Document Type

Working Paper

Publication Date

8-8-2011

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

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 interactionThis essay picks up Sherwin's cautionary tale from the opposite direction and examines how different forms of legal decisionmaking may respond to the concerns he discusses with a particular focus on factual decisionmaking 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 decisionmaking

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