Article Preview: Re-Reading Alafair Burke’s The Ex

There can be no doubt that the legal profession is frequently depicted in popular culture. Take a look at the front page of any major newspaper, and you will invariably find stories depicting the latest political development, sensational trial, or other legal phenomena. But in recent decades, law-and-literature, as a discipline, has been described as “ailing” and in need of a “cure.” The law-and-literature movement has been criticized and the presence of humanities courses in law schools has declined.

In his forthcoming article, I. Bennett Capers, a professor of law at Brooklyn Law School, comments on the role of Alafair Burke’s novel The Ex within the law-and-literature movement. The Ex is a legal thriller in which Olivia Randall, one of New York City’s best defense attorneys, takes on the case of an old boyfriend who has been accused in a triple homicide. Through its use of the law as grounding for its entertainment value, Capers argues The Ex is not only a product of the law-and-literature movement, but also a statement that the movement may still be alive and thriving.

Capers begins by noting that the criminal justice system is not just present in the plot of The Ex, but rather is so crucial as to function on the level of a character in the novel. Whether it is the scene involving a “friendly chat” between the police and the murder suspect that skirt the requirements of Miranda, or otherwise a chapter where a prosecutor must confront obligations under Brady when presented with potentially exculpatory information, it is clear to the reader that, much like real life criminal proceedings, the outcome will be determined by the application of legal doctrine. Capers further argues that The Ex, in line with the law-and-literature discipline, addresses issues of inequality in the criminal justice system through the sensational nature of a high profile homicide. One of the three victims, a multimillionaire, receives the lion’s share of the attention from prosecutors, the defense attorney, and the media in the novel. It begs the question: would the reader have picked up the book if all three victims were socially or racially disadvantaged?

Finally, Capers analyzes The Ex through the lens of D.A. Miller’s influential book of literary criticism, The Novel and the Police. Miller’s work, drawing on the theories of power advanced by philosopher Michel Foucault, argues that power exists outside of traditional institutions of power such as the police or other state apparatuses. In addition, an invisible disciplinary power exists in other, everyday institutions that can compel societal discipline.

On the surface, The Ex is a story about two attorneys competing to uncover and ultimately prove “what really happened” in the criminal case. The attorneys, detectives, police, and the courts are all traditional and obvious disciplinary institutions. But, as Capers highlights, the search for the truth is only made possible by modern technology such as the ubiquity of surveillance footage, phone records, Wi-Fi connections, and the like. Capers views these modern technologies—which ostensibly exist to serve other, non-criminal justice related functions—as creating an inescapable traceability that acts as a form of an invisible disciplinary power. By becoming willing participants in our own surveillance, society must accept the consequences of traceability. As an example of the law-and-literature movement, The Ex demonstrates that, even in a detective novel, policing happens in the absence of the police.

Be sure to read Professor Capers’ article Re-Reading Alafair Burke’s The Ex, which will appear in Volume 51, Issue 2 of the New England Law Review.

Contributing Editor: Sean Connolly

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