San Francisco?based law firm that once employed 1,000 lawyers and had run a multimillion-dollar television ad campaign, collapses.
      In Hong Kong, law firms sterilize keyboards, telephones, and common areas as often as twice a day to prevent the spread of the SARS virus.
      ?It?s nice to feel that you?ve accomplished something, to find that zealots are upset with what you?re doing. Sometimes you write opinions and you wonder whether anyone reads them.? ?Ninth U.S. Circuit Court of Appeals Judge Stephen R. Reinhardt, after concurring in a court ruling that adding the words ?under God? to the Pledge of Allegiance in 1954 was unconstitutional
      Time Capsule ? 2004
      $45 million - amount California lawyers will spend on TV spots this year
      A Spanish-language reality TV show called Win the Green begins airing in Los Angeles, San Diego, and Houston. The winner gets a year?s worth of free legal advice on how to obtain a green card for U.S. residency.
      Boston Legal, starring William Shatner, premieres.
      Time Capsule ? 2005
      17% partners at major law firms who are women; in 1993 the figure was 12 percent
      Michael Jackson is acquitted of child molestation and all other charges filed against him. His lawyer, Thomas Mesereau, is named a California Lawyer Attorney of the Year.
      Scott Peterson, defended by Mark Geragos, is sentenced to death for murdering his wife, Laci, and their unborn child.
      Piper Rudnick Gray Cary?itself the product of a series of mergers extending back to 1994, when Ware & Freidenrich merged with Gray Cary, Ames & Frye?becomes a truly global law firm by tying the knot with London-based Dibb Lupton Alsop. The new law firm is called DLA Piper Rudnick Gray Cary.
      In Metro-Goldwyn-Mayer Studios v. Grokster, Ltd. the U.S. Supreme Court rules unanimously that Internet file-sharing companies can be held liable for encouraging users to illegally download copyrighted songs and movies.
      Time Capsule ? 2006
      Prominent Los Angeles lawyer Terry Christensen is indicted for allegedly paying infamous private investigator Anthony Pellicano at least $100,000 to engage in illegal wiretapping.
      Former Enron chairman Kenneth Lay and former chief executive Jeffrey Skilling are convicted of fraud and conspiracy in connection with Enron?s collapse. Lay dies before his sentencing.

Annie Gausn

Daily Journal Staff Writer

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