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Abstract: It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas utilitarianism and natural rights theories are familiar, there is at least another basis for intellectual property protection. This Article contends that all the U.S. copyright, patent and trademark regimes are structured around and legitimated by central origin myths stories that glorify and valorize enchanted moments of creation, discovery or identity. As a cultural analysis of law, rather than the more familiar economic theory of law, this Article seeks to explain how these intellectual property regimes work the way they do. And as a narrative explanation for the structure of intellectual property protection, this Article enhances the more customary economic or philosophical accounts of intellectual property because narrative, especially one devoted to myth-making in our society, provides "models for human behavior and, by that very fact, gives meaning and value to life."** Origin stories serve both ontological and epistemological functions. They infuse everyday life and relations with significance by explaining why things are as they are and by providing guidance for how things should evolve based on what we already understand about our world. Origin stories also literally give a culture life by designating a beginning and a history. Finally, most origin stories are political, legitimating or justifying certain relations of power in society. This Article is a comparative analysis of the "origin stories" that structure several branches of United States intellectual property protection: copyright, trademark and patent law. When contrasting the three statutory intellectual property regimes for their structured valuation and reification of their own origin myth, the Article shows how the origin myths structuring intellectual property protection articulate a well-worn story about the origins and continuing vitality of the American republic (rugged individualism and the American dream). Each part also draws on popular cultural stories about intellectual property and a recent intellectual property dispute to illuminate how origin myths structure the respective discourses of these intellectual property systems and explain adjudicative results. ** MIRCEA ELIADE, MYTH AND REALITY 2 (1963) (trans. W.R. Trask).
Intellectual property, trademark, copyright, patent, narrative theory, law and culture, cultural analysis of law, law and literature, political theory
Abstract: "What We Do When We Do Law and Popular Culture" establishes a theoretical framework for analyzing legal popular culture, taking as its point of departure Richard Sherwin's book "When Law Goes Pop." The article stresses what Professor Silbey considers to be three major stumbling blocks in the growing interdiscipline of law and popular culture. She argues that if we are to advance our understanding of the relationship between law and popular culture, we must follow at least three simple charges: (1) demarcate our beginning concepts, such as law or culture, so that amidst the vast phenomena that may be called law or culture, we know which we are discussing; (2) mind the tenets of the disciplines we are marrying, such as those of literary theory and legal practice, so that we do not abandon the lessons already learned and established by either or both fields; and (3) attend to method, to how our analyses of law and popular culture proceed so that it can be reproduced and taught. Meant to be fairly straightforward (but rarely followed), these three charges clarify some theoretical groundwork for what the author sees developing into a sophisticated and varied field of law and cultural studies.
Popular culture, cultural studies, law and film, law and literature, cultural analysis of law
Abstract: The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the Friedmans, suggests more then a trend; it suggests an inherent affinity between law and film. This article investigates this affinity, the cultural space it inhabits, and its destiny in terms of the evolving filmic culture and technologies of the twenty-first century.
film, popular culture, evidence, law and technology, cinema, trial, litigation, cultural analysis of law, law and humanities, legal consciousness
Abstract: This Article exposes internal contradictions in case law deciding the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence," that category of evidence that purports to illustrate other evidence rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live witnesses in court with communications via video and film technology. Another anxiety is the public perception of the trial itself as undisciplined and capricious rather than as controlled and truth-establishing. The Article concludes by showing how these anxieties are not well-founded because when filmic proffers are properly considered, they are admitted as substantive and testimonial evidence. As a result, they are (or should be) subject to hearsay rules and cross-examination and to other rules intended to safeguard the integrity of the trial. The analysis in Judges as Film Critics is a continuation of the author's prior research and publications in the field of law and culture, and draws from evidentiary doctrine and legal scholarship as well as from contemporary film theory and history. This combination takes a fresh look at filmic evidentiary proffers and questions the very assumptions that govern the meaning they are said to project in light of contemporary theory devoted to the interpretation of film. Such an analysis reconsiders the legal categories that regulate the use of filmic evidence - such as demonstrative, substantive and real evidence - and begins the development of a more nuanced and common sense doctrine governing the treatment and meaning of film in the courtroom. In light of the long history of the use of film in court and the growing use of visual media in the courtroom, it is time to make sense of the case law purporting to explain the admissibility of filmic evidence in terms of a discipline devoted to the film medium.
Law, evidence, film, popular culture, video
Abstract: Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined. There are too many television shows, films, popular novels and web-based entertainment to withdraw "the law" (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this mixing -- what I call truth tales, which are fictionalized films that are nonetheless based on true stories about law -- is to enhance our critical capacity to engage the law as a hopeful and evolving web of social, civic and political codes that shape our expectations for justice in contemporary society. This article proceeds in five parts. Part I outlines a brief history of interdisciplinary legal studies, in particular law and cultural studies. Part II discusses the subfield within law and cultural studies of law and film, as a way to set the stage for a longer discussion in Parts IV and V of two truth tales, "Compulsion" and "Swoon." Part III more specifically describes the parameters of the "truth tale" as a subgenre of courtroom drama that affects a particular kind of popular legal consciousness, one that accepts as futile law's presumed search for unconditional truth and embraces instead the legal system's promise of due process as based on normative values of fairness. Parts IV and V are close readings of the two films by way of application of the interpretive methodology and conceptual framework outlined in Parts II and III.
law and film, law and humanities, law and popular culture, interdisciplinary legal studies, law and literature, cultural analysis of law, law and culture, popular legal consciousness, cinema, trials, litigation
Abstract: The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell into a dangerous and common trap of believing - to the point of enshrining in our law - that film captures reality. As Justice Breyer said in oral argument of the case seemingly flabbergasted by contrary findings below: "I see with my eyes ... what happened, what am I supposed to do?"
The Supreme Court is not the first court to fall prey to the persuasive power of film. It is typical for courts and advocates to naively treat filmic evidence as a transparent window revealing the whole truth, as a presentation of unambiguous reality. But film has a history in art as a constructed medium. As filmmakers and critics have known since the beginning of cinema, film's appearance of reality is an illusion, an illusion based on conventions of representation.
How could Mr. Scott have countered the weight of the film and its persuasive power? When faced with prejudicial filmic evidence, how does an advocate undermine the assertive nature of film and its overwhelming appearance of exposure? The advocate must cross-examine the film the way she cross-examines witnesses. Because films are assertive in nature, an advocate faced with filmic evidence must treat it the way she treats other testimonial evidence, critically and with careful scrutiny. She must cross-examine the film. This article will set forth certain examination techniques using a piece of filmic evidence (linked to the article) from a recent case as an example. By doing so, it aspires to be a teaching tool for other courts and advocates in their treatment and consideration of filmic evidence.
film, evidence, supreme court, fourth amendment, qualified immunity, trial practice, law and culture, law and humanities, law and literature, constitutional law, sixth amendment, fifth amendment, civil rights
Abstract: This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions. The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, holds a fairly naïve view of film's indexical relationship to the lived world and abjures consideration of the contemporary trend in cinema. Understanding the documentary as truth-revealing is a mistake, a mistake which can frustrate (if not undermine) the criminal justice goals of the legislation. Whatever may explain the convergence of filmmaking in the precinct house and a penchant for mainstream documentary movie-going, the trends are shaping contemporary expectations about film in contradictory ways. Investigating these trends together exposes competing norms regarding film as a legal tool and as a knowledge producing discourse. It also situates the criminal justice trend in the context of a long history of filmmaking and critical spectatorship. In light of the growing use of film as a policing mechanism, better understanding of film as both an art and a legal tool is in order.
film, evidence, popular culture, confession, criminal law, interrogations, legislation
Abstract: Any one film can sustain a myriad of compelling interpretations. A collection of films, however, sharing formal and substantive qualities, reveals a common effect more than a diversity of meanings. This essay traces the shared formal and substantive qualities of a group of films, as I name them 'trial films'. It documents this genre of film by identifying the genre's norms of viewing and identification. It also investigates the peculiar hybrid discourse of the trial film genre that combines both filmic and legal discursive practices to show how trial films cultivate support for the American system of law through its constitution of a specific viewing audience. In so doing, I broach the following questions: how do images of law in film help sustain the power and legitimacy of legal institutions? How does the study of film genres, like the courtroom drama, reveal the way lives beyond its formal processes?
Law, film, trial film, courtroom drama, popular culture
Abstract: This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness or honesty of the defendant's statement. To the contrary, close examination of filmed confessions evidences the performative aspect of all confessional acts. Like autobiographical film subjects, filmed defendants perform their criminality, or enact their legal identity as guilty on film. Framing the confession through a film camera (as increasingly police and detectives do) stresses the qualities of confessional speech as always in the process of forming an identity, and therefore as inherently unstable and manifold. Building on an earlier article that criticizes the nationwide trend that requires the filming of criminal confessions by comparing filmed confessions to a form of documentary filmmaking, this article engages the same critique by examining filmed confessions as a form of autobiographical film. Doing so relocates the analysis of the filmed confessions from one of truthfulness and voluntariness of the spoken confession to one of advocacy and persuasion by the speaking subject. Analysis of several filmed confessions shows how filmed confessions are more akin to filmed autobiographies: performances of identity in relation to the constraints of the discursive medium (the interrogation). What we learn from the filmed confession is the limits of film and of law to reveal the truth of the crime. This critical perspective undermines the state's assertion that filmed confessions unambiguously denote the defendant's voluntary recitation of his criminal act.
film, evidence, confession, law and literature, law and film, law and culture, cultural analysis of law, criminal law, Fifth Amendment
Abstract: This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions. The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, holds a fairly naïve view of film's indexical relationship to the lived world and abjures consideration of the contemporary trend in cinema. Understanding the documentary as truth-revealing is a mistake, a mistake which can frustrate (if not undermine) the criminal justice goals of the legislation. Whatever may explain the convergence of filmmaking in the precinct house and a penchant for mainstream documentary movie-going, the trends are shaping contemporary expectations about film in contradictory ways. Investigating these trends together exposes competing norms regarding film as a legal tool and as a knowledge producing discourse. It also situates the criminal justice trend in the context of a long history of filmmaking and critical spectatorship. In light of the growing use of film as a policing mechanism, better understanding of film as both an art and a legal tool is in order.
evidence, film, law and popular culture, documentary, law and film, law and literature, intellectual property
Abstract: In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would be. This article explains how the film The Accused is therefore about the relationship between witnessing and testimony, between seeing and the representation of that which was seen. The article elaborates the relationship between the power and responsibility of being a witness in law - one who sees and credibly attests to the truth of her vision - as well as it unpacks the significance of bearing witness to film - what can we know from watching movies.
law and film, law and humanities, evidence, rape, criminal law, law and literature, evidence, jurisprudence, witness, testimony
Abstract: The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an evolving web of social and political connections and, in light of those connections, about its capacity for justice. Each article differently imagines the legal outsider and the community against which the outsider is positioned. And yet each article similarly asks the fundamental question of law: is justice for all possible when exclusion and dominance appear as inevitable features of law’s application.
Law and cultural studies can be too easily marginalized by the legal academy. This is because of an omission on the part of some law and cultural studies scholarship and a mistaken understanding by others of the import of cultural analysis. Cultural studies scholars tend to divide their analysis into the study of production, reception and representation. We may investigate the means by which a cultural object is produced, the ways in which an object is perceived by its audience, and the manner in which it may be interpreted based on its particular formal structure. Too often, the cultural analysis of law omits the analysis of the subject of law: the citizen on whom the law acts and who acts on behalf of it. Locating the construction of that citizen in the text (as an effect of representational practice), through the text (as a result of reception theory), or as an origination of the text (a means of its production) emphasizes the political nature of all cultural production. Attending to the social subject and her community at the center of a text goes a long way to answer the cynics who ask 'so what' when legal scholars write about film or literature.
Each of these articles in this Symposium Issue incorporates the audience as a social category on which film acts and through which law’s authority persists. In describing the outsider to law in film and the popular legal consciousness constituted by the film, each comments on the relations of power the film enables or critiques. In so doing, each paper engages the politics of law and film studies.
law and film, cultural studies, cultural analysis of law, jurisprudence, criminal law, law and the humanities, law and literature
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