Re-Reading Alafair Burke’s The Ex

I. BENNETT CAPERS*

INTRODUCTION

I
suspect that law-and-literature, as a discipline, is not what it used to
be. Over a decade ago, Kenji Yoshino described the law-and-literature
movement as “ailing” and in need of a “cure.”1 The movement, he
continued, is “plagued by skepticism,” in no small part because it is a
“markedly schizophrenic discipline.”2 Jane Baron, another law-and-
literature scholar, was similarly critical, observing that the law-and-
literature movement has “tended to undermine itself from within . . .
[presenting] internal fragmentation [and] mixed and conflicting
messages.”3 At the time, the law-and-literature movement was marked by
internecine squabbling over the goal of law-and literature. One of the
perennial debates: Should the emphasis be on law in literature, or law as
literature?4
If this recent history were not enough to make me wonder if the law-
and-literature movement is dead, or at least dying, the paucity of serious
course offerings on the subject these days might lead me to conclude it
was, especially at this time when law schools are repeatedly urged to be
practical and prepare students to be job-ready.5 Skeptics have long
questioned the presence of humanities courses in law schools.6 At my

*StanleyA. August Professor of Law, Brooklyn Law School. B.A. Princeton University; J.D.
Columbia Law School. Assistant U.S. Attorney, Southern District of New York 1995-2004. E-
mail: [email protected].
1 Kenji Yoshino, The City and the Poet, 114 YALE L.J. 1835, 1841 (2005).
2 Id. at 1836–37.
3Jane B. Baron, Law, Literature, and the Problem of Interdisciplinarity, 108 YALE L.J. 1059, 1062
(1999).
4 For an overview of opposing views and camps, see IAN WARD, LAW AND LITERATURE:

POSSIBILITIES AND PERSPECTIVES 3–27 (1995).

5See, e.g., Barbara Gontrum, The New Rules for Law Schools, PEER TO PEER 85, 86 (2011),
https://perma.cc/YM48-CCPX (describing the move towards more practical courses at law
schools).
6 See, e.g., Richard A. Posner, Law and Literature: A Relation Reargued, 72 VA. L. REV. 1351,

235
236 New England Law Review Vol. 51|2

former institution, one of my colleagues referred to any courses that

sounded like law and literature as “law and banana” courses. In case any
of us did not get his meaning—though the term shows up often enough in
law reviews and at law schools7—he would add the word “fluff.” It is
certainly hard not to internalize these attacks. When I first began
publishing legal scholarship, my early work was solidly situated as law-
and-literature,8 or at least as law-and-culture.9 Now, my work is more
grounded in substantive law and doctrine.10 When I first started teaching,
the seminar course I elected to teach was Law and Literature. But I long
ago stopped teaching that seminar. More recently, my seminar course has
been a course I created called Race, Gender, and Crime.
All of which is to say that this symposium issue on Alafair Burke’s
novel The Ex is perhaps more of a political statement than the law review
editors might first realize. It is an assertion that news of law-and-
literature’s death “have been greatly exaggerated,” to channel Mark
Twain.11 It asserts that interest in law-and-literature is thriving, thank you.
And this extends not only to law-and-literature, whose title may have
always seemed unnecessarily precious, but also to law-and-film,12 law-and-
television,13 law-and-music,14 and law-and-popular culture.15 The verdict

1351 (1986).
7 See, e.g., Arthur D. Austin, The Alchemy of Promotion and Tenure, 75 DENV. U. L. REV. 1, 5

(1997) (listing examples of law and banana courses); Alfred R. Light, Anthony G. Amsterdam
and Jerome Bruner, Minding the Law (Harvard 2000), 13 ST. THOMAS L. REV. 415, 419 (2000)
(book review) (referring to derision of courses as law and banana); Steven R. Smith, From Law
and Bananas to Real Law: A Celebration of Scholarship in Mental Health, 34 CAL. W. L. REV. 1, 1
(1997).
8 See, e.g., I. Bennett Capers, The Trial of Bigger Thomas: Race, Gender and Trespass, 31 N.Y.U.

REV. L. & SOC. CHANGE 1, 4–7 (2006); I. Bennett Capers, Reading Back, Reading Black, 35
HOFSTRA L. REV. 9, 11 (2006).
9 I. Bennett Capers, On Andy Warhol’s Electric Chair, 94 CALIF. L. REV. 243, 244 (2006).
10 See,
e.g., I. Bennett Capers, Race, Policing, and Technology, 95 N.C. L. REV. (2017); I. Bennett
Capers, Rape, Truth, and Hearsay, 40 HARV. J. OF L. & GENDER (2017); I. Bennett Capers, The
Prosecutor’s Turn, 57 WM. & MARY L. REV. 1277, 1279 (2016).
11 THE OXFORD DICTIONARY OF QUOTATIONS 706 (1996) (quoting Mark Twain as saying,

“Reports of my death have been greatly exaggerated.”).

12 See,e.g., ORIT KAMIR, FRAMED: WOMEN IN LAW AND FILM (2006); Symposium, Law in
Film/Film in Law, 28 VT. L. REV. 797 (2004).
13 See, e.g., Alafair S. Burke, Got a Warrant?: Breaking Bad and the Fourth Amendment, 13 OHIO

ST. J. CRIM. L. 191 (2015); Symposium, The HBO Series “The Wire,” 8 OHIO ST. J. CRIM. L. 431
(2011). Another example of perhaps a revival in interest: This semester I am co-teaching, with
my colleague Jocelyn Simonson, a course based on the Netflix documentary Making a
Murderer.
14 See generally Christopher A. Bracey, Adjudication, Antisubordination, and the Jazz

Connection, 54 ALA. L. REV. 853 (2003); Paul Butler, Much Respect: Toward a Hip-Hop Theory of
2017 Re-Reading Alafair Burke’s The Ex 237

may still be out as to whether law-and-literature and all its cognates make
us better lawyers,16 or even better people.17 But it certainly does entertain
us.
My goal in this brief essay is to touch on three things. Part One begins
by discussing The Ex as entertainment enhanced by a grounding in the law.
Part Two takes up the issue of inequality in criminal justice, as alluded to
in The Ex. Part Three takes up a different point entirely, situating The Ex in
the context of literary theory, specifically an influential and apropos work
of criticism, The Novel and the Police.18

I.

Alafair Burke’s novel The Ex is certainly entertaining. At the heart of

Punishment, 56 STAN. L. REV. 983 (2004); I. Bennett Capers, Crime Music, 7 OHIO ST. J. CRIM. L.
749 (2010); Sanford Levinson & J.M. Balkin, Law, Music, and other Performing Arts, 139 U. PA. L.
REV. 1597 (1991) (reviewing AUTHENTICITY AND EARLY MUSIC (1988)); Caleb Mason, Jay-Z’s 99
Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps, 56 ST.
LOUIS U. L.J. 567 (2012); Symposium, Bob Dylan and the Law, 38 FORDHAM URB. L.J. 1267 (2011).
15 See, e,g., MICHAEL ASIMOW & SHANNON MADER, LAW AND POPULAR CULTURE: A COURSE

BOOK (2004).
16 This was certainly Justice Felix Frankfurter’s position.

No one can be a truly competent lawyer unless he is a cultivated man . . .

The best way to prepare for the law is to come to the study of the law as a
well-read person. Thus alone can one acquire the capacity to use the
English language on paper and in speech and with the habits of clear
thinking which only a truly liberal education can give. No less important
for a lawyer is the cultivation of the imaginative faculties by reading
poetry, seeing great paintings . . . and listening to great music. Stock your
mind with the deposit of much good reading, and widen and deepen
your feelings by experiencing vicariously as much as possible the
wonderful mysteries of the universe, and forget all about your future
career.

Letter from Felix Frankfurter, Associate Justice, U.S. Supreme Court, to

M. Paul Claussen, Jr. (May, 1954)

Felix Frankfurter, Advice to a Young Man Interested in Going into Law, in THE WORLD OF LAW:
THE LAW AS LITERATURE 725 (Ephraim London ed., 1960).
17 For example, Wigmore thought lawyers should read literature so that they would better

understand human nature. See Wigmore, Introduction to J. GEST, THE LAWYER IN LITERATURE
ix–xii (1913). See also MARTHA C. NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND
PUBLIC LIFE xvi–xvii (1995) (literature allows us “to imagine one another with empathy and
compassion”).
18 See generally D.A. MILLER, THE NOVEL AND THE POLICE (1988).
238 New England Law Review Vol. 51|2

the novel is Olivia Randall, a tough-talking, take-no-prisoners criminal

defense lawyer who accepts a client accused of committing a triple
homicide. But as in Burke’s other novels, nothing is simple. Olivia Randall
accepts the case in part because the accused is her former fiancé, who she
assumes is innocent. When Olivia Randall thinks about their time together,
she remembers him as harmless, “a guy I could only imagine being
arrested if he accidentally walked out of a Whole Foods with a raisin
granola bar.”19 But her belief in his innocence is only one of the reasons
Olivia Randall takes the case. The other is that she still feels guilty for
jilting him more than a decade earlier. Unfortunately, her former fiancé’s
alibi borders on the incredible, and he had a motive to want dead one of the
individuals killed during the triple homicide. As the evidence against her
fiancé mounts, Olivia Randall finds that she has to ask herself some hard
questions. The book’s inside jacket cover puts it this way: “The man she
knew could not have done this. But what if she never really knew him?”20
For me, the question the novel seems to ask—at least until the end when a
final twist is revealed—is even darker. “The man she knew could not have
done this. But what if Olivia Randall’s jilting him changed him into the
person he seems to be now, a calculating, manipulative killer?” All of this
is page-turning, suspenseful, keep-them-guessing stuff.
What enhances the entertainment value of The Ex several times over is
its grounding in the law, which not only contributes to its verisimilitude
but also makes it a prime example of law in literature.21 Although the novel
is, on one level, escapist genre fiction, a thriller, and a beach read, on an
entirely other level it speaks of and to the law. One could even say that the
criminal justice system—the network of constitutional protections, rules of
ethics, police regulations, and protocol, together with the prosecutors and
defense lawyers, judges, and the media—functions on the level of a
character in the novel.
Examples of the criminal justice system shaping the narrative abound.
Olivia Randall, for example, schools a rookie officer on the Sixth
Amendment when he hesitates about allowing her to meet with her client
in a private room where he can’t eavesdrop. She tells him:
Look at it this way, Detective. When your hard work and
savvy investigative skills lead you to some nugget that

19 ALAFAIR BURKE, THE EX: A NOVEL 16 (2016).

20 Id. at front book jacket.
21 “Law-in-literature” can be described as literature involving “the appearance of legal

themes or the depiction of legal actors or processes.” Robert Weisberg, The Law-Literature
Enterprise, 1 YALE J.L. & HUMAN. 1, 1 (1988). “Law-as-literature,” in contrast, involves the
“parsing of such legal texts as statutes, constitutions, judicial opinions, and certain scholarly
treatises as if they were literary works.” Id.
2017 Re-Reading Alafair Burke’s The Ex 239

could have been gleaned from the conversation I’m about

to have with my client, do you really want me claiming
that you got it through a Sixth Amendment violation?
Judges know how easy it is to monitor these rooms with a
touch of a button. And let’s face it, these days a lot of them
aren’t big fans of the NYPD.22
At another point, Olivia Randall seems to express frustration with how
easily the police can get around issuing Miranda warnings. Rather than
placing her client in custody, which would trigger the necessity of Miranda
warnings before questioning,23 the police instead invite her client in for a
friendly chat.24 Even when her client tries to extricate himself—he tells the
police that he needs to get home, but the police respond by saying they just
have a few more questions—he doesn’t do so in a way that a court would
recognize as suggesting that he was in custody, the sine qua non to Miranda.
In short, a court would not say that “there has been such a restriction on
[his] freedom as to render him ‘in custody.’”25 Inseparable from this is how
easily the police can bypass the probable cause requirement for an arrest.
Olivia Randall notes that since he accompanied the police voluntarily to
the precinct, probable cause was completely unnecessary.26 “The police had
played him,” she notes.27 And partially as a result of these end runs around
assumed constitutional protections—probable cause before an arrest,
Miranda warnings before questioning—her client “had fed every detail to
the police, who would twist and turn the information to suit their needs.”28
And this is just a few of the numerous examples where the criminal
justice system impacts the outcome. There are ethical questions and
contrasts between the disclosure obligations of prosecutors and defense
lawyers. Olivia Randall knows that her client’s daughter has concealed
critical evidence from the police, literally walking out with it during the
execution of a valid search warrant, and yet knows she need not divulge

22 BURKE, supra note 19, at 18.

23 Miranda v. Arizona, 384 U.S. 436, 467–68 (1966).
24 BURKE, supra note 19, at 20–21. In Oregon v. Mathiason, 429 U.S. 492, 495–96 (1977), the

Court made clear that voluntary questioning at a police department, even in a “coercive
environment,” will not trigger Miranda warnings. Instead, there must be custody or its
functional equivalent.
25 Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
26 Even though probable cause is necessary before the police may place an individual
under arrest, no justification is needed to engage a suspect consensually, so long as a
reasonable, innocent person in the suspect’s position would feel free to leave or otherwise
terminate the encounter. See, e.g., United States v. Mendenhall, 446 U.S. 544, 553–55 (1980);
United States v. Drayton, 536 U.S. 194, 206–08 (2002); Florida v. Bostick, 501 U.S. 429, 434–37
(1991); and INS v. Delgado, 466 U.S. 210, 215–16 (1984).
27 BURKE, supra note 19, at 21.
28 Id. at 22.
240 New England Law Review Vol. 51|2

this.29 On the other side, the prosecutor buries potentially exculpatory

information, in violation of the spirit of Brady v. Maryland, if not the letter.30
The reader also learns how cognitive biases may impede accurate
assessments of guilt. For example, it is quite common for individuals, even
prosecutors and law enforcement officers, to engage in confirmation bias
and selective information processing.31 Olivia Randall’s colleague is blunt
about how “tunnel vision” will make defending her client harder: “The
police placed Jack near the scene, and then interpreted everything else
through that lens. Happens all the time.”32
Although French literary theorist Roland Barthes persuasively argued
in his influential essay “The Death of the Author” that we should read
fiction without reference to the intentions or biography of the author,33
perhaps even Barthes would make an exception here. I say this because one
of the reasons that The Ex can so expertly use the criminal justice system as
a character is that Burke knows firsthand what she writes about. Indeed,
she writes in the brief Author’s Note at the conclusion of the novel, “every
legal process in Jack’s case is authentic.”34 Not only does she teach criminal
procedure and criminal law; she is a former prosecutor. Before becoming a
law professor, Burke was a deputy district attorney in Multnomah County
in Portland, Oregon for four years, where she tried more than thirty cases.
Her fiction writing dovetails her own scholarship, which alternates
between Fourth Amendment issues and issues of prosecutorial discretion.35
She is widely recognized as one of the foremost experts on prosecutorial
decision-making. Indeed, she frequently lectures at district attorneys’
offices, and at the National Advocacy Center of the Department of Justice
on issues relating to prosecutorial discretion, ethics, and disclosure
obligations. In short, Burke, in writing legal thrillers, is writing from a
position of authority. It is little wonder that Burke has been taught in law

29 Id. at 69.
30 Id. at 194–95, 201–05, 263.
31 Alafair Burke, Neutralizing Cognitive Bias: An Invitation to Prosecutors, 2 N.Y.U. J.L. &
LIBERTY 512, 517–18 (2007) (describing confirmation bias and selective information processing
as “the inclination to search out and recall information that tends to confirm one’s existing
beliefs, and to devalue disconfirming evidence.”).
32 BURKE, supra note 19, at 77.
33 See Roland Barthes, The Death of the Author, in IMAGE-MUSIC-TEXT 142 (Stephen Heath
trans., 1978).
34 BURKE, supra note 19, at Author’s Note.
35 See,e.g., Alafair Burke, Consent Searches and Fourth Amendment Reasonableness, 67 FLA. L.
REV. 509 passim (2015); Alafair Burke & Bruce Green, The Community Prosecutor: Questions
about Professional Discretion, 47 WAKE FOREST L. REV. 285 passim (2015); Alafair Burke,
Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 WM. & MARY L.
REV. 1587 passim (2006).
2017 Re-Reading Alafair Burke’s The Ex 241

and literature courses, or that her work was chosen for this law review
symposium on the depiction of the criminal justice system in fiction.
But Burke, in writing legal thrillers, also makes clear that the system of
justice in her novel, like the system of justice in our real world, is anything
but fair. It is this point I take up in the next part.

II.

Early on in The Ex, Olivia Randall—who may or may not be a stand-in

for the author herself—makes a point of noting that in our criminal justice
system, justice is anything but equal. In general, it benefits those who have
more, and penalizes those who have less. Indeed, Olivia Randall plans to
take advantage of this disparity. She notes:
Police like to say that they’re straight shooters, all about
the justice, color blind, fair and balanced, yada yada. But
the truth is that they’re used to both victims and
perpetrators who are poor and powerless. When someone
rich and powerful collides with the criminal justice system,
it’s a big fucking deal. No harm in flashing your feathers
early and often.36
Although this may come across as a throw-away remark—if this were
a judicial opinion, it would be dicta—it speaks volumes about the criminal
justice in the mimetic world of the novel, and the criminal justice system in
reality. Throughout the novel, one senses that had Olivia Randall’s client
been poor and powerless, instead of a successful writer with a brownstone,
a “palace by Greenwich Village standards,”37 the wheels of justice would
turn very differently.38 Such a defendant certainly would not have the
funds to retain a private attorney. Nor is it likely any judge would release
such a defendant, accused of killing three individuals, on bail.39 And it is
certainly unlikely that any public defender or appointed attorney, however
skilled, would have the time or resources to investigate the case the way
Olivia Randall does.40 It is also unlikely that any public defender or

36 BURKE, supra note 19, at 14–15.

37 Id. at 97.
38 To be sure, this inequality is not new, and has long been observed in fiction. A ready
example is an observation in Anthony Trollope’s The Eustace Diamonds, in which Scotland
Yard acknowledges that “had it been an affair of thieves, such as thieves ordinarily are,
everything would have been discovered long since; —but when lords and ladies with titles
come to be mixed up with such an affair,—folk in whose house a policemen can’t have his will
searching and browbeating,—how is a detective to detect anything?” ANTHONY TROLLOPE,
THE EUSTACE DIAMONDS 455 (1876).
39 See BURKE, supra note 19, at 118–25.
40 For a discussion of excessive public defense caseloads, inadequate funding, and other
issues that weigh the scales in favor of the prosecution and wealthier defendants, see Mary
242 New England Law Review Vol. 51|2

appointed counsel would be able to manipulate the media, the way Olivia
Randall does later in the book.41
And the disparate treatment faced by poor defendants is only part of
what tips the scales. Another issue is the status of the victim.42 Thus, in The
Ex, one senses too that the case would be very different if the three victims
did not include someone who was wealthy and powerful. Although the
reader is told that there are three victims, the reader quickly learns that
“what mattered most was the identity of one of the three: Malcolm Neeley
. . . a multimillionaire, an investment banker to some of the wealthiest and
most powerful people in the world . . . the kind of rich that made celebrities
look poor.”43 Indeed, one of the victims, Clifton Hunter, “an unemployed
janitor” with multiple low level arrests, functions more as a cipher in the
novel than a real victim.44 As Olivia Randall acknowledges, the focus on
the millionaire victim “had been so prominent in the press coverage that
the other two victims were purely an afterthought.”45 Later on, she makes a
similar point, noting that in the media coverage of the homicide, the photos
of the other victims “were rarely shown.”46
In a sense, without harping on it, The Ex subtly asks the reader,47 or at
least this reader, to imagine the counter-factual, a different defendant and a
different victim. Indeed, although the book is essentially race free—almost
all of the characters are the “default” race, white—the book in a way
prompts the reader, or at least this reader, to “ask the other question.”48 Is
this the criminal justice system we want? And since “poor and powerless”

Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57
HASTINGS L.J. 1031, 1032–37 (2006).
41 See BURKE, supra note 19, at 205, 258–59.
42 For example, the Baldus study of death penalty prosecutions in Georgia found, after
taking into account non-racial variables, “defendants charged with killing white victims were
4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”
McCleskey v. Kemp, 481 U.S. 279, 287 (1987). See also DAVID C. BALDUS, GEORGE WOODWORTH
& CHARLES A. PULASKI, JR., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL
ANALYSIS 1–2 (1990).
43 BURKE, supra note 19, at 28–29.
44 Id. at 116.
45 Id.
46 Id. at 240.
47 Itgoes without saying that every reader brings his or her own experiences to how they
read. See generally STANLEY FISH, IS THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF
INTERPRETIVE COMMUNITIES 14 (1980) (exploring how the communities to which one belongs
and interacts can affect how one interprets a text).
48 Mari J. Matsuda, Beside My Sister, Facing the Enemy: Legal Theory Out of Coalition, 43 STAN.
L. REV. 1183, 1189 (1991) (enjoining progressives to consider the interconnection of all forms of
subordination).
2017 Re-Reading Alafair Burke’s The Ex 243

is often code for race, just as “rich and powerful” is often code for race,
how do we think about criminal justice and race in a world that seems to
pride itself on purportedly being color-blind and race-free? More
specifically, at this time when it is common to talk about “white privilege,”
does the criminal justice system also have a “white privilege” problem?49
Indeed, for this reader, Burke’s novel raises another pressing question: To
what extent are we—as readers, as stand-ins for members of society, as de
facto jurors and judges—implicated in this unequal system of justice?
There is a reason why the media and the prosecution and the defense in
The Ex, like the media and prosecution and the defense in the real world
outside of the book, focus more resources and attention on cases like those
involving Olivia Randall’s client and the multimillionaire victim. It is
because this is what we—as readers, as stand-ins for members of society, as
de facto jurors and judges—want. Would the reader have picked up the
book if all three victims had been like the third victim of the triple
homicide, Clifton Hunter, an unemployed janitor? Would the reader have
picked up the book if the main suspect, instead of being a successful writer
with an apartment “close to eighteen hundred square feet”50 “who’d grown
more attractive with time”51 were instead “poor and powerless”?52 To be
sure, such novels are written and widely read—one has only to think of
some of the novels by Richard Price, for example—but those are not the
novels we turn to when we want to be entertained. So let me ask again. If
the “system” lavishes inordinate attention on those who have, while those
who have not are systemically given little more than assembly-line justice,
are quietly dispatched to invisible prison cities,53 and rarely, ever, made the
subjects of the novels we buy, or the movies we see, are not we ourselves
partly to blame?

III.

This brings me to literary theorist D.A. Miller’s influential and apropos

book of literary criticism, The Novel and the Police, which begins proper with
the wonderful line, “The frequent appearance of policemen in novels is too

49 The issue of “white privilege” in the criminal justice system is an issue I have recently

explored in other work. See I. Bennett Capers, The Under-Policed, 51 WAKE FOREST L. REV. 589,
592, 595–96 (2016).
50 BURKE, supra note 19, at 97.
51 Id. at 18.
52 Id. at 15.
53 I. Bennett Capers, Blind Justice, 24 YALE J. L. & HUMAN. 179, 187 (2012) (“We have created
invisible prison cities—indeed, prison states—whose occupants are faceless and numbered
and forgotten, whose occupants are overwhelmingly black or Hispanic and overwhelmingly
poor, and too few of us care.”).
244 New England Law Review Vol. 51|2

evident to need detecting.”54 Miller takes as his project exploring “the

possibility of a radical entanglement between the nature of the novel and the
practice of the police,”55 and although his focus is on detectives in
nineteenth century literature, much of his argument applies equally to
contemporary fiction and contemporary “detectives”—now sometimes
clothed as prosecutors, journalists, or as in the case of The Ex, as defense
lawyers. Miller’s contribution to the literary exegeses of detective fiction is
to reveal the policing that happens even in the absence of the police. This
goes beyond the notion that detective novels follow a particular structure:
there is a rupture in the order of things (for example, a theft or a murder),
and that a detective, by identifying the cause of the disorder and setting it
to right (for example, by apprehending the culprit and bringing him to
justice), restores order. To be clear, Miller embraces this notion too. He
writes:
Whether the investigation is conducted by police or
private detectives, its sheer intrusiveness posits a world
whose normality has been hitherto defined as a matter of
not needing the police or policelike detectives. The
investigation repairs this normality, not only by solving
the crime, but also, far more important, by withdrawing
from what had been, for an aberrant moment, its “scene.”56
But for Miller, there is also policing in the absence of the police. Stated
differently, for Miller, what is interesting is not only what takes place in the
world of the novel when the police are present, but also what takes place in
the world of the novel when the police are absent and seemingly
unnecessary. Miller draws our attention to what might be called the
“negative space.”57 Borrowing from French philosopher Michel Foucault
and his discussion of the panopticon,58 Miller reveals another “plot” that
runs through most “detective” fiction: a more subtle and potent
disciplinary power that has little to do with policing. As Miller puts it, the

54 MILLER, supra note 18, at 1.

55 Id. at 2.
56 Id. at 3.
57 The term “negative space” has recently found its way into discourse about the law, or
more specifically, discourse about where the law is absent. See, e.g., Kai Raustiala &
Christopher Sprigman, The Privacy Paradox: Innovation and Intellectual Property in Fashion
Design, 92 VA. L. REV. 1687, 1764 (2006) (coining the term in the context of intellectual
property). In fact, the term originates from the visual arts, where it is used to emphasize the
importance of the space surrounding a form. See, e.g., BETTY EDWARDS, DRAWING ON THE
RIGHT SIDE OF THE BRAIN 100–02 (1979). It is in that sense that I use it here. Miller focuses our
attention on what takes place in detective fiction in the space where the police are absent.
58 See generally MICHEL FOUCAULT, DISCIPLINE AND PUNISH 205 (Alan Sheridan trans.,

Vintage Books ed. 1979) (1977).

2017 Re-Reading Alafair Burke’s The Ex 245

“story of the Novel is essentially the story of an active regulation.”59 He

adds, “regulation is secured in a minor way along the lines of an official
police force, and in a major way through the working-through of an
amateur supplement.”60 This “amateur supplement” is the less visible
coercive force that exists alongside, but often independent of, the police.
After applying his theory to a few novels, Miller elaborates as follows:
What has been standing at the back of my argument up to now,
and what I hope will allow me to carry it some steps further, is
the general history of the rise of disciplinary power, such as
provided by Michel Foucault in Surveillance and Punishment.
There Foucault documents and describes the new type of power
that begins to permeate Western societies from the end of the
eighteenth century. This new type of power (“new” perhaps only
in its newly dominant role) cannot be identified with an
institution or a state apparatus, though these may certainly
employ or underwrite it. The efficacy of discipline lies precisely
in the fact that it is only a mode of power, “comprising a whole
set of instruments, techniques, procedures, levels of application,
targets.” The mobility it enjoys as a technology allows precisely
for its wide diffusion, which extends from obviously disciplinary
institutions to institutions officially determined by “other”
functions (such as the school) down to the tiniest practices of
everyday social life. This mobile power is also a modest one.
Maintained well below the level of emergence of “the great
apparatuses and the great political struggles,” its modalities are
humble, its procedures minor. It is most characteristically
exercised on “little things.” While it thus harkens back to an
earlier theology of detail, the detail is now significant “not so
much for the meaning it conceals within as for the hold it
provides for the power that wishes to seize it.” The sheer
pettiness of discipline’s coercions tends to keep them from
scrutiny, and the diffusion of discipline’s operations precludes
locating them in an attackable center. Disciplinary power
constitutively mobilizes a tactic of tact: it is the policing power
that never passes for such, but is either invisible or visible only
under cover of other, nobler or simply blander intentionalities (to
educate, to cure, to produce, to defend). Traditional power
founded its authority in the spectacle of its force, and those on
whom this power was exercised could, conversely, remain in the
shade. By contrast, disciplinary power tends to remain invisible,
while imposing on those whom its subjects “a principle of
compulsory visibility. . . .”61
This is heady stuff, but perhaps because I have been thinking a lot

59 MILLER, supra note 18, at 10.

60 Id. at 10–11.
61 Id. at 17–18.
246 New England Law Review Vol. 51|2

about technology, compulsory visibility, and disciplinary power recently,62

I am primed to see this invisible disciplinary power everywhere these days,
and that includes in The Ex. Consider again the main story line. Defense
lawyer Olivia Randall must defend her former fiancé, accused of
committing a triple homicide, and to defend him she must “detect” and
prove what really happened, just as to prosecute him the prosecutor must
“detect” and prove how and why her client committed the crime. What
interests me beyond the “who done it” is the compulsory visibility that the
novel takes for granted—encouraging the reader to do so as well—and
how this supports the effectiveness of a disciplinary power even when the
police are seemingly absent.
First, there is the compulsory visibility. Quite simply, the tools that the
“detectives” use to get at their version of “what really happened” are the
same tools that allow all of us to be “traced.” The protagonist “detective”—
Olivia Randall as the defense attorney—begins her detection by following
the “traces” left by her client and others. Early on, she asks her assistant, an
information technology whiz, to track down e-mails between her client and
a mystery woman, and indeed to dig up “whatever information he could
track down” about this mystery woman.63 Later, she subpoenas another
trace we all have, telephone records. Still later, she examines another
“trace” we all leave—footage from public surveillance cameras. She
“traces” the school records of one of the homicide victims, and then her
client’s records as an instructor at the same school.64 She is even able to
“trace” her client’s psychiatric treatment, so little is private these days.65
Indeed, at one point when Olivia Randall realizes that there are too many
coincidences that implicate her client, she wonders if someone else took
advantage of her client’s “trace” by “min[ing] the Web for info” on her
client and using it to frame him.66
Meanwhile, Olivia Randall’s adversary, Assistant District Attorney
Scott Temple, also functions as a type of detective, tracing the defendant
not only through surveillance footage of the crime scene, but also from
surveillance footage—compliments again of the ubiquity of public and
private surveillance cameras—of a nearby parking garage.67 ADA Temple

62 See, e.g., I. Bennett Capers, Race, Policing, and Technology, 95 N.C. L. REV. (forthcoming

2017); I. Bennett Capers, Policing, Technology, and Doctrinal Assists, FLA. L. REV. (forthcoming
2017); I. Bennett Capers, Criminal Procedure and the Good Citizen, 118 COLUM. L. REV.
(forthcoming 2018).
63 BURKE, supra note 19, at 35–36.
64 Id. at 240–50.
65 Id. at 251–52.
66 Id. at 67, 263.
67 Id. at 42.
2017 Re-Reading Alafair Burke’s The Ex 247

also “traces” the defendant by retrieving video footage from the

defendant’s apartment building elevator,68 and by retrieving the
defendant’s phone records, as well as the phone records of the shooting
victims and the company the millionaire victim owned. Indeed, what
ultimately identifies the real culprit is yet another technological trace: the
culprit had sent anonymous messages from various locations with public
Wi-Fi connections to conceal his identity. But even the culprit’s goal of
keeping his identity secret is a nearly impossible one. ADA Temple
explains near the end:
Here’s the thing. Paperfree? If you leave it open on your
browser, it will automatically update every few minutes.
So [your client] is being all sly with his anonymous e-mail
account, sneaking off to Starbucks and hotel lobbies to
check it, but then forgets to close the browser. He comes
home. The laptop automatically connects to his home
network. And then the account refreshes. Voilà. He fucked
up.69
All of these are tools used to trace the defendant. All of this is of a piece
with compulsory visibility. The only thing that is obscured, or perhaps
taken for granted, is that we are all “traceable” like the defendant in The Ex.
We have become a society where not leaving a “trace,” through phone
records or school records or medical records or web browsing or
surveillance cameras, is nearly impossible. In short, we are all visible,
traceable, whether we choose to be so or not.
Indeed, we have become willing participants in our own surveillance.
Allow me to return to the surveillance footage in The Ex. At one point early
in the novel, Olivia Randall and a friend go to police headquarters to
review the police department’s surveillance footage near the scene of the
crime. What is revealing in the scene is that her friend actually expresses
surprise that there’s not footage of the actual crime scene.
“How is that possible?” Melissa asked. “This is post-nine-
eleven New York City.”
“And it’s also the real world,” Carl said. “Times Square?
Rockefeller Center? Grand Central? We got those places
locked down tight. But what jihadist plotting from a
hellhole in Afghanistan gives a rat’s ass about the Hudson
River greenway? As it turns out, though, we’ll have a
bunch more cameras along the west side in the next month
or so.”70

68 Id. at 43.
69 BURKE, supra note 19, at 264.
70 Id. at 172.
248 New England Law Review Vol. 51|2

All of this serves the goal of invisible discipline. The Ex opens with a
crime, and ends with its seeming (re)solution. But what happens in the
negative space when the police, the prosecutors, and the defense lawyers
are no longer visible? What happens when the “detectives” exit the frame?
There is no mayhem or anarchy. The police will not immediately need to
be summoned to “keep the peace.” Life will go on, for the most part. This is
in part because our traceability, which we willingly participate in, remains.
This functions as a subtler form of discipline. And maybe this too is part of
the pleasure of reading detective fiction: it reminds us that, given the
invisible disciplinary power all around us, breaches are rare, so rare that
we seek them out in fiction. We close the last page and know that we, like
the characters in the novel, are safe.

CONCLUSION

In this brief essay, I have offered a reading of The Ex that attends to its
grounding in the law, its nod to unequal justice, and its illustration of the
way we are all traceable and participate in our own discipline along the
lines marked out in The Novel and the Police. My hope is that this essay can
play a contributing role in getting others to think about the relation
between law and literature, or more broadly law and the humanities. I
began by noting that the law and literature movement has been described
as ailing. I hope that is not true. If anything, writing this essay has
reminded me how fruitful thinking about law and literature can really be.