Legally Live: Performance in/of the Law

Abstract

In thinking about performance in relation to American law, I choose to focus on copyright and the law of evidence because these branches of jurisprudence address that relationship most immediately. Copyright governs the ownership and circulation of cultural objects and therefore determines the conditions under which performance participates in a commodity economy. As such, it is the branch of jurisprudence that deals most directly with the status of performance in the law. Evidence law regulates "the proof used to persuade on fact questions at the trial of a lawsuit" (Rothstein 1981:I); it therefore sets conditions that regulate the conduct of trials as performances of the law. I want here to survey statutes and decisions that shed light on both performance's status in the law and the nature of legal proceedings as performance. Although copyright and evidence are separate areas of law, considering them in relation to performance reveals that memory is a thematic common to both, perhaps the central thematic of law generally. Using the thematic of memory as a pivot point, my analysis moves from a consideration of performance in relation to copyright to a discussion of what the rules of evidence tell us about legal proceedings as performance. In so doing, it also moves from considering performance primarily in terms of cultural economy to questions that touch on what Peggy Phelan calls "the ontology of performance" (1993:146-66).