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William C. Altreuter
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Wednesday, October 22, 2014

I'm not sure why the 92nd Street Y chose The Man Who Shot Liberty Valance before Justice Breyer's talk the role of law and lawyers in society-- it wouldn't have been my choice. I suppose there is a core truth in Liberty Valance that goes beyond "When the legend becomes fact, print the legend." In a sense when we are litigating a matter what we are doing is working towards an agreed upon set of facts-- and when the matter is decided at nisi prius  we become locked into those facts, whether or not we "agree" with them at that point. In recent years it has become fashionable among lawyers to quote John Adams: "Facts are stubborn things,"and I suppose we are being sincere when we say it, but the reality is that we all know better. Facts are different from evidence after all. The law of evidence evolved the way it did in a charming effort to develop a sort of science of reliability in the face of a world which we know to be unreliable. Evidence is, in the end, a system of excluding certain types of proof in favor of other types. We first eliminate the irrelevant, a complex task in an interconnected world; and then we consider what other types of proposed proof are or are not testable. When this was all being worked out science was thought of as Natural Philosophy, and so principles of scientific reliability were applied: hearsay rules are really just a way of barring forms of proof that are not subject to verification or rejection by cross-examination. What that means, ultimately, is that the version of the facts that we as lawyers see is distorted through the lens off our artificial apparatus of truth-seeking, and in some ways that lens is as unreliable and as subject to wishful or heroic thinking as the question of who was responsible for bringing law and order to Shinbone.

An aside: I'm always a bit shocked when I recall that Liberty Valance was released in 1962-- it seems like an older movie to me, and its distinctive cynicism seems out of synch with the supposed optimism of the  Kennedy years. In a sense you might argue that Ford was weirdly prescient: we recall 1962 and Kennedy as legends now, don't we?


| Comments:
Well, you've got form on the topic, so, given the content of the lecture, assuming a transcript or attendance, is there one film you'd choose above all others? I'm not as across the genre, but most of the legal films I know are similarly complicated in the plots, at least in any broad coverage of the subject heading.
 
The big thing that people get wrong about lawyer movies, at least in my view, is that they believe they are all courtroom dramas-- or that they center on the courtroom. Actually, movies that have a lot of courtroom stuff tend to be movies about social issues of one sort or another that use the courtroom setting to dramatize the debate. So, for example, "Inherit the Wind" (the movie that made me want to enter this glamor profession) is not really a movie about law-- it is a movie about intellectual freedom. "Mockingbird" is a movie about race and socioeconomic injustice. Movies that are about lawyers can also be about the internal contradictions and cognitive dissonance that grinds away at us-- like "The Verdict", or "Michael Clayton". (That's actually the grand theme of "Outside Counsel", taken as a whole. This is really a public notebook about living in a learned profession, and what that means in a society that does not value critical thinking except as a means to an end.) There are any number of movies that seek to establish that the law is an imperfect tool. Movies that take the opposite view are somewhat more rare. "My Cousin Vinny", number 3 on the American Bar Association's list of top 10 movies about law deserves mention in that context. Nobody cheats in "Vinny" , nobody hides anything material and nobody lies. Everyone does their job, and in the end the correct result is achieved. That's pretty rare in cinematic depictions of the legal process. Another movie that I think does a good job with this is "The Talk of the Town" (Columbia, 1942). It is obscure today, but this Cary Grant movie was a Best Picture nominee, and deservedly so. What is lovely about it is that it takes as its premise that the law cannot operate properly if it is detached from the society in which it functions. An interesting counterpoint might be "A Civil Action", which might be said to be a movie about what happens when The Law is regarded as a kind of a closed system, with little or no relationship to actually propounding meaningful solutions to legitimate social issues. Justice and injustice are big concepts, and I'm not so sure that they are our stock in trade. What we are really about is finality: given a dispute, what is a method to resolve that dispute short of violence or other social disruption? What lawyers, judges and legal scholars do is to tinker with, or operate the machinery we have devised over the past thousand years or so to bring about outcomes which are sufficiently satisfactory to all concerned, at least to the extent that riots or other forms of self-help are averted. In this we have been largely successful, but....

My Criminal Law professor-- himself an interesting cat-- told us a story once about his Criminal Law Professor: "When I started practicing I was inexperienced, and I probably lost cases I should have won," he said. "Later, I got better at the job, and I probably won some cases I should have lost. In the end, justice was done." I think we need to think about the process that way.
 

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