Law, Lies, and Hollywood: Stanley Fish’s Cinematic Jurisprudence

Julie Stone Peters examines “Law at the Movies: Turning Legal Doctrine into Art” by Stanley Fish.

By Julie Stone PetersFebruary 21, 2025

• Law

• Film

WATCHING THE CURRENT Supreme Court—as it rules that you can attack the Capitol so long as you don’t destroy a document, and that, if you’re president, anything goes—might make you wish you could get your law not from our courts but from the movies, or at least escape into them. Stanley Fish’s latest book, Law at the Movies: Turning Legal Doctrine into Art (2024), seems to promise such escape. Its cover shows a retro marquee displaying the names of the star-studded Hollywood films that appear between its covers: High Noon (1952) with Gary Cooper as the gritty gunslinger! Witness for the Prosecution (1957) with Marlene Dietrich as the mysterious murderess! Billy Budd (1962) with Terence Stamp as the naive sailor (so handsome, so ripped)! Most of the films here take us back in time to the postwar era when Fish came of age—an era when American democracy seemed indestructible and people still believed in American justice. You might think the legal issues in films from the 1950s and ’60s—wrongful conviction, the censorship of “obscenity,” Christian evangelism in public schools, sexual harassment as a way of life—would be obsolete. But, in fact, they’re chillingly relevant, as the current Supreme Court rolls us back to the 1950s, or in the case of the Dobbs decision, to the 13th century.

Feisty contrarian Stanley Fish has served us for decades as the public intellectual people love to hate. Feminist social critic Camille Paglia famously described him as “a totalitarian Tinkerbell.” Marxist literary theorist Terry Eagleton said he was “the Donald Trump of American academia, a brash, noisy entrepreneur of the intellect who pushes his ideas in the conceptual marketplace with all the fervour with which others peddle second-hand Hoovers.” A brilliant scholar of late medieval and Renaissance poetry, he came to prominence in the 1980s for his claim that “interpretive communities” determine how you interpret a text—a theory that offered liberal legal scholars an alternative to the rigid originalism and textualism of the conservative Rehnquist Supreme Court. Teaching at prestigious law schools (while secretly working toward a night school law degree), he began writing for public venues. The New York Times eventually gave him a syndicated column, where he opined on everything from the decline of the humanities to Hillary-hating and stepping on Jesus (on a scrap of paper). Both on lecture tours and in print, he has fought with all comers: conservative justice Antonin Scalia, liberal rights theorists Ronald Dworkin and Martha Nussbaum, radical law professor Duncan Kennedy.

At age 86, Fish is still at it. A heretic of the left, he still loves pillorying liberal pieties. No one was surprised when he published a book in 2016 titled Winning Arguments: What Works and Doesn’t Work in Politics, the Bedroom, the Courtroom, and the Classroom—he is an argument virtuoso who will lure you into one and then, irritatingly, best you (though damn if it isn’t all sleight of hand and pixie dust!). As the French would say, ça fait partie de son charme. His book titles get in your face: There’s No Such Thing as Free Speech … and It’s a Good Thing, Too! (1994); Save the World on Your Own Time! (2012); Think Again! (2015). (I’ve added the exclamation points, but they’re implied.) All of his books are “contrarian reflections” (as the subtitle of Think Again describes itself)—extended op-eds, cheeky and fun to read.

This one is a bit mellower but still fun to read, especially if you know the films and care about law, and even if you don’t. For Fish, these movies—almost all popular Hollywood films—raise fundamental jurisprudential questions: “What is law?”; “How is law established?”; “What is the source of legal authority?”; “What is the relationship between law and morality?”; “What compels obedience to the law?” Concerned primarily with such big philosophical questions (rather than narrow legal ones), he approaches them through close readings of the films, with help from the philosophical and poetic traditions. As in all his work, however, he wears his erudition lightly: no inside baseball doctrine for Supreme Court geeks; not a single mention of Deleuze or the “dispositif” for readers of Camera Obscura. He may cite Aristotle, Augustine, Donne, Milton, Hobbes, and Kant, but he also cites Cole Porter (“Don’t fence me in”), John Lennon, and the Marlboro Man. The book is trademark Fish—clever, insouciant, opinionated. But it is not an op-ed; “this book has no thesis,” he insists. In this (he implies), it is like good movies: they may raise legal issues, but they do not deliver verdicts. Like poetry, they “scor[n] the confines of [the] linear, one-way and only-one-way, thinking” that law demands.

That, of course, is itself a thesis. And while the book may have no single thesis, it does sneak in quite a few theses. Three in particular stand out, forming a kind of triad or three-step, each step in deliberate counterpoint to the preceding one. First thesis (reductively): These movies teach us doctrine, and in this, they make us better legal subjects. It is a truism that we learn our law from American police procedurals and learn it wrong: cops aren’t action heroes; warrants are hard to get; DNA evidence is rare. But these movies (says Fish) do in fact teach us real law. Serving as a form of popular legal education, they also teach us to love doctrine, showing us the importance of patient attention to what a character in Amistad (1997) calls “legal minutiae.” They teach us that commitment to the rule of law requires commitment to the craft of law—what Fish calls “the prosaic magic of good lawyering.”

In Anatomy of a Murder (1959), for instance, army lieutenant Frederick Manion (Ben Gazzara) has killed tavern proprietor Barney Quill after Quill allegedly raped Manion’s wife Laura (Lee Remick). When Laura hires slacker lawyer Paul “Polly” Biegler (Jimmy Stewart) to defend her husband, Polly digs through his law books and comes up with an obscure Michigan defense doctrine—not insanity but “irresistible impulse.” The film is in some ways a lurid sex drama—Laura is portrayed as a seductive floozy, with her girdle, a pair of panties, and something that looks awfully like incest all making an appearance. But, says Fish, this isn’t where the romantic action lies. The real love affair is between Polly and his chronically soused legal partner Parnell Emmett McCarthy (Arthur O’Connell). They share a passion not only for each other but also for law—not law as justice but law as craft, as “the smell of the old brown books,” as the letter rather than the spirit. Fish writes that “no one [in the film] is occupied with moral or philosophical thoughts. Only craft counts.”

Second thesis (again, reductively): While these movies teach us the importance of craft, they also delude us into thinking that craft brings justice; in this, they make us worse legal subjects. They may teach us the niceties of doctrine, but they lie about the judicial system as a whole. They give us the legal version of the “Hollywood ending,” telling us that truth and virtue ultimately prevail and American justice lives happily ever after.

According to Fish, liberalism—an old target—is to blame. The paradigmatic liberal law film here is 12 Angry Men (1957), a “love letter to the American judicial system.” Sitting in a stifling jury room, the jurors arrive quickly at a verdict: the Puerto Rican boy charged with killing his father is clearly guilty; everyone can go home. But Juror #8 (Henry Fonda) is unsure: maybe they’re being too hasty? He starts raising questions, and slowly but surely—against resistance and opposition, prejudice and stupidity—he persuades one juror after another to declare the boy “not guilty.” Juror #8 is the “reasonable man” with “reasonable doubt,” the perfect liberal hero—unprejudiced, scientific, cool (when everyone else is sweating like pigs). The film says that “if you are careful enough, and consider every possibility, no matter how far-fetched it may at first seem to be, the path to the truth will reveal itself.” It represents the jury room as a place in which “clouds of prejudice, bias, and ignorance are dispelled by rational deliberation supported by evidence that emerges from careful measurement and disinterested observation.” But it is “a liberal set-up,” writes Fish, and one that is profoundly hypocritical. For, while the film “celebrates impartial, rational process and derides rhetorical manipulation [it] is itself supremely manipulative.”

So, in fact, are most of the films Fish discusses. For instance, both Inherit the Wind (1960) and The People vs. Larry Flynt (1996) tell us that freedom of expression creates a “level playing field where every voice gets to be heard and the voice with the best evidence wins.” But the field is in fact “structured by the assumptions and norms belonging to one of the participants so that the other participant really doesn’t have a chance.” The Bible-thumping Matthew Brady in the former movie, Jerry Falwell in the latter: They don’t have a chance.

However—and this is the third thesis (yet again, reductively)—these films inadvertently expose their own spurious ideology, and in this, they help us understand law better than they understand it themselves. For the attentive viewer realizes that it is mere chance that Juror #8 ended up in the room, mere chance that he succeeded in persuading the 11 others. In fact, for all we know, the boy may be guilty. If the evidence introduces reasonable doubt about his guilt, it also (according to liberalism’s logic) introduces reasonable doubt about his innocence. Law is supposed to arrive at closure, but liberalism prohibits closure. Prizing doubt above all else, legal liberalism demands that you doubt even doubt itself. Sure, 12 Angry Men “cheats, driving toward a resolution that has not been honestly earned, but […] it cheats in plain sight.” It “practices the manipulation it disdains, but […] it provides opportunities for the detection of its manipulation” and so “can be said to be honest in its dishonesty.”

What these films inadvertently reveal is that, while law sometimes issues in justice, that is only by accident. The title of The Wrong Man (1956) is emblematic. Manny (the Everyman, again played by Fonda), wrongly accused, struggles to prove his innocence. “No matter how innocent you are,” says his wife Rose, “they’ll find you guilty.” And in a sense, she’s right: although the film gives us a happy ending—the real criminal, a Manny look-alike, is caught and Manny freed—it conveys the message that, as often as not, law gets the wrong man. Nor does the law especially care if it gets the right man so long as it has someone to pin things on.

The fetishism of craft is partly to blame, along with its handmaiden, legal positivism. These deem laws legitimate not because they are just but because they are laws. In the world of positivism, “there is no such thing as the unwritten law,” as Polly declares. But the view that the unwritten laws of nature and justice must override unjust written laws fares no better. Judgment at Nuremberg (1961) tempts us to think that conscience (guided by higher moral law) should always overrule dubious positive law. After all, Nazi law was criminal (we can agree); the judges should have consulted conscience. But in Fish’s reading, the film doesn’t allow us to rest comfortably in this certainty. After watching footage of the death camps in the courtroom, tragically noble German judge Ernst Janning (Burt Lancaster) pleads with the tribunal’s folksy-but-honest American judge Dan Haywood (Spencer Tracy), “I never knew it would come to that; you must believe it.” Haywood responds: “It came to that the first time you sentenced a man to death you knew to be innocent.” As Fish writes, “Haywood doesn’t hang his case on principle alone” but “has a legal argument.” He knows that “a breaking of th[e] chain [of law] will lead to the breaking of another, and after that another, and, before we know it, bodies are being forklifted into mass graves” (a declaration that sounds slightly hysterical until you think about history, and then remember that in many places, bodies are in fact being forklifted into mass graves).

In Fish’s claim that the films alert us to be wary of their seductive messages, we might find an update of his brilliant 1967 book Surprised by Sin: The Reader in Paradise Lost. There he argued that the silver-tongued devil of Milton’s epic poem seduces us precisely in order to show us our vulnerability so that we can fortify ourselves against seducers. Milton’s Satan tells us that we are greater than the law, that we can violate it with impunity because doing so will make us great again. He tells us: just eat the apple, and then storm that Capitol called Heaven (as Lucifer himself did). You will end up with all that heavenly real estate! But it turns out he’s a bloviating monster (with “horrid hair”) who never shuts up. Like Paradise Lost, the films Fish considers in his new book say: Do not be tempted by lawless arrogance disguised as righteousness; it always ends badly.

It seems that, for Fish, we are hopelessly fallen, legally speaking: no redemption in craft, no redemption in higher law. As he writes of Billy Budd, “A mere human being is always calculating, guessing, hazarding, trying to figure out what to do next, hoping that the choices made are the right ones […] If you are a mere human, [however,] nothing can protect you from the awful contingency […] that is at the heart of fallen life.”

In these movies, unlike in Paradise Lost, there is no redemptive God, only chance. What appears as a deus ex machina is a theatrical trick. We might not want Milton’s God (a moralizing prig who turns out—in the greater scheme of things—to have the same overweening arrogance as the Devil). But we might occasionally wish for a godlike entity to step in and deliver something like justice. Instead, what we know—what Fish knows—is that there is no god of law. Law is a function of power: it’s politics all the way down. The right-wing majority on the current Supreme Court—masters of both cunning legal craft and the rhetoric of righteousness—understands this as well as critical legal studies ever did, and maybe better.

What they also know is that Fish is wrong when he writes that someone like Matthew Brady or Jerry Falwell “doesn’t have a chance,” wrong according to his own principles. For he momentarily forgets the power of liberalism to flip the script. He does note that Kennedy v. Bremerton School District (2022)—which effectively affirmed the right to compel prayer on a high school football field—may change things. But he nevertheless seems to think that the liberal precepts he has had such fun skewering remain invincible. In this, he is mistaken, as the recent Louisiana law requiring public schools to display the Ten Commandments in every classroom suggests. A critic once said that Fish is worse than an “unprincipled relativist”: he’s “a fatalist.” But in fact he seems to be the opposite: one who assumes that he can throw a punch at something he believes in and, like a punching bag, have it always swing back unharmed, impervious to another hit. Watching the new Trump administration dismantle liberal democracy, I am not so sanguine.

Still—for all Fish’s distrust of law, for all his cantankerous contrarianism—law seems to remain for him an obscure object of desire. In his discussion of A Man for All Seasons (1966), he describes law as a necessary “system of mutual, reciprocal protections that can do its salutary work even [quoting Kant] if what it administers is ‘a nation of devils.’” It is “the space in which the project of civilization—the project of creating a politics that shelters everyone, so long as everyone plays by the rules—can flourish.” Shelters everyone? Unlikely, but one can hope. And that is, after all, what laws are: forms of hope. While Fish may lambaste the narrow-minded liberalism of the rationalist lawyer Henry Drummond (Spencer Tracy) in Inherit the Wind, he nevertheless cannot help but love him as “a humanist, someone who believes that whatever divinity there is resides in man’s (and woman’s) efforts to build communities of sharing and compassion in the wilderness that is the world.” Law shackles us together in the wilderness, for better or worse. “The rule of law and the beacon of justice are at once strong and precariously fragile,” writes Fish. Despite all the wrong they do, it may be worth protecting them.