Upsides of the American Trial's 'Anticonfluential' Nature: Notes on Richard K. Sherwin, David Foster Wallace, and James O. Incandenza

Abstract:     
This essay is an invited response to Richard K. Sherwin’s article, “Law’s Screen Life.” Although legal topics and tropes are commonplace in popular culture, and their prevalence is the source of much commentary, less well known is whether and how popular culture affects law. The latter is the complex question that Sherwin takes up in his provocative article, where he explores the effects on law when it adopts the “expressive forms” of the “visual mass media.” He tells a cautionary tale about a series of negative epistemic and moral consequences for law from this interaction.

This essay picks up Sherwin’s cautionary tale from the opposite direction and examines how different forms of legal decision-making may respond to the concerns he discusses, with a particular focus on factual decision-making at trial. I first discuss a number of epistemological aspects underlying Sherwin’s account in order to clarify, challenge, and extend some of the analysis. I next examine the narratives of the visual mass media and a particular response to these narratives in contemporary fiction. Here I discuss the work of David Foster Wallace and his novel Infinite Jest. I argue that, in some ways surprisingly similar to Wallace’s novel, the American trial structures narratives in ways that respond to the problematic narrative forms of the visual mass media at the heart of Sherwin’s cautionary tale and that the trial often provides a better forum for counteracting these problems than other types of legal decision-making.

Number of Pages in PDF File: 26

Keywords: Richard Sherwin, visual jurisprudence, sexual predators, fMRI, narrative, epistemology, morality, juries, story model, coherence, David Foster Wallace, Infinite Jest

Accepted Paper Series