| James N. Markels | ||||
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Information Constitutionalist
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Writing Resume |
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James N. Markels Take a look at the TV schedule sometime. During primetime you have a host of legal shows like “Law and Order” (along with its two spin-offs, “Special Victims Unit” and “Criminal Intent”), “JAG,” “The Guardian,” “CSI,” “Judging Amy,” and the new show about the Supreme Court, “First Monday.” You can throw in “Ally McBeal” since the show is set in a law firm, even though it’s not really law-centered. If you think that’s impressive, check out the shows during the day: “People’s Court,” “Judge Judy,” “Judge Joe Brown,” “Divorce Court,” “Judge Mathis,” “Judge Hatchett,” “Power of Attorney,” and my favorite, “Texas Justice.” Since when did American audiences suddenly demand to see so much law on TV? Last I had bothered to check, the only daytime law show was “People’s Court,” and primetime was in love with shows about a particular family, the police, or hospitals. What gives? And what kind of treatment is the law getting? One thing to note is the dramatic difference between primetime and daytime law shows. Historically, primetime shows are drama-oriented and lawyer-driven, while the daytime shows are all effectively “People’s Court” spin-offs, with formerly practicing judges reviewing civil cases brought by regular people. One would think that the latter shows would employ more legal concepts and theory than the dramatic shows, since you have real judges deciding real cases, but it is soon discovered that these judges are imitating daytime talk-show hosts like Rikki Lake and Jerry Springer (the leaders of a dying genre) more than being actual judges. Daytime audiences want to see Judge Judy telling an obstinate defendant, “You’re not as smart on your smartest day as I am on my dumbest day,” not reciting common law. While most of these shows allow the litigants to argue their own cases (enforcing the adage that people who represent themselves have a fool for a lawyer), “Power of Attorney” takes the step of having actual lawyers represent each side, interviewing witnesses on the stand. At least there you get to see an experienced counsel asking witnesses questions, strategically working to prove a point, which is useful. Christopher Darden and Marcia Clark are both in the show’s pool of lawyers, so when they show up you know who to bet against. While primetime shows take the nuances of law a bit more seriously than the daytime shows do, what I find more interesting is how the focus of the shows has changed. The prototypical legal drama of the past spent all its time looking at the lawyer’s view of the world. Audiences wanted to see Perry Mason or Matlock gather the clues, interview the witnesses, piece together the truth, and then blast the real bad guy in the courtroom in a dramatic fashion. But what about the judges? Far from being the central personality as in the daytime shows, most of the primetime judges are wallflowers, croaking the occasional “overruled” or “sustained” in response to a lawyer’s impassioned objection, and are rendered all but useless once the star lawyer does their job. But times are changing. “Judging Amy” is the first primetime show that I know of to place a judge at the center of a legal drama, which is a change, but I’m much more intrigued by “First Monday,” which seems to me to be cashing in on interest in the Supreme Court that was sparked by the Bush v. Gore decision that was arguably the Court’s most public act ever. How this new focus will develop remains to be seen, but at least a fuller appreciation of the different organs of law is being provided. What I find most interesting is how normally non-legal shows treat the law. For example, a recent episode of “The Outer Limits” (a science fiction show) had a future five-member Supreme Court ruling on whether technological advancement should be halted because of disasters occurring in the past that prompted Congress to pass a ban. A short scene at the end was of the justices deliberating in private. One asked another, “You’re the originalist, what do you think?” He responded that the ban should be enforced. Another justice angrily retorted, “If all my vote counts for is to cancel yours, then by God it’s worth it.” Oddly, nobody else’s jurisprudence is ever labeled, so originalism, without any definition or discussion, gets a whipping by being portrayed as part-cruel and part-Luddite. It seemed in small part to be an attack on Justice Scalia, the noted textualist, but it’s hard to tell what the writer’s intention was. But as usual, the most insightful commentary has come from America’s cultural barometer, “The Simpsons.” A recent episode had Marge on another legal crusade, this time against sugar for the health problems it causes. The judge banned all sugar from Springfield, resulting in a huge black market for sugary goods that Homer naturally gets involved in. This bears an eerie resemblance to a current legal movement, backed by GWU law professor John Banzhaf and NYU professor Marion Nestle, which advocates that fast food and candy manufacturers be hit with class action lawsuits in order to stem obesity. Happily, in the end, Springfield realizes that the ban is futile and wrong, and Marge sagely notes, “I guess you just can’t use the law to nag.” Bravo! Perhaps TV has something to teach us about the law after all. |
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