CRIME IN LAW AND LITERATURE
THE UNIVERSITY OF CHICAGO
FEBRUARY 7–8, 2014
Organized by Alison L. LaCroix, Richard H. McAdams, and Martha C. Nussbaum
FRIDAY FEBRUARY 7
10:00 a.m.–12:00 p.m.
Session 1: Student Papers
Emily Buss (University of Chicago Law School), Chair.
Daniel Telech (University of Chicago, Department of Philosophy, PhD Program), Mercy at the Areopagus:
A Nietzschean Account of Justice and Joy in the Eumenides
 The Oresteia trilogy ends joyfully: Orestes is acquitted of the crime of matricide; the Furies become
honorable; and both of these because Athens initiates the rule of law. In this paper, I defend a
Nietzschean reading of justice and joy in the Eumenides. I argue that the transition from the Atridae
cycle of vengeance to rule of law is neither the work of cool rationality nor lacking in substantial
arbitrariness. Rather, it is largely due to Athena’s conciliatory function that the Furies undergo the
transformation from an orientation of resentment to an orientation of mercy. This change marks
what Nietzsche calls the “self-overcoming of justice.” In addition to providing the Furies with their
long-desired recognition from the Olympian gods, this advance in justice promises to improve the
well-being of Athens’s citizens. I maintain that the Eumenides is optimistic and progressive in one
important sense—namely, relative to human aspirations and needs—without thereby serving as an
example of Socratic Optimism.
Dhananjay Jagannathan (University of Chicago, Department of Philosophy, PhD Program), Tragedies of Youth:
Responsibility in Euripides’ Bacchae and the Law
 Bernard Williams argues in Shame and Necessity that there are many conceptions of responsibility built
up out of the same basic elements—cause, intention, state, and response—and that we can only
appreciate the notions of agency and responsibility at work in Greek tragedy if we distinguish these
elements and take note of the differences and lack of priority between a modern idea of ‘moral’
responsibility and the Greek idea or ideas. In this paper, I develop Williams’s suggestion, made in
passing, that there are many modern notions of responsibility, too, including the notion of strict
liability in the law. I argue, contra Williams, that all notions of responsibility are moral in the sense
that they attribute something to the agent, and that the application of strict liability whether in tort or
criminal law shows that what Williams calls ‘moral responsibility’ is a subtle and graded phenomenon.
That is why we can account for cases of tragic action in modern terms without appealing to the
Greek cultural context, including cases where legal recourse is appropriate.
All the same, I believe we can come to better understand what we think about tragic cases by
exploring richly described literary cases. Accordingly, I consider Euripides’ Bacchae and the fate of the
young Pentheus in terms of the diminished moral responsibility we now attribute to juvenile criminal
offenders. From this comparison, I aim to show that we can better understand why it is that a
youthful character diminishes responsibility itself and not simply culpability or the severity of an
appropriate sentence when calibrated to the prospects for rehabilitation or reform. In this way, we
see that juvenile crime, even in the most heinous cases, carries with it an element of the tragic, an
insight often ignored in the treatment of young offenders in American courts.
Marco Segatti (University of Chicago Law School, JSD Program), Law’s Promise: Crime, Religion, and Revolt in
Manzoni’s Promessi Sposi

Manzoni’s Promessi Sposi is a classic of Italian literature. I will try to comment closely on the complex
interplay between religion, law and civil disobedience that is depicted by Manzoni in three episodes
narrated in the novel. All these episodes, I shall argue, provide a powerful, and yet very
controversial, account of law’s promises and failures, within oppressive societies, in protecting
people’s livelihood from crimes ordained by the powerful and in preventing social disasters, like the
great famine and the ensuing plague in Milan.
Within this broad framework, central attention will be paid to Manzoni’s own account of the role of
religion—as a last resort for the weak and helpless, merely providing consolatory relief in a world
filled with injustices; or as a driving force of history (the Divina Provvidenza), leading the “good” to
prosper and the “bad” to punishment in the final “happy ending”; or, as a practice arising in response
to the recognition of human vulnerabilities and that (as one human practice among others) may help
people to unveil the humanity in themselves and in others. Finally, I will try to show that,
notwithstanding the fact that the most accurate reading of the novel would place Manzoni’s explicit
working theory of law and religion much closer to the first two interpretations, it is actually possible,
by critically reading the novel to find the third one. In turn, I will argue that this slightly “countertextual” interpretation of the novel’s own ethical and political potentialities can motivate an entirely
secular interest in both literature and religion, as possible human responses to crime and injustice,
since they both begin by providing “rich descriptions” of (and arise out as responses to) human
striving and vulnerabilities.
Stephen Richer (University of Chicago Law School, JD Program), The Not-So-Magical Effects of Expansive
Prosecutorial Power: Harry Potter and Criminal Law
 In the Harry Potter books, author J. K. Rowling asks the same question that all wartime governments
must ask: “Should we sacrifice personal liberties to better equip ourselves to fight our enemy?” The
Ministry of Magic in Rowling’s world chooses “yes.” In The Chamber of Secrets, the criminal process is
suspended because of the Ministry’s desperate need to show action (the imprisonment of Rubeus
Hagrid without trial). A similar storyline is repeated in books six and seven with the imprisonment
of innocent characters such as Stan Shunpike such that, once again, the Ministry may be seen as
active and might, by fortune, capture a true criminal by imprisoning many. Even the protagonist of
the books—Harry Potter himself—is subjected to a faux criminal trial that is stripped of the normal
procedures of the Wizarding world.
Rowling clearly disagrees with the Ministry’s decisions. Ministry workers are portrayed as buffoons
or, at best, destructively overzealous. Rowling delivers the ultimate rebuttal to the Ministry’s actions
when, in book seven, the Ministry is overtaken by evil forces who use the expanded government
powers against the book’s heroes. Clearly Rowling sees government power as a double-edged sword,
used for good or evil. This paper brings to light the Ministry’s disregard and suspension for normal
criminal processes throughout the Harry Potter books. Then, Rowling's opinion of these actions is
revealed based on the later fate of the characters. The paper asks if Rowling's worldview is
accurate: Is a fair criminal process at odds with waging a successful war? The answer to this question
is important because Harry Potter is the first book that many young Americans come to adore,
reread, and interpret as they come of age in a world that is increasingly asking exactly this same
question.
1:30 p.m.–3:45 p.m.
Session 2: Criminal Histories
Will Baude (University of Chicago Law School), Chair.
Alison LaCroix (University of Chicago Law School), A Man for All Treasons: Crimes by and Against the Tudor
State in the Novels of Hilary Mantel

This paper discusses the crime of treason as depicted in Hilary Mantel’s novels Wolf Hall (2009) and
Bring Up the Bodies (2012). In the novels, Mantel provides a corrective to the enduring view of
Thomas Cromwell as at best a Tudor-era fixer, and at worst as a murderer and torturer—a view
made famous by Robert Bolt’s play A Man for All Seasons (1960). Instead, Mantel’s Cromwell is the
industrious creator of the modern administrative state. In this characterization, Mantel follows in the
scholarly path of Geoffrey Elton, whose Tudor Revolution in Government (1953) rehabilitated Cromwell
by arguing that he reformed English government by replacing personal rule with modern bureaucracy
and systematizing the royal finances. In different ways, both Mantel’s and Elton’s account rebut the
image of Cromwell as a criminal. But I argue that Mantel’s Cromwell in fact should be seen as
representing two species of crime: crimes against the state, in the form of treason; and crimes by the
state, in the form of espionage and torture. The novels present both forms of crime as occurring at
the same historical moment in which the modern state was being formed. Because crimes against the
state and by the state both presuppose the existence of the state itself, Mantel’s and Elton’s
modernizing Cromwell may not be as distinct from Bolt’s devious Cromwell as the competing
accounts would suggest.
Marina Leslie (Northeastern University, English Department), Labors Lost: Infanticide, Service, and the Unlikely
Resurrection of Anne Green
 In late November 1650, Anne Green, a 22 year-old Oxfordshire servant, was taken into custody for
the murder of her newborn child. When to everyone’s surprise she revived on the anatomists’ table
at Oxford University, she presented a unique legal, political, and rhetorical problem for the Oxford
experimentalists who revived her. Was she guilty or innocent? Subject to the law or saved by God?
This paper explores how these questions were managed in a number of poems in English, French,
and Latin by renowned Oxford scholars in 1651 and concludes with Green’s more recent literary
legacy in novels by Ian Pears and others.
Richard Strier (University of Chicago, Department of English) & Richard McAdams (University of Chicago
Law School), Cold-Blooded and High Minded Murder
 We explore in detail the crime Othello commits when he kills Desdemona, a matter made complex
and contradictory by the details of the scene and by the state of mind in which Othello is presented
(and presents himself) as being in before the act. After previously raging with jealousy, Othello is
eerily composed when he enters the bedchamber; he imagines himself as determinedly, religiously,
even lovingly carrying out justice against a women he loves and he scrupulously refuses to shed her
blood or mar her physical perfection. Pointing in one direction, the justice theme seems to invoke
the legal distinction from Bracton that killing “done out of malice or from pleasure in the shedding
of human blood” is murder while killing “done from a love of justice” is not. Yet Othello’s
deliberateness also points in the opposite direction, as a hot blooded killing, done on a sudden affray,
was manslaughter rather than murder, suggesting that Othello would have been guilty of the lesser
crime had he torn “her all to pieces” when first convinced of Desdemona’s adultery, but is ultimately
guilty of murder because his rage had dissipated. However, and finally, the crime might have been
seen—as Othello sees it—as an honor killing, which the juries of the period would have been
inclined to treat with leniency, despite the absence of hot blood. Early modern England may not
have been an “honor culture” in quite the way that early modern Spain was, but it was not a culture
to which this context was at all unintelligible or clearly “foreign.”
Barry Wimpfheimer (Northwestern University, Department of Religious Studies), “Were All of Israel Established
as Liars?”: Perjury and Ancient Jewish Narratives
 The Babylonian Talmud at Makkot 5b records a debate surrounding a hypothetical in which a
woman who has already produced two sets of perjuring witnesses attempts to produce a third set of
witnesses. The debate pits two third century rabbis against each other: one believes that the litigant
loses the ability to produce a third set of witnesses while the other contends that witness credibility is
unrelated to the litigant and must be evaluated based on the default presumption of witness
credibility.
In this paper, I will connect this legal discussion of perjury to ancient Jewish folk beliefs about
women who are twice widowed and are referred to in post-Talmudic literature as “Qatlaniyot”—
“Killer Wives.” The road to this connection will travel through the biblical story of Judah and Tamar
as well as other rabbinic stories about perjury and the “killer wife.” Along the way I will show that
both the perjury story and stories about the “killer wife” reflect the absorption of the myth of
Pandora’s box into Rabbinic culture and complicate our understanding of the relationship between
Rabbinic views of women and the views of their broader culture. The paper will reflect upon the
relationship between law and superstition and consider the overlap between legal constructs and
those that emerge in folk religion. In the case of the rabbis, I will show that the example of the “killer
wife” reflects a pattern of rabbinic thought in which the rabbis consistently characterize superstition
itself as female-gendered.
4:00 p.m.
Musical Interlude: Jajah Wu, Gary DeTurck, and Martha Nussbaum
Performance of Extracts from Aeschylus’ Oresteia, Starring Richard
Posner and Other Faculty and Student Actors
5:15 p.m.–6:15 p.m.
Plenary Talk and Panel
Scott Turow, Plenary Speaker
 Panel: Alison LaCroix, Judge Diane Wood, Scott Turow, and Richard McAdams
SATURDAY FEBRUARY 8
9:45 a.m.–12:00 p.m.
Session 3: Race and Crime
Randy Berlin (University of Chicago Law School), Chair
Justin Driver (University of Texas School of Law), Bigger Thomas and Smaller Thomas
 In Justice Clarence Thomas’s account of his life before joining the Supreme Court, he
includes several striking references to Bigger Thomas, the protagonist of Richard Wright’s
Native Son. This paper will examine Justice Thomas’s reading of Bigger Thomas, and analyze
how his invocations of Wright’s fictional character sit alongside some of his more notable
opinions in the criminal law realm.
Martha Nussbaum (University of Chicago, Law School and Department of Philosophy), Reconciliation without
Law: Paton’s Cry the Beloved Country
 Here’s a common view: The pursuit of justice in a situation of great injustice, requires anger. People
mobilize through their anger against injustice, and their anger is both a motivation and a creative
force in the pursuit of justice. Correspondingly, it is also often thought that political reconciliation
requires a process of public atonement on the part of the formerly unjust: they acknowledge their
wrongs, and if they ask humbly enough they may receive forgiveness. Forgiveness is here understood
as a suspension of angry attitudes. Desmond Tutu, for example, uses Christian ideas of atonement
and contrition to argue that there is “no future without forgiveness.”
But these claims may be doubted. Some great leaders, for example Mohandas Gandhi and Martin
Luther King, Jr., have been very suspicious of anger, feeling that it deforms the personality and
impedes a future-directed search for reconciliation. But if there is no anger, there is also no
forgiveness, not of the classic anger-waiving sort. What might the alternative be?
Alan Paton’s apartheid-era novel Cry the Beloved proposes a personal analogue of a public process in
which a nation riven by injustice might possibly engage. Paton, whose other career was that of
superintendent of a progressive youth correctional institution, was deeply immersed in the struggle
against apartheid throughout his life, and his novel is one of the movement's most eloquent
statements. The protagonists are two fathers: a black man whose son has murdered a white man, and
a white man whose son is the murder victim. The scenario is a natural one for the classic drama of
contrition, apology, and forgiveness. But this is not what happens. As the two fathers turn aside
from anger to imagine, with generosity, a future of interracial cooperation and constructive work,
they create, outside the corrupt legal order, a vision of a new legal order, one committed to justice,
but generous and forward-looking in spirit. It is precisely this spirit of non-angry and generous
reconciliation that was eventually instantiated by Nelson Mandela. The novel, which ends on a note
of prophetic hope, has had the good fortune to have its vision realized, albeit by flawed human
beings, and thus incompletely.
Kenneth Warren (University of Chicago, Department of English), On Sanctuary and Borders: William Gardner
Smith’s The Stone Face and Michael Haneke’s Caché
 This paper will consider the problem of representing and acknowledging state-sponsored crime
against noncitizens, using William Gardner Smith’s 1963 novel The Stone Face and Michael Haneke’s
2005 film Caché as points of departure. Smith’s novel, which follows the political awakening of an
African American expatriate in Paris, and Haneke’s film, a tale of surveillance that uncovers a
repressed memory of injustice, are two of the few imaginative works to take up the massacre of more
than 200 Algerian protestors by the French police on October 17, 1961.
1:00 p.m.–3:30 p.m.
Session 4: Responsibility and Violence
David Weisbach (University of Chicago Law School), Chair
Saul Levmore (University of Chicago Law School), Kidnap, Credibility, and The Collector
 Kidnap, and especially ransom kidnapping, has a long history, but it has not attracted quite as much
literary attention as murder and rape. It raises interesting questions about whether criminal law
properly accounts for precaution costs, or fright-induced changes in behavior, as are especially likely
to follow in the wake of highly publicized kidnappings. The crime itself is difficult to carry out
because ransoms are difficult to collect and because threats, which are at the core of kidnaps, suffer
from various credibility problems. The cornerstone of the present essay is John Fowles’ chilling
novel, The Collector, about an abductor who seeks not ransom but rather benefits that we associate
with consensual relationships. The novel focuses attention on the ways in which people control or
even possess one another and, therefore, on the question of how and why we criminalize some
controlling behaviors but not others. Along the way and in uncanny fashion, The Collector suggests
many interesting features of threats and of kidnapping in particular.
Jonathan Masur (University of Chicago Law School), Premeditation and Responsibility in The Stranger
 In The Stranger (L’Etranger), Albert Camus uses the prosecution, trial, and eventual execution of his
protagonist, Meursault, as a demonstration of the injustice of French society. The French are
portrayed as incapable of accommodating an outsider (Meursault) who eschews the range of human
emotions and motivations they have come to expect. Many critics have focused upon Meursault’s
conviction for premeditated murder—actually, assassination—as the touchstone for this injustice.
Most famously, Meursault is apparently undone by his failure to shed tears at his mother’s funeral
some months earlier. But Meursault’s conviction, and the disquiet Camus means for it to provoke,
can only be understood in relation to what might have occurred at a “fairer” trial. Camus introduces
that information through Meursault’s lawyer, who suggests at various moments that Meursault’s act
of homicide might have been justified—which would result in Meursault being acquitted—or that he
might face only a short prison sentence for a lesser crime. Yet a close reading of the French Penal
Code reveals no such possibility. Even had his trial been conducted fairly, it is implausible that
Meursault could have escaped serious punishment for his crime. Whatever sympathy the reader
might attach to Meursault is nurtured by Camus’ mischaracterization of French law. A fuller
understanding of Meursault’s responsibility for the killing, his mens rea, and the range of likely
carceral outcomes leads to a very different set of conclusions regarding Meursault’s actions and those
of his inquisitors.
Mark Payne (University of Chicago, Department of Classics), Before the Law: Imagining Crimes against Trees
 My paper begins with a passage from Jakob Grimm’s Deutsche Rechtsalterthümer that records talionic
punishments for taking the life of a forest tree. In an effort to understand how talionic punishment
could have seemed appropriate in such a case, I examine a number of fictional examples from
antiquity that describe violence against trees in an era before the institution of law as such. In these
passages, trees are presented as beings that live though self-care alone. As such, they provoke
violence on the part of human beings who suspect that their own dependence on others is akin to
the domestication of animals. Talionic punishment for harming a forest tree is thus grounded in the
fantasy that the wildness of forest trees stands for the wildness of their human guardians. In
conclusion, I discuss a passage from Nathaniel Hawthorne’s American Notebooks in which the notion
of sacrilege is invoked in relation to harming orchard trees, but which grounds this possibility in a
different relationship between the lives of trees and human beings as companion species to one
another.
Blakey Vermeule (Stanford University, Department of English), Protagonists, Antagonists, Egalitarianism, Outrage
 It is a striking and perhaps unappreciated fact of modern literature that much very direct moral
talk—talk about moral dilemmas, talk about how to behave in ethically challenging situations, talk
about serious ethical compromises and lapses—gets presented to us through gangster fiction—not
just crime fiction, but fiction about organized crime. My talk explores this dramatic staging of ethical
set-pieces and presents a hypothesis about why that should be the case. My main example will be the
first great piece of gangster fiction, Milton’s Paradise Lost. The talk considers such topics as when and
under what conditions we root for evil, the so-called puzzle of imaginative resistance, how moral
dilemmas are framed with reference to groups, and why a background of tribal loyalty and the threat
of defection is an especially fruitful stage for the sorts of scenarios that especially prime our ethical
intuitions.
3:45 p.m.–6:00 p.m.
Session 5: Suspicion and Investigation
Jennifer Nou (University of Chicago Law School), Chair
Bernard Harcourt (University of Chicago Law School), George Orwell’s 1984: Thought-crimes in the Age of the NSA
 George Orwell’s novel 1984 is a story of thought-crimes (and actual crimes) against a Big Brother
state. Sales of Orwell’s 1984 soared on Amazon.com after the disclosures by Edward Snowden that
the United States government, through its National Security Agency, had access to practically
everything that users do on the internet. According to Bloomberg news, the book “moved to the No.
3 spot on Amazon’s Movers & Shakers list over a 24-hour period.” Various editorial headlines
referred to Orwell’s novel, noting that “NSA surveillance goes beyond Orwell’s imagination,”
“Orwell’s fears refracted through the NSA's Prism,” or “NSA PRISM: 3 Ways Orwell’s ‘1984’ Saw
This Coming.” This paper will revisit Orwell’s novel and its focus on thought-criminality in the wake
of the recent intelligence disclosures.
Caleb Smith (Yale University, English Department), Crime Scenes: Fictions of Security and Jurisdiction
 The main line of Law and Literature criticism has concerned itself with narrative; our work has
explored how stories are told in legal and literary worlds, with their differing genres, codes, and
norms. My paper argues for an alternative approach, one that emphasizes setting (broadly conceived)
over plot, spatial claims to jurisprudential standing over allegories of transcendent justice. My case
study is the popular literature that emerged from the struggle over Cherokee “removal” between the
1830s and the 1850s: the minister Samuel Worcester’s letters from a Georgia prison; the lawyernovelist William Gilmore Simms’s “border romances”; and the Cherokee writer John Rollin Ridge’s
Joaquín Murieta, sometimes known as the “first Native American novel.” Most recent scholarship
approaches this archive through political concepts such as ideology and (especially) sovereignty.
From Worcester’s landmark case forward, however, the legal question of jurisprudence was at the
heart of the crisis. Simms’s crime fiction suggested that encounters between antagonistic
communities, along the edges of jurisdictions, would produce crime; he argued for the imposition of
a single authority to secure the peace. Ridge reworked the same sensational genre to produce the
figure of the outlaw as an agent of vengeance in newly annexed California, with its syncretic legal
system and its rampant, racist vigilantism. I show how each of these texts attempted, in its way, to
coordinate the relations between territories and moral communities in an imperial context.
Steven Wilf (University of Connecticut School of Law), The Legal Historian as Detective
 In 1910, Roscoe Pound famously published his distinction between law in the books and law in
action. Yet not all action takes place off the printed page. By focusing upon detective novels, it is
possible to see what often eludes criminal trials—the labyrinth of criminal psychology, a fullydeveloped social context, and the lasting effects of the criminal act as social rupture. Detective
novels, mysteries, and police procedurals create a parallel, more deeply described world than the
traditional sphere of legal cases. Situating, of course, is the particular domain of legal historians.
What might the gaze of the legal historian bring to understanding criminality? This essay will
interrogate the particular observing eye found in detectives who are also historians. It examines two
(legal) historian detectives—those of Israeli author Batya Gur and British novelist Sarah Caudwell.
Batya Gur’s protagonist, Michael Ohayon, a Sephardic Jew who was trained in history at the largely
Western European Hebrew University in Jerusalem, operates as an outsider-observer. The Ohayon
novels revolve around the determination of the social norms of a particular segment of society—and
the knowledge that the violation of deeply held norms might lead to murder. Caudwell’s
quintessential Oxford Don Hilary Tamar is a legal historian whose (and this provides the outsider
touch) gender is never specified. Fussy, pedantic, and acutely aware of the interpretive intricacy of
medieval English legal documents, Tamar serves as a guide through the uncertain landscape of clues.
If Ohayon reads social norms, Tamar’s great gift is familiarity with the hermeneutics of legal texts.
Legal historians, after all, always find themselves caught between the Scylla and Charybdis of text and
context.