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President Lyndon Johnson secured the public’s right to know the inner workings of government by signing the Freedom of Information Act (FOIA) into law in 1966. Congress did not believe that the right to this information was absolute and carved out exemptions in the FOIA retaining privileges that were available at common law. In the decades following the FOIA’s passage, a significant judicial tendency emerged: courts began extending the attorney-client privilege to organizational clients, such as corporations, and then, by analogy, to state and local governments. The FOIA represents an attempt to create an open and transparent government. Conversely, the extension of attorney-client privilege to government officials facilitated communication between officials and attorneys while simultaneously ensuring the confidentially of government records. These two developments set the stage for two uncertainties in the law. First, to what extent, if any, does a governmental attorney-client privilege exist, and if it exists, do public records laws negate the privilege? . . .
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 looks 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? . . .
The Massachusetts Legislature specifically enacted the anti-wiretapping statute to protect private citizens from secret recordings. Massachusetts’s ban on undisclosed electronic surveillance is significantly more rigid than its federal counterpart. Like the federal anti-wiretapping statute, the majority of state anti-wiretapping laws allow for one-party consent recordings. To satisfy the one-party consent requirement, only one party to the conversation must consent to the recording. In contrast, the Massachusetts statute requires that all parties consent to the recording. Hence, the surreptitious recording of a police officer, similar to the one made by Hyde, would be free from prosecution in most other jurisdictions. Interestingly, Hyde would also likely have been free from prosecution had he simply held the tape recorder in plain view. Holding the recording device in plain view satisfies the all-party consent requirement, suggesting that knowledge, rather than consent, is all that is required, despite the language of the statute. . . .
The prosecution usually must prove a criminal defendant had the necessary mens rea, or culpable mental state, generally defined by the legislature in criminal statutes, to convict him or her of a crime. Title 18, section 1028A(a)(1) of the United States Code, the aggravated identity theft statute, provides for an additional two-year term of imprisonment if “during and in relation to” certain enumerated felonies the perpetrator “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” In United States v. Godin, the United States Court of Appeals for the First Circuit considered whether the “knowingly” mens rea requirement of section 1028A(a)(1) extends to “of another person,” or if it is limited to “transfers, possesses, [and] uses.” The First Circuit held that the mens rea requirement extends to “of another person,” thus requiring that the government prove that the defendant knew the means of identification used during an enumerated felony belonged to another person. . . .
The United States Supreme Court has long distinguished between horizontal and vertical price restrictions in assessing their legality under the Sherman Antitrust Act (the Act). Traditionally, courts use the “rule of reason” standard to determine whether a given price restraint violates the Act. According to this rule, the fact-finder must determine whether the restraint’s anti-competitive effects unreasonably outweigh its potentially pro-competitive effects. This standard, however, does not govern all price restraints.
For example, courts deem horizontal price restraints—those occurring between market participants at the same level of production or distribution—per se illegal in recognition of their consistent anti-competitive purpose and effect. Additionally, beginning in 1911 with the Supreme Court’s landmark decision in Dr. Miles Medical Co. v. John D. Park & Sons Co. until 2007, courts deemed minimum resale price maintenance schemes per se illegal under the Act. Minimum resale price maintenance is a type of vertical price restraint ordinarily employed by manufacturers to enhance a product or products.
The Court’s rejection of the per se rule as applied to resale price maintenance schemes in Leegin Creative Leather Products, Inc. v. PSKS, Inc. signaled a dramatic shift in the Court’s ability to recognize and interpret economic data and its effect. Furthermore, applying the rule of reason standard to resale price maintenance schemes will certainly have lasting effects on producers and other corporate entities likely to employ such schemes. The Court’s rejection of decades of case law is not surprising, though, given its longstanding distaste for the overbroad characterizations inherent in per se analysis. Although the Court initially established the per se rule for vertical price restraints in Dr. Miles, subsequent Supreme Court decisions have largely dismantled this holding. In fact, these changes are the result of the Court’s measured yet consistent willingness to recognize the pro-competitive effects of vertical price restraints. Indeed, rule of reason analysis may avoid overbroad characterizations and allow the Court to assess the actual effect of a given restraint on private entities and the market as a whole. . . .
When we think of “outsiders” in the context of law, those who often come to mind are members of disenfranchised minorities, such as the mentally challenged. But in many of Hollywood’s lawyer films, the paradigmatic and perhaps most interesting outsider is the lawyer himself. The lawyer protagonist is often an “outsider within” his community, the legal culture, or his law firm. (When the cinematic lawyer is a woman, she is often “twice removed” from the on-screen world’s “inside” sphere.) In many law films, the cinematic lawyer often transcends the boundaries of the film’s community, of its legal world, of the cinematic law firm, or even of the law itself, becoming “the insider without.” The lawyer, then, evolves from an outsider within to an insider without, at times coming full circle and returning to the outsider within status. A cinematic lawyer who is a true insider and operates strictly within the law, society, his law firm, and the legal world is often portrayed as unreliable and corrupt. Justice, Hollywood tells us, is not often upheld by “insiders within.”
The fashioning of the cinematic lawyer as an outsider within and an insider without is a predominant theme in law films from the early 1960s to this day. Yet it has undergone significant transformations. In the early 1960s, the heyday of lawyer films, the lawyer, a hero, was an outsider within an immoral community, entrenched in its old, anachronistic ways. His resistance and transcendence of his community’s values served higher principles, paving the way to progressive social change. Even his infrequent transcendence of law itself was in the service of humanity, dignity, and justice—law’s most cherished values. In later decades, Hollywood’s lawyer grew less ideological and more cynical. He became existentially estranged to the legal profession, to the legal system, and even to law and society. His transcendence became more lonely and desperate, and its social moral value questionable. The nature of his “inside” and “outside” qualities shifted. . . .
The concept of justice is a dominant theme in traditional Western liberal culture. Indeed, the ideal of justice has taken on an almost mythic quality in our political and social culture. Interestingly, however, the prevailing myth is not one where the possibility of finding justice lies in relying upon or utilizing the public institutions of Western society. Instead, some of our most important cultural artifacts often go to great lengths to point out how finding justice in social and political institutions is seemingly impossible. The dominant message appears to be that justice is something found outside accepted social institutions, if it is to be found at all. Beyond this is the underlying perception that social institutions are often obstacles to the possibility of attaining justice. Civil society, then, is not the path to justice. In fact, many of the cultural messages we are exposed to suggest that following the bounds of civil society actually makes it less likely that justice will be attained. Law, as a sociopolitical institution, and more specifically the judicial system, are frequent focal points for such criticism. . . .
In this paper, the object of my attention is the HBO television production, Deadwood. In this highly acclaimed series, NYPD Blue’s creator, David Milch, both drew on and disrupted the genre of the American Western, generating fans in both popular and scholarly circles. The series, part historical, part fictional, takes place in the 1870s, a time explicitly marked by the forward movement of colonial expansion. It is set in the illegal settler camp of Deadwood, in the shadow of the Black Hills of what is now South Dakota, what was long part of Lakota Indian territory.
As historians would remind us, that territory was the subject of a treaty that promised that no white people would enter without the express permission of the tribes, a treaty which promised the Army would remove any settlers who did come, and a treaty, like so many other treaties, whose terms were violated. For the hills held gold, and prospectors came, and gold was taken, and an outlaw town sprung up, providing goods and services to those with gold, and people flooded to it, and fortunes were won and lost, and the illegal settlers were not removed, and the outlaw town was eventually made legitimate. Hundreds of thousands of Indian peoples of course lost their lives or were displaced as the colonizing settler society spread over the land. . . .
When I was first invited to participate in this symposium, Legal Outsiders in American Film, I initially thought of myself. I thought maybe I would be the outsider among the contributors. I have never taken a law and film course, let alone taught one. I certainly do not claim to have a background in film studies, unless having an unlimited plan with Netflix and occasionally frequenting art houses count. And although I have written in related interdisciplinary fields—law and literature, and law and the visual arts—I have not written directly about law and film.
The more I thought of the issue presented by this symposium, the more confident I felt that I had something unique to contribute. After all, although I have never taught law and film, I routinely use film as a pedagogical tool. When I teach criminal law, for example, I use film and television clips to illustrate criminal law concepts, to problematize those concepts, and even to raise larger issues about justice. And my criminal procedure students will attest to the fact that knowing every episode of The Shield and The Wire comes in handy in class. My Evidence course, thanks to the casebook I use, comes with its very own DVD of useful film clips.3 Even in my Race and the Law class, I find myself turning to film again and again to illustrate how race is socially constructed and maintained. . . .
For the past few years I have been developing a general framework for thinking about the representation of law in American films. My thinking has been guided by three convictions:
1. The problem of law is central to the major genres of American film, sometimes in surprising ways. Put another way, the major genres of American film all deal with issues in which the status of law is a central concern. This distinguishes film from other forms of American popular culture such as the novel. And it means that problem of law provides a framework for approaching American cinema in general. The field of law and film is often regarded as an interesting way of raising questions about the legal world. This is certainly true. I am suggesting that law also provides a privileged standpoint for grasping the most fundamental concerns of American cinema as a medium.
2. The portrayal of law in American film is one of deep ambivalence toward the law. American film manifests a profound skepticism towards the law’s claims to be what it claims to be, to achieve what it claims to achieve, and so on. This skepticism is typically manifested in the privileged place that it accords to the legal “outsider.” The outsider’s angular relation to the legal realm poses fundamental questions about the ambivalent relation between law and the individual, law and morality, the legal and the illegal, and so on.
3. American film’s skepticism of law and its privileging of the legal outsider achieves its greatest expression in the genre of Film Noir. As such, Film Noir is both a commentary on the other major genres of film and the consummation of those genres, and of American film as a whole, insofar as the problem law is central to it. This may explain why the noir sensibility became the dominant one in the last decades of the twentieth century, as the age of classical American film drew to a close. . . .