Bruce J. Krajewski reviews Judicial Uses of Images

Peter Goodrich. Judicial Uses of Images: Vision in Decision. New York: Oxford University Press, 2023. 304 pp.

4 January 2024

A lifetime ago, Laura Mulvey misinterpreted Jacques Lacan and made hay with the “male gaze.”[1] Part of the title of Mulvey’s essay has to do with ungendered “visual pleasure,” what upscale critics call scopophilia, that love of seeing. This has been such an attractive idea to people in the humanities that many have neglected its counterpart for legal studies, the deliberate desire to not see, immortalized via the iconic blindfolded Lady Justice.[2]

Whereas Mulvey ignited a host of critics to talk about love of seeing, Peter Goodrich hopes to light a fire among lawyers and judges to discuss a fear of seeing. Goodrich doesn’t use the term scopophobia. His proof text is Gough v. United Kingdom (2015). Stephen Peter Gough insisted on appearing naked in public, at the grocery, on planes, in court, and in prison, where he was incarcerated for ten years. As Goodrich explains, Gough terrified the judicial eye, to the point that the judge forbade Gough from appearing fully naked in court. “The trial court refused to look, to view the naked subject, and on appeal, precisely on the question of whether blind trial was unfair, [Gough] was consigned to a video-link of which the judge makes a point of stating that she could not see him and did not care to inquire or look at the subject of her judgement” (pp. 246–47). Goodrich draws a larger lesson from the example: “Law does not wish to look up from the text at the bigger scenario and greater context of bodies embedded in the social and political” (p. 242).

The fear of looking, along with a lack of training and understanding in the legal profession about visual media, is the shock and entertainment of Judicial Uses of Images. Repeatedly, Goodrich explores cases where judges, sometimes at the highest levels, don’t seem to look, such as Clare and Ors v. Bedlis, in which His Honour Associate Justice David Derham cites a photograph of a house, one part of which clearly has two stories, yet the judge persists throughout in saying the house has one story. Worse, the judge inserts the image into the decision concerning a land covenant preventing buildings of more than one story.

We all might be better off were judges simply saddled with poor eyesight. However, sometimes a judge predetermines the outcome of a trial and makes the visual evidence fit the ruling. A prime example of staging physical evidence is Sandifer v. United States Steel Corporation. Judge Richard Posner had his law clerks both model and photograph costumes (circumstances kept secret until after the decision, according to Goodrich) in a case involving employees being forced to pay for work clothing, with the company claiming “the apparel being put on was clothing in the everyday sense” (p. 156). The workers countered that the clothing was safety equipment, consisting of, for example, flame-retardant pants and jacket, work boots with steel toes, safety glasses, and ear plugs. The images Posner concocted to buttress his ruling do not show actual workers in dangerous conditions at construction sites, but white-collar kids whose poses and bodily condition suggest the world of fashion. One clerk/model is leaning, hand on hip, against what appears to be an office door frame. One doesn’t require the Delphic oracle to guess how the ruling turned out for the blue-collar workers.

In a world of emojis, selfies, CCTV, Ring doorbell cameras, screenshots, gifs, NFTs, and AI-generated images, Goodrich’s counsel is timely. As he says, “The law becoming imaginal is the next stage of jurisprudential development” (p. viii). In other words, if you don’t want to be a walking legal anachronism, you had best open your eyes to images.

Goodrich realizes that forces are aligned against him, not simply because blindness is a valued standard in legal circles. How lawyers and judges understand and interact with texts remains bound to a scriptural tradition that is predominantly linear and monochrome. Images have suffered within that tradition, being treated as corroborative rather than essential and precedent-setting evidence, as self-evident rather than requiring a second thought.[3]

In the context of the United States, it seems unlikely that the edification Goodrich has in mind will happen from within, that the judiciary can fix itself, especially in light of recent ethical conduct by Supreme Court justices.[4] Goodrich is not proposing the collective overthrow of capitalism and the legal system that supports it (he’s not radical in that political sense), nor is he pushing fashionable “visual literacy.”[5] Rather, he suggests the legal community gain “retinal expertise, technical knowledge of modes of fabrication,” become familiar with the importance of framing, color, x-rays, angles, shadows, point of view, and the ways in which images are not obvious depictions of reality (p. 208).

[1] Laura Mulvey, “Visual Pleasure and Narrative Cinema” in Narrative, Apparatus, Ideology: A Film Theory Reader, ed. Philip Rosen (New York, 1986), p. 203. See also Tom Cohen, “Beyond ‘The Gaze’: Žižek, Hitchcock, and the American Sublime,” American Literary History (Summer 1995): 351, and Slavoj Žižek, Less Than Nothing: Hegel and the Shadow of Dialectical Materialism (London, 2012), pp. 666–68, and Looking Awry: An Introduction to Jacques Lacan through Popular Culture (Cambridge, Mass., 1991), p. 91.

[2] See Valérie Hayaert, Lady Justice: An Anatomy of Allegory (Edinburgh, 2023).

[3] For an edifying example of such second thoughts, see Errol Morris, Believing Is Seeing (Observations on the Mysteries of Photography) (New York, 2011).

[4] See Robert Barnes and Ann E. Marimow, “Supreme Court, Under Pressure, Issues Ethics Code Specific to Justices,” Washington Post, 13 Nov. 2023, www.washingtonpost.com/politics/2023/11/13/supreme-court-ethics-code/

[5] See Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton, N.J., 2019).