Law, Film, and the New Deal Era
There is much to be learned by thinking about 1930s debates on American jurisprudence and about Hollywood legal dramas in conjunction with one another.
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This post is part of the ‘Research and Reflections’ occasional series, consisting of pieces based on my ongoing academic research, as well as on my musings on and responses to current affairs and personal developments.
I have been working recently on a journal article on the 1937 MGM film A Family Affair, and its wrestling with and reaffirmation of classical jurisprudential norms at a time when they were being increasingly heavily undermined by contemporary economic and political change. You can read my thoughts on that film specifically here:
One of the principal concerns underpinning the journal article, and what I want to focus on in this piece, is the relationship between broader shifts in thinking about the law in the United States during the 1920s and 1930s, and the law as a theme in American cinema. There is a rich literature on both of these subjects, as well as on how Hollywood and Hollywood films engaged with the politics of the 1930s, but far less attention has been paid to the connections between them: to the particular value of film as an arena for working out tensions in legal thinking in the era of the Great Depression and New Deal; to the particular importance of this era, and its politics, in the history of the legal drama (broadly defined).
Jurisprudence in the age of the New Deal
One principal debate around the operation of the law in the 1930s centres on why an apparently deeply conservative legal establishment seemed to quite suddenly fold as an obstacle to progressive political reform. This has tended to centre in particular on the Supreme Court, and its decreased appetite for confrontation with Franklin D. Roosevelt’s administration. As Laura Kalman put it, much scholarship hitherto adopted either an externalist approach, attributing the change to the Court kowtowing in the face of Roosevelt’s threat in 1937 to expand the number of justices in order to break the stalemate between its existing conservative and liberal wings; or an internalist one, highlighting the intellectual febrility of contemporary legal theory and practice and fragility of classical jurisprudential principles, eventually reflected in the inclinations of the Supreme Court itself.1
Classical jurisprudence, put simply, upheld the idea that the law existed objectively, constituted by formal, abstract principles, and that the expert role of judges was to impartially discover and implement them. Ascendant in the nineteenth century, its internal contradictions were exposed in practice by increasing social and economic complexity as epitomised in the cases it adjudicated on. It faced successive political challenges from Populists, Progressivists, and eventually New Dealers, who identified the legal system as it actually operated as an upholder of monied interests and opponent of reform.
Within law schools themselves, which would ultimately also influence and produce practitioners, a growing number of theorists directly took on the claims of classical jurisprudence. This culminated in the emergence during the 1920s and 1930s of legal realists who argued that judges constructed rather than discerned what the law was; that they were not neutral actors, and nor was their authority distinct from that of the law itself; and that the law therefore could and ought to be updated to meet societal needs. These ideas faced pushback as heretical but by the 1940s had become largely hegemonic. They formed part of a broader shift in academic disciplines, and indeed in American culture more broadly, towards a modernist recognition that knowledge and experience were inherently subjective.2
Indeed, the 1937 showdown between Roosevelt and the Supreme Court might be viewed as a symptom of the changes already wrought by this confluence of factors , as G. Edward White argued:
By assuming that the Supreme Court of the United States could be “packed” with persons who would be sympathetic to the political goals of the Roosevelt administration, and who would translate that sympathy into constitutional doctrine, the proponents of Court-packing were taking as a given that America was a government of men, not laws.3
There was certainly polarisation over the nature of the law in this period. It was epitomised not only by splits in the Supreme Court, but even more so in wider political debate, and in the nascent wing of American conservativism, coalescing around former President Herbert Hoover, that characterised the New Deal as in breach of the Constitution, and of the natural rules and freedoms underpinning it.4
Yet there was also considerable recognition and disquiet among advocates of classical jurisprudence that modern political and economic changes were rendering the law as they understood it harder to implement, and this indeed shaped the 1923 founding of American Law Institute and its ‘Restatements’ project to re-assert traditional common law principles and their continuing applicability, but instead fuelled further critique from legal realists.5 At the same time, there were areas of agreement between conservatives and liberals around some aspects of jurisprudence, such as in criminal law.6
Moreover, even prior to the court-packing dispute, some influential figures, including, Supreme Court Chief Justice Charles Evan Hughes, sought to chart a potential middle course and legitimise changes in the implementation of the law by drawing on the notion of the Constitution as a ‘living document’, whose meaning could be adapted to contemporary circumstances.7 New Dealers and civil liberties campaigners, enabled in part by moderate conservative critics of the New Deal who drew upon similar rhetoric, likewise turned to the Constitution and the aspects of it most salient to liberals (such as the Bill of Rights) to justify progressive legislation and state expansion.8
Screening the law
In her 1998 chapter, ‘Law and the Order of Popular Culture’, the film scholar Carol J. Clover argued that the trial was so integral to Anglo-American culture that its structures and procedures shaped fictional plots that went nowhere near a courtroom. She identified the trial’s adversarial nature, the role of the jury within it, and relatedly, its procedural formalism and emphasis on evidence, as its principal features as represented in popular culture. The audience is invited into the role of juror as the trial progresses through opening statements, in which the prosecution’s and defence’s contrasting positions are set out; an examination of the evidence broken down into discrete components through alternation between direct and cross examination; the closing statements where both sides try to combine all evidence into convincing account; and finally the coda of the verdict.9
Subsequent scholarship has, however, complicated this picture. Naomi Mezey and Mark Niles emphasised the wide range of representations of law in Hollywood film, from the conformist to the subversive, which they attributed to the complex structure and diverse political economy of the film industry.10 For trial films more specifically, Nerit Grossman has pointed out that – despite offering the symbolic trappings of law and justice – they frequently posit lawyer-heroes in opposition to an unfair legal system, while verdicts in these films often provide only partial closure, highlighting disjuncture between the outcome of the trial and the outcome of the broader social dilemma that the case encapsulates.11
Focusing more specifically on the American trial film’s ‘heroic age’ of the late 1950s and early 1960s, Barry Langford highlighted the ideological tensions, subjective nature of truth, and potential arbitrariness of verdicts exhibited in films ostensibly celebratory of the legal system, such as 12 Angry Men (1957), Anatomy of a Murder (1959), and To Kill a Mockingbird (1962).12 Norman W. Spaulding, meanwhile, has pointed out the particular importance of moments of disorder in court, whereby lawyers (especially) and other participants break rules and disrupt procedures in their efforts to ensure justice is actually done.13
Indeed, it is significant that in trial films the protagonist is so often a lawyer, tipping the audience’s sympathies towards one particular side in the case, and the moral and social cause it represents, rather than inviting us to dispassionately favour the fair adjudication of the contest, regardless of its eventual victor. As both Grossman and Spaulding have highlighted, trial films frequently depict moments of conflict between lawyer-heroes and judges, as a way of illustrating the gap between the fairness (or not) of the system and the question of righteousness in the case.14
Putting law, film, and the New Deal together
There is then, I think, especial insight to be gained from examining cinematic representation of the law in the era of the New Deal. Film is of value to the legal historian not only in demonstrating the wider normative social understandings of law that underpin its operation, but also the internal ideological contradictions that its workings reveal, particularly when the system of legal thought is not hermetically sealed in its operation, but exposed to other prerogatives, structures, and expectations, such as those relating to the motion picture. This is particularly pertinent in the context of the 1930s, when legal realism supplanted classical jurisprudence intellectually and then practically, accelerated by social and economic problems and the political and popular scrutiny they brought with them.
Film historians have already extensively explored the place of Hollywood in the New Deal era, both in its films’ animation of the predominant political debates of the day, and in the interconnection between studio and mainstream politics – not least in the case of MGM studio head Louis B. Mayer, his relationship with Herbert Hoover, and his role in the Californian Republican Party.15 Given the particular importance of legal arguments to the political debates and disputes of the 1930s, and Hollywood’s durable fascination with law as a theme and the legal drama as subgenre, gleaning how law operated as motif and structuring device in American films of that period is invaluable in understanding their broader political orientations.
Whither A Family Affair specifically in all this? Well, I think it’s hugely significant that its hero is a judge, not a lawyer, and that while focused on a particular legal dispute, it is not a trial film per se (the closest it gets to that, in its final scene, is the closest its judge-protagonist gets to behaving like a lawyer). It is a film rooted in classical jurisprudential ideas, it is a film about the legal system working properly when politics is corrupted. However, it is also a film that confronts business as the source of that corruption, which pits law against capital, at least when the latter is ostensibly acting in concert with government, through the act of upholding abstract jurisprudential principles, in defence of common prosperity. And even if it is a film that ultimately concludes reassured of the validity of those principles, it nonetheless showcases the difficulties of squaring them with the economic upheavals of the 1930s, especially when one factors in popular sentiment, in the form of the preferences and premises held by cinemagoers.
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You might also enjoy these posts from the Academic Bubble archive:
Laura Kalman, ‘The Constitution, the Supreme Court, and the New Deal’, American Historical Review, Vol. 110, No. 4 (2005), pp. 1052–1080.
On the evolution of the legal thought in this period, see:
Samuel R. Olken, ‘The Decline of Legal Classicism and the Evolution of New Deal Constitutionalism’, Notre Dame Law Review, Vol. 89, No. 5 (2014), pp. 2051–2092.
Edward A. Purcell, Jr., ‘American Jurisprudence between the Wars: Legal Realism and the Crisis of Democratic Theory’, American Historical Review, Vol. 75, No. 2. (1969), pp. 424−446.
Harry N. Scheiber, ‘Original Intent, History, and Doctrine: The Constitution and Economic Liberty’, American Economic Review, Vol. 78, No. 2 (1988), pp. 140–144.
G. Edward White, The Constitution and the New Deal (Cambridge, MA, and London: Harvard University Press, 2000).
William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (Oxford: Oxford University Press, 1998).
White, The Constitution and the New Deal, p. 236.
See Elliot A. Rosen, The Republican Party in the Age of Roosevelt: Sources of Anti-government Conservatism in the United States (Charlottesville, VA, and London: University of Virginia Press, 2014).
See White, The Constitution and the New Deal, pp. 167–173
See Anthony Gregory, New Deal Law and Order: How the War on Crime Built the Modern Liberal State (Cambridge, MA: Harvard University Press, 2024), Ch. 5.
See White, The Constitution and the New Deal, pp. 215–227.
John W. Wertheimer, ‘‘Switch in Time’ Beyond the Nine: Historical Memory and the Constitutional Revolution of the 1930s’, Studies in Law, Politics, and Society, Vol. 53 (2010), pp. 3–34.
Carol J. Clover, ‘Law and the Order of Popular Culture’, in Austin Sarat and Thomas R. Kearns (eds.), Law in the Domains of Culture (Ann Arbor, MI: University of Michigan Press, 1998), pp. 97–120.
Naomi Mezey and Mark Niles, ‘Screening the Law: Ideology and Law In American Popular Culture’, Columbia Journal of Law & the Arts, Vol. 28, No. 2 (2005), pp. 91–185.
Nerit Grossman, ‘Just Looking: Justice as Seen in Hollywood Courtroom Films’, Law, Culture and the Humanities, Vol. 15, No. 1 (2019), pp. 62–105.
Barry Langford, ‘Reasonable Doubts, Unspoken Fears: Reassessing the Trial Film’s ‘Heroic Age’’, in Austin Sarat, Jessica Silbey, and Martha Merrill Umphrey (eds.), Trial Films on Trial: Law, Justice, and Popular Culture (Tuscaloosa, AL: University of Alabama Press, 2019), pp. 81–110.
Norman W. Spaulding, ‘Disorder in Court: Representations of Resistance to Law in Trial Film Dramas’, in Austin Sarat, Jessica Silbey, and Martha Merrill Umphrey (eds.), Trial Films on Trial: Law, Justice, and Popular Culture (Tuscaloosa, AL: University of Alabama Press, 2019), pp. 111–139.
Grossman, ‘Just Looking’, pp. 80, 87; Spaulding, ‘Disorder in Court’, pp. 116–120.
On MGM and the politics of 1930s Hollywood more generally, see:
Donald T. Critchlow, When Hollywood Was Right: How Movie Stars, Studio Moguls, and Big Business Remade American Politics (Cambridge: Cambridge University Press, 2013), Ch. 1.
Steven J. Ross, Hollywood Left and Right: How Movie Stars Shaped American Politics (New York: Oxford University Press, 2011), Ch. 2.
Mark Wheeler, ‘The Political History of Classical Hollywood: Moguls, Liberals and Radicals in the 1930s’, in Iwan Morgan and Philip John Davies (eds.), Hollywood and the Great Depression: American Film, Politics and Society in the 1930s (Edinburgh: Edinburgh University Press, 2016), pp. 29–48.