Law and Literature Part 2

We learn from Wolfe's novel that technicalities matter (it is on the basis of a technicality that the first indictment against McCoy is dismissed); that miscarriages of justice occur (McCoy, remember, is innocent of the homicide charge, and the actual culprits are used as false witnesses by the prosecution); that legal proceedings can be interminable and excruciatingly expensive; that the moral and intellectual shortcomings of judges, lawyers, jurors, and other partic.i.p.ants in the machinery of justice are 37. The mistreatment by the American criminal justice system of persons charged but not yet convicted of crime is an international scandal. People accused of white-collar crimes are arrested in the most public and shaming manner possible and led in handcuffs to jail to be booked, but are then released on bond. People accused of crimes of violence are generally though not always drawn from social strata in which a public arrest is not a conspicuous badge of shame, but neither are they released on bond; they are thrown into jail to languish, sometimes for many months, while awaiting trial.

*great; and that the machinery is further corroded by political and personal ambitions. Judge Kovitsky does get to make a Law Day speech to Larry Kramer: "What makes you think you can come before the bench waving the banner of community pressure? The law is not a creature of the few or of the many. The court is not swayed by your threats."38 But he is duly punished for his independence: he is denied renomination.

Wolfe exploits to the full New York's most arresting characteristic- the juxtaposition of grotesque extremes of opulence and squalor, the former symbolized by McCoy and his Park AvenueWall Street set, the latter by the Bronx County Criminal Court with its crummy, overcrowded facilities, its clientele of black and Hispanic criminals, and its harried, underpaid, precariously middle-cla.s.s personnel. Shuttling between the extremes is a rich cast of hustlers, social climbers, toadies, hangers-on, and con men, seeking to share in the opulence and avoid sinking into the squalor. There is an egregious quality about New York that provides a field day for a sharp-eyed and sharp-tongued social satirist. Wolfe has a particularly keen eye for prices and for how people dress, and for dialect.

Granted, the novel exaggerates the sordidness of New York in the 1980s,39 great as it was. And Wolfe did not foresee the dramatic improvements in the quality of life in New York that began in the 1990s. But he exaggerated less by misdescribing-his portrayal of the Bronx County Criminal Court was essentially accurate, although its environs were not so h.e.l.lish, and the entire book is a roman a clef populated by inst.i.tutions and characters recognizable by knowledgeable New Yorkers-than by suppressing complexity. That is the satirist's privilege. Wolfe is in the tradition of Bosch and Swift in portraying humanity at its worst. It is therefore part of his method to present a one-sided view of his subject.

The Bonfire of the Vanities is not a "great" novel if one's touchstone is d.i.c.kens or Dostoevsky. Its plot is merely a thread connecting a series of 38. Page 676 in the 1988 paperback edition of the novel.

39. Among mistakes in the novel, as pointed out by James Collins, "Is 'Bonfire' a Great Novel?" in New York Times Book Review, "Reading Room: Conversations about Great Books: A Discussion of Bonfire of the Vanities," Mar. 25, 2008, http://readingroom.blogs.nytimes .com/2008/03/25/is-bonfire-a-great-novel (visited Apr. 5, 2008), Sherman McCoy's friends would not have dropped him just because he was prosecuted for vehicular homicide. Nor would he have felt as out of place in New York City as he does, for even the wealthy in New York rub shoulders with ordinary people.

tableaux. Its characters are shallow and are revealed to the reader by the simplistic device of the narrator's making the reader privy to their thoughts. The writing is pedestrian. And two-thirds of the way through the novel the author's energy flags. Satire gives way to broad and eventually tedious burlesque. The scene in which a courtroom mob attacks Judge Kovitsky for dismissing the indictment against McCoy is overdone; the halo around Kovitsky's head s.h.i.+nes too brightly. And the hints of redemption for McCoy that Wolfe starts to drop are maudlin.

The weakness of the last third of the novel is the only criticism that counts. A satirical or political novel must not be judged by how closely it resembles novels of a psychological or philosophical character-or novels deeply engaged with law or justice. The depiction of the criminal process in The Brothers Karamazov is designed, as we shall see in chapter 5, not merely to provide local color or narrative suspense or to be a caricature or an expose but more importantly to contrast rational inquiry, exemplified by the criminal justice system, with religious insight-to the disadvantage of the former. The only religions in The Bonfire of the Vanities are the Reverend Bacon's extortion racket and the Wall Streeters' wors.h.i.+p of Mammon. To Wolfe, law is just another venue-like a dinner party on Park Avenue or the "ant colony" in which Larry Kramer lives with his wife, infant, and au pair girl on his meager civil servant's salary-in which to observe the comic pratfalls of trivial people. Although the politicization of prosecutors' offices and the a.s.sembly-line character of criminal justice in the nation's big cities are genuine social problems that the novel vividly depicts,40 there is no suggestion that any of them might be alleviated, let alone solved.41 That is why Wolfe didn't think New York could improve. He led the reader to believe that the criminal justice system would soon be dominated by the minority that was already a majority in the Bronx and that it would be even worse than it already was because there would be no more Kovitskys.

Allusive, erudite and even esoteric, syntactically complex, high modernist in style, William Gaddis's legal novel, A Frolic of His Own (1994), is the 40. At this writing, there is an investigation of alleged political interference with the prosecution decisions of U.S. Attorneys during the Bush Administration.

41. This is also a limitation of d.i.c.kens's satire, as we'll see in chapter 4.

*most difficult book discussed so far in this chapter, and it is even more saturated with law than Wolfe's novel is. There are three substantial judicial opinions, a set of elaborate jury instructions, and a deposition. And all the litigation is civil litigation. Wolfe took the easy way of coping with the public's ignorance about law by using as the spine of his novel a criminal case, which a layperson is more likely to understand because of the dense coverage of criminal cases by the media.

The legal theme of Gaddis's novel is announced in the t.i.tle. A "frolic," as one of the characters explains, is a concept in the law of agency: an employer is not liable for a tort committed by an employee engaged in an activity unrelated to his employment. Oscar Crease is on a frolic of his own in a different sense, though one that turns out also to be charged with legal significance. A disheveled, reclusive, childless, unmarried, middle-aged skinflint, he lectures on the history of the American Civil War at a small college and lives on a ramshackle but pricey property in Long Island, subsisting mainly on the income from a trust fund. His grandfather, like Oliver Wendell Holmes, was a Civil War veteran and Supreme Court Justice. His father is a 97-year-old federal district judge in South Carolina who has been nominated for promotion to the federal court of appeals. Nonagenarian judges are not promoted, so here is an early clue that the novel has fantasy elements, along with a good deal of gritty realism-a combination familiar from Bleak House.

Crease's "frolic" is a play he had written years earlier-a Faulknerian mishmash garnished with pa.s.sages lifted from Plato's dialogues on the trial of Socrates-about his grandfather, who after being wounded fighting for the South in the Civil War moves north to claim a coal mine in Pennsylvania that he has inherited. He hires a subst.i.tute to take his place in the Confederate army and then, threatened with being drafted into the Union army after his move to Pennsylvania, hires another subst.i.tute to fight for the Union. The two subst.i.tutes find themselves in opposing regiments at the battle of Antietam and kill each other, which the grandfather regards as a kind of spiritual suicide of himself. The play, naturally, has never been produced.

When Oscar hears about a new movie that seems to bear a striking resemblance to his play, a copy of which he had sent many years ago to the movie's producer, he sues for copyright infringement. His case looks hopeless. He hasn't seen the movie and can't find the letter from the producer acknowledging receipt of his play. He can't claim copyright protection for the Civil War or his grandfather's life, obviously, let alone for his plagiarisms of Plato. He is up against one of the biggest law firms in New York and gets ripped apart at his deposition by a brilliant young comer at the firm, while his own lawyer turns out to be an impostor and vanishes during the litigation. Sure enough, the suit is dismissed on summary judgment, that is, without a trial. But then Crease's father, the old judge, takes a hand in the case (not for love of his son, but for love of the law-his only love), actually drafting the appeal brief, an impropriety unremarked in the novel.

The appeal succeeds. The U.S. Court of Appeals for the Second Circuit-the distinguished federal court on which Learned Hand had once sat-recognizes the hand of a fellow judge. And the court of appeals judge who writes the opinion reversing the district judge dislikes female judges-the district judge in Crease's case was a woman. Yet the court of appeals opinion is very fine, and we understand that Crease really did have a strong case. But another peripeteia is in store. The suit had asked for the defendants' profits from the movie, but through imaginative accounting the producer is able to convince the court that although the movie grossed almost $400 million there are no profits and if there were any they would be attributable not to Crease's stolen play but to the "Nordic-Eurasian t.i.ts" of the female lead.

The copyright suit is among more than a dozen suits described or mentioned in the book.42 Another has Crease suing himself for a negligently caused injury that he sustained when his car ran over him while he was jump-starting it; he had been too cheap to have the ignition repaired. Another is a wrongful death suit, over which Crease's father is presiding, brought against a minister by the parents of a child who drowned while the minister was baptizing him. Judge Crease's instructions to the jury intimate a possible liability of G.o.d, as the minister's princ.i.p.al. The judge also presides over a series of suits arising from a bizarre accident in a hick town. A sculptor-the kind the National Endowment for the Arts likes to 42. See Larry M. Wertheim, "Law as Frolic: Law and Literature in A Frolic of His Own," 21 William Mitch.e.l.l Law Review 421, 425445 (1995).

*support-has erected a huge and hideous structure meant to mock its provincial setting, but the locals are oblivious and happily exploit its tourism potential. A dog wanders into the structure and gets stuck. The dog's owner asks the fire department to dismantle the structure with acetylene torches to free the dog, but the sculptor obtains a preliminary injunction against the dismantlement from Judge Crease.43 So the dog remains stuck. Then lightning strikes the structure and kills the dog, causing public outrage and ruining Judge Crease's chance for promotion and leading to calls for his impeachment.

The moral center of the novel is Oscar Crease's stepsister, Christina, who tries to keep him and his dumb-blonde girlfriend out of trouble and whose description of the legal profession as a "self regulating conspiracy" appears to state the author's view. Christina's husband, Harry Lutz, a partner in the firm that represents the producer in Crease's copyright suit, and a nice guy, works himself literally to death. For nowadays being a partner in a large law firm is, as he explains, "like sailing through the strait of Messina between Scylla and Charybdis. You make partner, make senior partner with a fine old reputable white shoe firm used to mean you were set for life, now you've got the sea monster's cave on one side and a whirlpool on the other, liability as a partner you're on board risking being devoured by these monstrous suits and government regulators or sucked under and drowned in the unemployment pool" (p. 422). Christina is counting on Harry's $500,000 life insurance policy to tide her over. His firm tells her it's worried that he may have committed suicide, a cause of death excluded from the policy's coverage. Christina provides the firm with convincing evidence that her husband's death was not suicide, only to discover that she is not the beneficiary of the policy-the firm is.

The paperback jacket copy describes A Frolic of His Own as "Swift 43. Although ruling for the sculptor, the judge rejects the argument that the dog was a trespa.s.ser (and therefore ent.i.tled to no consideration), on the ground that the town's leash law "appears more honored in the breach, in that on any pleasant day well known members of the local dog community are to be observed in all their disparity of size, breed, and other particulars ambling in the raffish camaraderie of sailors ash.o.r.e down the Village main street and thence wherever habit and appet.i.te may take them undeterred by any citizen or arm of the law" (p. 31 of the paperback edition).

ian." That is accurate to the extent that Gaddis has a bleak vision of a nation devoured by greed, a nation whose legal system is completely characterized by Ambrose Bierce's definition of litigation as a process that you go into as a pig and come out of as a sausage. But the presiding spirits are Sterne and Joyce rather than Swift. One cannot help liking the nutty Uncle Tobystyle Oscar, whose suit against the movie industry is, in its own crazy and lucre-tinged fas.h.i.+on, a quest for justice and a challenge to the hideous wave of popular culture that is engulfing his exurban world. But the quest is a failure, and not only because Hollywood gets to keep its profits. The television is always on in Oscar's house. He orders a fish tank, provoking this reflection from Christina: A fish tank? when they could better be watched in living colour and much wilder variety sp.a.w.ning and feeding, fin ripping and vacant staring gla.s.sy eyed from far grander submarine vistas and exotic plant and coral strewn habitats right on his nature program, spared those custodial concerns for wind and wave, temperature and salinity, aeration, pH balance, light and filtration and the daily toll of all those mouths to feed confined, best of all, where they could be summoned and banished in an instant like those hordes of his own species crowding the channels elsewhere rather than actually having them all over the house here firing guns, spouting news events, telling jokes, doing pushups, deep knee bends, shuddering with diarrhea, howling half dressed and full of pa.s.sionate intensity humping guitars like the monkey with the greased football loosing mere anarchy upon the world where three's a crowd even in a house as large as this one. (pp. 282283) The movie stolen from Crease's book is finally shown on television, and he watches it-rapt. The hyperrealistic battle scenes-the movie's producer is the king of gory special effects-enchant him.

Greed, litigiousness, media that lack any decorum or restraint, false values-all this sounds much like The Bonfire of the Vanities. Both books portray the American legal system, viewed as a microcosm of the society, in unflattering colors. But the books are more different than alike. Wolfe's *is a satire of bright surfaces. Its characters are cardboard figures and elicit no sympathy from the reader, and the satire is localized to New York City. Gaddis's characters are victims of a tawdry, frenetic, spiritually empty culture dominated by mind-destroying media and a Darwinian legal system. It is the culture of America circa 1990 as seen by Gaddis's jaundiced eye, but it could be the London of "The Waste Land" or even one of the circles of h.e.l.l in the Inferno. The humor is often as broad as in Wolfe's novel, but A Frolic of His Own has greater depth, resonance, and humanity. The contrast between it and Wolfe's novel is a bit like that between Orwell's Nineteen Eighty-Four and Huxley's Brave New World, both of which I discuss in chapter 10.

The legal detail in Gaddis's novel is extraordinarily dense-it must be hard going for a reader who is not a lawyer-and except for the deliberate comic touches is realistic. Not only the copyright case, which raises issues that I'll be discussing in the last chapter of this book, but also the cases arising from the immurement and subsequent death of the dog trapped in the sculpture could be made the basis of law school exam questions. The deposition of Oscar Crease, in which the opposing lawyers spend most of their time interrupting each other, belongs in a course in pretrial procedure. And there is a marvelous description by Harry Lutz, forecasting the young hotshot lawyer's losing in the court of appeals, of what it can be like to argue a case before an appellate court (and notice the theater a.n.a.logy in the last sentence): I don't think he's ever handled a case before the Second Circuit Appeals Court. Probably march in there with a twenty page brief ready to read every word of his brilliant legal a.n.a.lysis to these three old black robes sitting up there looking down at him and I mean looking down, he's standing at a lectern down in the well and they're up in their highbacked thrones behind this polished mahogany sort of horseshoe courteous, relaxed, really forbidding, almost informal and that's what's formidable about it. He starts off with something like in order to fully understand this case one of them cuts him right off. We're familiar with the case, Counsel, is there anything you wish to add to what is contained in your brief ? Your honour, if I may be a*

lowed to outline the facts . . . I believe we understand the facts, Counsel. If it please the court, the public interest in the far reaching cultural implications of this case and [Judge] Bone cuts right in, I remind Counsel that we are here to serve the public interest. Your case is thus and so, goes right to the heart of it, sums up the argument in a couple of sentences and asks counsel to sit down, poor b.a.s.t.a.r.d's got himself up for a real performance and the place, the whole atmosphere's like a theatre but they're not there for a matinee and his whole star turn goes out the window, a few more questions and down comes the curtain.

(p. 347) But as with most other works of imaginative literature that take law for their theme, the heart of this fascinating novel lies elsewhere than in its critique of law. The impression that lingers is of hapless characters caught in the webs of modern American trash culture (of which law is one), rather than of the webs themselves.

The Law in Popular Culture Although it is a distinguished satiric novel, The Bonfire of the Vanities is a work of popular culture. Tom Wolfe is a journalist who writes bestsellers; Bonfire was one of them. But here is a paradox: many cla.s.sics started life as works of popular culture (Shakespeare and d.i.c.kens, of course, but also Twain and Cozzens), but no recent work of popular culture can be a cla.s.sic, because if published recently it can't have pa.s.sed the test of time. That is no reason to exclude such works from the study of law and literature. The Bonfire of the Vanities is a significant contribution to the field, however ephemeral its appeal may prove to be. An earlier bestseller, Herman Wouk's The Caine Mutiny: A Novel of World War II (1951), contains a riveting trial scene-a good deal more riveting than chapter 46 (depicting a trial for manslaughter that ends in an unjust conviction) of George Eliot's "legal" novel, Felix Holt, the Radical (1866).

Today's popular culture is permeated by law, especially if "literature" is defined broadly to include movies and television dramas, as a number of law and literature scholars have done, and rightly so, as these are dra *matic forms akin to plays.44 But it is wearisome to have to root through mountains of popular novels and films and sitcoms for the occasional truffle, especially since short-term popularity is often inverse to quality. It is surprising how many law films there are, not to mention law television series, plus television series such as The Simpsons that though not about law as such contain a number of legal scenes. The variety of law films alone, in point of both style and quality, is daunting. There are bright spots, mainly comedies, like Adam's Rib (1949), which depicts the tensions created when women occupy a traditional male role-namely that of a trial lawyer; the television series Rumpole of the Bailey, about a London barrister, which has realistic court scenes and paints an insightful picture of a certain type of trial lawyer; My Cousin Vinny, a hilarious film about a novice Brooklyn lawyer defending a criminal case in a southern courtroom; and Intolerable Cruelty, an engaging farce about a divorce lawyer. All four of these comedies, but particularly Rumpole of the Bailey and My Cousin Vinny, can be mined for helpful hints on how to try a case.

The trial scene in the film version of Harper Lee's 1960 novel To Kill a Mockingbird-the most warmly regarded of law films-is not on the same level, as far as practice hints are concerned, as the other films that I have 44. See, for example, "Symposium: The 50th Anniversary of 12 Angry Men," 82 Chicago-Kent Law Review 551 (2007); Law and Film (Stefan Machura and Peter Robson eds. 2001); Steve Greenfield, Guy Osborn, and Peter Robson, Film and the Law (2001); Prime Time Law: Fictional Television as Legal Narrative (Robert M. Jarvis and Paul R. Joseph eds. 1998); Susan Bandes, "We Lost It at the Movies: The Rule of Law Goes from Was.h.i.+ngton to Hollywood and Back Again," 40 Loyola of Los Angeles Law Review 621 (2007); David Ray Papke, "Law, Cinema, and Ideology: Hollywood Legal Films of the 1950s," 48 UCLA Law Review 1473 (2001). Particularly good is Mark Tushnet, "Cla.s.s Action: One View of Gender and Law in Popular Culture," in Legal Reelism: Movies as Legal Texts 244 (John Denvir ed. 1996). Between 1976 and 2007, films with trial scenes accounted for 3.08 percent of total box office revenues (adjusted for inflation), and films in which trials were central accounted for 1.23 percent. (Sources, all visited July 24, 2008: total box office revenues per year, "Wayne Schmidt's Box Office Data Page (IMDb)," www.waynesthisandthat.com/moviedata.html; list of movies with trial scenes, The Internet Movie Database, www.imdb.com, searched under keyword "trial"; earnings for each movie containing a trial scene, "Box Office Mojo," July 24, 2008, www.boxofficemojo.com.) These are not trivial percentages. On the depiction of law in popular culture more generally, see, for example, David Ray Papke et al., Law and Popular Culture: Text, Notes, and Questions (2007); Law and Popular Culture (Michael Freeman ed. 2005); University of San Francisco School of Law, "Picturing Justice: The Online Journal of Law and Popular Culture," www.usfca.edu/pj/index.html (visited June 16, 2008).

mentioned, though the film as a whole is superior to the novel, and the defendant and his lawyer are well played by Brock Peters and Gregory Peck. The appeal of Lee's novel lies in the fact that it provides a safe vehicle for talking about race at a high school level of reading comprehension, and who can fail to warm to a southern lawyer defending a black man in the Jim Crow era? But influential though it has been,45 from a literary standpoint it is an inferior version of Faulkner's novel on the same theme, Intruder in the Dust (1949)46-which itself is not one of Faulkner's best novels. But to criticize To Kill a Mockingbird for its aesthetic limitations would miss the point. Both the novel and the film are good-natured didactic entertainments intended to promote good race relations and, more broadly, democratic and egalitarian values.

On the debit side of the law-film ledger one finds that overrated costume drama A Man for All Seasons (1966), which whitewashes the vicious heresy hunter (albeit a brilliant lawyer and writer) Thomas More.47 And there is a preposterous film about the Supreme Court, First Monday in October (1981), as well as the film version of The Bonfire of the Vanities (1990), a notorious flop on which I pause for a moment. Tom Hanks, who plays Sherman McCoy in the movie, is good, but the other actors are either bad or miscast to avoid offense. Kovitsky, the honest judge, is turned from a Jew into a black to avoid a pointed contrast between Jews and blacks and to offset Reverend Bacon, the demagogic black preacher-hustler, who anyway is made so ridiculous that he ceases to be a credible object of satire. (Likewise the district attorney, who is absurdly overplayed.) The Jewish a.s.sistant prosecutor becomes a Gentile, and again the satiric bite is lost. The contrast between the opulence of the rich and the squalor of poor and even middle-cla.s.s New Yorkers is blurred, along with the city's ethnic diversity. The movie's happy ending (remember that the novel ends on an ambiguous note, with Sherman McCoy await 45. Claudia Durst Johnson, To Kill a Mockingbird: Threatening Boundaries 1320 (1994).

Rob Atkinson, "Liberating Lawyers: Divergent Parallels in Intruder in the Dust and To Kill a Mockingbird," 49 Duke Law Journal 601 (1999). See generally Jay Watson, Forensic Fictions: The Lawyer Figure in Faulkner (1993); Robert A. Ferguson, "Law and Lawyers in Faulkner's Life and Art: A Comment," 4 Mississippi College Law Review 213 (1984).

See James Wood, The Broken Estate: Essays on Literature and Belief, ch. 1 (1999) ("Sir Thomas More: A Man for One Reason").

*ing retrial) completes the transformation of a biting satire into a featherweight comedy.

The most popular legal novels and films blend insensibly into detective stories, a more popular genre than legal stories. (The Bonfire of the Vanities and even Pudd'nhead Wilson revolve around an unsolved crime, but neither is a whodunit.) A distinguished example is Scott Turow's novel Presumed Innocent,48 written by an able and experienced lawyer and full of accurate legal detail, but au fond a murder mystery. One of the best law films is of a somewhat similar type: 12 Angry Men (1957), directed by Sidney Lumet, who made a career of directing films with legal themes.49 The film is brilliantly acted and paced, is well worth seeing a half-century after its release (though the absence of women from the jury dates it), and, although too melodramatic to be a realistic depiction of jury deliberations, captures their essential character, in part because of the diversity of the jurors' occupations and personalities. But the unraveling of the prosecution's case by the protagonist (played by Henry Fonda) injects a strong whodunit element rare in real jury deliberations. This is not a flaw in the film but an aspect of its art, and throughout this book I shall be insisting on holding the aesthetic character of a fictional work about law separate from its legal realism.

But even the best of the law films (and I am mindful of having discussed only a tiny sample) are doubtful candidates for a.n.a.lysis as literary works. They lack the density and complexity even of their novelistic counterparts, such as the law novels of John Grisham, to which I am about to turn. A scholarly study of law films and law television series would be worthwhile, but it would focus on questions that are rather to one side of a literary study: (1) Why are there so many law films-what is the source of the demand for them, and how has that demand changed over time? (2) Perceptively discussed in Carol Sanger, "Seasoned to the Use," 87 Michigan Law Review 1338 (1989). See also David Ray Papke, "Re-imagining the Practice of Law: Popular Twentieth-Century Fiction by American Lawyers/Authors," in Law and Popular Culture, note 44 above, at 243, 258264.

Sharon A. Souther, "The Artist's Search for Justice in the Justice System: A Discussion of Representative Films of Sidney Lumet and Works from the World of Literature on the Law," 25 Cardozo Arts and Entertainment Law Journal 687 (2007).

What is their effect on (a) the practice of law, (b) the choice of law as a career, (c) popular conceptions of lawyers and the legal process,50 and (d) the amount of litigation? These are interesting questions, but they are sociological rather than literary and are therefore better pursued independently than in conjunction with the study of literary works about law. Popular novels about law, however, some of which have shaded into or become cla.s.sic works of literature, can profitably be studied as literature. John Grisham's runaway bestsellers will ill.u.s.trate, though they are unlikely to attain cla.s.sic status.

The hero of The Firm is an a.s.sociate in a law firm who is pursued by the FBI and the Chicago mob and eventually negotiates a deal with the Bureau that (along with a theft from the mob) enables him and his family to live in safety on $8 million. Mitch McDeere, a newly minted, top-ranking graduate of Harvard Law School, has been hired by a small, discreet Memphis law firm that unexpectedly pays the highest salaries and offers the most generous perks of any law firm in the country. At first we think it is just the usual Faustian pact with a law firm: a young lawyer gets hooked on the money and doesn't realize until too late that in exchange he's going to have to work like a dog on dull and unrewarding projects and his marriage will disintegrate because he's never at home. We soon discover that something far more sinister is involved. The law firm is owned by the mob. The firm's role is to launder the money that the mob takes in from its illegal enterprises. The firm also takes on legitimate clients in order to maintain a respectable facade, and brand-new a.s.sociates work only on those clients' matters. But after a few years the a.s.sociate is told the true nature of the firm. By then he is hooked by his high income; the law firm is careful always to hire young men who are married and come from poor backgrounds, and it encourages them to have children so that they can't 50. Well discussed in David Ray Papke, "The Impact of Popular Culture on American Perceptions of the Courts," 82 Indiana Law Journal 1225 (2007), and Victoria S. Salzmann and Philip T. Dunwoody, "Prime-Time Lies: Do Portrayals of Lawyers Influence How People Think about the Legal Profession?" 58 Southern Methodist University Law Review 411 (2005).

*afford to quit. No one has ever quit the firm. Anyone who tries is killed in a staged accident; there have been five such deaths.

The FBI approaches Mitch and tells him what is going on and asks him to a.s.sist the Bureau as a confidential informant. He agrees, in part because he is told that otherwise he will be prosecuted as soon as the FBI gathers enough evidence to bust the firm. But he distrusts the Bureau. The wisdom of his distrust is confirmed when the Bureau is discovered to be harboring a high-ranking mole who informs the mob that Mitch is working against it.

The Firm could be read as an allegory of professional greed and amorality but is better read as an engaging potboiler. Its simple vocabulary and syntax, stick-figure good guys-always from the lower or lower-middle cla.s.s, such as Mitch's brother, a convicted attempted murderer who saves the day for Mitch and Mitch's wife at the end of the book-and bad guys, cinematically swift pace, and raised lettering on the cover proclaim it a book aimed at the lowest common denominator of literary taste. The important questions about today's legal profession at which The Firm glances-whether there are too many lawyers and whether their ethical standards are too low and their pay too high and the working conditions of young lawyers too exploitative despite the high pay-are not illuminated.

Yet if one compares the depiction of law in sophisticated novels like The Bonfire of the Vanities and A Frolic of His Own with its depiction in The Firm, one won't see much difference. In all three novels the law is a racket and lawyers are shysters, though here and there a ray of sunlight penetrates the fog, such as Wolfe's Judge Kovitsky. All three novels emphasize the marginality of their "good" judges and lawyers, ill.u.s.trating the Manichaean tendencies that dominate popular treatments of law. Just as in some cultures a woman is either a saint or a wh.o.r.e, so in American popular novels a judge or a lawyer is either a saint or a crook51-usually the latter.

51. Bandes, note 44 above. Papke, "Law, Cinema, and Ideology," note 44 above, points out that during the Cold War popular fiction about law tended to celebrate the rule of law as a symbol of the difference between democratic and communist countries and as a result por The mostly negative depiction of lawyers in the modern American novel taps into a very old vein of hostility to the legal profession, a hostility strongly marked, for example, in Chaucer, Shakespeare, and d.i.c.kens, and a newer hostility to authority generally. The number and wealth of American lawyers today, their role in well-publicized miscarriages of justice, and the difficulty that laypeople have in grasping the social function of legal representation of criminals may explain why lawyers have become such an attractive target for the darts of the satirist and the ma.s.s-market novelist. Lawyer baiting in fiction belongs to the same genre as lawyer jokes and is growing with them.

Grisham's most recent novel, The Appeal (2008), is interestingly different from The Firm (his second novel, published in 1991, and there have been 18 since). Although as in the earlier book there is plenty of skullduggery (indeed criminality) and suspense, and the style and characters lack literary distinction, there is no violence (though there are intimations of it offstage), and there is greater realism and a serious engagement with problems of the American legal system. A tiny, struggling law firm in a rural county of Mississippi, headed by a married couple, litigates a tort suit on behalf of a woman whose husband and child died of cancer caused by the illegal spilling of toxic wastes by a plant that manufactures pesticides. The jury awards the plaintiff $41 million in compensatory and punitive damages against the chemical company that owns the plant.52 As there are many other possible victims of the toxic waste spill, which had gone on for many years, the defendant's chief executive officer and controlling stockholder, a billionaire named Trudeau, is alarmed. His lawyers advise him that the company is likely to lose its appeal to the Supreme Court of Mississippi by a vote of 5 to 4. One of the five justices in the putative majority, however, will be running for reelection before the appeal is heard, so Trudeau hires a secretive consulting firm to find and finance a candi trayed the American legal system in a more favorable light than is common in popular fiction today.

52. Unremarked in the book, the ratio of punitive to compensatory damages ($38 million to $3 million) would be deemed unconst.i.tutional by the U.S. Supreme Court. State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).

*date to run against her. The firm recruits a squeaky-clean young Christian conservative, Ron Fisk ("The best candidates, we have learned, are bright young guys like yourself who don't carry the baggage of prior decisions"

[p. 109]), and runs a no-holds-barred campaign-demagogic and indeed fraudulent-on his behalf. Although Fisk is not a monster like Trudeau and displays occasional qualms about what is being done on his behalf (of which, moreover, he does not have full knowledge), he is not a n.o.ble figure like the plaintiff 's lawyers and the liberal justice.

Fisk wins the election, and shortly after he takes his seat on the court the appeal in the toxic spill case is argued. He is expected and indeed plans to vote for the company, not because he has agreed to do so-he has not; he is not a crook-but because he is genuinely conservative and had run on a platform one plank of which was opposition to allowing Mississippi to be a paradise for cla.s.s action lawyers. But shortly before he is to cast what will be the deciding vote on the appeal, his young son is gravely injured by a baseball bat that Fisk learns was manufactured in violation of safety regulations. That discovery and his resulting newly awakened realization of the human consequences of corporate misconduct, together with concerns about the tactics of his backers in the election campaign, get Fisk to thinking that maybe large corporations are not the paragons he had believed them to be. His inward struggle is the most suspenseful episode in the novel. But in the end, and rather I think to the surprise of most readers (I was surprised), Fisk votes to reverse the judgment for the plaintiff after all. The chemical company is exonerated. The plaintiff and the many other victims of the toxic waste spill get nothing.

There is more nuance in The Appeal than in The Firm. Two of the cla.s.s action lawyers who arrive on the scene after the verdict against the pesticide company in an effort to share in the cornucopia of fees expected to be generated by further litigation against the company are scoundrels; and Justice Fisk, though depicted as intellectually limited and politically benighted, is well-meaning-a dupe rather than a villain. But the predominant shades remain black and white. The plaintiff 's husband-and-wife team, the judge who presides over the trial, and the supreme court justice who goes down to defeat are pure of heart and lean of pocketbook, while the defendant's princ.i.p.al trial lawyer is introduced "reading a biography and watching the hours pa.s.s at $750 per" (p. 5). The lawyers who represent tort plaintiffs "could be arrogant, bullish, dogmatic; and they were often their own worst enemies. But no one [except, presumably, the two scoundrels] fought as hard for the little guy" (p. 146).

Trudeau, the billionaire, had been well aware of the illegal spilling of toxic wastes by his chemical company, but with the aid of lawyers and lobbyists had managed to conceal it for many years. As the price of the chemical company's stock plummets after the jury's verdict, Trudeau cooks the company's books so that its stock price will fall even further, and he then buys more and more of the stock at its depressed price knowing that the price will rise when the verdict is overturned. He also buys the bank that had lent the plaintiff 's lawyers the money they needed to litigate the case-and he orders the bank to call the loan, precipitating them into bankruptcy.

Trudeau loathes his latest wife, a "trophy wife"-Tom Wolfe's "lemon tart" or "social x-ray"-and dislikes their daughter. There is a dinner party, also in the style of The Bonfire of the Vanities (though described without Wolfe's wit), in which "Brianna [the wife] found her soul mate, another anorexic trophy with the same unusual body-everything superbly starved but the ridiculous b.r.e.a.s.t.s" (p. 30), which were earlier described as "her fantastic new b.r.e.a.s.t.s" (p. 26). Brianna spends a fortune on her body and displays it at every turn. "Brianna and Sandy whispered rudely and, in the course of dinner, hammered every other social climber in the crowd" (p. 42). Trudeau is preoccupied with his rank on the Forbes list of the 400 wealthiest people in the world. The last sentence of the novel is "Now that he had three billion, he wanted six."

So the novel is one-sided. But the scandal of judicial elections is real, and although few are quite so corrupt as the fict.i.tious election in The Appeal, the description of that election is powerful satire. Because judicial decisions are extremely difficult for laypersons to a.s.sess, because judicial elections do not arouse the interest of the general public, and because the election campaigns are usually financed by interest groups composed of people and firms that have a financial stake in how cases are decided, whether they are plaintiffs' tort lawyers or corporate polluters (the tort lawyers contribute heavily to Fisk's opponent), the use of the electoral process to appoint judges, still the procedure in a majority of states, is a parody of the democratic process. If Grisham's bestseller can move pub

lic opinion on this issue, more power to him. Popular literature can supplement journalism in prompting social reform.

Camus and Stendha*Camus's celebrated novella The Stranger (1940)53 was written at about the same time as The Just and the Unjust and is also centered on a trial for homicide. Yet the two works could not be more different, and this is a clue to the heterogeneous character of the genre-imaginative literature on legal themes-that I am examining in this part of the book.

The Stranger is narrated by its protagonist, Meursault, a pied noir (a European as distinct from an Arab resident of Algeria, then still a part of France), and opens with the death of his mother. Through his reaction to her death we learn that he does not think about past or future, does not form deep emotional attachments, and lacks ambition, piety, pretension- or for that matter a conscience. He is innocent as an animal is.

The day after his mother's funeral, Meursault begins sleeping with a new girlfriend, Marie. He later accepts her proposal of marriage, while admitting to her that he does not love her and would probably have accepted the same proposal from any number of other women. But before they get around to marrying, he and his pals get into a fight with a group of Arabs as a result of some disreputable business in which one of the pals had been involved-and had received Meursault's help, characteristically given with neither enthusiasm nor reluctance but simply because it had been requested of him. Later that day Meursault finds himself walking alone on the beach, still carrying the friend's revolver lent him during the fight (in which no shots had been fired, however). One of the Arabs is lying on the beach in Meursault's path. The sun is beating down mercilessly. Meursault continues walking toward the Arab, without knowing why; he could easily avoid him. The Arab draws a knife but makes no threatening gesture with it. There is no indication that Meursault feels 53. A misleading translation of the French t.i.tle, L'etranger. The primary meaning of etranger, and the meaning that fits the novella, is "outsider," "alien," or "foreigner" (it is the word translated as "foreign" in "French Foreign Legion"). Meursault is an outsider or (spiritual) foreigner to his society.

endangered. Nevertheless he shoots the Arab, once-and after a pause, four more times.

He is arrested and in accordance with French procedure is questioned by an examining magistrate, a cross between a judge and a prosecutor. (We shall encounter such a figure again in the trial of Saint Joan, and later in Kafka's novel The Trial.) The questioning brings out what the examining magistrate considers Meursault's disgusting callousness, demonstrated by his lack of emotional response both to his mother's death and to the Arab's, his beginning an affair with Marie the day after his mother's funeral, and his rejection of Christianity. The prosecutor harps skillfully on these features of Meursault's character at the trial, and the jury brings in a verdict of first-degree murder. Meursault is sentenced to be guillotined. In prison, awaiting execution, he fiercely rejects the efforts of the prison chaplain to convert him to Christianity. He has lost his earlier inarticulateness. Awareness of impending death has given him a voice and made him for the first time fully conscious, fully human, and (paradoxically, since he's imprisoned and about to die) fully in control of his life.54 Camus tells the story from the standpoint of the criminal and makes the trial a sinister farce in which the defendant is condemned not for committing murder but for rejecting bourgeois Christian values. The murder victim is nameless and faceless. The impending execution of Meursault- the only fully realized character in the novella-is made to seem a worse crime than the murder. Indeed the murder is made to seem an unimportant incident on a par with Meursault's having forgotten how old his mother was when she died.

What strikes an American lawyer as particularly odd is how evidence of Meursault's "bad" character (bad in the conventional sense rejected by the novella) is allowed into the trial and indeed becomes the decisive factor in his condemnation. Character evidence may not be used in an American court to show that the defendant acted in conformity with his (bad) character in the incident for which he is being prosecuted.55 It is admissi See Robert C. Solomon, "L'etranger and the Truth," 2 Philosophy and Literature 141 (1978).

See Rule 404 of the Federal Rules of Evidence and the accompanying Note of Advisory Committee.

*ble to prove motive, knowledge, and other facts that bear directly on an issue in the case rather than just on the defendant's general propensity to do bad things, but Meursault's behavior toward his mother and his rejection of Christianity are too remote from the crime to be admissible for any of these purposes.56 Yet the admission of such evidence did not and does not violate French criminal procedure. French law does not limit evidence of bad character.57 Article 331 of the French Code of Criminal Procedure provides that "witnesses shall testify only either on the facts charged against the accused or on his character and morals."58 And consistent with the inquisitorial character of Continental European judicial systems, a French criminal trial begins with the interrogation of the defendant by the presiding judge in open court and so in the hearing of the jury, and no details of the defendant's personal history-details contained in a dossier compiled during the investigation of the crime-are out of bounds.59 It is Inquiry into a defendant's religious beliefs or lack thereof would be unthinkable in an American court.

Roger Merle and Andre Vitu, Traite de droit criminel, vol. 1, pp. 155, 165166 (3d ed. 1979).

The French Code of Criminal Procedure 116 (Gerald L. k.o.c.k trans. 1964) (emphasis added). At the time Camus wrote The Stranger, the code contained no restrictions at all on the scope of a witness's testimony. See Code d'instruction criminelle article 317 (1932). (The French colonial legal system under which Meursault is tried is well described in Mary Ann Frese Witt and Eric Witt, "Retrying The Stranger Again," in Literature and Law 1 [Michael J. Meyer ed. 2004].) Even today the type of character evidence introduced in Meursault's trial would be admissible in a French criminal trial. Maurice Payrot, "Aux a.s.sises de Paris: Un accuse qui s'affirme non-violent repond d'une tentative de viol," Le Monde, Sept. 12, 1987, p. 11, describes a trial in the Cour d'a.s.sises, the French felony court, for attempted rape. The tribunal consisted of three professional judges and nine lay judges (that is, jurors) sitting together, with a majority vote of the lay judges being required for conviction. There was extensive testimony about the defendant's character and personality-that he was nervous, sensitive, nonviolent, accommodating, suggestible, impulsive, and emotional. The piece de resistance was the testimony of a popular singer, who had never met the defendant but who, having been informed that the defendant was one of his fans, testified as follows: "I am opposed to all forms of violence. Those who care for me do so because this is my philosophy. What strikes me about the accused is his concern over being accused of an act of which he totally disapproves. If I am present today, it is because I am absolutely convinced that he is innocent." Nevertheless the defendant was convicted.

See Merle and Vitu, note 58 above, vol. 1, at 165; A. V. Sheehan, Criminal Procedure in Scotland and France: A Comparative Study, with Particular Emphasis on the Role of the Public Prosecutor 27 n. 14, 2829, 4849, 73 (1975).

true that rules of evidence are less important in Continental legal systems than in the U.S. system because such rules are designed primarily for the control of juries, which play a much smaller role in those systems. But that is irrelevant; the French use juries in criminal trials.

It does not seem to have been Camus's purpose to criticize the only type of criminal procedure that he knew anything about, although the novella is sometimes taken as a polemic against capital punishment.60 The author does disapprove of the verdict,61 but not because of any procedural irregularity or because of concerns about the legitimacy of capital punishment. He accepts the legal relevance of Meursault's character. What he rejects is the ethical system that p.r.o.nounces that character bad. A reader, however, may find in the novella a reason-not of course a conclusive one-for preferring the Anglo-American system of criminal justice: it avoids demeaning and largely irrelevant inquiries into character and thus better approximates corrective justice, which bases legal liability on the defendant's conduct rather than on his character, status, or deserts. Kafka's novel The Trial, we shall see in chapter 4, goes a step beyond The Stranger in basing a guilty verdict on character wholly disjoined from deed-for in The Trial, unlike The Stranger, there is no deed on which guilt could be based.

So we see that the law and literature movement can contribute to the study of comparative law (and jurisprudence, to which reflections on corrective justice belong), though if one really wanted to make a comparative evaluation of American and French criminal procedure one would not do so primarily on the basis of novelistic depictions; instead one would study the record of actual trials, as in the works by Sybille Bedford and Rebecca West that I cited in the introduction. Besides, the trial of Meursault seems in at least one respect profoundly unrealistic-not in the admission of the 60. Robert R. Brock, "Meursault the Straw Man," 25 Studies in the Novel 92, 98 (1993).

61. More precisely the implied author-that is, the authorial personality readers construct from the work itself, without reference to the author's personal opinions or biography-disapproves of the verdict. I do not consider the author the authoritative interpreter of his work, and often he is downright unreliable (see chapter 8). In the case of The Stranger, however, the actual and the implied author coincide. See Albert Camus, "Preface to the American University Edition of L'Etranger," in Albert Camus: A Study of His Work, Lyrical and Critical 251 (Philip Thody ed. 1967).

*character evidence but in the weight given to it. A French colonial court would not have been so quick to convict, let alone condemn to death, a Frenchman who had killed an armed "native."62 Yet (setting that unrealism to one side) Meursault would probably not have been acquitted, or even convicted of a lesser offense, had the character evidence been excluded from his trial. Although his Arab victim displays a knife, Meursault is not in reasonable fear of death or serious (or any) injury when he shoots him, so there would be no basis for an acquittal on grounds of self-defense. An actual but unreasonable fear of death or serious injury would at least mitigate his guilt; but Meursault has no fear. And those four shots fired after a pause are highly indicative of premeditation. It is true that Meursault shot the Arab in a sort of trance brought on by the fierce sun beating down on the beach and did not intend to kill him, and that absence of lethal intent should reduce the killing to second-degree murder. But would a jury believe this version of what happened? Meursault testified at his trial but was unable to give a coherent account of the circ.u.mstances of the killing. And there were no witnesses.

"In a sort of trance . . ." Until he is condemned, Meursault goes through life in a kind of trance. He utterly lacks the rich interiority that we find in Shakespeare's characters. That deficiency invites reflection on what we mean by "premeditation" and by criminal responsibility more broadly. If we could peer into Meursault's mind shortly before,and during,and shortly after the shooting, we would see nothing. If we could peer into the mind of a more reflective, articulate murderer, we would usually find, not a focused malignity, but instead an elaborate superstructure of rationalization and excuse.63 Maybe the law does not really care about what is in the murder Brock, note 61 above, at 96. An alternative view, however, argued in David Carroll, Albert Camus the Algerian: Colonialism, Terrorism, Justice 2637 (2007), is that Meursault's refusal to conform to the stereotype of a proper Frenchman causes the court to treat him as if he were an Arab, in effect expelling him from the French "race." I am skeptical. The Arab majority might take the execution of a Frenchman for killing an Arab who was armed as a sign of weakening French resolve to perpetuate its minority rule.

For evidence, see Jack Katz, Seductions of Crime: Moral and Sensual Attractions in Doing Evil, ch. 1 (1988).

er's mind.64 Maybe it is the deed rather than the state of mind that mat-ters-the deed that in Meursault's case consists not just of the initial shot but also of what follows: the four shots into an inert body. Maybe the law's concern with the likes of a Meursault is simply that a person who does what he did is too dangerous to leave at large.

That is one interesting legal angle to The Stranger and another, which turns out to be related, is how the legal professionals-the prosecutor, the defense lawyer, and the judge-tell Meursault's story at the trial. Neither the accused nor the reader recognizes Meursault in the legal profession's retelling. Meursault implicitly rejects, and the reader is invited by the novella to reject, "the state's ideology: that men are primarily spiritual beings endowed with souls and that men's actions possess a coherence."65 The law has its own purposes, however, and they are not those of existentialism, in which The Stranger is steeped. The law's basic purpose is to enforce social norms, and it requires a judgmental stance alien to Meursault's values. Ernest Simon argues that "what invalidates the prosecutor's interpretation of Meursault's reality is not its wrongness, for it does fulfill a prime requirement of both legal and literary discourse: it is 'plausible.' What invalidates it is its ease, its rhetorical glibness, its blindness to ambiguities, and its exclusion of any feeling for the accused. These are literary more than judicial failures."66 They may not be judicial failures at all. And notice that Simon's argument can be applied to Camus's own interpretation of Meursault's reality, an interpretation that while plausible is rhetorically glib, blind to ambiguities, and devoid of any feeling for the victim of a murder.

Indeed, could it not be thought shameful of Camus to invite the reader to take Meursault's part by depicting him as victim rather than killer and by depersonalizing the real victim? Not only shameful, but incoherent?

See A. D. Nuttall, "Did Meursault Mean to Kill the Arab?-The Intentional Fallacy Fallacy," in Nuttall, The Stoic in Love: Selected Essays on Literature and Ideas 191 (1989); Richard A. Posner, The Problems of Jurisprudence 168179 (1990). See also the discussion in chapter 2 of moral luck and strict liability.

65. Patrick McCarthy, Albert Camus: The Stranger 67 (1988).

Simon, "Palais de Justice and Poetic Justice in Albert Camus' The Stranger," 3 Cardozo Studies in Law and Literature 111, 123 (1991).

*"If the murderer is not held responsible for his actions, why should the judges be held responsible for theirs?"67 Why is not the court's action in condemning Meursault therefore as "innocent" as his action in killing the Arab?

Rene Girard points out that since no reader would believe that Meursault would be sentenced to death for not crying at his mother's funeral, he must commit a capital offense, but he must do so in circ.u.mstances that preserve his essential innocence so that the reader will believe that Meursault's failing to cry at his mother's funeral, and his other defiances of bourgeois pieties, were the real reasons for his condemnation.68 The Stranger thus flirts with the form of neo-Romanticism that makes heroes out of criminals, as does Andre Gide's novel Lafcadio's Adventures (Les Caves du Vatican in the original French), whose protagonist shoves an inoffensive pilgrim to his death from a railroad carriage for no reason except to demonstrate that his will is free. "A man's deepest desire is to be free of necessity through an act of pure choice . . . A man a.s.serts his freedom by disobeying a law and retains a sense of self-importance because the law he has disobeyed is an important one."69 Camus can be accused not only of taking murder too lightly but also of taking colonialism too lightly.70 Not only is the Arab victim left nameless; Arab customs and culture are occluded. Mosques, souks, Arabic, the milling throngs of Arabs in the streets-all are ignored even though Arabs outnumbered Europeans in French Algeria by more than ten to one. The Stranger is a novella of "white bourgeois alienation."71 Rene Girard, "Camus's Stranger Retried," in Albert Camus 79, 86 (Harold Bloom ed. 1989).

Id. at 87. "How could Meursault premeditate murder, since he cannot premeditate a successful career in Paris or marriage with his mistress?" Id. at 84.

W. H. Auden, "Oth.e.l.lo," in Auden, Lectures on Shakespeare 195, 198 (Arthur Kirsch ed. 2000). I return to the question of free will in chapter 7.

See Conor Cruise O'Brien, Albert Camus of Europe and Africa 2526 (1970); Jerry L. Curtis, "Cultural Alienation: A New Look at the Hero of The Stranger," Journal of American Culture, June 1992, p. 31.

Alice Yaeger Kaplan, "The American Stranger," 91 South Atlantic Quarterly 87, 92 (1992). But there is no basis in the text for Edward Said's argument that the sense of "tragically unsentimental obduracy" in The Stranger is due to Camus's having accepted the French overlords.h.i.+p of Algeria: "We have done what we have done here, and so let us do it again." Said, Culture and Imperialism 185 (1993).

But wait. These criticisms are political or moral in character. They are wide of the mark unless the proper criteria for judging a work of literature are political or moral, or unless The Stranger belongs to the order of ethical, political, or legal commentary rather than to that of imaginative literature. It is not only the best known of the books discussed so far in this chapter; it is the best, even though it is the only one with an implied value structure that is odious to a civilized person. It dramatizes with great emotional force and considerable subtlety (as in the tricks that Girard describes-dramatic artifice does not lose its emotional power by being exposed) a mood that overcomes most of us, the young especially, from time to time. That mood is disgust with the "system," that complex of mature values and established inst.i.tutions that curbs the boundless egoism of the childlike "inner man." Meursault's rejection of religion, introspection, guilt, and remorse; his refusal to cry at his mother's funeral or accept a promotion that would take him to Paris (hence his rejection of the capitalist ethic); his "bohemian individualism";72 and his refusal to acknowledge the moral authority of law and the terror of death (the foundation, according to Hobbes, of the social impulse in man) culminate in a final wish, rich in exalted self-a.s.sertion, that "on the day of my execution there should be a huge crowd of spectators and that they should greet me with howls of execration."73 Through the power of literary art Camus makes all this crazy negativity sympathetic to the reader.

And maybe it's not so crazy, or at least not so negative. The end of the novel evokes the Nietzschean doctrines of self-overcoming and eternal recurrence: "I . . . felt ready to start life over again. It was as if that great rush of anger had washed me clean, emptied me of hope, and, gazing up at the dark sky spangled with its signs and stars, for the first time, the first, I laid 72. Stephen Eric Bronner, Camus: Portrait of a Moralist 37 (1999).

73. Albert Camus, The Outsider, in Collected Fiction of Albert Camus 1, 68 (Stuart Gilbert trans. 1960). Or could he just be trying to cheer himself up? Cf. T. S. Eliot, "Shakespeare and the Stoicism of Seneca," in Eliot, Selected Essays 107, 111 (new ed. 1950), commenting on Oth.e.l.lo's last speech: "Oth.e.l.lo succeeds in turning himself into a pathetic figure, by adopting an aesthetic rather than a moral att.i.tude, dramatising himself against his environment." Cheering up is a basic aim of Stoicism, as in Seneca's claim that since we do not suffer from not existing before we are born, we have no reason to fear not existing as a result of death. Seneca, "Letter 54," in Seneca, 17 Letters 37 (C. D. N. Costa trans. 1988).

*my heart open to the benign indifference of the universe. To feel it so like myself, indeed so brotherly, made me realize that I'd been happy, and that I was happy still" (p. 68). The triumphalist mood in which Meursault awaits his end reminds one of the similar mood of Yeats's late poetry. In "Death," for example, Yeats writes: "Nor dread nor hope attend / A dying animal .../A great man in his pride/...Casts derision upon/Supersession of breath; / He knows death to the bone- / Man has created death." And in "Vacillation" Yeats derides as "extravagance of breath" those works of intellect or faith "that are not suited for such men as come / Proud, open-eyed and laughing to the tomb."

If we want to keep mining The Stranger for jurisprudential rather than metaphysical or psychological nuggets, we can compare Meursault to law's other great doomed refuser-a lawyer's copyist, corresponding roughly to today's paralegal, the eponymous protagonist of Melville's story "Bartleby the Scrivener: A Tale of Wall Street." Meursault and Bartleby-who refuses to work (meeting all his kindly employer's reasonable requests with a polite but non-negotiable "I would prefer not to"), refuses to vacate the employer's premises, is imprisoned for trespa.s.s, refuses to eat, and dies-are alike in rejecting their society's normative system. (Another literary example is Barnabas-whose name "Bartleby" may faintly be echoing-in Measure for Measure. The earliest example may be Achilles.) The "consent of the governed" is a powerful legitimating slogan; but 99 percent of the legal and social norms that pen us in, even those of us who live in a democratic nation, have been imposed upon us rather than- given the costs of emigration or even of moving to another state to escape laws that we disfavor-consented to by us in any meaningful sense. The refusers, the internal exiles, the nonconformists impress us by the strength and independence of their character, their "spirit of defiance and protest,"74 and also challenge us to develop principled justifications for legal coercion.

Bartleby, like Meursault, is an una.s.similable foreign substance in his society. They are both impossible, but the difference is that Bartleby's so 74. Graham Seal, The Outlaw Legend: A Cultural Tradition in Britain, America and Australia 197 (1996). "Outlaw" literature could be regarded as a subgenre of imaginative literature about law.

ciety, personified by the patient, good-natured lawyer who employs and tries to save him, is not malign. Bartleby, like Meursault, must die because he is true to himself-to a vocation (in the religious sense) that commands him neither to work nor to accept charity. But unlike Meursault, he is a sympathetic character, impressive in his courtesy, serenity, and austerity,