Wednesday, December 1, 2010

American Law and Popular Culture

Al Pacino, "And Justice For All" (1979)

The legal system of the United States of America is an influential source of narrative for popular culture. In recent years we have seen on TV alone a large number of series, mini-series, films and so-called 'reality' shows that depict the processes of law, usually criminal law, in a dramatic and often oratory style. In this lecture I will discuss the legal system of the United States in terms of structure and substance and refer to examples from popular culture to illustrate elements from it.

The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of constitutional acts of Congress, constitutional treaties ratified by Congress, constitutional regulations promulgated by the executive branch, and case law originating from the federal judiciary.

The Constitution and federal law are the supreme law of the land, thus preempting conflicting state and territorial laws in the fifty U.S. states and in the territories. However, the scope of federal preemption is limited, because the scope of federal power is itself rather limited. In the unique dual-sovereign system of American federalism (actually tripartite when one includes Indian reservations), states are the plenary sovereigns, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution. Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights. Thus, most U.S. law (especially the actual "living law" of contract, tort, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.

At both the federal and state levels, the law of the United States was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law innovations.

To begin at its foundations, you will notice the central role the judge takes in the courtroom scene from 'And Justice For All'. The Pacino character is addressing the jury, always made up of twelve people, who consider the evidence as it is presented by the prosecution and defense and make a finding to the court. The judge then passes sentence upon the accused according to the precedents of law. In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to their function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime. This system is part of common law.

Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.

In practice, common law systems are much more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by higher courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.

Stare decisis (Anglo-Latin pronunciation: /ˈstɛəri dɨˈsaɪsɨs]) is a legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.

This doctrine essentially requires a Court to follow rules established by a superior court.

The doctrine that holdings have binding precedence value is not valid within most civil law jurisdictions as it is generally understood that this principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should judge in a predictable and non-chaotic manner. Therefore, judges' right to interpret law does not preclude the adoption of a small number of selected binding case laws.

Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Malaysia, Singapore, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.

The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is totally intolerable. For these reasons, legislative changes tend to be large, jarring and disruptive (sometimes positively, sometimes negatively, and sometimes with unintended consequences). Sweden operates under a system of statutory law or continental law.

The presiding judge, that is the judge who sits "on the bench"in a court must make a decision at some stage of the proceedings regarding the degree of the crime/s committed. The judge does this by referencing prior cases and the decisions of higher courts.

Judge Milian gives a University of Miami law student a piece of her mind after he disrespects her.

Returning to the film And Justice For All, the great Al Pacino is addressing the jury introducing his arguments as the counsel for the defense. The judge is presiding over the court, at one stage calling inadmissible evidence, but it is the jury that is the addressee not the defense counsel.

A jury is a sworn body of people convened to render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to judge whether an accused person is not guilty or guilty of a crime. (There is no such verdict as 'innocent').

A person who is serving on a jury is a "juror".

The old institution of Grand Juries, which are now rare, still exist in some places, particularly the United States, to investigate whether enough evidence of a crime exists to bring someone to trial.

The jury arrangement has evolved out of the earliest juries, which were found in early medieval England. Members were supposed to inform themselves of crimes and then of the details of the crimes. Their function was therefore closer to that of a grand jury than that of a jury in a trial.

The Rockford Files, "So Help Me God" (1976)

The birth of the grand jury is believed to be in England. In the 13th and 14th century the function of the grand jury was to determine whether, from the prosecution's evidence, there were grounds for trial. Grand juries are today virtually unknown outside the United States.

A grand jury is meant to be part of the system of checks and balances, preventing a case from going to trial on a prosecutor's bare word. A prosecutor must convince the grand jury, as an impartial panel of ordinary citizens that there exists reasonable suspicion, probable cause, or a prima facie case that a crime has been committed.

The grand jury was provided for in the Fifth Amendment to the constitution of the United States to protect the citizen from unjust prosecution.

However, since the grand jury is an independent body answerable only to the court and operates in secrecy to protect the innocent, they can also be misused by unscrupulous people to free the guilty and indict the innocent.

Cato Institute (a libertarian think tank headquartered in Washington, D.C.) writers argued that grand juries as conducted today are unjust as the defendant is not represented by counsel and/or does not have the right to call witnesses. Intended to serve as a check on prosecutors, the opportunity it presents them to compel testimony can in fact prove useful in building up the case they will present at the final trial.

Judge Sol Wachtler, (Chief Judge of the New York Court of Appeals from 1985 to 1993) the former Chief Judge of New York State, was quoted as saying that a prosecutor could persuade a grand jury to "indict a ham sandwich."

The Constitutionality of contemporary grand jury practices has been brought before the Supreme Court six times in history; however, the court has yet to allow a case to be heard. According to Mike Martin, former Texas State Representative in an interview with the Austin American Statesman in 1982, "A grand jury is nothing more than a perjury trap. They drag you in by court order, won't let you have an attorney present, tell you the Fifth [Amendment] doesn't apply because you are not accused of anything, then slap a felony charge on you at the end because you deny an accusation. It goes against everything our forefathers intended when they set up America's judicial system".

Adult citizens are called to jury duty. This video from the State Legislature of Indiana explains how it happens;

The law of Indiana is not the same as the law of Arizona. This is due to federalism. Federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States.

Another movement calling itself "Federalism" appeared in the late 20th century and early 21st century . New Federalism, which is characterized by a gradual return of power to the states, was initiated by President Ronald Reagan (1981–1989) with his "devolution revolution" in the early 1980s and lasted until 2001. Previously, the federal government had granted money to the states categorically, limiting the states to use this funding for specific programs. Reagan's administration, however, introduced a practice of giving block grants, freeing state governments to spend the money at their own discretion. New Federalism is sometimes called "states' rights", although its proponents usually eschew the latter term because of its associations with Jim Crow and segregation. Unlike the states' rights movement of the mid-20th century which centered around the civil rights movement, the modern federalist movement is concerned far more with expansive interpretations of the Commerce Clause, as in the areas of medical marijuana (Gonzales v. Raich), partial birth abortion (Gonzales v. Carhart), gun possession (United States v. Lopez), federal police powers (United States v. Morrison, which struck down portions of the Violence Against Women Act), or agriculture (Wickard v. Filburn). President Bill Clinton (1993–2001) embraced this philosophy, and President George W. Bush (2001–2009) appeared to support it at the time of his inauguration.

Federalism under Obama

- Centralization (using combination of controls and selective flexibility to
advance central government’s views of appropriate policies and budgets).

- But centralization of a different kind: more money, targeted assistance,
executive control, federal entanglement in state policies and operations, and
interest in using states to identify and diffuse “effective” practices across
entire system.


- Strong interest in domestic policy change and program effectiveness.

- State fiscal weakness gives feds more opportunities to push states around.

- Growth in range of intergovernmental tools (including executive powers)

- Not much political support for greatly expanding federal bureaucracy.

- Limits of other direct forms of federal action (e.g., tax expenditures).

A great case study for the present condition of law between states and the federal government in the USA is the recent events in Arizona regarding immigration law.

The Support Our Law Enforcement and Safe Neighborhoods Act (introduced as Arizona Senate Bill 1070 and thus often referred to simply as Arizona SB 1070) is a legislative act in the U.S. state of Arizona that is the broadest and strictest anti-illegal immigration measure in decades. It has received national and international attention and has spurred considerable controversy.

U.S. federal law requires certain aliens to register with the U.S. government, and to have registration documents in their possession at all times. The Arizona Act additionally makes it a state misdemeanor crime for an alien to be in Arizona without carrying the required documents, bars state or local officials or agencies from restricting enforcement of federal immigration laws, and cracks down on those sheltering, hiring and transporting illegal aliens. The paragraph on intent in the legislation says it embodies an "attrition through enforcement" doctrine.

Critics of the legislation say it encourages racial profiling, while supporters say the law prohibits the use of race as the sole basis for investigating immigration status. The law was modified by Arizona House Bill 2162 within a week of its signing with the goal of addressing some of these concerns. There have been protests in opposition to the law in over 70 U.S. cities, including boycotts and calls for boycotts of Arizona. Polling has found the law to have majority support in Arizona and nationwide. Passage of the measure has prompted other states to consider adopting similar legislation.

The Act was signed into law by Governor Jan Brewer on April 23, 2010. It was scheduled to go into effect on July 29, 2010, ninety days after the end of the legislative session. Legal challenges over its constitutionality and compliance with civil rights law were filed, including one by the United States Department of Justice, that also asked for an injunction against enforcement of the law. The day before the law was to take effect, a federal judge issued a preliminary injunction that blocked the law's most controversial provisions.

The separation of powers, which have already discussed is relevant in relation to law, as it deals with the separation of the legislature from the executive (only a partial separation in the United States political system) and from the judiciary. The police, at both state and federal levels enforce the law/s, while the judiciary maintains it. A police service is a public force empowered to enforce the law and to ensure public and social order through the legitimized use of force. Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, and sanctioning those who violate laws with criminal penalties and rehabilitation efforts. The rights of the accused are rights that protect those accused of crime.

Popular Culture
Popular culture (or pop culture) can be deemed as what is popular within the social context - that of which is most strongly represented by what is perceived to be popularly accepted among society. Otherwise, popular culture is also suggested to be the widespread cultural elements in any given society that are perpetuated through that society's vernacular language or lingua franca. It comprises the daily interactions, needs and desires and cultural 'moments' that make up the everyday lives of the mainstream. It can include any number of practices, including those pertaining to cooking, clothing, consumption, mass media and the many facets of entertainment such as sports and literature. Popular culture often contrasts with a more exclusive, even elitist "high culture,", that is, the culture of ruling social groups.

Popular (1490), "public," from L. popularis "belonging to the people," from populus "people." Meaning "well-liked, admired by the people" is attested from 1608. Popularity "fact or condition of being beloved by the people" is first recorded 1601; popularity contest is from 1941. Popular Front "coalition of Communists, Socialists, and radicals" is from 1936. Popularize "to make a complex topic intelligible to the people" is from 1833 pop (adj., n.) "having popular appeal," 1926, of individual songs from many genres; 1954 as a genre of its own; abbreviation of popular (q.v.), earlier as a shortened form of popular concert (1862), often in the plural form pops. Pop art first recorded 1957, said to have been in use conversationally among an independent group of artists from late 1954.

Popular culture (commonly known as pop culture) is the totality of ideas, perspectives, attitudes, memes, images and other phenomena that are deemed preferred per an informal consensus within the mainstream of a given culture, especially Western culture of the early to mid 20th century and the emerging global mainstream of the late 20th and early 21st century. Heavily influenced by mass media, this collection of ideas permeates the everyday lives of the society.

Popular culture is often seen as being trivial and dumbed-down in order to find consensual acceptance throughout the mainstream. As a result, it comes under heavy criticism from various non-mainstream sources (most notably religious groups and counter-cultural groups) that deem it superficial, consumerist, sensationalist, and corrupted.

The term "popular culture" itself is of 19th century coinage, in original usage referring to the education and "culturedness" of the lower classes, as was delivered in an address at the Birmingham Town Hall, England. The term began to assume the meaning of a culture of the lower classes separate from and opposed to "true education" towards the end of the century, a usage that became established by the interbellum period. The current meaning of the term, culture for mass consumption, especially originating in the United States, is established by the end of World War II. The abbreviated form "pop culture" dates to the 1960s.

To take one aspect of American popular culture, I want to share some examples of the popular depiction of the law in television programs.

Think about the differences in characters in the following shows in regards to ethnicity, class, and gender. One of the more obvious points is that the law dramas features many more characters from upper middle class backgrounds, while police dramas have lower and middle class characters.

Law Shows

Ally McBeal is an American comedy-drama series which aired on the Fox network from 1997 to 2002. The series was created by David E. Kelley, who also served as the executive producer, along with Bill D'Elia. The series stars Calista Flockhart in the title role as a young lawyer working in the fictional Boston law firm Cage and Fish with other young lawyers whose lives and loves were eccentric, humorous and dramatic.

Law & Order is an American police procedural and legal drama television series, created by Dick Wolf and part of the Law & Order franchise. It aired on NBC and its related cable networks, and in syndication. Law & Order premiered on September 13, 1990, and completed its 20th season on May 24, 2010. At the time of its cancellation, Law & Order was the longest-running crime drama on American primetime television, and tied for longest running American drama series of all time with Gunsmoke; both are the second longest-running scripted series with ongoing characters after The Simpsons.

L.A. Law is a US television legal drama that ran on NBC from September 15, 1986 to May 19, 1994. L.A. Law reflected the social and cultural ideologies of the 1980s and early 1990s and many of the cases featured on the show dealt with hot topic issues such as abortion, racism, gay rights, homophobia, sexual harassment, AIDS, and domestic violence. The series often also reflected social tensions between the wealthy senior lawyer protagonists and their less well-paid junior staff. Created by serially successful TV producer Steven Bochco, it contained many of Bochco's trademark features, including a large number of parallel storylines, social drama and off the wall humor.

The Practice is an American legal drama created by David E. Kelley centering on the partners and associates at a Boston law firm. Running for eight seasons from 1997 to 2004, the show won the Emmy in 1998 and 1999 for Best Drama Series, and spawned the successful and lighter spin-off series Boston Legal, which ran for five more seasons, from 2004 to 2008.
The Practice focused on the law firm of Robert Donnell and Associates. Plots typically featured the firm's involvement in various high-profile criminal and civil cases that often mirror current events. Conflict between legal ethics and personal morality was a recurring theme. Kelley claimed that he conceived the show as something of a rebuttal to L.A. Law (for which he wrote) and its romanticized treatment of the American legal system and legal proceedings.

Police Shows

Hill Street Blues is a US serial police drama that was first aired on NBC in 1981 and ran for 146 episodes on primetime into 1987. Chronicling the lives of the staff of a single police precinct in an unnamed American city, the show received high critical acclaim and its production innovations proved highly influential on serious dramatic television series produced in North America. Its debut season achieved eight Emmy awards, a debut season record surpassed only by The West Wing, and the show received a total of 98 Emmy Award nominations during its run.

COPS is an American documentary television series that follows police officers, constables, and sheriff's deputies during patrols and other police activities. It is one of the longest-running television programs in the United States and the second longest-running show on Fox and, along with America's Most Wanted, the first half of the longest unchanged nightly schedule (Fox's Saturday night) currently on American broadcast television. Created by John Langley and Malcolm Barbour, it premiered on March 11, 1989, and has aired 948 episodes as of September 29, 2010. It won the American Television Award in 1993 and has earned four Emmy nominations. COPS began its twenty-third season in September 2010. The series is currently one of only three remaining first-run primetime programs airing on Saturday nights on the four major U.S. broadcast television networks, along with America's Most Wanted, and CBS' 48 Hours Mystery.

The Wire is an American television drama series set and produced in Baltimore, Maryland. Created, produced, and primarily written by author and former police reporter David Simon, the series was broadcast by the premium cable network HBO in the United States. The Wire premiered on June 2, 2002 and ended on March 9, 2008. Sixty episodes comprise its five seasons.
Each season of The Wire focuses on a different facet of the city of Baltimore. They are, in order: the illegal drug trade, the port system, the city government and bureaucracy, the school system, and the print news media. The large cast consists mainly of character actors who are little known for their other roles. Simon has said that despite its presentation as a crime drama, the show is "really about the American city, and about how we live together. It's about how institutions have an effect on individuals. Whether one is a cop, a longshoreman, a drug dealer, a politician, a judge or a lawyer. All are ultimately compromised and must contend with whatever institution they are committed to."
Despite never seeing a large commercial success or winning major television awards, The Wire has been described by many critics as the greatest television series ever made.The show is recognized for its realistic portrayal of urban life, its literary ambitions, and its uncommonly deep exploration of sociopolitical themes.


Unknown said...

Thanks for sharing something about the American law. I'm doing a little research on some of the concepts in the laws of this country, most specifically the jury system. I've asked a friend who's a Los Angeles car accident lawyer about how it works. She told me to watch some movies. Thankfully, you have posted some parts of the movies she has recommended me.

After asking that friend of mine, I've asked another lawyer friend who's a family law lawyer, Los Angeles, California based too, by the way. She said that some current law dramas on TV can also help me.

Once again, thanks for sharing! I've learned a lot from your post!

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