The University of Texas at Austin

Law in Popular Culture collection

Legal Studies Forum
Volume 22, Number 1/2/3 (1998)
reprinted by permission Legal Studies Forum

LITERATURE IN A CRIMINAL LAW COURSE:
AESCHYLUS, BURGESS, OATES,  CAMUS, POE, AND MELVILLE

ROBERT BATEY*

     Although law and literature has achieved recognition as a “school” of contemporary jurisprudence,1 it has enjoyed less influence in legal education. As Elizabeth Villiers Gemmette has so thoroughly documented,2 many law schools now offer an elective law and literature course,3 but the core curriculum remains largely impenetrable. Casebooks in fundamental courses may contain literary sidebars, such as a snippet from Moby-Dick in a property text or a quotation from Dickens on almost any legal subject,4 but the use of literary sources in the daily teaching of basic law courses in legal education is rare.
     This essay details the use of literature--plays, novels, short stories, and poems--in a criminal law course. While crime is often the theme literature, so are other matters we take up in a study of law. Teachers of contracts, 5 property,6 torts,7 business associations,8 and constitutional9

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and family law are likely to believe that their chosen subjects plumb the well-springs of human emotion just as does as criminal law. These subjects too, then, are open to literary exploration; even teachers of civil procedure and tax10 might make use of literature in their teaching. I think we might profitably use literature in all our courses in legal education.11 This essay, however, concentrates on criminal law because of my experience with the teaching strategies I describe.

I. AESCHYLUS

     A literary work which sounds the main themes of a law course can be used to raise questions fundamental to the course. Prodded by an article by Paul Gewirtz,12 I began assigning The Eumenides, the concluding play in Aeschylus’ trilogy The Oresteia, as reading for the first class in criminal law.13 The play not only explains the origins of 

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criminal law and explicates its chief rationales, but also highlights the roles of defense attorney, prosecutor, and judge and instantiates the unavoidable fact that the animating rationales of criminal law are frequently sacrificed in order to achieve other worthwhile social goals.
     The Eumenides depicts a murder trial. At the urgings of his sister Electra and the Olympian god Apollo,14 Orestes has killed his and Electra's mother Clytaemnestra, the queen of Argos. Clytaemnestra's ghost having called on the Furies to revenge her death,15 these older female gods, whom the Olympians had overthrown but who still hold great power over mortals,16 pursue Orestes throughout Greece. Accepting Apollo’s recommendation that Orestes take his case to the Olympian goddess Athena for resolution,17 the killer flees to Areopagus, a hill in Athens, where Athena, confronted by both Orestes and his pursuers, for the first time18 establishes a court with a lay jury to try this and other cases of homicide: “[S]ince the matter comes to rest on us,/ I will appoint the judges of manslaughter,/ swear them in, and found a tribunal here/ for all time to come.”19
     The trial is not a simple case of senseless homicide. Orestes had ample motive to kill his mother, who had slain his father, her husband Agamemnon, the king of Argos, immediately after his return from the Trojan War. And this killing in turn had its motive: To propitiate the gods while on the way to Troy, Agamemnon had sacrificed his and Clytaemnestra’s daughter Iphigeneia, the sister of Orestes and Electra. Consumed by anger, Clytaemnestra took a lover, Aegisthus, and plotted the revenge she would take when Agamemnon eventually returned to Argos.20
     This cycle of family revenge occurs in the larger setting of public violence in the Trojan War. Agamemnon had led the Greeks in their war 

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against the Trojans because the Trojan prince Paris had seduced Helen, the wife of Agamemnon's brother Menelaus (and the sister of Clytaemnestra) while a guest in Menelaus' palace in Sparta and had carried her off to Troy. All of Greece rose up to revenge this treachery. The Olympian gods were divided by the Trojan War, with Aphrodite championing her favorite Paris, who had chosen her as “the fairest” (thus earning Helen as his reward), while Athena and Hera, whom Paris had passed over, favored the Greeks.21 Though less committed, Apollo and his twin sister Artemis inclined toward the Trojans. Thus it was Artemis who prevented the Greek fleet from sailing toward Troy, necessitating the terrible sacrifice of Iphigeneia.22 So even the gods were not immune from the desire for revenge, and their interaction shows the dreadful cost of satisfying that desire.
     The roles played by Aegisthus in The Oresteia--Clytaemnestra's accomplice in murdering Agamemnon, co-ruler with her after Agamemnon's death, and Orestes' other homicide victim--add one more facet to the trilogy's saga of private revenge. Agamemnon and Aegisthus were cousins, sons of the brothers Atreus and Thyestes. Years before, the two brothers had feuded over the succession to the throne of Argos. To complicate matters still further, Thyestes had seduced Atreus’ wife. Feigning reconciliation, Atreus had invited his brother to a dinner, where Atreus served Thyestes a handsome meal and after its consumption informed Thyestes that he had just eaten the flesh of his two eldest sons. Aghast, Thyestes left Argos, taking his youngest son Aegithus with him.23 Over the intervening years Aegisthus had planned his revenge on the house of Atreus, and rejoiced when he aided in killing Agamemnon.24
     Eliciting these plot strands from the class25 soon causes some to wonder what all this has to do with a course in criminal law, but the answer has already become evident to other class members. By establishing a court to resolve the questions of Orestes’ guilt and punishment, 

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Athena attempts to end the otherwise ceaseless cycle of revenge and counterrevenge that has so destabilized the house of Atreus, Argos, and the Hellenic world. After asking the Furies, “[W]here does it all end?,”26 Athena answers her own question by establishing a court that will render a final decision regarding Orestes, a decision which all the parties must accept. The goddess thus transforms private revenge into public retribution, creating criminal law as we know it.27
     Summoned by the ghost of Clytaemnestra, the Furies commence The Eumenides as the embodiment of private revenge, which they recognize as a never-ending cycle: “Man to man foresees his neighbor’s torments,/ groping to cure his own--/ poor wretch, there is no cure, no use,/ the drugs that ease him speed the next attack.”28 Revenging oneself brings relief, but it also sparks the desire for counterrevenge.29 The Furies also cite Orestes as a specific example of this process: “[A]t his neck/ he feels new murder"--his own--“springing from his blood"--that is, the blood he has spilled.30 After the violence of Agamemnon and The Libation Bearers and of the family strife and lengthy war that preceded them, the audience for The Eumenides probably needed very little persuading on this point or on the need for a public device to stop the cycle.
     The court Athena establishes on Areopagus is that device; it transforms private revenge into public retribution in a move that all nascent societies have eventually made.31 The Furies themselves are transformed into public prosecutors, displaying a bit of the self-righteousness so often seen in today's prosecutors: “[W]e are/ the just and upright, we maintain./ . . . ./ We are the skilled, the masterful,/ we are the great fulfillers/, memories of grief, we awesome spirits/ stern, 

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unappeasable to man,/. . . .”32 There is cause for this haughtiness, however. Not only do the Furies exact retribution from those who deserve punishment, but they also foster the public good by dissuading would-be criminals. As they intone, “There is a time when terror helps/, the watchman must stand guard upon the heart.”33 In other words, fear of punishment by the Furies deters persons contemplating wrongdoing.34 Thus the Furies serve both retribution and deterrence, reflecting each of the major rationales for criminal law.35
     In response to the Furies' prosecution, Apollo functions as Orestes' defense attorney, surprisingly displaying many of the traits of contemporary defenders. From his first lines--“No, I will never fail you, through to the end/ your guardian standing by your side or worlds away!/ I will show no mercy to your enemies!”36--Apollo indicates that his sole loyalty is to his “client,” whose alter ego the god becomes at trial, speaking for Orestes when the Furies’ cross-examination proves too difficult for him.37 And like many of today's defense attorneys, Apollo's ethics and argumentation are subject to question.
     As a self-described “witness” who “share[s] responsibility” for Orestes’ act,38 Apollo appears to have a conflict of interest; however, he persists in the representation. Further, even though he doubts his client's innocence, describing him as an “outlaw[],”39 Apollo skillfully 

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deploys a number of shady tricks and shaky contentions at the trial.40 He uses his status as a god to bolster his argument--“Seer that I am, I never lie.”41--invokes his connection with the great god Zeus,42 and even offers to bribe Athena with promises of his and Orestes’ future support.43 During his brief presentation to the jury Apollo evades the questions posed to him by the Furies, first by blaming the victim Clytaemnestra,44 then by losing his temper in a show of courtroom theatrics,45 and finally by explicitly embracing male chauvinism to establish that a wife’s killing her husband is worse than a son's killing his mother.
     The premise of this last point is a curious theory of human reproduction:
Here is the truth, I tell you--see how right I am.
The woman you call the mother of the child 
is not the parent, just a nurse to the seed,
the new-sown seed that grows and swells inside her.
The man is the source of life--the one who mounts.
She, like a stranger for a stranger, keeps
the shoot alive unless god hurts the roots.46
 Apollo uses this theory, which analogizes motherhood to caring for an absent person's houseplant, to diminish the connection between Orestes and his mother, whom he killed, while emphasizing his connection with 

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his father, whom Clytaemnestra killed. As an example of the reduced role that motherhood plays under this theory, Apollo cites Athena herself, invoking with smarmy praise her birth from the head of Zeus: “I give you proof that all I say is true./ The father can father forth without a mother./ Here she stands, our living witness. Look--/ Child sprung full-blown from Olympian Zeus,/ never bred in the darkness of the womb/ but such a stock no goddess could conceive!”47 So according to Apollo, Athena herself represents the superiority of the male, in human reproduction, in justifications for homicide, and implicitly in everything else.48
     There is a lively contemporary debate over whether the playwright intended for his audience to swallow these contentions and their dubious biological basis.49 Given the overall weaknesses (and sleaziness) of the presentation Aeschylus has Apollo make, it seems that playgoers would tend to question any of his specific points, including these, which is perhaps the reaction Aeschylus desired. Indirectly supporting this inference of authorial intent is the fact that Aeschylus causes Apollo to gloss over the full story of Athena’s birth, of which a Greek audience would surely have been aware. One set of critics recounts it: 
Zeus overpowered Mêtis, a Titaness; she conceived a daughter, and Mother Earth prophesied that if Mêtis conceived again she would bear a son who would dethrone his father. So Zeus swallowed her whole and then was seized with a raging headache, Hephaistos split his skull, and Athena sprang to light.50
The story of Athena’s birth shows male domination, but it is the domination of the rapist who murders his victim. As the critics quoted 

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above drily put it, “[H]ere the myth may have a certain power of recoil.”51
     Whether or not Aeschylus wanted his audience to recoil from Apollo's chauvinism, it is undeniable that the contemporary reader does.52 To the modern, Apollo's contentions are wrong biologically, socially, politically, and legally. We contemporaries grow even more aghast when Athena, casting the decisive vote for acquittal, identifies male superiority as the reason for her choice: “Orestes, I will cast my lot for you./ No mother gave me birth./ I honour the male, in all things but marriage./ Yes, with all my heart I am my Father's child.”53 Twice denying her mother, Athena seems to accept Apollo's dubious argument totally.
     This capitulation seems out of character for Athena, who previously in the play showed much sagacity, first by respectfully winning the confidence of the Furies so that they agree to let her decide the case,54 and then by generously sharing this decisionmaking power with a jury of Athenian mortals.55 After announcing her decision, the goddess returns to wisdom by coolly negotiating56 with the embittered Furies--

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who at first promise to leave “all mankind destroyed”57 — until they accept Athena’s offer to become part of her court. So why, I ask my class, does Athena — otherwise so sage, otherwise such a paragon of female power58 — choose to “honour the male”?
     To the reader who believes that Athena must have some unvoiced reason for her decision to acquit Orestes, a number of explanations are possible. Power politics may explain her decision: Voting for acquittal gains Athens the support of Argos (for which the freed Orestes quickly leaves, to assume its throne)59 and of Apollo (who wordlessly joins in Orestes' abrupt departure, perhaps fearing that Athena may change her mind)60; these new loyalties will help to solidify Athens' position as the leading city-state of Greece. But statecraft — in particular, the establishment of a court of law — may also provide an explanation. Ruling against the Furies risks angering them, but it also gives Athena the opportunity to consolidate the power of her new court by recruiting the Furies to participate in it.
     Orestes’ conviction would have confirmed the power of the Furies, leaving them free to return to their old ways and thus risking resumption of the cycle of private revenge.61  To tame the Furies, to substitute public retribution for private revenge, Athena first must rule against them, and then must convince them to subordinate their power to the authority of her court. She ultimately succeeds in persuading the Furies, after they vent their considerable anger, who agree to become no longer the Furies, but now the Eumenides, “the Kindly Ones,”62 whose punishment of the guilty, under the direction of Athena's court, will 

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benefit all Athenians.63 The subordination of the Eumenides to the court is reflected in the new home they assume, at Athena's request: a cave in Areopagus, the hill on top of which the court sits.64
     The cost of effecting this bit of statecraft was to let free a man who probably deserved punishment.65 Retribution and deterrence thus were sacrificed in the individual case in order to achieve another important governmental goal, one intended to produce subsequent benefits. For me this is a very useful point to make at the beginning of a course in criminal law, because judges in criminal courts make similar decisions daily. Though the most obvious examples of such judgments involve the exclusionary rules studied in criminal procedure, other examples arise from the area of substantive criminal law to which I turn immediately after discussing The Eumenides: the principle of legality, the vagueness doctrine, the construction of criminal statutes, criminal liability for omissions, and the act requirement for attempt.66 Under each of these headings courts regularly forgo the punishment of eminently punishable individuals in order to achieve some other significant governmental 

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goal.67 In such cases courts undoubtedly would prefer to serve the goals of retribution and deterrence, but like the Eumenides ensconced in their cave below the court at Areopagus, these values are subsumed under goals the courts find more pressing. Thus, Athena's decision sets an element of criminal law to which I return throughout the course.
     As an introduction to criminal law, The Eumenides allows discussion of why criminal law developed, what its goals are, who constitute its principal players, and how one of those players, the judge, at some point must compromise criminal law's goals in order to achieve other worthy ends. I find the play an exemplary introduction, an exceptional way to begin a criminal law course.

II. BURGESS AND OATES

     Like most law teachers I have doubts about using a single examination as the measure of my students' understanding. To compensate for the defects of the final examination--again like many law school professors--I have routinely allowed students to submit an optional paper. Since 1990 I have insisted that the subject of the optional paper be a novel; at first I required Anthony Burgess' A Clockwork Orange, but for the last two years I have allowed students to chose either Burgess' work or Joyce Carol Oates' Foxfire: Confessions of a Girl Gang. Students who choose to write the paper are asked to describe and criticize the attitude or attitudes toward criminal law portrayed in the novel selected, with creativity encouraged. 
     First published in England in 1962, A Clockwork Orange appeared in the United States a year later with its final chapter, the twenty-first, suppressed at the insistence of Burgess' American publisher; this shortened American version became the basis for Stanley Kubrick's celebrated film. The full novel was not published in America until 1967, 

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with an introduction by Burgess explaining this history.68 Because of its particular relevance to criminal law, I insist that students read the twenty-one-chapter version.69
     Though written more than three decades ago, Burgess' novel is strikingly up-to-date.70 It is the first-person account of Alex, leader of a juvenile gang in a futuristic Britain, told in Nadsat, “a Russified version of English.”71 The first seven chapters detail the crimes of Alex and his “droogs  . . .  Pete, Georgie, and Dim,”72 including their home invasion and beating of a writer, F. Alexander (who is working on a manuscript entitled “A CLOCKWORK ORANGE"), and the rape of his wife.73 Part One ends with Alex, betrayed by his gang because they chafed at his leadership, in custody for killing the elderly victim of another home invasion. Alex, “still only fifteen" at his incarceration,74 could easily be mistaken for the gangbangers whose exploits fill the current media.
     Part Two of the novel, its next seven chapters, describes Alex in prison, where within two years' time his participation in the killing of another inmate makes him a candidate for the experimental “Ludovico's Technique,” or “Reclamation Treatment.”75 Using drugs and films in classic operant conditioning over a two-week period, two prison doctors cause Alex to become extremely ill whenever thoughts of violence enter his head. (A defect of this technique is that Alex also becomes sick when 

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he hears classical music, previously his favorite musical genre.) The second part culminates with a demonstration to admiring politicians of the new Alex, who grovels before a bully, even offering to lick his boots, because contemplating self-defense makes Alex sick, and then stands impotent before an alluring young woman:
[T]he first thing that flashed into my gulliver was that I would like to have her right down there on the floor with the old in-out real savage, but skorry as a shot came the sickness, like a like detective that had been watching round a corner and now followed to make his grahzny arrest. And now the von of lovely perfume that came off her made me want to think of starting to like heave in my keeshkas. . . . 76
After the demonstration, Alex is released by smug prison officials and politicians--another eerily contemporary resonance, reminiscent of today's advocates of castration, chemical or otherwise.
     The final seven chapters begin with Alex once again a free man, but now one without defenses. He is physically abused by some of his previous victims, as well as by Dim and another former delinquent, who have become policemen. After this beating Alex fortuitously arrives at the home of F. Alexander, the writer whom Alex and his gang once battered and whose wife had died as a result of the gang's rape; the unknowing author takes pity on Alex as a “victim of this horrible new technique,”77 and plans to use him in a political campaign against the government that has implemented it. But when F. Alexander and his political colleagues realize who Alex is and perhaps reason that a dead victim would be even more useful in their campaign,78 they lock him in an upper-floor apartment and play classical music until the violently ill Alex jumps through an open window. Alex survives the fall, however, and while he recuperates, the government, feeling the political pressure, reverses his previous treatment. At the end of the twentieth chapter, Alex can contemplate sex and violence (and even Beethoven's Ninth Symphony) without pain and declares himself truly “cured.” 79
     The shortened American version of A Clockwork Orange ends at this point, but the original work follows its narrator for one more chapter. Despite having a good job (in a classical music library), Alex, still just 

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eighteen, returns to gang life, but finds it oddly unsatisfying. He clips a picture of a baby out of a newspaper, and finds himself envying his old droog Pete, who has married and settled down. “I knew what was happening, O my brothers. I was like growing up.”80 The twenty-one-chapter version of the novel ends with Alex thinking about his own son, who would doubtless rebel as Alex had, and about getting on with the business of finding a wife and starting a family.
     This summary does little justice to the novel, for it omits the actions and comments of many interesting characters: Alex' parents; his probation officer, P.R. Deltoid; Billyboy, a member of a rival gang; the police officers who interrogate Alex; his cellmates; the prison chaplain and warden; Doctors Brodsky and Branom; the “Minister of the Inferior"; and the members of Alex’ new gang. Several of these characters opine on free will, the existence of which Burgess’ introduction to the restored version declares as the novel's theme:
[B]y definition, a human being is endowed with free will. He can use this to choose between good and evil. If he can only perform good or only perform evil, then he is a clockwork orange--meaning that he has the appearance of an organism lovely with colour and juice but is in fact only a clockwork toy to be wound up by God or the Devil or (since this is increasingly replacing both) the Almighty State. It is as inhuman to be totally good as it is to be totally evil. The important thing is moral choice.81
Burgess thus squarely condemns the behavior modification inflicted on Alex, insisting instead that we should wait for the inner transformation that occurs in the twenty-first chapter.82 The author's adoption of free 

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will “by definition" parallels the assumption that Herbert Packer identified as a central tenet of criminal law: The legal system assumes free will and therefore punishes criminal acts as chosen by the individual, rather than determined by forces beyond personal control; the assumption arises not because it is empirically verifiable, but because its adoption conduces to better social arrangements, principally greater individual liberty.83
     When presented with Packer's argument, students typically quickly assent, with solemn general condemnations of behavior modification and like deviations from the criminal law's status quo, such as incarceration based solely on criminal propensity84--after all, how could they argue against freedom, individualism, and liberty? Burgess' novel, on the other hand, gives the dispute over behavior modification greater context, allowing room to doubt the conventional wisdom. Despite the author's declared intention to champion free will, readers see in the novel's first part the staggering cost to Alex' victims of waiting for him to mature.85 Thus they might be tempted to agree with an advocate of the Reclamation Treatment who explains, “We are not concerned with motive, with the higher ethics. We are concerned only with cutting down crime.”86 Almost all of the students who write papers still end up agreeing with Burgess, but writing about the novel has at least allowed them to explore what promise to be major questions for criminal 

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lawyers in the coming decades, given the current enthusiasm for “reforms" like chemical castrations87 and preventive detention of sexual predators.88
     A Clockwork Orange provides a vehicle for students to examine a fundamental aspect of criminal law. The novel does, however, have drawbacks. Students, typically but not exclusively women, complain of its violence and of its sexism. For this reason, I began to offer a second choice,89 Joyce Carol Oates' Foxfire: Confessions of a Girl Gang. This 1993 novel covers much of the same ground as Burgess' book, but more naturalistically and far less tendentiously.
     The narrator, Maddy Wirtz, is a member of a gang of teenage women, christened“Foxfire,” in upstate New York in the 1950's.90 While the gang's exploits are not nearly so destructive as the crimes of Alex and his droogs, a car theft does result in juvenile incarceration of the gang's leader, Legs Sadovsky,91 and after her release the gang moves from shaking down amorous men to the kidnapping of a local banker, the botching of which results in the gang's dissolution.92 Like A Clockwork Orange, Foxfire's prison chapters disclose the utter inefficacy of imprisonment as a rehabilitative tool. Also like Burgess' work, Oates' novel shows the narrator turning from crime, when she leaves the gang just before the kidnapping (to go on to college and later work as an astronomer's assistant, before deciding to write the history of Foxfire).93 There is no equivalent to Ludovico's Technique in Foxfire, and no manifesto for free will; instead, there is a considerable dose of 

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determinism, as the author implies the role that relative powerlessness--born in this instance, of gender-based discrimination94--plays in turning the disadvantaged to crime, thus echoing the work of some criminologists and criminal law theorists.95
     By exploring the motivations for crime of her protagonists, Joyce Carol Oates deals with many of the same topics as Anthony Burgess, but in a far more open-textured way. The student who opts to write on Foxfire thus has several avenues to approach the questions of why persons turn to crime and what account the criminal law should take of those reasons. The prominent role of sexism in the novel also makes it a fitting companion to the coursework in criminal law, because of the role gender discrimination has played in shaping the law of rape, self-defense, and heat-of-passion manslaughter.96

III. CAMUS

     Concluding a course poses a challenge to many law teachers: Is there a way to draw together the material in the course, or at least in its last unit, that will prepare the way for the final examination while giving some sense of roundedness, of closure? One possibility is classroom consideration of a “global” hypothetical, which focuses the students on the application of law to facts while reminding them of significant legal rules. A literary hypothetical like Albert Camus' The Stranger can serve this purpose as well. I have used Camus' work to conclude a study of homicide; it also allows me to remind students of the act and mental requirements and affirmative defenses, as well as to conclude with some discussion about the fundamental ethics of lawyers and judges.
     Set in Algeria prior to World War II, Camus' short novel97 contains 

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two parts. Part One begins with the death and funeral of the mother of the narrator Meursault and ends two weeks later with his killing an ethnic Algerian. In the interval between these two events, Meursault starts a relationship with Marie Cardona, a former coworker, and befriends his neighbor, the disreputable Raymond Sintès, who entangles Meursault in Raymond's dispute with his Algerian lover, whom he beats, and her vengeful brother, Meursault's eventual victim. Assigning Part One of the novel for the next-to-last class, I tell my students to imagine that this killing occurs not in prewar Algeria, but this year in a typical American jurisdiction applying “majority rule" criminal law. They are told to accept the external facts contained in the novel's first part, but to treat Meursault's statements about his own state of mind as a confession, which a jury may or may not choose to believe. 
     As related by Meursault, the circumstances immediately preceding the killing are that Meursault, Marie, and Raymond travel to the beachhouse of Raymond's friend Masson and his wife for a summer Sunday outing. After swimming with Marie (perhaps having sex with her in the water) and eating a large lunch, including a good deal of wine,98 Meursault joins Raymond and Masson for a walk on the beach in the scorching sun, where they encounter the brother of Raymond's former girlfriend and another Algerian. In the ensuing skirmish, the brother cuts Raymond with a knife.99 The Frenchmen retreat to the bungalow (where Raymond's wounds upset both Masson's wife and Marie), and after Raymond is bandaged, he heads back to the beach, with Meursault following. Again they meet the two Algerians, who are lounging near a small spring, one of them playing a handmade flute; Raymond wants to shoot the brother, but Meursault talks Raymond into giving over his gun, at the sight of which the Algerians 

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disappear.100 Back at the beachhouse, Meursault lets Raymond go inside, but returns to the beach, giving an inconsequential reason for doing so: 
I went with him as far as the bungalow, and as he climbed the wooden steps, I just stood there at the bottom, my head ringing from the sun, unable to face the effort it would take to climb the wooden staircase and face the women again. But the heat was so intense that it was just as bad standing still in the blinding stream falling from the sky. To stay or to go, it amounted to the same thing. A minute later I turned back toward the beach and started walking.101
“[D]azzl[ed]” by the sun's “red glare,” Meursault seeks the relief of “the cool spring,” but instead finds “Raymond's man” there “alone . . . lying on his back.”102
     In this confrontation, which concludes Part One, the two men, separated by “about ten meters or so,” are immediately tense: “As soon as he saw me, he sat up a little and put his hand in his pocket. Naturally, I gripped Raymond's gun inside my jacket.”103 Meursault thinks about turning back, “[b]ut the whole beach, throbbing in the sun, was pressing on my back,” so instead he takes “a few steps toward the spring,” leaving the Algerian “still pretty far away.”104 At this, the recumbent Algerian brandishes the knife he used to cut Raymond. 
The light shot off the steel and it was like a long flashing blade cutting at my forehead. At the same instant the sweat in my eyebrows dripped down over my eyelids all at once and covered them with a warm, thick film. My eyes were blinded behind curtains of tears and salt. All I could feel were the cymbals of sunlight crashing on my forehead and, indistinctly, the dying spear flying up from the knife in front of me. The 
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scorching blade slashed at my eyelids and stabbed at my stinging eyes. That's when everything began to reel.105
Meursault fires his gun: “My whole being tensed and I squeezed my hand around the revolver. The trigger gave . . . .”106 The gun's report restores Meursault--“I shook off the sweat and sun.” --but leads immediately to action for which he gives a manifestly inadequate explanation: “I knew that I had shattered the harmony of the day, the exceptional silence of a beach where I'd been happy. Then I fired four more times at the motionless body where the bullets lodged without leaving a trace.”107 
     In class I ask my students where they would begin analyzing this hypothetical. Usually someone offers to prosecute Meursault for first degree murder, by showing that his killing was willful, deliberate, and premeditated.108 This student may contend that Meursault’s actions show an intent to kill, calmly considered over a significant period of time, at least from the time he returned to the beach alone and perhaps much earlier; when confronted with Meursault s own description of his contrary mental state, the student typically brands it as self-serving and hence unworthy of belief.
     But what if the jury credits the defendant's “confession”--does that prevent a finding of premeditation and deliberation? At this point someone in the class usually volunteers that even accepting Meursault's statements in Part One as true, the lax definitions employed in most jurisdictions would permit a finding of premeditation and deliberation in the brief space of time between the first shot and the last four.109
     How will the defense respond to such allegations? The argument of lack of intent to kill (and even of an involuntary act110), based on Meursault’s statements, may be bolstered by evidence of his intoxication from the wine at lunch, exacerbated by the poor physical condition in which 

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he awoke,111 his physical exertion throughout the day, and heat exhaustion. But most students recognize that it will be difficult to disprove intent (and voluntariness even more so) in this way, especially in a jurisdiction requiring that the defendant prove a lack of capacity to form the necessary intent.112 It will be somewhat easier, however, to use such an argument to disprove the calm state of mind said to be necessary for premeditation and deliberation, which would lower the degree of Meursault’s murder from first to second.113
     At some point in this discussion (or perhaps at its outset) a student is likely to assert that the main issue in the case is self-defense, arguing that by brandishing his knife the Algerian, who had previously cut Raymond in Meursault’s presence, threatened the defendant with death or serious bodily injury, thus justifying his use of deadly force in self-protection.114 This affirmative defense usually occasions several responses: The Algerian was on his back still several meters from Meursault, so the threat to him was not imminent or his fear of death or serious bodily harm was not reasonable. Further, Meursault acknowledged that he could have ended the confrontation simply by leaving the spring, which would bar a self-defense claim in those jurisdictions requiring retreat before the use of deadly force, and substantially weaken it in most of those that do not require retreat.115 Finally, even if self-defense might justify the first shot, how could it possibly justify firing four more shots into a wounded, “motionless body”?
     The distinctions drawn between the two groups of shots in these lines of argument allow a question about causation in homicide.116 What if the first shot killed the Algerian--we know it rendered him motionless--or would have killed him without any aid from the second set of shots?117 If proved, this would render the last four shots irrelevant, 

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because they would not be a but-for cause of the death, and would thus ease Meursault's defense by making a voluntary act, intent to kill,118 and premeditation and deliberation harder to prove, while enhancing the self--defense argument.
     If a student has not already done so, at this point I usually ask about mitigating the homicide from murder to manslaughter. The defense could argue that Meursault killed in a heat of passion for which there was adequate provocation and insufficient time to cool off,119 though each of these aspects of the mitigation is contestable. A jury certainly could find that Meursault's mental state at the time of killing qualifies as a heat of passion; however, such a finding would contradict the generally dispassionate mood he displays throughout Part One, in his lack of grief at his mother's funeral,120 his indifference to the relationship he starts with Marie (while still wearing signs of mourning),121 and his apathetic response to Raymond's beating his lover (showing more concern, though still not very much, for another neighbor whose mangy dog is missing).122

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     Nor would it be easy for the defense to establish that there was adequate provocation for the heat of passion. To be sure, the Algerian had previously used the knife on the defendant's friend and was flashing it at Meursault at the time of the killing. But would the ordinary person, returning to the exact spot where he previously encountered a man with a knife, have been surprised enough by this gesture, from a supine man some yards away, to become impassioned? The point is definitely arguable, as is the question of “cooling off” time. The defense will contend that Meursault responded immediately to the flashing of the knife, without time to cool. But if the defense chooses to rely also on the previous attack on Raymond to establish adequate provocation, the way is open for the prosecution to contend that the reasonable person would have cooled in the hour or two that passed between the initial altercation and the killing.123
     Another means of mitigating murder to manslaughter would be through imperfect justification.124 Meursault could argue that even if his belief that the Algerian threatened death or serious bodily injury was unreasonable based on the arguments mentioned above--thus preventing a complete defense--this belief should nonetheless lower the crime to manslaughter.125 One obvious problem with this argument (as well as with the complete defense of self-protection) is that Meursault's “confession” says nothing about fear of death or bodily injury at the Algerian's hands.126
     At some point in the discussion a student is sure to present the issue of Meursault's sanity,127 which I try to save for the end of the analysis. Though no one close to a mental health expert appears in the novel, there is plenty of raw material from which a defense expert might construct a credible contention that Meursault suffers from a mental disease or defect. Considering the indifference discussed above, he seems to personify flat affect and thus might be diagnosable under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.128 On the other hand, an opposing expert could 

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easily characterize Meursault's indifference as grief in reaction to his mother's death or simply his philosophy of life.129
     Even if a mental disease or defect were proved, the defense would still have to satisfy the jurisdiction's definition of insanity. Under the M'Naghten test, the defense could use Meursault's indifference, his lack of affect, even about the act of killing--“you could either shoot or not shoot”130--to argue that he did not know, in the affective definition of that term, that what he was doing was wrong.131 The prosecution could respond by asserting the narrower intellectual definition of knowledge or by contending that Meursault did not suffer from a complete lack even of affective knowledge.
     These prosecution points would not suffice in a jurisdiction following the Model Penal Code definition of insanity, as it specifically adopts the affective definition of knowledge, by using the term “appreciate,” and requires only a lack of “substantial capacity” to appreciate.132 In fact, assuming a finding of mental disease or defect, the defense would seem to have a good argument for insanity under the Code, for in addition to lack of substantial capacity to appreciate, Meursault could also argue lack of substantial capacity to control his conduct, the Code's other ground for a finding of insanity. Though he implies that his actions were freely chosen--“you could either shoot or not shoot”--it is possible to characterize these statements as attempts to explain (to oneself and to others) otherwise inexplicable conduct, when the truth is that the 

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conduct resulted from irrational drives.133 The fact that Meursault can give no convincing explanation for why he fired any of his five shots supports the contention that he lacked substantial capacity to control his behavior.134
     There are strong prosecution rejoinders to this argument of lack of substantial capacity to control, but its mere plausibility makes an important point. To say that Meursault has a fair shot at an insanity defense, under M'Naghten or under either part of the Model Penal Code test, casts more doubt on the law than on Meursault, who could be nominated as the sanest character in Twentieth Century literature.135 In fact, one message of using The Stranger as a homicide hypothetical is to show that legal analysis, even when done thoroughly and well, can fundamentally misunderstand human beings and their interaction--an important thing for first- year students (and others) to recognize.136 Camus himself makes similar points in Part Two of the novel, which centers on Meursault's trial for murder, as every law-trained person in that part fails either to try to understand or to act on his understanding of the man he prosecutes, defends, or judges.
     Part Two, the final reading assignment in my course, traces the year-long prosecution from initial interviews by appointed counsel and the examining magistrate137 through trial and conviction,138 ending with Meursault in his cell awaiting execution.139 I ask the students to focus on the legal professionals depicted in the novel's second part--the 

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examining magistrate, the defense attorney, the prosecutor, and the presiding judge--and how well they discharge their professional responsibilities.
     Camus’ depiction of the examining magistrate allows mention of this important figure in continental criminal procedure, who has discretion in charging at least equivalent to an American prosecutor's.140 The judge's exercise of this discretion--he elects the most serious charge, throwing the book at Meursault--turns not so much on the facts of the case, but on the defendant’s unwillingness to conform to the magistrate's religious views by “repent[ing]” and asking God “to forgive” him.141 When Meursault admits in reply that he does not believe in God, the judge cracks: “He sat down indignantly. He said it was impossible; all men believed in God, even those who turn their backs on him. That was his belief, and if he ever were to doubt it, his life would become meaningless. ‘Do you want my life to be meaningless?’ he shouted.”142 To the examining magistrate, Meursault's crime is not so much killing the Algerian as it is refusing to validate the magistrate's religious worldview.143 The magistrate makes no attempt to understand Meursault's corresponding worldview, instead consigning him to the ashheap. In the succeeding months of interviews, as the magistrate prepares the prosecution's case, he treats the defendant “cordial[ly]” but betrays his true thoughts of Meursault by occasionally referring to him, still “cordially,” as “Monsieur Antichrist.”144
     Meursault's appointed counsel, who participates in most of these interviews, similarly fails to understand his client, but the worldview into which he tries to force Meursault is more sordid than the examining magistrate's. In their first meeting, the lawyer attempts to guide his 

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client into a face-saving perjury (not about the killing, but about his allegedly callous behavior at his mother's funeral); however, Meursault rebuffs his attorney, refusing to be the typical defendant the lawyer wants his client to be.145 Having learned that Meursault will not play the compliant litigant, the attorney thereafter ignores the defendant, thus giving him the role of inert litigant. At the examining magistrate's interviews, the lawyer “never really paid much attention" to Meursault.146 At trial, after telling his client “to respond briefly to the questions that would be put to me, not to volunteer anything, and to leave the rest to him,”147 the lawyer essentially substitutes himself for the defendant, waiving important rights without consulting Meursault,148 and even repeatedly referring to him as “I" in the closing argument.149 This particular tactic exacerbates Meursault's feelings of alienation from the trial: “In a way, they seemed to be arguing the case as if it had nothing to do with me. Everything was happening without my participation. My fate was being decided without anyone so much as asking my opinion.”150
     Meursault also accuses the prosecutor of removing the defendant from his own trial, but this lawyer has even less excuse for doing so, as he may understand Meursault better than defense counsel does. In the prosecutor's closing argument, he says of Meursault, perhaps with a glimmer of how true his remarks are: “This man, gentlemen, this man is intelligent. You heard him, didn't you? He knows how to answer. He knows the value of words.”151 Like the defendant, the prosecutor may comprehend the wordlessness of words. Despite this understanding, he ruthlessly deploys them against Meursault, trying him not only for killing the Algerian, but also for disrespecting his mother's memory152; 

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in closing argument the representative of the state even mentions the next case he and the jury will try, a son's murder of his father, contending that Meursault is morally guilty of that crime as well.153 Perhaps the prosecutor is merely doing his job, but Meursault legitimately asks why his “attack[er]” is so “relentless.”154 Certainly before a lawyer seeks the death penalty as confidently as this prosecutor does,155 he owes it to the defendant to honestly evaluate his humanity,156 and not to turn “an ordinary man's good qualities,” like intelligence and the indifference born of philosophical detachment, into “crushing accusations.''157
    If a prosecutor has this responsibility before seeking the death penalty, a sentencing judge should feel an even greater responsibility to know the person whose life the judge is ending. Yet the magistrate who presides at Meursault's trial and ultimately sentences him to death seems distant from its proceedings. He asks numerous questions, but does so behind a curtain of self- described “formality” and the same “cordiality" the examining magistrate showed Meursault after deciding he was unredeemable.158 The presiding judge too seems to have determined that Meursault cannot be saved, and so uses his role to insulate himself from the reality of the death he knows he will inflict at the trial's conclusion. The judge thus tries to blink the fact so

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eloquently stated by Robert Cover, that law “takes place in a field of pain and death.”159
     Finishing a course in criminal law with discussion of these characters allows me to conclude with a plea that is direct and personal. I ask the students to try not to practice law the way the legal professionals in The Stranger do. But I have to admit, as Camus implies, and as one older student, a former executive, once pointed out, that they will all likely fail in that endeavor.160

IV. POE, MELVILLE, AND OTHERS

      In addition to the novels and play discussed above, shorter literary assignments are useful in a course in criminal law, principally to elucidate specific rules. As Meursault's homicide provides a fact situation to which to apply the insanity defense,161 so too does Edgar Allan Poe's short story, “The Tell-Tale Heart.”162 At a little over 2000 words Poe's story is of course considerably briefer than Part One of Camus' novel, so I assign the short story as the last reading on the insanity defense, asking students to write a paragraph of argument, either prosecution or defense (determined alphabetically), regarding the application of the M'Naghten rule163 to Poe's unnamed narrator. This protagonist carefully kills an elderly housemate because of the man's “Evil Eye,” dissects and hides his body, but then reveals it when the suspicious police arrive, because the narrator can still hear the beating of the old man's heart. As with Meursault, there is a question whether Poe's protagonist suffers from a mental disease or defect, though his delusional thinking and aural hallucinations certainly imply psychotic behavior of some sort.164 Again like Meursault, Poe's narrator arguably does not affectively know the wrongfulness of his behavior, for he claims 

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to love the old man but to hate his eye.165 On the other hand, the narrator's very behavior — hiding the corpse and guiltily hearing the dead heart beat — evinces his consciousness that what he did was wrong.166
     Though I have yet to do so, similar use could be made of “The Musket,” chapter 123 of Moby-Dick, in which Starbuck, the first mate, ponders whether he should shoot a sleeping Captain Ahab, before the pursuit of the white whale by “this crazed old man . . . drag[s] a whole ship's company down to doom with him.”167 While Starbuck ultimately demurs, students might profit from considering whether the mate could successfully plead a necessity or choice-of-evils defense if he had killed Ahab in such circumstances.168 Starbuck engages in a balancing of the evils (thirty lives against one) and considers whether he has any other choices (“[I]s there no other way? no lawful way?”)169--both of which are factors in determining necessity. Another possible set of issues arising from this literary hypothetical is whether a Starbuck who had shot Ahab might qualify for the broad conception of the duress defense captured in the phrase “situational duress.”170
     Literature also may be employed in studying criminal defense ethics. Led by Monroe Freedman's reference to Anatomy of a Murder in his famous article,171 I have used that work of fiction as a springboard to a one-class discussion of the perils of knowing introduction of perjured testimony and of the devices defense attorneys use to avoid these perils. But a confession is in order: Rather than assigning the appropriate pages from Robert Traver's novel---defense attorney Paul Biegler's discussion and demonstration of “The Lecture”172--I show a few minutes 

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from Otto Preminger’s film starring James Stewart and Ben Gazzara as lawyer and client.173 Both novel and movie make the point that attorneys advising criminal defendants engage in remarkable indirection, thus illuminating any following discussion of the ethical rules that require such subtlety,174 but the film more economically uses student study time.175 
     Another topic in criminal law that might benefit from the use of literature is rape, consideration of which can still produce insensitive classroom comments. I now include poems by and about rape victims in the first assignment on that topic, to remind all students of the potential horror not only of the crime, but also of its adjudication. Exemplary works in this genre are Adrienne Rich’s “Rape,” about relating the details of sexual assault to a police officer is also an acquaintance (“the hysteria in your voice pleases him best"),176 and two poems about assault victims, including one whose rapist was acquitted, by recent law school graduate Lisa Demsky.177 Surely there are others.178
     These works, as well as those mentioned in previous sections, could easily be supplemented with, or replaced by, literature that better accomplishes the goal of teaching criminal law. One of my hopes in writing this essay was to prompt others to suggest such substitutes. A 

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further hope was that professors of other basic law courses would begin to think of ways to use literature to teach their subjects. 
 


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ENDNOTES

* Professor, Stetson University College of Law. A preliminary version of this essay was presented at the Law and American Culture Panels of the American Culture Association Annual Conference in San Antonio, Texas, on March 30, 1997. I am indebted to Michael Richmond for coordinating the panels (as well as this symposium) and to the other participants--in particular Ralph Berets, Wythe Holt, David Larner, and Mike Richmond--for their helpful comments.

1. See generally Gary Minda, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY'S END 149-166 (1995).

2. See Elizabeth Villiers Gemmette, Law and Literature: Joining the Class Action, 29 Val. U. L. Rev. 665 (1995).

3. I teach such a course. See id.at 761-764.

4. Regarding the breadth of legal subjects covered by Dickens, see generally Allen Boyer, The Antiquarian and the Utilitarian: Charles Dickens vs. James Fitzjames Stephens, 56 Tenn. L. Rev. 595 (1989); Larry M. Wertheim, Law, Literature, and Morality in the Novels of Charles Dickens, 20 Wm. Mitchell L. Rev. 111 (1994).

5. A good place for a contracts professor to start looking for literary teaching tools is Shakespeare's The Merchant of Venice. See generally Roberto Mangabeira Unger, THE CRITICAL LEGAL STUDIES MOVEMENT 64 (1983). I discuss the over reliance on contract by the protagonist of Pete Dexter's Paris Trout, in Robert Batey, Alienation by Contract in Paris Trout, 35 S. Tex. L. Rev. 289 (1994).

6. Wendell Berry's collection of interrelated short stories The Wild Birds: Six Stories of the Port William Membership attributes almost mystical significance to the land that supports a small farming community, and documents the care that one lawyer takes in seeing the land properly conveyed. Far more cynically, in The Floating Opera, John Barth describes a will dispute and its hilarious resolution.

7. In William Gaddis' 1994 novel, A Frolic of His Own, almost every character is involved in some sort of tort action, real or potential. See generally Larry M. Wertheim, Law as Frolic: Law and Literature in A Frolic of His Own, 21 Wm. Mitchell L. Rev. 421 (1995)(book review). Elsewhere in this symposium Michael Richmond details how he uses selections from the musical Rent to teach liability for the torts of another. 

8. The work of Louis Auchincloss provides perspectives on corporate law (for examples, his 1986 novel The Diary of a Yuppie and the earlier The Great World and Timothy Colt), as does Scott Turow's The Burden of Proof. See also Gilbert & Sullivan's operetta, Utopia Ltd.

9. Literary works by and about victims of discrimination are legion. Examples include Ralph Ellison's Invisible Man, Lorraine Hansberry's A Raisin in the Sun, Tony Kushner's Angels in America, and Alice Walker's The Color Purple.

10. My tax teacher Michael Graetz (then at Virginia, now at Yale) concluded his course with a reading from Samuel Beckett's Molloy, about “sucking stones" and the concept of “trim."

11. Of course, literature may also be useful in advanced courses. Frank Norris' The Octopus and Clifford Odets’ Waiting for Lefty might elucidate the origins of antitrust and labor law, respectively. Ronald W. Eades uses novels and short stories to teach American legal history. See Ronald W. Eades, Fiction Draws Students into the Culture of Law, Law Teacher, Spring 1997, at 8. For clinical courses, “Poverty: A Story," in Eye of the Hurricane, a 1989 short story collection by CUNY law professor Ruthann Robson, is a good introduction to the realities of representing the poor. See also Gary Bellow & Martha Minow (eds.), LAW STORIES (1996)(nonfiction accounts of poverty law); Gaynell Gavin, Taking Note, 4 Tex. J. Women & L. 287 (1995)(poem); Laura E. Hartsell, Juvenile Justice, 4 Am. U. J. Gender & L. 265 (1995)(poem).

12. Paul Gewirtz, Aeschylus' Law, 101 Harv. L. Rev. 1043 (1988). See also, David Luban, Some Greek Trials: Order and Justice in Homer, Hesiod, Aeschylus and Plato, 54 Tenn. L. Rev. 279 (1987); Richard A. Posner, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 33-38 (1988); William F. Zak, THE POLIS AND THE DIVINE ORDER: THE ORESTEIA, SOPHOCLES, AND THE DEFENSE OF DEMOCRACY 83-88 (1995); Marie Adornetto Monahan, The Role of Women in the Development of the First Court of Justice, 25 Cumb. L. Rev. 577 (1995).

13. I first used a translation by Philip Vellacott, AESCHYLUS, THE ORESTEIAN TRILOGY (Philip Vellacott trans., Penguin Classics, 1959)[hereinafter Vellacott], and later switched to a newer translation by Robert Fagles, AESCHYLUS, THE ORESTEIA (Robert Fagles trans., Penguin Classics, 1977)[hereinafter Fagles]. There are considerable variations between the two translations.  Though I encourage students to read the first two plays in the trilogy (and many over eager first semester students accept the encouragement), only The Eumenides is required.

14. See generally Fagles, supra note 13, at 177-226 (The Libation Bearers).

15. See id. at 235-36 (The Eumenides, lines 97-140).

16. See Robert Fagles & W.B. Stanford, A Reading of 'The Oresteia’: The Serpent and the Eagle [hereinafter Fagles & Stanford] in Fagles, supra note 13, at 13, 21, 23.

17. Fagles, supra note 13, at 234 (The Eumenides, lines 82-86).

18. But cf. Luban, supra note 12, at 296 & n.60 (there may have been earlier trials in Greek mythology).

19. Fagles, supra note 13, at 253 (The Eumenides, lines 497-500).

20. Id. at 103-72 (Agamemnon). For discussion of Agamemnon's decision to sacrifice his daughter, see Martha Nussbaum, Aeschylus and Practical Conflict, 95 Ethics 233, 244-253 (1985).

21. See, Introduction to Vellacott, supra note 13, at 11, 13-14 [hereinafter Vellacott, Introduction].

22. Cf. Luban, supra note 12, at 306 ("Apollo sided with the Trojans against the Greek army"); Nussbaum, supra note 20, at 247 (acknowledging Artemis’ “general pro-Trojan sympathies”); Vellacott, Introduction, supra note 13, at 79 (describing Apollo as Athena's "enemy at Troy").

23. See Fagles & Stanford, supra note 16, at 15.

24. See Fagles, supra note 13, at 168-69 (Agamemnon, lines 1605-43).

25. While this exercise requires more knowledge than reading The Eumenides alone can provide, there are typically enough students in the class familiar with the trilogy and its background to facilitate discussion.

26. Fagles, supra note 13, at 249 (The Eumenides, line 434).

27. See Fagles & Stanford, supra note 16, at 78 (Athena achieves "nothing less than the birth of law itself"); Gewirtz, supra note 12, at 1044-46; Luban, supra note 12, at 294, 297; Monahan, supra note 12, at 578-79, 600-01.

28. Fagles, supra note 13, at 253 (The Eumenides, lines 518-21).

29. See also id. at 158, 166, 167, 195, 226 (Agamemnon, lines 1363-68, 1564-65, 1588-94; The Libation Bearers, lines 394-98, 1064-77). See generally Zak, supra note 12, at 84; Vellacott, Introduction, supra note 13, at 17-18.

30. Fagles, supra note 13, at 238 (The Eumenides, lines 174-75). Vellacott's translation of this passage is even more explicit: "Soon there shall come, of his own kin,/ A like Avenger, to renew,/ Fate's curse upon his branded head." Vellacott, supra note 13, at 153 (The Eumenides, lines 180-82).

31. See Posner, supra note 12, at 34, 36. Among Western societies Iceland seems to have resisted the move the longest. See generally William Ian Miller, BLOODTAKING AND PEACEMAKING: FEUD, LAW AND SOCIETY IN SAGA ICELAND (1990)(reviewed in Richard A. Posner, Medieval Iceland and Modern Legal Scholarship, 90 Mich. L. Rev. 1495 (1992)).

32. Fagles, supra note 13, at 245, 248 (The Eumenides, lines 311-12, 391-94). In the Vellacott translation, the Furies characterize themselves as "Law's holy few,/ Law's living record of all evil done,/ Resourceful and accomplishing." Vellacott, supra note 13, at 161 (The Eumenides, lines 381-83). Apollo snidely derides the Furies' self-righteous stance, calling them "the eternal virgins." Fagles, supra note 13, at 234 (The Eumenides, line 73).

33. Fagles, supra note 13 at 254 (The Eumenides, lines 529-30); see Vellacott, supra note 13, at 165 (The Eumenides, lines 520-24)("For fear, enforcing goodness,/ Must somewhere reign enthroned,/ And watch men's ways, and teach them,/ Through self-inflicted sorrow,/ That sin is not condoned.").

34. See Fagles, supra note 13, at 324 n.529.

35. Cf. Gewirtz, supra note 12, at 1047-48 (discussing retribution): Nussbaum, supra note 23, at 256 (discussing deterrence). See generally Joshua Dressler, UNDERSTANDING CRIMINAL LAW 7-17 (2d ed. 1995)(a required text in my criminal law course); Richard J. Bonnie, Anne M. Coughlin, John C. Jeffries, Jr. & Peter W. Low, CRIMINAL LAW 1-30 (1997) [hereinafter Bonnie](same).

36. Fagles, supra note 13, at 233 (The Eumenides, lines 67-69).

37. See id, at 256-61 (The Eumenides, lines 592-684); Luban, supra note 12, at 306.

38. Fagles, supra note 13, at 256 (The Eumenides, lines 582, 585). 

39. Id. at 234 (The Eumenides, line 95); Vellacott, supra note 13, at 150 (The Eumenides, line 91)("outlaw"). Vellacott also has Apollo speak of Orestes' "crime," during an argument with the Furies prior to the trial. Id. at 154 (The Eumenides, line 222).

40. David Luban characterizes Apollo as "a Delphia lawyer . . . one who will freely use dishonest means" to assist his client. Luban, supra note 12, at 307. See generally, id. at 307-10, 312, 324. For a more sympathetic evaluation of Apollo as lawyer, see Monahan, supra note 12, at 605-07.

41. Fagles, supra note 13, at 259 (The Eumenides, line 622).

42. See id. (The Eumenides, lines 626-28)(original emphasis): "This is his justice — omnipotent, I warn you./ Bend to the will of Zeus. No oath can match/ the power of the Father."

43. See id. at 261 (The Eumenides, lines 678-84):
And I, Pallas, with all my strong techniques 
will rear your host and battlements to glory. 
So I dispatched this suppliant to your hearth 
that he might be your trusted friend for ever, 
that you might win a new ally, dear goddess. 
He and his generations arm-in-arm with yours, 
your bonds stand firm for all posterity —
Here Athena cuts Apollo off, perhaps embarrassed by such an obvious ploy. See id., at 325 n.682ff.

44. See id. at 259 (The Eumenides, lines 628-47).

45. See id. at 260 (The Eumenides, lines 647-59). Apollo sputters at the Furies, "You grotesque, loathsome--the gods detest you!" id. (The Eumenides, line 652).

46. Id. (The Eumenides, lines 665-71)(original emphasis).

47. Id. at 261 (The Eumenides, lines 672-77)(stage direction omitted).

48. See Luban, supra note 12, at 301 (quoting Friedrich Engels, THE ORIGIN OF THE FAMILY, PRIVATE PROPERTY, AND THE STATE 120 (Eleanor Leacock ed. 1972))(Athena's decision "indexes what . . . Engels called 'the world historical defeat of the female sex"').

49. Fagles characterizes the biological theory as "sociological and economic propaganda which might be used to ensure the male inheritance of property in the democratic state," Fagles, supra note 13, at 325 n.666ff; see Fagles & Stanford, supra note 16, at 80, while Luban argues that "Aeschylus wants us to see that Athena tilts the trial in favor of Orestes," Luban, supra note 12, at 303; see id. at 306, 307, 311. William F. Zak and Marie Adornetto Monahan attempt to take middle positions. See Zak, supra note 12, at 85; Monahan, supra note 12, at 606-07 & nn. 88-89, 609.
     This debate raises the larger question of the status of women in ancient Greece. For authorities on both sides of this question, see Zak, supra, at 288 n. 65; Luban, supra, at 302 nn. 88-89; Monahan, supra, at 607 n. 90.

50. Fagles & Stanford, supra note 16, at 80.

51. Id. (suggesting that this "context . . . call[s] into question" Apollo's claims of male superiority). 

52. "The modern reader is incredulous. . . ." Posner, supra note 12, at 37. Posner unsatisfactorily explains the argument's use as a mere theatrical device, because such legal "[t]echnicalities dazzle and surprise, flatter the audience's expectations of what law is really like, and take less time to expound" — part of his larger contention that "readers should not bring to literature too high hopes of finding legal meat." Id. at 38 (original emphasis). For even poorer criticism from Posner, see infra notes 139 & 156.

53. Fagles, supra note 13, at 264 (The Eumenides, lines 750-753)(stage direction omitted).

54. Athena is careful not to offend the Furies, see id. at 249 (The Eumenides, lines 424-426); Monahan, supra note 12, at 599, and this deference leads them to reciprocate: "Athena: 'You would turn over responsibility to me,/ to reach the final verdict?' Leader [of the Furies]: 'Certainly./ We respect you. You show us respect."' Fagles, supra note 13, at 251 (The Eumenides, lines 447-449).

55. Having decided that the controversy between the Furies and Orestes is too much either for a god or for mortal men to resolve, Athena establishes a tribunal comprising both. See Fagles, supra note 13, at 252-253 (The Eumenides, lines 484-505); see also Fagles & Stanford, supra note 16, at 77-78. Involving the citizens of Athens also furthers the cause of Athenian democracy. See Fagles, supra note 13, at 262-63 (The Eumenides, lines 692-725); cf. Fagles & Stanford, supra, at 95 (characterizing Aeschylus as a "conservative democrat").

56. Athena remains calm, repeatedly complimenting the Furies, see Fagles, supra note 13, at 267, 269, 270 (The Eumenides, lines 8068-08, 857-858, 888-892), occasionally describing the benefits they will realize by cooperating with her, see id. at 268, 269 (The Eumenides, lines 844-846, 862-866), and only once threatening them (and lightly, at that) if they continue to oppose her, see id. at 268 (The Eumenides, lines 836-39)("I put my trust in Zeus . . . must I add this?/ I am the only god who knows the keys/ to the armoury where his lightning-bolt is sealed./ No need of that, not here. Let me persuade you."). Cf. Gewirtz, supra note 12, at 1053 (Athena's "argument to the Furies . . . reads almost like a seduction"). See generally Luban, supra note 12, at 310.

57. Fagles, supra note 13, at 266 (The Eumenides, line 800).

58. See generally Edith Hamilton, MYTHOLOGY 29 (1942). See also Images of Women and Goddesses from the Museum's Ancient Greek World Collection (visited June 18, 1997) <http://www.museum.upenn.edu/Greek_World/Excerpts_other/Women& Goddesses_excerpts.html >.

59. Before the trial Orestes promises Athena that he and the citizens of Argos will be "your friends-in-arms for ever." Fagles, supra note 13, at 244 (The Eumenides, line 290). After his acquittal, Orestes modifies the promise slightly, pledging only "that no man, no helmsman of Argos wars on Athens." Id. at 266 (The Eumenides, line 779).

60. See supra, note 46 and accompanying text. See also,  id. at 266 (The Eumenides, stage direction after line 791); cf. Fagles & Stanford, supra note 16, at 82 (calling Apollo's departure "unceremonious[]"); Gewirtz, supra note 12, at 1052 n.30.

61. See Luban, supra note 12, at 298.

62. Fagles, supra note 13, at 329 n.1046; see also, id. at 274, 276 (The Eumenides, lines 1001, 1050). See generally Vellacott, Introduction, supra note 13, at 20.

63. According to Athena, the Eumenides will continue to punish, see Fagles, supra note 13, at 272 (The Eumenides, lines 940-49), but now "the more [men] worship you the more they thrive," id. at 271 (The Eumenides, line 920). The ceremonial rejoicing that concludes the trilogy confirms the civic benefit. See id. at 275-77 (The Eumenides, lines 1012-57). See generally Gewirtz, supra note 12, at 1046-49.

64. See Fagles, supra note 13, at 329 n.1046; see also Fagles & Stanford, supra note 16, at 86; Gewirtz, supra note 12, at 1054; Vellacott, Introduction, supra note 13, at 18-19.

65. David Luban makes a similar point, with greater force:
The Eumenides presents an instrumentalist conception of . . . legal institutions. . . . Athena institutes a biased court for pragmatic reasons. Her persuasion pacifies the [Furies] for the sake of Athenian prosperity. Ancient right is overthrown in order to end factional slaughter and restore civil peace. And, in the name of prosperity and peace, an unjust verdict converts women into a permanent underclass of society.
Luban, supra note 12, at 312-13.
     The palpable inadequacy of the "justification" defense that Apollo presents for Orestes obscures the possibility of a viable "excuse" defense — that Apollo forced Orestes to murder Clytaemnestra. See Fagles, supra note 13, at 234 (The Eumenides, line 87)(Apollo admits, "I persuaded you to take your mother's life."). Though he agrees that Apollo "spurred me on," Orestes chooses not to be blame the god, but closes ranks with him instead, asking, "But were we just or not?" Id. at 252 (The Eumenides, lines 479-82). So the unpled excuse defense goes unadjudicated. But cf. Luban, supra, at 302 (considering this claim "part of Orestes' defense").

66. See generally Bonnie, supra note 35, at 31-105, 217-36. Gender discrimination also figures in this part of the course, see e.g., Rex v. Manley, [1933] 1 K.B. 529 (Ct. Crim. App. 1932)(woman prosecuted for common law misdemeanor of giving false reports of robbery to the police), excerpted in Bonnie, supra, at 31-33, and in the rest of the course. Apollo's defense of Orestes and Athena's acceptance of it also paves the way for consideration of the topic.

67. See, e.g., Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970)(killer of viable but unborn fetus may not be prosecuted for murder), excerpted in Bonnie, supra note 35, at 64-73; cf. Kolender v. Lawson, 461 U.S. 352 (1983)(statute requiring person stopped by police to give "credible and reliable" identification is too vague to be applied to defendant who had been arrested 15 times for violating the statute), excerpted in Bonnie, supra, at 43-50.
     The most important governmental goal served in such cases is typically to limit arbitrary and discriminatory enforcement by police and prosecutors. See generally, Lawson, 461 U.S. at 357-58; John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 232-33 (1985)(discussing Keeler’s potential impact on abortion rights).

68. See Anthony Burgess, A CLOCKWORK ORANGE  v-vii, viii-ix (1967). But cf. Eric Swenson, Publisher's Note to Burgess, supra, at xiii (remembering events a bit differently). For criticism of A Clockwork Orange, see John J. Stinson, ANTHONY BURGESS REVISITED 52-60 (1991)[hereinafter Stinson]; Harold Bloom (ed.), MODERN CRITICAL VIEWS: ANTHONY BURGESS (1987).

69. Yes, students do try to write the paper after viewing the film and reading only the final chapter, but I usually catch them.

70. See Stinson, ANTHONY BURGESS REVISITED, supra note 68, at 54-55; Esther Petix, Linguistics, Mechanics, and Metaphysics: A Clockwork Orange, in Bloom, supra note 68, at 96. 

71. Burgess, supra note 68, at x. Deciphering the language is initially difficult, but the reader soon gets the hang of it. See Stanley Edgar Hyman, Afterword to Anthony Burgess, A CLOCKWORK ORANGE 180, 182 (W.W. Norton Co. 1963) [hereinafter Burgess (1963 ed.)]; Jean E. Kennard, Anthony Burgess: Double Vision, in Bloom,  supra note 68, at 68. Glossaries are available. See, e.g., Stanley Edgar Hyman, Glossary of Nadsat Language, in Burgess, supra, at 186-88 [hereinafter Hymen, Glossary]; Nadsat Dictionary (visited June 6, 1997) <http://jake.chem.unsw.edu.au /michaels/ Orange/ nadsat.html >.

72. Burgess, supra note 68, at 1. A "droog" is a "friend." Hyman, Glossary, supra note 71, at 186.

73. Burgess, supra note 68, at 19-24. In this and other passages of violence and sex, Burgess used Nadsat "to muffle the raw response we expect from pornography." Id. at x. See Robert Martin Adams, Joycean Burgess, in Bloom,  supra note 68, at 98; Esther Petix, Linguistics, Mechanics and metaphysics: A Clockwork Orange, in Bloom,  supra note 68, at 89.

74. Burgess, supra note 68, at 74.

75. Id. at 82, 94.

76. Id. at 128. Hyman gives the following translations: "gulliver — head," "in-out . . .  -copulation," "skorry — quick, quickly," "grahzny — dirty," "von — smell," and "keeshkas — guts." Hyman, Glossary, supra note 71, at 187, 188.

77. Burgess, supra note 68, at 155.

78. See Geoffrey Aggeler, Ipelagius and Augustine, in Bloom,  supra note 68, at 124.

79. Burgess, supra note 68, at 179.

80. Id. at 190. Burgess glosses the chapter as follows:
What happens in the twenty-first chapter? . . . . Briefly, my young thuggish protagonist grows up. He grows bored with violence and recognizes that human energy is better expended on creation rather than destruction. Senseless violence is a prerogative of youth, which has much energy but little talent for the constructive. . . . There comes a time, however, when violence is seen as juvenile and boring. . . . My young hoodlum comes to the revelation of the need to get something done in life. . . .  It is with a kind of shame that this growing youth looks back on his devastating past. He wants a different kind of future.
Id. at vii-viii.

81. Id. at ix. For Alex's similar use of the term "clockwork orange," see id. at 126-27. For an attempt at refutation, see Rodger Beehler, Containing Violence, 92 Ethics 647 (1982).

82. He has the prison chaplain make the same point, while expressing doubts about Ludovico's Technique: "The question is whether such a technique can really make a man good. Goodness comes from within. . . . Goodness is something chosen. When a man cannot choose he ceases to be a man." Burgess, supra note 68, at 83. See also id. at 126.

83. See Herbert Packer, THE LIMITS OF THE CRIMINAL SANCTION 74-75 (1968). The doctrines which acknowledge some sway for determinism, the insanity defense and the voluntary act requirement for examples, in Packer's opinion confirm the central commitment to free will. See id. at 132.

84. See Bonnie, supra note 35, at 218-20; Peter W. Low, John Calvin Jeffries, Jr. & Richard J. Bonnie, CRIMINAL LAW: CASES AND MATERIALS 123-25 (2d ed. 1986)[hereinafter Low] (a more florid example of incarceration based on propensity, in a predecessor edition).

85. See John J. Stinson, The Manichee World of Anthony Burgess, in Bloom,  supra note 68, at 56 (the novel depicts "violence that exceeds de Sade in intensity if not imaginativeness").

86. Burgess, supra note 68, at 126. See Robert K. Morris, The Bitter Fruits of Freedom, in Bloom, supra note 68, at 45 ("judging from the preponderance of sentiment abroad today, [society] would probably applaud the conditioning process that champions stability over freedom").
     Burgess parodies his own argument, rendering it in the grandiloquent style of F. Alexander in his version of "A CLOCKWORK ORANGE," thus seeming to acknowledge some force in the counter argument: "The attempt to impose upon man, a creature of growth and capable of sweetness, to ooze juicily at the last round the bearded lips of God, to attempt to impose, I say, laws and conditions appropriate to a mechanical creation, against this I raise my swordpen--" Burgess, supra, at 21-22. See Stinson, supra note 68, at 58 (labeling F. Alexander's style "flatulent[ ]").

87. See generally Edward A. Fitzgerald, Chemical Castration: MPA Treatment of the Sexual Offender, 18 Am. J. Crim. L. 1 (1990); Kimberly A. Peters, Comment, Chemical Castration: An Alternative to Incarceration, 31 Duq. L. Rev. 307 (1993); Recent Legislation, 110 Harv. L. Rev. 799 (1997).

88. See generally,  Hendricks v. Kansas, 117 S. Ct. 2072 (1997); Predators and Politics: A Symposium on Washington's Sexually Violent Predators Statute, 15 U. Puget Sound L. Rev. 507 (1992); Juliet M. Dupuy, Comment, The Evolution of Wisconsin's Sexual Predator Law, 79 Marq. L. Rev. 873 (1996); Kelly A. McCaffrey, Comment, The Civil Commitment of Sexually Violent Predators in Kansas: A Modern Law for Modern Times, 42 U. Kan. L. Rev. 887 (1994).

89. I tell the class that I would prefer that they read Burgess' novel, and more than 80% of those who choose to write the paper follow my preference.

90. See Joyce Carol Oates, FOXFIRE: CONFESSIONS OF A GIRL GANG 3-4 (Plume 1994). See generally Brenda Daly, LAVISH SELF-DIVISIONS: THE NOVELS OF JOYCE CAROL OATES 205-22 (1996). For a listing of reviews of Foxfire, see Foxfire: Confessions of a Girl Gang (visited June 10, 1997) <http://storm.uscfa.edu/southern/foxfire.html >.

91. See Oates, id. at 127-76.

92. See id. at 220-316. There may even have been a mercy killing. See id. at 195-203. See also Daly, supra note 90, at 211-12.

93. See Oates, supra note 90, at 272-273, 326-327. See also Daly, supra note 90, at 215-217.

94. Almost all of Foxfire's early victims were men who harassed women. See, e.g., Oates, supra note 90, at 23-32, 59-79, 104-123. Brenda Daly cites both gender and class as impelling Foxfire's members to crime. See Daly, supra note 90, at 214.

95. See generally Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 Law & Ineq. 9 (1985).

96. See generally Dressler, supra note 35, at 199-229, 490-498, 531-556.

97. Initially I assigned the translation by Stuart Gilbert, ALBERT CAMUS, THE STRANGER (Stuart Gilbert trans., Vintage Books, 1954), but then switched to the Matthew Ward translation, which he proclaims less “Brittanic,” and more “American.” Matthew Ward, Translator's Note to Albert Camus, THE STRANGER at v, vi (Matthew Ward trans., Alfred A. Knopf ,1988) [hereinafter Ward]. For law-related criticism of The Stranger, see Posner, supra note 12, at 86-90, 151-55; Richard H. Weisberg, THE FAILURE OF THE WORD: THE PROTAGONIST AS LAWYER IN MODERN FICTION 46, 48, 114-129 (1984); Ernest Simon, Palais de Justice and Poetic Justice in Albert Camus' The Stranger, 3 Cardozo Stud. L. & Literature 111 (1991).
     The novel is short, 123 pages, approximately 30,000 words. I tell students that they can read it in the time it takes to locate the Cliff Notes version.

98. Ward, supra note 97, at 47-52; see Weisberg, supra note 97, at 121.

99. Ward, supra note 97, at 52-55.

100. Id. at 55-56. Meursault's behavior is equivocal:
[W]ithout taking his eyes off his adversary, Raymond asked me, "Should I let him have it? I thought that if I said no he'd get himself all worked up and shoot for sure. All I said was, "He hasn't said anything yet. It'd be pretty lousy to shoot him like that." . . . .  Then Raymond said, "So I'll call him something and when he answers back, I'll let him have it." I answered, "Right. But if he doesn't draw his knife, you can't shoot." Raymond started getting worked up. . . .  "No," I said to Raymond, "take him on man to man and give me your gun. If the other one moves in, or if he draws his knife, I'll let him have it."
Id. at 56. As Raymond hands Meursault the gun, the latter "realized that you could either shoot or not shoot." Id. 

101. Id. at 56-57. Meursault's statement that "[t]o stay or to go . . . amounted to the same thing” recalls his realization minutes before that "you could either shoot or not shoot." Id. at 56. 

102. Id. at 57. Finding the Algerian at the spring "surprised" Meursault: "As far as I was concerned, the whole thing was over, and I'd gone there without even thinking about it." Id. at 58.

103. Id. at 58.

104. Id. Meursault emphasizes the role of the sun in impelling him toward his victim: "The sun was starting to burn my cheeks, and I could feel drops of sweat gathering in my eyebrows. . . . [M]y forehead especially was hurting me, all the veins in it throbbing, under the skin. It was this burning, which I couldn't stand anymore, that drove me forward." Id. at 58-59. He acknowledges that this was "stupid, that I wouldn't get the sun off me by stepping forward," but moves nevertheless. Id. at 59.

105. Id. at 59. 

106. Id. Cf. id. at 102-03 (at the close of his trial Meursault tells the presiding judge that he "never intended to kill" his victim, that the killing was "because of the sun" — which produces laughter in the courtroom).

107. Id. When the examining magistrate later asks Meursault about the second set of shots, he remains silent (thinking only of "the red sand" and "the burning of the sun"), unable to provide any explanation for them. See id. at 67-68.

108. See Posner, supra note 12, at 89; cf. Ward, supra note 97, at 88, 99 (prosecutor's arguments regarding premeditation). See generally Dressler, supra note 35, at 472-475.

109. See generally Dressler, supra note 35, at 472-475.

110. See Weisberg, supra note 97, at 121. See generally Dressler, supra note 35, at 69-85.

111. On the morning of the killing Meursault, a regular drinker throughout Part One, see Ward, supra note 97, at 26, 31, 33, seems to have a hangover. See id. at 47.

112. See generally Bonnie, supra note 35, at 181-192.

113. See Weisberg, supra note 97, at 121. Meursault's arguable mental abnormality, see infra text accompanying notes 130-32, might also support the claims of no intent to kill and no premeditation and deliberation. See generally Bonnie, supra note 35, at 538-50.

114. See generally Bonnie, supra note 35, at 340-50.

115. Cf. id. at 350-353 (few jurisdictions consider the opportunity to retreat wholly irrelevant).

116. See generally, id. at 819-928.

117. Ernest Simon makes such an inference, see Simon, supra note 97, at 118, though to me the text equivocates. One way of concretizing this question is to ask the students to assume that the body has one bullet wound directly to the heart and four others clustered in the calf of one leg.

118. Even if Meursault managed to prove that the killing was unintentional, he still might be guilty of manslaughter through recklessness or negligence. See Weisberg, supra note 97, at 122. See generally Dressler, supra note 35, at 498-499. A jury might even find that his pointing the gun in the Algerian's direction and allowing it to discharge was so reckless as to constitute depraved heart murder. See Posner, supra note 12, at 89. See generally Dressler, supra, at 476-478.
     Another avenue toward a murder conviction even though the killing was unintentional is the felony murder rule, See id. at 479-89, which can be explored by asking the class to assume that carrying a concealed handgun constitutes a felony. This tactic, which I have yet to employ, could lead to interesting discussions of whether the felony was dangerous to human life and whether Meursault's commission of it caused the Algerian's death.

119. See Ward, supra note 97, at 103 (referring to the defense attorney's plea of provocation). See generally Dressler, supra note 35, at 490-498.

120. At the all-night vigil beside the body he smokes and drinks café au lait. Before the funeral he forgoes viewing his mother's body and afterward leaves the small town where she was buried without once again visiting the grave. See Ward, supra note 97, at 3-18; see also id. at 89-91.

121. See id. at 19-20, 34-35, 41-42. Consider Meursault's views on marriage:
Marie . . . asked me if I wanted to marry her. I said it didn't make any difference to me and that we could if she wanted to. Then she wanted to know if I loved her. I answered . . . that it didn't mean anything but that I probably didn't love her. "So why marry me, then?" she said. I explained to her that it didn't really matter and that if she wanted to, we could get married.
Id. at 41.

122. Compare id. at 29-33, 35-38, 48 with id. at 26-27, 38-39, 44-46. Meursault also spurns a chance for a promotion from his job as a clerk and a transfer to Paris, telling his boss "that it really was all the same to me . . . , that in any case one life was as good as another and that I wasn't dissatisfied with mine here at all." Id. at 41.

123. See generally Dressler, supra note 35, at 495.

124. See generally Bonnie, supra note 35, at 359, 360.

125. A variation on this theme would be that manslaughter is appropriate because Meursault was justified in using some force but not the deadly force actually employed.

126. See Posner, supra note 12, at 86, 89.

127. See generally Dressler, supra note 35, at 309-333.

128. See Posner, supra note 12, at 86. See generally Am. Psychiatric Ass'n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 763 (4th ed. 1994)[hereinafter DSM-IV] (definition of "flat affect").

129. Another interesting possibility, once argued vociferously in class, is that Meursault meets the criteria for antisocial personality disorder, see DSM-IV, supra note 128, at 645-650, which would preclude his using the insanity defense in most jurisdictions. See, e.g., MODEL PENAL CODE § 4.01(2)(Proposed Official Draft 1962). Judge Posner may share this view. See, Posner, supra note 12, at 89 ("a case can be made that [Meursault] is a psychopath"). But cf. Simon, supra note 97, at 115 (criticizing this contention).

130. This thought occurs to Meursault immediately after Raymond hands him the gun:
The sun glinted off Raymond's gun as he handed it to me. But we just stood there motionless, as if everything had closed in around us. We stared at each other without blinking, and everything came to a stop there between the sea, the sand, and the sun, and the double silence of the flute and the water. It was then that I realized you could either shoot or not shoot. But all of a sudden, the Arabs, backing away, slipped behind the rock. So Raymond and I turned and headed back the way we'd come.
Ward, supra note 97, at 56. 

131. See generally Dressler, supra note 35, at 319. Other options under M’Naghten are to argue from the same evidence either that Meursault did not know the moral, as opposed to legal, wrongfulness of his conduct or that he did not know the nature and quality of his acts. While to me these contentions seem less likely to succeed than the lack-of-knowledge argument, there usually are some students who find one or both of them more persuasive.

132. MODEL PENAL CODE § 4.01(1)(Proposed Official Draft 1962). See generally Dressler, supra note 35, at 322.

133. Cf. Low, supra note 84, at 686-695, 700-701 (a similar argument in a different fact situation).

134. The same points could be made to satisfy the higher standard of the irresistible impulse definition of insanity. See generally Dressler, supra note 35, at 321-322.

135. See generally Weisberg, supra note 97, at 116, 120, 122.

136. Judge Posner edges up to this understanding of the novel — "It may be possible to regard the work as a commentary on the inherent shortcomings of conceptualization--reason's inability to comprehend passion; for we never do learn why Meursault pulled the trigger." Posner, supra note 16, at 89 (original emphasis)--but then skitters off into criticizing Camus for questioning bourgeois values, See id. ultimately damning the novel as "an immoral work of fiction." Id. at 155. Like Meursault's prosecutor, see infra text accompanying notes 154-157, Posner has some insight, but manages to suppress it in order to pursue the role he has chosen, as belittler of literature’s significance to law, see supra note 55, and scourge of Camus’ champion, Richard Weisberg. See id., at 151-55. See also, Simon, supra note 97, at 115 (as a critic of The Stranger Posner “takes the part . . .  of an executioner”).

137. See Ward, supra note 97, at 63-71.

138. See id. at 82-107.

139. See id. at 108-23; see also id. at 72-81 (describing pretrial incarceration, ending with the words “no one can imagine what nights in prison are like”; the days are not much better).

140. See Weisberg, supra note 97, at 46-48. See generally Lloyd Weinreb, DENIAL OF JUSTICE: CRIMINAL PROCESS IN THE UNITED STATES (1977)(advocating reform of American criminal procedure along the French model). For a cinematic representation of a (Greek) examining magistrate's work, see Z (Reggane Films, 1968), discussed in Robert L. Waring, Z, 30 U.S.F. L. Rev. 1077 (1996).

141. Ward, supra note 97, at 68.

142. Id. at 69. The magistrate goes on "screaming irrationally," then subsides: "In a low voice he said, 'I have never seen a soul as hardened as yours.'” Id. Ernest Simon, who reads the legal process in The Stranger as a metaphor for moral evaluation, see Simon, supra note 97, at 112-13, considers "such a personal and passionate outburst" by a well-trained civil servant "highly improbable." Id. at 124 n.11.

143. See Weisberg, supra note 97, at 118-119.

144. Ward, supra note 97, at 70-71; see Weisberg, supra note 97, at 119. At trial the prosecutor takes up themes the examining magistrate surely injected into Meursault's casefile, that he has never shown remorse, that he has no soul, that he is "a monster." See Ward,at 95-96, 100-102.

145. “He thought for a minute. He asked me if he could say that that day I had held back my natural feelings. I said, `No, because its not true.’ He gave me a strange look, as it he found me slightly disgusting.” Ward, supra note 97, at 65; see infra text accompanying notes 174-`78; Weisberg, supra note 97, at 117.

146. Ward, supra note 97, at 70.

147. Id. at 85. See id. at 98 ("Just keep quiet--it won't do your case any good”).

148. See id. at 106. Ernest Simon notes especially the lawyer's failure to argue self-defense. See Simon, supra note 97, at 123.

149. See Ward, supra note 97, at 103.

150. Id. at 98. See id., at 103; see also id.,at 84 (before the trial begins, Meursault has “the strange impression . . . of being odd man out, a kind of intruder”).

151. Id. at 100.

152. See id. at 89-91, 93-94, 96, 99. See also Simon, supra note 97, at 120 (labeling the prosecutor's arguments "outrageously false").
     Simon criticizes Posner for “espous[ing] the state's position to the point of writing a weighted summary of Part I . . . that parallels the prosecutor's account--which we know to be false--and distorts Meursault's life." Id. at 115 (citing Posner, supra note 12, at 86-87). For another comparison of the prosecutor and Judge Posner, see supra note 139.

153. See Ward, supra note 97, at 101-02; see id. at 82, 84 (the parricide trial, more important than Meursault's, has caused both cases to receive media attention); cf. id. at 73-76 (depicting a young prisoner, perhaps the accused parricide, visited by his mother).
     The prosecutor may well have needed these diversions, these additional "victims," inasmuch as Meursault, a Frenchman before a jury of Frenchmen, was charged with killing one of the ethnic Algerians the French had colonialized. See, Posner, supra note 12, at 88; Simon, supra note 97, at 123. A measure of the real victim's unimportance to the trial is that the reader never even learns his name. Cf. Posner, supra, at 87 (noting this fact, but blaming Camus for it, rather than the prosecutor, whom Posner finds "skillful[]”).

154. Ward, supra note 97, at 100.

155. "'I ask for this man's head,' he said, 'and I do so with a heart at ease...’” Id. at 102.

156. See generally Eric L. Muller, The Virtue of Mercy in Criminal Sentencing, 24 Seton Hall L. Rev. 288 (1993). See also Greg Gilleland & John Garner Gilleland, Prosecuting Capital Cases, 55 Tex. B. J. 404 (1992); E. Michael McCann, Opposing Capital Punishment: A Prosecutor's Perspective, 79 Marq. L. Rev. 649, 658-75 (1996).

157. Ward, supra note 97, at 100.

158. Id. at 87, 89. At this point, I usually mention to the class that I used a similar cordiality during my stint as an academic subdean when confronting a student whose request I knew I would deny.

159. Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986).

160. The older student seemed to speak from painful experience. My recollections of similar experiences, see supra note 131, should be more painful than they are.

161. See supra text accompanying notes 130-37.

162. Edgar Allan Poe, The Tell-Tale Heart, in Elizabeth Villiers Gemmette (ed.),  LAW AND LITERATURE: LEGAL THEMES IN SHORT STORIES 258 (1992)[hereinafter Gemmette].

163. See generally Dressler, supra note 35, at 319-21. Other insanity tests may also profitably be applied to Poe's short story. Michael Richmond has suggested that Browning's poem, "Porphyria's Lover," could also be the subject of insanity analysis. See Robert Browning, Porphyria’s Lover (visited Apr. 8, 1997) <http://www.stg. brown.edu /projects/hypertext/Landon/victorian/rb/porphyria.html > .

164. Cf. DSM-IV, supra note 128, at 770 (definition of "psychotic").

165. See Elizabeth Villiers Gemmette, The Guilty Conscience, in Gemmette, supra note 162, at 255, 256. Another way to put the argument (less convincing to me, but plausible to some students) is that he does not know the nature and quality of his acts, because he intends to kill the eye, but the man he kills only incidentally.

166. See id.

167. Herman Melville, MOBY-DICK; OR, THE WHALE 623 (Penguin Classics, 1972). Ahab has previously threatened Starbuck with the same musket. See id. at 584-87 (ch. 109).

168. See generally Dressler, supra note 35, at 261-72.

169. See Melville, supra note 167, at 623.

170. See generally Dressler, supra note 35, at 285-89.

171. See Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469, 1481 (1966).

172. See Robert Traver, ANATOMY OF A MURDER 20-49 (25th anniversary ed., 1983).
The Lecture is an ancient device that lawyers use to coach their clients so that the client won’t quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn’t done any coaching. . . . ‘Who, me?’ I didn’t tell him what to say,’ the lawyer can later comfort himself. ‘I merely explained the law. . . .’
Id. at 35.

173. ANATOMY OF A MURDER (Carlyle Productions 1959).

174. I also show a few minutes from "To Defend a Killer," a roundtable discussion from the PBS series "Ethics in America," in which noted criminal defense attorney James Neal has a similar conversation with Harvard law professor Charles Ogletree, who plays the as-yet unarrested killer of his girlfriend; other panel members, including New York University law professor Stephen Gillers and criminal defense attorney Jack Litman, provide interesting commentary. See, To Defend a Killer, in Ethics in America (Annenberg/CPB Project, 1988).

175. Films can also enliven a course in criminal law, though almost all trial screenplays sacrifice verisimilitude for entertainment value. Consequently, I prefer documentaries containing actual trial footage or reenactments that adhere very closely to the trial transcript. In the last five weeks of the criminal law course, I show four films (in five two-hour blocks) on an optional basis. Each movie deals with aspects of criminal law previously covered in class: The Trial of Bernhard Goetz (Litchfield Films, 1988), The "Rodney King" Case: What the Jury Saw in California v. Powell (MPI Home Video, 1992), Conspiracy: The Trial of the Chicago Eight (HBO Video 1987), and First Degree Murder Trial (GPN, 1987).

176. Adrienne Rich, Rape, in DIVING INTO THE WRECK: POEMS 1971-1972 at 44, 44 (1973). I am indebted to Mike Richmond for suggesting this poem.

177. Lisa Demsky, He Was More, 5 Am. U. J. Gender & L. 311 (1996); Lisa Demsky, He Never Had the Right, 4 Am. U. J. Gender & L. 541 (1996).

178. Good places to look for law-related poetry are the creative writing sections in journals such as The American University Journal of Gender and the Law and the Texas Journal of Women and the Law. Other law reviews that frequently publish poetry include the Harvard Women’s Law Journal and the Yale Journal of Law and Feminism. Also, InfoTrac’s LegalTrac database indexes all poems published in the journals it surveys under the subject “poetry.”

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