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Abstract:
With the election of an African American to the office of President and other high ranking positions in U.S. government, it is easy to argue that our society has overcome the legacy of slavery. But many of the laws that these politicians swear to uphold were first created under slavery and intended to maintain it. Today, criminal codes are supposed to apply equally no matter the race of the perpetrator of a crime, or the race of the victim. But the legal system remains flawed. These flaws reveal themselves most starkly when studied on a grand scale, revealing horrifying statistics. 41% of death row inmates are black. One in nine black men between the ages of 20 and 34 is in prison. Since 1976, only 15 white people have been executed for murdering black victims, a stark contrast to the 242 black people who have been executed for murdering whites.

This imbalance in punishment can be at least partially attributed to the legacy of slave codes and racist systems of punishment in force after the end of slavery. Although criminal codes have been rewritten to appear race-neutral, statistics reveal that neutrality in practice has yet to arrive. Rather, the legacy of slavery haunts the daily work of our justice system. This haunting enters our popular consciousness in part because American popular culture is fascinated by law. In particular, courtroom drama has become a principle genre of legal cinema.

This chapter explores the portrayal of black defendants in mainstream legal cinema and draws connections between these portrayals, the legacy of slave codes, and the Supreme Court's rejection of statistical and historical proof of racism in the application of the death penalty. I focus on a sub-genre of legal cinema, what I call the "White Legal Hero" narrative. The typical white legal hero film tells the story of an innocent or otherwise righteous black male defendant facing a capital charge. He is represented by a white male "hero" lawyer who tries to overcome the racist justice system. The failure of this genre lies in the disconnect between the macroscopic findings of social scientists and moralized film narratives about individual lawyers. Studies show that racial disparities are prevalent throughout the legal system, from arrest through conviction and punishment, and eradicating these disparities will require deep, institutional changes, not the actions of one white legal hero.

I argue here that white legal hero films arise from the desire of American liberals to see today's manifestations of racism as manageable and tolerable. In turn, the films' overwhelming violence numbs audiences to the institutional racism of the American criminal justice system, making this racism easier to ignore. I ground this argument in a consideration of the criminal laws of slavery and how these laws continue to exert influence. I examine the U.S. Supreme Court opinion McCleskey v. Kemp (1987), which upheld capital punishment despite evidence of racial disparities in capital sentencing. I then examine two legal hero films that arose in the shadow of McCleskey: A Time To Kill (1996) and Amistad (1997). This reading reveals how white legal hero films diminish the popular importance of the racism revealed by the McCleskey opinion, creating a context in which the opinion, despite major logical and moral flaws, seems acceptable.

Cinema, Capital Punishment, Amistad, A Time to Kill, Slave Codes, Slavery, McCleskey

Abstract:
Recently, the law and literature (L&L) enterprise has been "reassessed" by a variety of scholars, whose opinions fall loosely into two camps. Some assert that L&L serves a necessary function in legal scholarship and education and should be preserved. Others, such as Jane B. Baron, see L&L as a flawed enterprise that is probably worth preserving, but not in its current incarnation, and not without recognizing its theoretical and practical limitations. In this essay I focus on the purposes and consequences of L&L for legal pedagogy. In order to discover the benefits of L&L, we must ask whether L&L is appropriate for legal education, and why. What I propose is that studying literary texts - fictional, dramatic, cinematic, or poetic works, of the high or low variety - in relation to and alongside of law, can benefit some of our students very much. Baron asserts that L&L discredits law as a field of study by claiming that we can only learn about human nature, compassion, empathy, or other humanistic quality crucial to competent lawyering or judging, by reading literature. This claim treats law "as a largely empty domain composed mainly of rules, a barren realm of technocratic doctrinal manipulation." Although Baron does not say so explicitly, she has expressed a pedagogical concern. The argument she critiques sets up an antagonistic dichotomy: it claims that we learn different and better things by studying literature than by studying law. Proponents of the dichotomy seek to prove that studying L&L is appropriate in legal education. I argue here that the best approach to L&L is an expansive and generous one, an approach that does not rely upon the denigration of law to prove the appropriateness of literature to legal studies. In discussing the benefits of L&L to legal pedagogy, I suggest that L&L, and indeed other interdisciplinary areas, are useful to and appropriate for legal pedagogy because they provide a variety of heuristics, or learning tools. These heuristics enable our various law students to find paths to legal knowledge that works best for them. This concept of multifarious methods derives from the rhetorical copia, as outlined in particular by Erasmus in the sixteenth century. In Part I, I build upon Baron's critiques of current trends in L&L as a framework to review the antagonistic dichotomy of L&L discourse that privileges literature on one hand and denigrates law and traditional legal studies on the other. In Part II, I reframe this dichotomy in a way that is constructive, returning value to traditional legal texts. In Part III, I use the theory of rhetorical copia to show that L&L is best thought of as one of many methods available to legal pedagogy, a strong supplement to traditional doctrinal and skills courses.

law and literature, rhetoric, erasmus, copia, pedagogy, law teaching

Abstract:
Winner of the Best Graduate Student Paper Award at the 2005 American Culture Association Conference.

terror, war, ideology, rhetoric, Bush, Kerry, Gender

Abstract:
An invited paper for a European audience.

legal cultural studies, law and culture, law and rhetoric

Abstract:
A study of interracial marriage policy in 18th Century North America, as portrayed through the writings of William Byrd of Westover.

interracial marriage, Native Americans, race, William Byrd

Abstract:
Book review essay of Andrea Dworkin's HEARTBREAK: POLITICAL MEMOIR OF A FEMINIST MILITANT

feminism, activism, feminist theory, andrea dworkin