Why Fiction?

Abstract

When I sold my first novel the summer after my first year as a tenure-track law professor, I assured the dean of my law school that fiction was a hobby, completely separate from my academic work, no different than if a colleague were training for a marathon in her spare time. Fifteen years later, this symposium asks its participants - four of us published novelists, one of us a judge, all of us trained lawyers - to reflect on the depiction of the criminal justice system in fiction. Our contributions make clear that the promise I made to my dean was itself a type of fiction. Whether an author realizes it or not, it is impossible to create an interesting, albeit fictional, depiction of the criminal justice system without having something to say about its real-world counterpart. Successful legal fiction uses the legal system as a defining component of the narrative that feels entirely realistic, even if the plot that unfolds there is wholly fictional. To be of interest, a novel’s legal setting must serve a purpose. Legal detail should advance the development of character, plot, or atmosphere.

Separate from the question of why a novelist might write about law is the question of why a legal professor might choose to write fiction. This symposium presses me to respond to that query. Fortunately, the five thoughtful and diverse essays contributed to this collection have helped clarify a decade and a half of my own thoughts. I appreciate the opportunity to comment on three themes that I hope I have developed at least as well through fiction as through traditional legal scholarship: (1) individual actors in the criminal justice system matter; (2) legal rules are only a starting point; and (3) justice is not inevitable. Comparing these three points to narrative, one could say that they provide lessons about character, structure, and surprise endings.

JEL Classification: K14