Cloth $29.00 ISBN: 9780226167473 Will Publish September 2014
E-book $29.00 Available for pre-order. ISBN: 9780226167503 Will Publish September 2014

Kafka's Law

"The Trial" and American Criminal Justice

Robert P. Burns

Robert P. Burns

192 pages | 6 x 9 | © 2014
Cloth $29.00 ISBN: 9780226167473 Will Publish September 2014
E-book $29.00 ISBN: 9780226167503 Will Publish September 2014
The Trial is actually closer to reality than fantasy as far as the client’s perception of the system. It’s supposed to be a fantastic allegory, but it’s reality. It’s very important that lawyers read it and understand this.” Justice Anthony Kennedy famously offered this assessment of the Kafkaesque character of the American criminal justice system in 1993. While Kafka’s vision of the “Law” in The Trial appears at first glance to be the antithesis of modern American legal practice, might the characteristics of this strange and arbitrary system allow us to identify features of our own system that show signs of becoming similarly nightmarish?
           
With Kafka’s Law, Robert P. Burns shows how The Trial provides an uncanny lens through which to consider flaws in the American criminal justice system today. Burns begins with the story, at once funny and grim, of Josef K., caught in the Law’s grip and then crushed by it. Laying out the features of the Law that eventually destroy K., Burns argues that the American criminal justice system has taken on many of these same features. In the overwhelming majority of contemporary cases, police interrogation is followed by a plea bargain, in which the court’s only function is to set a largely predetermined sentence for an individual already presumed guilty. Like Kafka’s nightmarish vision, much of American criminal law and procedure has become unknowable, ubiquitous, and bureaucratic. It, too, has come to rely on deception in dealing with suspects and jurors, to limit the role of defense, and to increasingly dispense justice without the protection of formal procedures. But, while Kennedy may be correct in his grim assessment, a remedy is available in the tradition of trial by jury, and Burns concludes by convincingly arguing for its return to a more central place in American criminal justice.
Brian Z. Tamanaha, Washington University School of Law
“Fascinating, jarring, powerful, and unique. Burns reframes criticisms of the American criminal justice system, showing the striking parallels between Kafka’s Trial and aspects of our own system. In doing so, he administers a shock of recognition that promises to be highly effective in getting us to see the limitations of our system in a different light.”
Winnifred Fallers Sullivan, Indiana University Bloomington
“Burns’s distinctive voice—combining that of an experienced practitioner, a legal scholar, and a philosopher—is immensely engaging, deeply serious, and consequential. He has a remarkable, almost kaleidoscopic ability to bring together, while respecting the differences, the very particular nightmare of Kafka’s work, the ideas of the great philosophers, and the daily injustices of American law today, all while insisting that we know, and should do, better.”
Albert W. Alschuler, University of Chicago Law School
"Kafka’s Law enormously increases a reader’s understanding of both Kafka’s writings and the American criminal justice system. The book’s barrage of present-day facts creates the same sense of baffled helplessness and of rule by nobody that the reader has when immersed in Kafka’s fictional world. Although Burns’s masterful study shows that the word Kafkaesque is no idle epithet when applied to our criminal justice system, it offers a way out, one that lies in revitalizing our legal system’s democratic roots."
Darryl K. Brown, University of Virginia School of Law
“Burns has few equals in combining the skills of the political theorist, legal scholar, engaged lawyer, and literary critic, all of which he has brought to bear to great reward in Kafka’s Law. On the one hand, complaints about our criminal justice system as 'Kafkaesque' are longstanding to the point of cliché. On the other, readers of The Trial could easily dismiss its legal system as safely remote from our own. Burns overcomes both hurdles by taking his careful interpretation of Kafka to the specifics of American criminal law and procedure, and to a series of detailed examples of recent American criminal prosecutions. The result is an insightful, disturbing and cautionary portrait of the fragility of formal rules and legal ideals in the face of every variety of bureaucracy and politics.”
Contents

Preface
Introduction

Chapter 1. A Reading of The Trial
Chapter 2. Institutional Perspectives on The Trial
Chapter 3. Echoes of Kafka Today
Chapter 4. Spaces of Freedom in American Law?

Notes
Index

For more information, or to order this book, please visit http://www.press.uchicago.edu
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