Law and Noir

PETER MANUS ∗

ABSTRACT

The noir genre of crime fiction studies the antihero, a flawed protagonist lured into
committing a crime. As such, in noir the law is presented as a threat.
Representatives of the legal system are often depicted as brutal, conniving, or
emotionally detached, and thus propel the protagonist further from the legal path
rather than tempting him to correct his mistake. The result is a world without
moral mooring in which the protagonist, often innocent in comparison to the forces
closing in on him, desperately attempts to elude his various menaces. In its failure
to offer redemption, mercy, or sanctuary, the law is delineated as almost
indistinguishable from the criminal element in terms of reprehensibility. This essay
explores the characterization of law in various genres of crime fiction, ultimately
focusing on stories in the noir genre in which cops or lawyers play prototypical or
prominent roles. In its general discussion of the role of law in crime fiction, this
essay ultimately focuses on bestselling novelist Alafair Burke’s The Ex as a prime
example of the legal procedural, a contemporary crime fiction genre in which legal
process dictates the story’s structure while the primary drama involves a lawyer’s
struggle to navigate law’s quirks and challenges in pursuit of justice. The essay
then examines noir, in many ways the polar opposite of the legal procedural in
terms of its characterization of the law, through multiple works that include James
Cain’s classic The Postman Always Rings Twice, James Ellroy’s first cop novel
Clandestine, Sherwood King’s pulp If I Die Before I Wake, Geoffrey Homes’
hardboiled Build My Gallows High, Lawrence Kasdan’s neo-noir screenplay
Body Heat, and the author’s two neo-noir novels, Fickle and The Dorchester
Five.

∗
Professor Peter Manus teaches Constitutional Law, Administrative Law, and
environment-related subjects at New England Law | Boston. He writes regularly about
environmental law and policy. Professor Manus's crime fiction explores noir, weaving into its
themes of nihilism and anti-heroism contemporary threats like cyberstalking and identity
theft. Professor Manus's first novel, Fickle, was reissued by Diversion Books in 2016, and his
second novel, The Dorchester Five, will be published in the fall of 2017.

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298 New England Law Review Vol. 51|2

You should have let me live. You’re gonna need a good lawyer.
— Marco Bannister’s dying words,
The Lady From Shanghai1

INTRODUCTION

T
he law occupies a strange, not-quite-there space in noir. It tends to
hover just off the page, an unseen threat of questionable potency—
the buzzing wasp you can’t quite lay an eye on, the distant siren
that’s getting louder but might not be heading your way, the squeaking
step when no one’s supposed to be on your stairs. Law is a threat in noir,
but it’s the kind you don’t mention because if it turns out it’s about to nail
you, there’s no use served in exposing your fear by discussing it. Noir is
stylish crime drama that works itself out on the murky edges of society; it
is a plot attempting to skitter just beyond the pounce of the law. That the
law will eventually engulf the players in a noir is inevitable, as noir is
intrinsically fatalistic, but it often happens on the final pages or even
beyond. And whether the inevitable grasp of the law is an assertion of
societal order or just bitter bad luck is often unanswered. Thus, the law
tends to play a brooding role in noir—it is the unseen heavy, the odds
against you, the ultimate spoiler.
Representatives of the law make it onto the page in plenty of noir
fiction, including cops, lawyers, politicians and judges. But characters
charged with the duty of upholding the law in noir are as likely as not to
be, at best, ethically untethered in their advocacy for their clients and, more
likely, propelled in their actions by the prospect of personal advancement
or enrichment. Hanging judges or puppet politicians are far less
personifications of the law than demonstrations of how the unscrupulous
maneuver through the system. The law itself is only partially characterized
by those who abuse it to meet their own ends; law, in noir, is undeniably
vulnerable to perversion.
This essay examines the role of law in crime fiction, with its ultimate
focus on the characterization of law in noir. It begins with a brief
discussion of law’s role in crime fiction as it has spanned the centuries,
from the Golden Age whodunit to the contemporary legal procedural.
Next, the essay discusses noir, beginning with the frank admission that
there is no clean definition of this genre of crime fiction, as it is a style of
storytelling with meanings and uses as varied as its origins and iterations.
Rather than attempting to hammer out a precise definition, this essay offers
up the prevalent markings of noir—its tone, typical storylines, and stock
characters. The essay then delves into depictions of law in noir, focusing

1 THE LADY FROM SHANGHAI (Columbia Pictures, 1948).

2017 Law and Noir 299

primarily on the noir cop or lawyer’s tenuous relationship with justice or

morality in a world where self-dealing and cynicism dominate.

DISCUSSION

I. The Many Faces of Law in Crime Fiction

Crime fiction is, in essence, an escapade in eluding the law, and thus its
every style, sub-genre, and iteration necessitates some legal presence.
Whether clever, brooding, indifferent or invisible, the law must be
referenced. Crime writers handle the issue of the law—its role, personality,
level and accuracy of its detail—in a variety of ways that often serve as key
to a story’s success and its genre classification. In certain genres, far-fetched
or bungled maneuvers by even minor lawyer or cop characters can disgust
readers, while in others a strict, accurate portrayal of legal process can read
as tedious or alienating. Indeed, the maneuvers that crime writers have
undertaken to pitch the legal presence in their fiction in the appropriate
manner can be as important as any element of their work.

A. Amateur Detectives: Law as Lowbrow

Certain subgenres of crime fiction illustrate well the contrasting

treatments of law and how those treatments are as core to these subgenres
as their more celebrated features. From the earliest days of serialized
detective fiction, writers in this subgenre tended to nudge the legal
professionals to the edges of the crime-solving action.2 Lawyers, cops and
judges, ossified by process and the rules of their magisterial systems, stand
as obstacles to creativity in these stories. The entire purpose of the legal
system, it seems, is to contrast its plodding ways with those of the
protagonist, most often an upper-crust amateur or an aged ex-cop, famous
in retirement for his eccentricities. Works of fiction considered the
progenitors of the detective genre tend to adhere to this rule, as do the
most celebrated Golden Age crime mysteries of the early twentieth
century. In E.T.A. Hoffmann’s 1819 Mademoiselle De Scuderi, for example,
an aging poetess relies on her celebrated sense of the romantic to lure the
mystery’s solution out of the accused, and then must use her political

2 Edgar Allen Poe's 1841 The Murders in the Rue Morgue, published in Graham's Magazine (a

Philadelphia-based literary magazine for which Poe served as editor) is commonly cited as
popularizing the genre of amateur detective fiction to English-reading audiences. See STEPHEN
KNIGHT, FORM AND IDEOLOGY IN CRIME FICTION 52 (The MacMillan Press Ltd. ed., 1980);
CHARLES J. RZEPKA, DETECTIVE FICTION 79 (Polity Press ed., 2005) (describing how “Poe’s
minutely circumstantial description of the crimes in ‘The Murders in the Rue Morgue’ seems
designed specifically to engage the reader’s inductive imagination” and makes the story
“foundational to the history of classical detection.”).
300 New England Law Review Vol. 51|2

influence to halt the injudicious legal machine.3 In Edgar Allen Poe’s stories
featuring C. Auguste Dupin, published in the 1840s,4 and Arthur Conan
Doyle’s featuring Sherlock Holmes, published over a forty-year span
starting in 1887, cerebral amateurs prove that armchair reasoning, the steps
of which the protagonists tick off like mathematics, fare far better in
solving crimes than dogged police work. The trope of the amateur sleuth
skirting the legal system to beat process-burdened cops at their own game
was extended to include classy rich folk with financial resources, racy
motorcars, time on their hands, and other pedigree-based advantages in
early detective works by A.A. Milne and Wilkie Collins.5 Indeed, Golden
Age lioness Agatha Christie debuted several amateur teams featuring
plucky outsiders—an ingenue,6 an ex-serviceman,7 a mystery novel writer,8

3 See E.T.A. HOFFMAN, MADEMOISELLE DE SCUDÉRI (Norderstedt Books on Demand ed.,

2016). The heroine of Hoffmann's novella does not actually play the detective by solving a
crime, although she influences the course of justice. Hoffmann was less a creator of crime
puzzlers than of fantasies and horrors; his best-known work is his 1816 children's story The
Nutcracker and the Mouse King, on which Tchaikovsky's ballet The Nutcracker is based. Betsy
Schwarm, The Nutcracker, Op. 71, ENCYCLOPEDIA BRITANNICA (Apr. 8, 2015),
https://perma.cc/3H9Q-NFTJ.
4 See supra note 2. Edgar Allen Poe introduced the detective format in American literature
with Murders in the Rue Morgue, a story Poe followed with two additional tales of
"ratiocination" or precise reasoning: The Mystery of Mary Roget (serialized in Snowden's Ladies'
Companion in 1842−1843), and The Purloined Letter (first published in an 1844 literary annual
entitled The Gift for 1845). See generally EDGAR ALLEN POE, THE MYSTERY OF MARY ROGET
(1842); EDGAR ALLEN POE, THE PURLOINED LETTER (1844). In these stories, the uber-logical
French amateur detective C. Auguste Dupin unravels seemingly unsolvable crimes, flanked
by an awestruck companion who serves as the first-person narrator, and opposed by a
grudging prefect of police. See id. These features of Poe's stories echo those written by Sir
Arthur Conan Doyle about his British detective Sherlock Holmes. See Ashleigh Prosser, Poe
and Doyle: The Genius Detective, CRIME CULTURE (Spring 2012), https://perma.cc/29VN-SMWD.
5 See generally A.A. MILNE, THE RED HOUSE MYSTERY (1922) (publishing his only mystery

novel and a prototypical example of both the locked-door and country manor formats);
WILKIE COLLINS, THE WOMAN IN WHITE (1859); WILKIE COLLINS, THE MOONSTONE (1868)
(noting that these publications are considered early examples of the police detective novel,
although the novels also fit in the country manor and amateur detective genres).
6 Tuppence Cowley, new to post-war London and penniless although of noteworthy

pedigree, teams up with childhood pal, vicar's son and ex-serviceman Tommy Beresford to
score cash as private detectives. See generally AGATHA CHRISTIE, BY THE PRICKING OF MY
THUMBS (1968); AGATHA CHRISTIE, N OR M? (1941); AGATHA CHRISTIE, PARTNERS IN CRIME
(1929); AGATHA CHRISTIE, POSTERN OF FATE (1973); AGATHA CHRISTIE, THE SECRET ADVERSARY
(1922).
7 Tommy Beresford, an ex-serviceman, teams up with Tuppence Cowley as private

detectives. See sources cited supra note 6.

8 Ariadne Oliver, a character in a number of Agatha Christie novels, most of which also
featured private detective Hercule Poirot, may have been partially based on Christie herself.
See generally AGATHA CHRISTIE, CARDS ON THE TABLE (1936); AGATHA CHRISTIE, ELEPHANTS
2017 Law and Noir 301

even a professional gigolo9—even as she charmed the reading world with

the detective prowess of village spinster Miss Marple.10
A final common device employed to place the detective outside the
legal system was that of casting the protagonist as a police officer, usually
retired or near retirement, and also renowned for both his professional
successes and his eccentric methods—that is, a cop whose success in
achieving justice was due to his having nimbly avoided the yoke of legal
process. Agatha Christie employed this brand of protagonist with her
Belgian expatriate Hercule Poirot,11 preceded by Wilkie Collins in his 1868
epistolary The Moonstone,12 and Israel Zangwill in his 1892 locked-door
puzzler The Big Bow Mystery.13 In all these examples, the law as practiced
by justice system bureaucrats is deriding for its flat-footed obstructionism
and the petty ambitions of system climbers.14 Indeed, a primary theme of
early detective literature appears to be the celebration of the murder
investigation as art. True justice, these “whodunit” tales argue, is too lofty,
elegant, and intellectually challenging for the law enforcers to whom
society and culture have entrusted it.15

CAN REMEMBER (1972); AGATHA CHRISTIE, MRS. MCGINTY'S DEAD (1952).

9 This is Claude Lutrell, an associate of Agatha Christie’s detective-matchmaker Parker

Pyne. See generally AGATHA CHRISTIE, PARKER PYNE INVESTIGATES (1934).

10 Miss Marple appeared in a number of short stories written by Agatha Christie and

twelve of Christie's novels. See, e.g., AGATHA CHRISTIE, A MURDER IS ANNOUNCED (1950);
AGATHA CHRISTIE, THE BODY IN THE LIBRARY (1942); AGATHA CHRISTIE, THE MURDER AT THE
VICARAGE (1930); AGATHA CHRISTIE, NEMESIS (1971).
11 Detective Poirot was a Belgian refugee living in wartime England, introduced by Agatha

Christie in The Mysterious Affair at Styles and appearing as the protagonist and primary
detective in thirty-three Christie novels, ending with Curtain. See Hercule Poirot, AGATHA
CHRISTIE, https://perma.cc/P6TY-PVJ2 (last visited Mar. 11, 2018); Agatha Christie Reading List,
AGATHA CHRISTIE, https://perma.cc/W7YB-QJPU (last visited Mar. 11, 2018).
12 THE MOONSTONE, supra note 5. In the novel, Sergeant Cuff, a police detective retired into

an enthusiastic life of cultivating roses, aids an amateur sleuth in tracing the theft of a world-
famous, cursed jewel. Id.
13 ISRAEL ZANGWILL, THE BIG BOW MYSTERY (1895). George Grodman is the retired

detective in this tale, which is widely regarded as the first full-length novel centered on the
resolution of a locked-door mystery. Id.
14 Interestingly, Zangwill appears to consciously flip the paradigm, casting the ambitious

yet foolish Scotland Yard insider, Inspector Edward Wimp, as a student of deduction, while
the armchair detective, ex-cop George Grodman, practices less affected cerebral methods. See
generally ZANGWILL, supra note 13.
15 See generally JOYCE CAROL OATES, MYSTERIES OF WINTERTHURN passim (1984). In her
tongue-in-cheek satire of various literary genres including the Golden Age mysteries, Joyce
Carol Oates studies this claim even as she parodies it. Id.
302 New England Law Review Vol. 51|2

B. Legal Procedurals: Law and its Neuroses

Opposing the amateur detective genre in both its propensity to sideline

the legal system and its exultation of justice as too rarified a cause for
common folk is another crime fiction genre, the legal procedural. Fiction
centered on a trial or other legal process is not new; classics like William
Shakespeare’s Merchant of Venice,16 Charles Dickens’s Bleak House,17 Dorothy
Sayers’s Strong Poison,18 and Herman Melville’s Billy Budd19 present varying
portrayals of the legal process at work. The Perry Mason series of crime
fiction novels churned out by Erle Stanley Gardner from the early 1930s
through the 1960s may be the best-known U.S.-based mystery series in
which the reader witnesses a criminal trial in almost every installment.
Runaway bestsellers penned by Scott Turow and John Grisham propelled
this genre in the annals of contemporary crime fiction with their novels
Presumed Innocent (1987)20 and The Firm (1991).21 While these novels and
stories are structured around investigatory or judicial processes rather than
human drama, both authors took groundbreaking strides in humanizing
the world of law in crime fiction. Presumed Innocent is a literary character
study cloaked in a murder mystery, and Grisham’s many lawyer characters
are plagued by the vicissitudes of life, from personal and political
conflicting feelings about their clients,22 to drug or alcohol problems,23 to
past legal indiscretions,24 and as such these characters merge the threat to
their own well-being presented by such vulnerabilities with the threat that
legal technicalities and misjudgments present to their cases. Far from
dismissing these very human legal professionals as beneath the task of

16 WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 4, sc. 1 (describing a trial scene
which essentially involves interpreting a business contract).
17 See generally CHARLES DICKENS, BLEAK HOUSE (1853) (having a plot which revolves

around the probate case of Jarndyce v. Jarndyce and served as a satiric commentary on the
British legal system).
18 See generally DOROTHY C. SAYERS, STRONG POISON (1930) (describing a plot in which Lord

Peter Wimsey must save the life of Harriet Vane, who is on trial for premeditated murder).
19See generally HERMAN MELVILLE, BILLY BUDD (1924) (culminating in the shipboard trial of
a young sailor who strikes and kills a jealous mate; in today's terms it would be a
manslaughter case).
20 SCOTT TUROW, PRESUMED INNOCENT (1987).
21 JOHN GRISHAM, THE FIRM (1991).
22 See, e.g., JOHN GRISHAM, THE CHAMBER (1994) (depicting an inexperienced attorney who
must defend his grandfather, a KKK member, on trial for the murder of two young Jewish
boys).
23 See, e.g., JOHN GRISHAM, THE CLIENT (1993) (featuring a lawyer who is a recovering
alcoholic).
24 See, e.g., JOHN GRISHAM, ROGUE LAWYER (2015) (depicting a defense attorney who is

blackmailed for past tactics).

2017 Law and Noir 303

crime-solving, however, today’s crime fiction author confronts the reader

with the fact that a system is only as infallible as those who engage in it.
The risks at stake in the legal system—liberty, justice, even life—are the
ultimate but not primary tension of such stories. Readers tend to focus at
least as much attention on the flaws, fears, and resolve of the cops and
lawyers who scrabble their way through the criminal process as they do on
the crime and resolution that takes place in the first and final chapters.
Bestselling author Alafair Burke’s 2015 The Ex is a fresh, up-to-date
example of the successful legal procedural and the characterization of law
in this genre of crime fiction. Olivia is the lawyer protagonist—she
occasionally drinks to excess, expects too much of both herself and others
in her life, is embroiled in a long-term affair with a married man, and
generally drags a ball and chain of emotional baggage, mostly guilt,
through her overworked days and nights. Olivia is also likeable, as
something about her unfiltered self-knowledge, the wincingly comical
irony of her personal life (her lover’s wife has pressured her into
maintaining their triangle), and her competence as a criminal defense
attorney earn her the reader’s emotional commitment. Her case, as tends to
be the pattern of legal procedurals, also entwines her human
vulnerabilities, as it is her old college boyfriend, the earthy-sweet-wide-
eyed-immediately-and-totally-committed-for-life-so-it’s-you-who’s-going-
to-have-to-be-the-heartbreaker-and-carry-the-guilt-forever type, who has
been arrested for murdering a horrible guy. The horrible guy has been so
horrible, particularly to the ex-boyfriend, that it’s tough for Olivia or the
reader to get past the gut response that he got what he had coming, which
in turn makes the ingenuous ex uncomfortably easy to peg as the
murderer. This premise is designed to force Olivia to grapple with the
challenge of maintaining enough emotional distance so as to exercise
professional judgment—a crucial skill in criminal defense work rendered a
near-impossibility here, as Olivia’s guilt, perhaps spiked by a need to
prove herself capable of ill-advised compassion, is what gets her embroiled
in her ex’s defense in the first place.
As a legal procedural, The Ex relies on the legal system to provide the
story’s structure. Burke’s duty and challenge is to present the law
accurately but with sensitivity to the reader who is unfamiliar with legal
process and vernacular. The result is a characterization of law as a massive
machine, intimidating in its entrenched processes, its oppositional
framework, its insider quirks, and its demand for unwavering attention
and nimble footwork, but nevertheless a machine which may be operated,
and successfully, by those with the right combination of training, savvy,
creative energy, and luck. The reader emerges with a wary faith in truth
and justice, at least when Olivia is on a case. Whether this represents a
positive or negative characterization of the law is left to the reader,
304 New England Law Review Vol. 51|2

although it is both satisfying and expected that Olivia will, at the last
minute, forge some sort of justice that is in keeping with the truth she
discovers, and that somehow this equilibrium will spill over into her
personal life.

C. Police Procedurals: Law Plods On

The police procedural, like its law-based counterpart, aims to satisfy

the reader’s curiosity about the crime investigation process. Story, pace,
and even resolution are structured along an arc from crime scene analysis
to arrest, with the emotional focus a slow-burning adrenaline fed as much
by evidence preservation and suspect elimination as by the author’s
assurance that crimes tend to cool fast and forever. Police procedurals often
delve less intrusively than legal procedurals into their characters’
idiosyncrasies—alcoholism, romance wounds, feelings of inadequacy from
having graduated professional school without a 4.0 GPA—perhaps because
authors have faith that their readers will find the criminal hunt adequately
fraught with potential pitfalls, or perhaps because crime writers and their
readers simply prefer their cops impassive and their lawyers neurotic.
Regardless of the motive, cop vulnerabilities in crime fiction tend to be due
more to inexperience, blind ambition, zeal to clean up the streets, or, in
older cops, a jaded realization that crime pays, often paired with an
ingrained disdain for police protocols, district attorneys, and the justice
system generally. The law, in such stories, is a constant presence, an
unquestioned if sometimes frustrating system dictating both character
motivation and story structure.
The police procedural format was popularized in the U.S. by the
television serialization of the film The Naked City.25 Both the film and
television versions incorporate a documentary format to depict the step-by-
step New York Police Department investigation of a young woman’s
murder. The format may be best exemplified in written crime fiction by
Hillary Waugh’s 1952 Last Seen Wearing,26 which follows the local police
force of a fictitious Massachusetts college town as they investigate the
disappearance of a college student from the initial missing person report to
the arrest of her killer. The tone of these tales is methodical, and they
studiously avoid sensationalism in their depictions of crime, characters, or
the investigatory process. The law is a grim business in this subgenre,
righteous in its goals but unsuited to grandstanding and inappropriate for
glamorization.

25 See generally Naked City (ABC television broadcast 1958-1963) (depicting the lives of
detectives in New York City). Malvin Wald penned the original screenplay for the 1948 film.
See also THE NAKED CITY (Universal Pictures 1948).
26 HILLARY WAUGH, LAST SEEN WEARING (1952).
2017 Law and Noir 305

A contemporary riff on the police procedural is my own 2017 novel The

Dorchester Five.27 The story is a mash-up of cop procedural and the inverse,
which might be called the killer procedural. The cop half of the formula is
personified by Marina Papanikitas (“Pop” to her pals), an earnest young
police detective, new to homicide and newly out to her Boston Police
Department colleagues. Pop steers the reader through about half the
chapters in the fashion of a typical police investigation, first into one, and
then several, Boston area murders. Through Pop’s eyes, we find the law a
flawed, at times even perverse system, yet ultimately a system that must be
obeyed.
Pop’s story, however, is only half of The Dorchester Five, as the tale is
spun out cat-and-mouse style, with cop and killer both enjoying first
person status. The killer is an impassive woman with a penchant for
unfiltered cigarettes, heavy eye makeup, and French new wave fashion.
She keeps a journal in which she signs her entries “Nightingale” and
documents her progress as she enters the lives of five disparate men with
the clear-eyed intent of dispatching them, one by one, each in his own
particular manner. As a vigilante, Nightingale is not a typical protagonist
of the killer procedural, as rather than serving up a spume of human
malevolence, she narrates her revenge scenes in the methodical tone of the
police procedural. The absence of malevolent pleasure in her killings,
combined with the character’s coolheaded acceptance of the simple truth
that the law often fails to achieve justice, aims to persuade readers to ally
their sympathies with the criminal. Law is the enemy of this protagonist
and the reader’s sense of morality.
In this way, The Dorchester Five28 has a heavily noirish theme, which
both its tropes and tone reflects. The reader, bandied back and forth
between the unflappable killer with a project to complete and the do-right
cop eager to prove her mettle, is challenged in his or her allegiance to the
law. The slow-materializing reveal of Nightingale’s motive,
resourcefulness, and creative method demands respect, while the
underdog cop keeps her eye on the prize as she soldiers through setbacks,
more than earning her big break. The law, from both perspectives, is a
dualistic creature—untrustworthy, malleable, but all the while somehow
influential.

D. Criminal Procedurals: Law as Predator

Nightingale personifies one version of the criminal perspective on the

law that can dominate a criminal procedural, that of the vigilante.
Vigilante crime fiction—a subgenre based squarely on the premise that the

27 PETER MANUS, THE DORCHESTER FIVE (Diversion Books, 2017).

28 Id.
306 New England Law Review Vol. 51|2

law is impotent against injuries inflicted by those with power—is often

presented as akin to escapist fantasy, often geared to a young audience, as
in superhero fiction featuring figures like Batman29 or Sam Raimi’s
Darkman,30 graphic novels like Frank Miller’s Sin City,31 and even classic
novels like Alexandre Dumas’ 1844 literary The Count of Monte Cristo.32
Although often constructed for a male market, vigilante plots can feature
female killers, such as Cornell Woolrich’s 1940 The Bride Wore Black,33 the
above-discussed The Dorchester Five,34 and Helen Zahavi’s 1991 Dirty
Weekend.35 With exception, vigilante novels tend to lack motivational
subtlety or moral ambiguity—the revenge targets are most often
unambiguously morally depraved and commit acts that earn the reader’s
unwavering condemnation.
Other versions of the criminal procedurals include the heist story and
the psychotic study. Heist stories, which generally evoke the tone of a
police procedural, tend to find structure, tone, and characters from the
nature of the crime, from conception to planning to implementation. Titles
such as Ira Wolfert’s 1943 Tucker’s People,36 W.R. Burnett’s 1949 The Asphalt
Jungle,37 and James Sallis’s 2005 Drive,38 present crime as a business, just as
police procedurals present criminal investigation in this light. Psychotic
studies are the novels, invariably involving crimes of a depraved nature,
that try to bring the reader in touch with the mental processes of a
psychopath, more or less a reversal of the lonely detective study. A handful
of prominent examples create a collective image of the psychotic as an
ambitious, self-centered person, capable of inflicting cruelty with little or
no provocation, and devoid of compassion or guilt. The most celebrated of
these, very possibly, are the manipulator Iago from Shakespeare’s Othello,39

29 The Batman character was launched by writers Bob Kane and Bill Finger in DC’s May

1939 Detective Comics. See Sarah Boxer, Bob Kane, 83, Cartoonist Who Created ‘Batman,’ NEW
YORK TIMES (Nov. 9, 1998), https://perma.cc/23HL-6VV6.
30 See AntBit, Darkman (1990), PROJECTED FIGURES (June 28, 2015), https://perma.cc/G6KK-

2N2A (paying homage to the Golden Age of comic books, out of which Batman emerged).
31 FRANK MILLER, Sin City, in DARK HORSE COMICS (1991−1992).
32 ALEXANDRE DUMAS, THE COUNT OF MONTE CRISTO (1844) (telling the story of a young
ship officer who is falsely imprisoned, escapes, becomes wealthy, and returns for revenge).
33 CORNELL WOOLRICH, THE BRIDE WORE BLACK (1940).
34 MANUS, supra note 27.
35 HELEN ZAHAVI, DIRTY WEEKEND (1991).
36 IRA WOLFERT, TUCKER’S PEOPLE (1943).
37 W.R. BURNETT, THE ASPHALT JUNGLE (1949).
38 JAMES SALLIS, DRIVE (2005).
39 See generally WILLIAM SHAKESPEARE, OTHELLO (1603) (illustrating the infamous story of
Iago's motiveless malevolence toward those around him).
2017 Law and Noir 307

repressed Norman Bates from Robert Bloch’s 1959 Psycho,40 futuristic gang
leader Alex from Anthony Burgess’s 1962 A Clockwork Orange,41 cannibal
Hannibal Lecter from Thomas Harris’s 1981 Red Dragon and sequels,42 and
the obsessive Patrick Bateman from Bret Easton Ellis’s 1991 American
Psycho.43 Law in both these “paradigm-flip” genres is no more or less than a
defining characteristic of each: the business of the heist as defined by the
law of larceny or the inner drive to possess, torture and kill as defined by
the law of criminal kidnap and murder. Morality may cast its shadow on
one venture and serve as a perverse motivator of the other, but plays little
part, scene to scene.

II. Noir—A Deep Dive into Law’s Moral Ambiguity

Noir is a category of crime fiction that many consider as difficult to

define as it is easy to recognize.44 The slippery nature of the genre’s
parameters may be due, at least in part, to its genesis. As its name suggests,
the term “roman noir” was coined as a brand of fiction by French
booksellers, who used it as a label for a post-World War II wave of
translations into French of hardboiled stories by American authors.45 These
stories, generally fast-paced, presented in pared-down prose and marketed
to commuters as quick, diversionary entertainment, differed from the
whodunits popularized earlier in the twentieth century in that the
protagonist, often a streetwise cop or private detective, was immersed in
the action rather than puzzling about motives and alibis from an emotional
distance.46 Readers appreciated the novelty of Dashiell Hammett’s wily

40 ROBERT BLOCH, PSYCHO (1959).

41 ANTHONY BURGESS, A CLOCKWORK ORANGE (1962).
42 THOMAS HARRIS, HANNIBAL (1999); THOMAS HARRIS, HANNIBAL RISING (2006); THOMAS
HARRIS, RED DRAGON (1981); THOMAS HARRIS, THE SILENCE OF THE LAMBS (1988).
43 BRET EASTON ELLIS, AMERICAN PSYCHO (1991). For more examples of such characters in

crime fiction, see ALBERT CAMUS, THE STRANGER (1942) (Meursault); GILLIAN FLYNN, GONE
GIRL (2014) (Amy Dunne); PATRICIA HIGHSMITH, THE TALENTED MR. RIPLEY (1955) (Tom
Ripley); PATRICIA HIGHSMITH, THIS SWEET SICKNESS (1960) (David Kelsey); JEFF LINDSAY,
DARKLY DREAMING DEXTER (2004) (Dexter Morgan); VLADIMIR NABOKOV, LOLITA (1955)
(Humbert Humbert); WILLIAM MAKEPEACE THACKERY, VANITY FAIR (1848) (Becky Sharp).
44 See CLAIRE GORRARA, THE ROMAN NOIR IN POST-WAR FRENCH CULTURE: DARK FICTION 6
(Oxford Univ. Press, 2003) ("[Noir's] elastic qualities mean that it has shown itself to be a
flexible and highly responsive form, remodeled over time by different writers.").
45 E.g., id. In 1945, Gallimard publishing house launched Série noire, a detective fiction

collection bound in black covers trimmed in white, promising sensational crime stories,
pitched in a 1948 editorial by publisher Marcel Duhamel. See id. at 13 n.21 ("There are
policemen who are more corrupt than the thieves they pursue. The friendly detective does not
always solve the mystery. . . . [W]hat remains is action, anguish and violence.").
46 See id. at 3–4 (differentiating between the whodunit or classic mystery, in which the
308 New England Law Review Vol. 51|2

Sam Spade playing a role traditionally occupied by the polished Lord

Wimsey or the icy Holmes. The French were already familiar with tales
that shaded the detective’s morality into that of his quarry, such as novels
by Maurice Leblanc and Léo Malet.47 Stories by American authors like
Hammett, followed by Raymond Chandler and later-emerging American
voices like those of James M. Cain and Jim Thompson, were similar to these
French detective pioneers in that the criminal and detective were less than
fully distinct from one another in method, habitat or manners.48 It is
unsurprising that French readers took to the U.S. hardboiled genre as
readily as it did, as European cinema and fiction had been steeped in such
dark exploration of culture, social structure and morality since the earliest
days of German expressionism in films such as M49 and Alfred
Hitchcocks’s The Lodger.50 American novels that meshed the worlds of
gangsters and detectives, all relayed in the sexually-charged banter of
thugs and dames, were for European readers as familiar in their hard-
edged pessimism as they were splashy and new in their gritty-glitzy U.S.
urban settings.
In the United States, the term noir, although borrowed from the
French, was used for a different sales purpose and thus developed a
variant set of features. American booksellers sold hardboiled detective
literature and pulp as exactly that—racy tales of suspense in which the
protagonist, while breaking laws and often becoming immersed in the
drama, nevertheless served as the moral thread through the story, usually

detective assembles clues like a jigsaw, moving steadily toward the ultimate summation, and
the hardboiled thriller, in which crime and detection occur simultaneously, and the reader
shares in the confusion and dangers faced by the protagonist).
47
See generally MAURICE LEBLANC, ARSENE LUPIN (2011) (introducing gentleman, thief, and
master of disguise Arsene Lupin, who pitted his wits against those of the British and French
police, in 1907); LEO MALET, 120 RUE DE LA GARE (1991) (illustrating the prototype of French
roman noir and featuring an ex-prisoner of war turned detective, in 1943).
48 See George Tuttle, What is Noir?, NOIR FICTION, https://perma.cc/UXV3-HJS9

(differentiating between French "roman noir" and American noir fiction).

In contrast to this French concept, the American concept of noir as a
literary genre is narrower and developed about 38 years later. It is not
used to refer to the Hardboiled School as a whole, but instead, it tends to
be limited to that second generation of hardboiled writers, the paperback
writers and the sub-genre of hardboiled fiction they helped popularize.
Id.
49 M - EINE STADT SUCHT EINEN MÖRDER (Paramount Pictures 1931).
50
See GORRARA, supra note 44, at 2 ("Th[e] French reception of the roman noir was a
foundational moment in the history of noir fiction and film, making the connections between
narrative form and a dark socio-political vision that have become the hallmarks of noir ever
since.").
2017 Law and Noir 309

emerging as having outfoxed the crooks and, like the classic whodunit
protagonist, restoring some sense of order by thwarting the criminal
scheme. Raymond Chandler’s Philip Marlowe is perhaps the best example
of the wisecracking law-bender with his own moral north star that often
outshone that of the cops. U.S. publishers needed to distinguish such
escapist entertainment from another set of fast-paced underworld stories in
which the protagonist became a full-fledged player in a criminal scheme,
either by design or accident or at best through coercion, and thus spent the
plot struggling against both the forces of the underworld and those
supposedly representing the social order. These bleak thrillers,
necessitating differentiation from the more standard detective stories by
virtue of the fact that readers might find disturbing a tale in which they are
asked to relate to a protagonist of truly questionable morality, were
dubbed American noir.
As such, American noir centers on the struggles of an antihero, an
often-naive protagonist looking for a shortcut to success—whether cash,
love, or the cynicism he mistakes for manhood. He finds himself
committing a crime, aiding or otherwise shielding a criminal, or at least
looking the other way when a crime is committed.51 Perhaps the
quintessential noir antihero is Guy Haynes in Patricia Highsmith’s 1950
classic Strangers on a Train.52 Guy, a seemingly morally-grounded man
embittered by his failed marriage—thus a flawed man with whom many
readers could empathize—is coerced into committing a murder by a
psychopath he encounters by chance. Highsmith’s prose is denser and
more artistic, and her psychological examination deeper, than that of the
typical noir, but her exploration of the dark spirit coiled inside her
everyman is nothing less than finely wrought noir.
In addition to the relatable and flawed protagonist, typical features of
classic noir are cheerless urban settings, underworld operators, femme
fatales, closeted gays, corrupt authority figures, and endless supplies of
liquor, rainy streets, and cigarettes. The plots are fast-paced, corpse-strewn,
and driven more by mood and action than logic. The films, through which
noir gained its unique and unmistakable visual style, are often adaptations
of short stories or novella, and feature snappy dialog, chiaroscuro lighting,
and a surprising level of restraint in their onscreen depictions of sex and
violence. Considering the subject matter, it is worth remarking that these

51 See, e.g., SHERWOOD KING, IF I DIE BEFORE I WAKE 2 (Penguin Modern Classics, Penguin

Books Ltd. 2010) (1938). The antihero explains how he was tempted into an insurance scam:
"It’s like when a slick salesman gets hold of you. You don’t want what he’s selling, maybe, but
you take it. You take it because you’d rather do that than let him think you weren’t so smart
after all." Id.
52 PATRICIA HIGHSMITH, STRANGERS ON A TRAIN (1950).
310 New England Law Review Vol. 51|2

films and much of the written fiction on which they were based aimed to
pitch their readers or viewers the excitement of quick thrills rather than a
somber study of their fatalistic subject matter. In tone, noir deviated
substantially from its German expressionism predecessor; the run up to the
bleak denouement is a fast ride all the way. That said, final scenes are often
stark in their nihilism, with moral lessons unlearned and materialism
masquerading as the American dream to the bitter end.
Some critics include hardboiled fiction featuring private detectives in
the noir genre due to the consistency in style, setting, pace, and moral
ambiguity.53 In addition, private detective protagonists like those produced
by Dashiell Hammett, Mickey Spillane, and Raymond Chandler share the
uneasy relationship with law that are key explorations of noir. In contrast,
those who segregate private eye fiction from true noir consider the
immoral choice of the noir protagonist—that which renders him or her an
antihero rather than a hero—to constitute the key element of noir.54
Naturally, where private detectives allow themselves to be lured from the
path of the law, as in Build My Gallows High,55 and as is suggested about
Sam Spade’s shady practices in The Maltese Falcon,56 a hardboiled detective
piece may constitute noir. Some question whether Chandler’s Philip
Marlowe, although streetwise and jaded, projects the moral ambiguity of a
true antihero.57
Most classic American noir fiction and film emerged between the mid-
1930s and the early 1950s, with the term coined to differentiate noir from
other crime dramas as late as 1948. Noir produced in the 1970s and after,
often consciously paying homage to earlier works through references to the
tropes, themes, and even plots of the classics, may be separately
categorized as neo-noir. With exceptions, neo-noir tends to be some degree
removed from the raw cynicism of original period noir, as it aims more for
the nostalgia of early pulp thrillers than to present a commentary on

53 See, e.g., American Hard-boiled and Noir Crime Fiction, 1920-1960, DEP’T ENG. &

COMPARATIVE LITERATURE, COLUM. U., https://perma.cc/8E4E-TUGR (“There is a lot of overlap

between ‘hard-boiled’ and ‘noir’”).
54 See, e.g., George Tuttle, Noir Fiction, NOIR FICTION, https://perma.cc/G9FH-TKTQ (last

visited Mar. 11, 2018) (online essay differentiating noir from hardboiled fiction featuring
detectives, and also claiming a distinction between film noir and noir fiction).
55 GEOFFREY HOMES, BUILD MY GALLOWS HIGH (1946).
56 DASHIELL HAMMETT, THE MALTESE FALCON (1929).
57 See, e.g., 1 ALAN MOORE, ALAN MOORE’S WRITING FOR COMICS 29 (2003) ("The thing that
one is left with after reading, say, The Big Sleep, is not so much a detailed memory of the turns
of the plot but rather a vivid picture of a weary but unflinchingly moral character trying to
come to terms with a moral twilight world.").
2017 Law and Noir 311

current social moral ambiguity.58 Examples include the fiction of Sean

Doolittle,59 Jake Hinson,60 Jason Starr,61 and Grant Jerkins,62 and my own
first novel, Fickle,63 discussed below.

A. Dirty Cops and Shysters—Legal Characters in Noir

Noir explores a culture’s underbelly and so the tales invariably present

a ragtag cast of unsavory figures—kingpins, goons, drug-peddlers,
blackmailers, snitches, seductresses and punks—that can include among
their ranks compromised members of our legal institutions. Corrupt cops
and self-dealing attorneys or judges, as they repurpose the tools of their
sworn duties, can subvert the legal system.64 A quick inventory of some
memorable cops and lawyers in noir can aid in developing a profile of the
institution of law itself as depicted in the genre.

1. Sergeant Dudley Smith: Law as Violence

Noir cops use their authority as a blunt instrument.65 Cops kill and
extort in noir, and collect nasty secrets like bags of junk that might
someday be used as a weapon. Dudley Smith, a highly articulated
character introduced by James Ellroy in his first novel Clandestine,66 is the
prototypical noir cop. Ambitious to a fault and as instinctively violent as
he is openly prejudiced, Smith infuses his abuses of police authority with a
perverse sense of morality. He tortures to extract confessions and lies to

58 See GORRARA, supra note 44, at 9 (observing that from the 1970s onward, noir fiction and

films project "a satirical vision[ ] of consumer society as morally bankrupt and founded on
excess and spectacle.") (citing LEE HORSLEY, THE NOIR THRILLER 195 (2001)).
59 See, e.g., SEAN DOOLITTLE, THE CLEANUP (2007); SEAN DOOLITTLE, DIRT (2001).
60 See, e.g., JAKE HINSON, THE BIG UGLY (2014); JAKE HINSON, HELL ON CHURCH STREET
(2012); JAKE HINSON, THE POSTHUMOUS MAN (2013).
61 See, e.g., JASON STARR, SAVAGE LANE (2015); JASON STARR, TOUGH LUCK (2003); JASON

STARR, HARD FEELINGS (2002).

62 See, e.g., GRANT JERKINS, ABNORMAL MAN (2016); GRANT JERKINS, A VERY SIMPLE CRIME

(2010).
63 PETER MANUS, FICKLE (2008).
64 See RAYMOND CHANDLER, THE SIMPLE ART OF MURDER 17 (Penguin Random House
1988) (describing noir pioneer Dashiell Hammett as having introduced a world "where a
judge with a cellar full of bootleg liquor can send a man to jail for having a pint in his jacket.").
65 The occasional "good cop" appears in noir, usually as an exception to the rule, and often

as a plot prop. See KING, supra note 51, at 128−29 (“Oh, I’ve been working on the case, don’t
think I haven’t. What started me was the way you accused Bannister in court, when you told
about the ‘false murder.’ But it’s a tough case to crack, all right. I haven’t been able to find any
new evidence yet that would make the Governor put the execution off. If Bannister did the
killing he’s covered his tracks at every turn.”).
66 JAMES ELLROY, CLANDESTINE (1982).
312 New England Law Review Vol. 51|2

advance his career, always with some vague justification about protecting
the innocent that strikes the reader as borderline sociopathic. In Dudley
Smith, Ellroy captures the essence of noir in that the so-called system of
democratic governance is warped, through the psychoses of those who
populate it, into a near-mirror image of the underworld. Dudley Smith and
his two detective underlings are nothing more than a kingpin and two
goons equipped with badges, and the novice cop protagonist’s
introduction to their tactics, which ranges from evidence tampering and
witness intimidation to kidnap and torture, plays as an audition for
induction into a brotherhood of police criminality. Ellroy’s portrayal of a
justice system that is every bit as iniquitous as those it would police is pure
noir.

2. Leonard Eels: Law as a Tool

If noir cops are wise guys with badges and guns, adhering to a code of
brutality and silence as strong as that of any street gang, noir lawyers tend
to be dark horses—brainy solo players in a world of racketeering, money-
laundering, or insurance schemes. In the films, they are often small or
unassuming men, portrayed as neither crook nor savior, and, although
often serving as a linchpin to the plot, as underwhelming in their impact on
the bigger players as they are in their impact on the female characters. A
prototypical example of a noir lawyer is the minor character Mr. Eels in the
Geoffrey Homes pulp Build My Gallows High.67 For a character that plays
only a fleeting role in the plot, Eels is clearly portrayed, managing to come
across in his one scene as intelligent and competent but not particularly
confident or assertive. He is young and gangly and readily manipulated by
his unscrupulous secretary. Eels fulfills some murky function in the main
heavy’s illicit dealings, apparently involving his hoarding information
collected while serving as a tax attorney, perhaps for his own protection or
perhaps to secure his comfortable but non-excessive lifestyle. In short, Eels
is never quite portrayed as having engaged in overtly illegal practices. The
protagonist, Red Bailey, who is feeling his own way through an assignment
he recognizes as perilous for reasons he cannot quite discern, feels a
kinship with Eels—Red divines that Eels is unlikely to survive the scheme,
just as Red fears he himself may not survive it. The lawyer is just another
everyman, no savvier or more conniving than the next, in spite of the fact
that his profession provides him with the tools of persuasion and strategy
and a supposed affinity for justice.

67 HOMES, supra note 55.

2017 Law and Noir 313

3. Mr. Katz: Law as a Game of Wits

An interesting lawyer figure in a prototypical noir whose

characterization aids in fleshing out noir’s portrayal of the legal profession
is Mr. Katz in James Cain’s The Postman Always Rings Twice.68 Like Eels in
Build My Gallows High, Katz plays a small but pivotal role in The Postman
Always Rings Twice, and could easily have been depicted as threatening, as
he holds the secret that the protagonist and his lover are desperate to hide.
Nevertheless, Katz, like Eels, is depicted as physically unassuming,
intelligent, and ultimately nonthreatening. Katz operates as a solo player,
maneuvering through the law with clever dexterity and without a
particular tether to any other operator, or to a strict sense of truth and
justice, for that matter. Laconic and seemingly emotionless until his court
victory, he strategizes his way to a win, at which point he briefly indulges
in a burst of boyish effervescence, reliving his strategy and even waiving
his fee in the thrill of having outmaneuvered the wily District Attorney.
Like Eels, there is neither a sense of morality nor evil about Katz. The stock
lawyer in noir, it appears, dwells outside of the author’s exploration of
human brutality.
It seems an odd choice for writers of noir to pass up the opportunity to
present lawyers, and thus the law, as negative figures, devoid of ethics,
power-hungry, and energetically abusing their legal knowledge for
personal gain. Not only is the greedy lawyer a common stereotype in far
less bleak forms of fiction, but it would appear to advance noir’s primary
message of cynicism. Nevertheless, most depictions of lawyers in original
period noir, and the associated projection of the law itself, offer up a far
less malignant image.69

4. Marco Bannister: Law as a Weapon

A rare example of a lawyer playing a prominent role in a typical pulp

noir is the character of Marco Bannister in Sherwood King’s 1938 If I Die
Before I Wake.70 Bannister is never openly established as corrupt, but the
reader suspects he has earned his fortune through loophole strategies
applied in his representation of rich, unsavory clients.71 He is opinionated,
impetuous, and possessive, all character traits of the typical noir kingpin,

68 JAMES. M. CAIN, THE POSTMAN ALWAYS RINGS TWICE (1934).

69 Even lawyers who operate within the justice system in noir are most often presented as
unmotivated by truth or justice. KING, supra note 51, at 90. (The District Attorney, described
as a short, bald man, is introduced: "Ordinarily he wouldn’t be prosecuting the case himself,
but he wants the publicity on this one.").
70 KING, supra note 51.
71 Cynicism is Bannister's primary character trait: “In my profession, one ceases to be
surprised at anything.” Id. at 101.
314 New England Law Review Vol. 51|2

and the opening chapters read as if King cast Bannister as a lawyer

randomly or to suggest that he made his bundle on the strength of his wile
and intellect. This simplistic imagery of the lawyer as twisting rules to his
advantage is borne out by Bannister’s physical description. The
protagonist, Laurence, who works as Bannister’s driver, describes him as
“very handsome with his sleek black hair”72 except for the fact that “[c]lose
up his features were too sharp, his cheeks too pinched for him to be really
good-looking. Deep-set black eyes under dark brows gave him a brooding
and defiant look.”73 Worse yet, Bannister is crippled due to a war wound,
and thus walks in a “comic, jerky way.” In these descriptions, it is difficult
to resist picturing Bannister as a villain out of central casting, physically
ineffective but more than able to compensate with his steely cerebral
talents.74
In keeping with the stock imagery used to portray Bannister
physically, he also displays the stereotypic character judgment weakness of
a noir kingpin—he has married Elsa, a young gold digger who seems in no
way his natural companion, and has made an equally ill-advised choice in
his law partner, Lee Grisby. Grisby may be the least morally burdened
character in the book—in the opening scene he jokes about killing his wife,
then tries to talk Laurence into aiding him in a life insurance scam.75 Grisby
is as much a stock foil as Bannister is a stock kingpin, and so little if any
commentary about the role of law in noir can be extracted from the fact
that King cast them as lawyers.

72 Id. at 11.
Bannister came out first, walking in that comic, jerky way his leg made
him walk. He was wearing a long white robe with a cowl hanging loose
and looked very handsome with his sleek black hair. Close up his features
were too sharp, his cheeks too pinched for him to be really good-looking.
Deep-set black eyes under dark brows gave him a brooding and defiant
look.
Id.
73 Id. at 11.
74 During the trial, Bannister becomes even more devilish: “Bannister came in. His dark
hawk’s face was blacker than ever, but his eyes were bright, burning.” Id. at 130.
75 See KING, supra note 51, at 2:
“Wait till you get married, like I’ve been these last fifteen years. And the
devil of it is, she won’t give me a divorce.”
‘Oh, I see. Not much you can do in a case like that, is there?’
He laughed again and fitted the glasses back on, looking up the railroad
tracks. The train was coming, its whistle blowing. ‘No,’ he said, ‘except
maybe catch her raiding the icebox some night.’
2017 Law and Noir 315

In the story’s second half, however, King’s motive for casting his
villain as a lawyer becomes apparent. Grisby is murdered and the blame
pinned on Laurence.76 Like so many noir antiheros, Laurence is a young
drifter readily enticed into Grisby’s get-rich-quick scheme; the reader
respects Laurence’s sketchy morality only as compared to that of the rest of
the lot.77 The ultimate dramatic tension occurs when Bannister serves as
Laurence’s defense attorney in connection with Grisby’s murder. Bannister
is apparently brilliant enough as a litigator—the reader is not made privy
to his tactics or strategy—to steer the case toward whatever conclusion he
chooses. He knows that Laurence is not guilty, but he also knows that
Laurence and Elsa have been lovers, and so he enjoys watching Laurence
suffer through the trial while he decides whether to allow him to be
convicted.78 Bannister is the ultimate cynic, using his deft legal skills
without a trace of ethical misgivings or respect for the justice system.79 For
him, a murder trial is nothing more or less than a contest among
gamesmen. Although Bannister is an emotionally twisted character using
the legal system to torture another man, in his perception of the law as
detached from morality he is similar to both Smith and Katz. Indeed, in
most noir, literary and pulp, it appears that the law is strangely exempt
from the genre’s pessimistic commentary on class, sex, money, politics, and
the lure of upward mobility.

5. Lorna Weinberg: Law as a Moral Crusade

The observation that noir authors tend to exclude the legal system
from their overall condemnation of the human condition is supported in
the far more literary and artful Clandestine,80 discussed above in terms of

76 Id. at 83−84.
77 See id. The protagonist, Laurence, is introduced as follows:
“Sure,’ I said, ‘I would commit murder. If I had to, of course, or if it was
worth my while.’
I said this as though I meant it too. I didn’t mean it. I didn’t mean it at all.
‘The way I figure it,’ I said, ‘a man’s got to die some time. All murder
does is hurry it up. What more is there to it?’
‘You know – talk. What any young fellow might say, just to show he’s not
afraid of anything.”
Id. at 1.
78 Laurence, on death row, wonders: "Bannister was seeing the Governor now. Would he

get the pardon? And did he want to?" Id. at 127.

79 Bannister responds to Laurence when Laurence finally tells him the truth about Grisby's
scheme: “‘Well, at least that’s a story I can believe,’ he said. ‘But the jury would never believe
it, and we can’t use it.’” Id. at 81 .
80 JAMES ELLROY, CLANDESTINE (1982).
316 New England Law Review Vol. 51|2

the book’s bruising portrayal of the police through the figure of Dudley
Smith.81 The protagonist, Fred Underhill, himself an ambitious cop who
attempts to outmaneuver the more adept Dudley Smith, is introduced as a
pick-up artist, a characterization redeemed by Fred’s gentle treatment of
the women he beds. The early womanizing chapters render Fred’s
immediate and unshakable infatuation with district attorney Lorna
Weinberg all the more impactful. Fred is introduced to Lorna by her
wealthy father at his country club, where she bests the cop in verbal
sparring even as she crawls under his skin forever. To noir fans, it seems
that Ellroy is introducing a father-daughter kingpin and femme fatale, with
deadly troubles ahead for the cop attempting to infiltrate a family empire
of questionable legality. But Ellroy tricks us. Lorna is seated throughout
her spark-inducing first exchange with Fred, but Fred’s conviction that he
and Lorna are meant to be life partners is undented by his later discovery
that she is crippled, one of her legs rendered useless due to a girlhood auto
accident. Again, to noir fans the symbolism might seem familiar, as if
Ellroy is constructing a female Marco Bannister, and certainly the
similarities—wealthy, outspoken lawyers, both specimens of beauty,
marred and embittered by a crippling accident—are impossible to ignore.
But Lorna’s rich father never materializes as a threat, and Lorna turns out
to be the story’s redemptive angel, another noir standard, although it is
more her own driven spirit than the protagonist’s gravitation toward sin
that sours the relationship.
Ellroy’s creative riffs on the tropes of noir do more than serve as
evidence of his ability to play with the genre. Fred and Lorna, one a classic
noir lone wolf and the other a creative centaur of femme fatale and
redemptive angel, together escape the threat of psychotic Dudley Smith by
going on an up-to-date version of “the lam,” not unlike Red and femme
fatale Mumsie in Build My Gallows High.82 Fred sheds his promising cop
career without regret, but the abandonment of her A.D.A. role leaves a
moral hole in Lorna’s life that eventually deflates the passion between the
lovers. Ellroy creates ambiguity about what it is that sours Lorna—she
seems to miss the battle for justice that defined her life as a lawyer, but also
grumbles about having given it all up for a manual laborer, as if Fred’s
abnegation of his prior top-cop ambitions is the true source of her
disillusionment. As an A.D.A., Lorna was in the legal mix, using politics
and playing mental chess like Katz, but always in the interest of justice.
Ellroy never allows the character to specify whether it was the political
gamesmanship or the cause of justice that Lorna truly misses. Either way,
the character portrays the law as either morally neutral or positive. It is a

81 See supra Part II.A.1.

82 HOMES, supra note 55.
2017 Law and Noir 317

rare instance in noir—the law as just—but not one that could be cast as a
radical departure from law’s more typical, morally neutral role.

6. Ned Racine: Lawyer as Antihero

Perhaps the most focused study of a lawyer in noir is the character of

Ned Racine, the lawyer-cum-antihero presented in Lawrence Kasdan’s
1981 original screenplay Body Heat.83 Body Heat is an example of neo-noir in
that it is a contemporary piece consciously paying homage to the themes
and tropes of 1940s-era noir.84 For Body Heat, perhaps the most
prototypical neo-noir film produced to date, the inspiration was works like
Double Indemnity,85 a James Cain short story later developed as a film
recognized as a classic among films noir.86 In both written and film
versions of Double Indemnity, a wealthy housewife maneuvers a morally
ambivalent insurance salesman into killing her husband so that they—or
perhaps she alone—may score a hefty life insurance payout. Body Heat
follows the same trajectory, but in Kasdan’s version the manipulable
professional man is a small town Florida lawyer. Casting Racine as a
lawyer serves several artistic purposes. First, as in Double Indemnity, the
vixen aims to double her inheritance, this time by drawing up a fake will
which she claims Racine drafted for her husband shortly before his death.
The will is flawed—it falls afoul of the infamous rule against perpetuities—
and this leaves the lawyer humiliated, the deceased intestate, and the
widow rolling in dough. Thus, Racine’s profession is a key plot element.
More pertinent to the story as noir, however, is its characterization of
Racine. As a protagonist he is likable-yet-malleable enough to satisfy the
antihero trope, but as a lawyer he is noticeably uninspired by tenets of
justice, truth, or even respect for the law’s details. His client list includes
small-time crooks, insurance scammers, and a bomb-building arsonist, and
his work ethic appears so lackadaisical that it is surprising to observe him
pursuing both a daily beach run and the femme fatale with conviction and
energy. The rules of marriage apparently carry as much weight with
Racine as the rules of law, making him easy prey for Matty Walker, a

83 BODY HEAT (Warner Bros. 1981).

84 Id.
85 JAMES M. CAIN, Double Indemnity, in THREE OF A KIND 217 (1944).
86 Kasdan also credited Out Of The Past as influencing Body Heat. See RONALD SCHWARTZ,
NEO-NOIR: THE NEW FILM STYLE FROM PSYCHO TO COLLATERAL 34 (2005);LINDA RUTH
WILLIAMS, THE EROTIC THRILLER IN CONTEMPORARY CINEMA 127 (2005). Out Of The Past is the
film version of Build My Gallows High, a 1946 novel by Daniel Mainwaring (under the
pseudonym Geoffrey Homes). Brian Greene, Lost Classics of Noir: Build My Gallows High by
Geoffrey Homes, CRIMINALELEMENT.COM (Sept. 11, 2014, 1:00 PM), https://perma.cc/NW6W-
EPHA. Both novel and film are widely recognized as classic noir. Id.
318 New England Law Review Vol. 51|2

woman looking for a chump to kill her husband and take the fall for it.
Kasdan skillfully weaves together the two elements of Racine’s life—his
profession and his growing involvement in Matty’s plot—to the point
where the story is almost as much a commentary on a lawyer’s relationship
with the law as it is a study of uncontained lust and greed. Racine’s
profession, his training and oath, has had no impact on his propensity to
go wrong. The law, it appears, is just a system, and lawyering is just a job,
and crime is just chum feeding the system and keeping lawyers employed.
Other representatives of the law in Body Heat add to this element of the
study. Edmund Walker, the murder victim, is also a lawyer. He describes
his stint practicing after law school as a brief one during which he
discerned that he could use his legal training to make fast money engaging
in shady real estate development deals and other unnamed undertakings,
very possibly involving partnerships with criminal elements. Edmund is
presented in the screenplay as powerfully built, handsome, well-dressed
and overbearingly confident—he is the dedicated, disciplined immoral
contrast to Racine’s casual, sloppy amorality, and the story’s proof that the
study of law fails to teach its weaker accolades any lasting virtue even as it
fails to influence its corrupt enrollees in any way.87
In contrast to the image of law Kastan presents through Edmund
Walker is Peter Lowenstein, Racine’s pal and the local assistant prosecutor.
Lowenstein is the story’s true believer. He is neither preachy about
Racine’s sins nor disloyal in his friendship with the compromised antihero.
Lowenstein affects an amused disinterest in anything resembling moral
conviction even as he operates in a loose alliance with Oscar Grace, the

87 See generally Lawrence Kasdan, Body Heat: An Original Screenplay, SCREENTALK (Oct. 6,

1980), https://perma.cc/CXV9-6TMC. Strikingly similar to Kasdan's depiction of Edmund

Walker is Sherwood King's description of Lee Grimsby, the corrupt social climber in If I Die
Before I Wake:
He took off his panama and his glasses – pince nez, with a black ribbon –
and began running a handkerchief over his face. The heat was bad
enough for me, but it was worse for him. He weighed all of two hundred
pounds – not fat, because he was as tall as I, and powerful, but it was
plenty enough in that heat. Still, he was cheerful about it, as he always
was, a real glad hander and hail fellow well met.
KING, supra note 51, at 2. See also id. at 22:
[Grimsby] stroked his big full jaw, holding his eyeglasses in the other
hand and tapping them on his knee, thinking. He was pretty good-
looking with his glasses off. His short, wiry gold hair, actor’s profile and
powerful build probably had made him a devil with the women when he
was young. Maybe still, for all I knew.
Grimsby even shares Walker's habit of cleaning his glasses: "Grisby took off his glasses and
began wiping them with a crisp white handkerchief." Id. at 21.
2017 Law and Noir 319

cool-but-uncompromising cop character who cannot be shaken from his

pursuit of justice. These secondary characters present a spectrum of choices
the law has provided Racine. The moral choice—although fortified as the
right choice by the system of courtrooms, holding cells, cops and jails that
Racine frequents regularly—has no gravitational pull when compared to
the lure of sex and money that the plot pounds into Racine’s visceral
consciousness, scene after scene. The law, even when Racine knows that
eventually it will get him, is also an ineffective force, a fact that is
underscored as Racine rouses himself to emulate Edmund, the corrupt
strongman he should despise, rather than settling into a law-abiding
lifestyle with his longtime friends and seemingly natural allies, Lowenstein
and Grace. When put to the test, their moral-legal instinct is alien to
Racine, even as Edmund and Matty’s unmoored sociopathy outdistances
Racine’s own indifference to the purpose and rule of law.

7. Mr. Groin: Law as Opportunistic

In my first published novel, Fickle,88 a neo-noir and thus consciously

drawing on the themes and tropes of noir, the law is represented in two
contrasting roles: the earnest cop and the self-dealing lawyer. Fickle is a
suspense story presented as a modern epistolary novel, relayed primarily
through the blog writings of the story’s ingenue. She is l.g.fickel, a Boston
twenty-something indie publishing company editor—goth-chic, cheeky,
and exuding her own brand of steely vulnerability with every blog post—
who witnesses a train suicide, then finds herself a “person of interest” in
the death investigation. The law begins to menace, not quite discussed and
not quite threatening, when an unidentified witness claims that a struggle
on the platform had preceded the death-by-train and the police learn that
“Mr. Suicide” (her blog nickname for the deceased—on her blog she insists
that all monikers be snarky aliases) had been cyber-stalking the heroine in
the months leading to their deadly encounter. One would presume that in
such a situation the cops would represent a threat and an attorney
protection, but in Fickle the roles are flipped. L.g.fickel takes comfort in the
protective flirtations of Burly-Bear, the investigating cop, and is both
repelled and threatened by the lawyer she dubs “Mr. Groin” in her blog.
Burly-Bear is a law-abiding stalwart, unquestioningly rule-oriented,
sensitive to nuance, saddled with a cynical partner who seems to have a
hunger to drag down the supercilious l.g.fickel.
Mr. Groin, a lawyer who is pressed by a wealthy client to represent
l.g.fickel pro bono, is a stereotypical neo-noir lawyer, upwardly mobile and
adept at using the rules of law in this pursuit. Physically, Mr. Groin is
presented by l.g.fickel in terms reminiscent of hardboiled pulps:

88 MANUS, supra note 63.

320 New England Law Review Vol. 51|2

Overall, he created an impression of being quite handsome in an

F. Scott Fitzgerald-y sort of way, and so I assumed he was until at
some point in our conversation I finally happened to look directly
at his face, at which point I was quite surprised to find that the
man is actually rather ugly, his eyes flat and empty, nostrils like
large black holes, lips thin and blood red, and his entire facial
bone structure somehow cruel and off-kilter.89

As in both Body Heat90 and If I Die Before I Wake,91 the law itself plays as
fringe a role in Mr. Groin’s operating philosophy as it does in the overall
plot of Fickle. Mr. Groin’s primary focus in dealing with l.g.fickel appears
to be that she take up little of his otherwise billable time, and his one
important scene occurs when he and l.g.fickel battle in his office as he
weeps drunkenly following the murder of his wealthiest client and likely
lover. In short, in its portrayal of Mr. Groin and the various cops that
pepper the plot, Fickle presents the law from a perspective that is
consciously stereotypical of the noir genre—law is a porous obstacle in the
path of the antihero protagonist’s plans, hovering ominously on the edge
of the action, possible to sidestep. Neo-noir appears to infuse the law with
a cynicism that is far less pronounced in original period noir, however.
Lawyers are more self-dealers than gamesmen, and the law itself is more a
readily manipulable tool than it is neutral.

CONCLUSION—THE UBIQUITY OF LAW IN CRIME FICTION

Over the two centuries through which writers have explored the crime
fiction genre, the law has been cast in multiple and diverse roles. As
depicted in the efforts of the police to detect and apprehend, law is a
plodding presence. Humble or pig-headed, cowed by class or brute in its
abuse of force, the law that fictional cops bring to the page is often lacking
as a measure of moral justice. As depicted in the actions and failings of
crime fiction lawyers, law is an arcane and overwrought system,
vulnerable to the machinations of the greedy, haughty, and overzealous,
even as it is fraught with traps and dead-ends for the naive crusader. As
depicted in fictional examinations of the criminal mind, the law is a
sleeping menace to be avoided in the pursuit of revenge, riches, or the
sating of psychotic yearnings.
Regardless of these contrasting perspectives on the law and the many
variants that may be catalogued from the subgenres of crime fiction, law’s
role in such fiction is not quite as mercurial or malleable as it may seem. At
the core of all crime fiction, law sits untouched. It is the measure of a

89 Id. at 54.
90 BODY HEAT (Warner Bros. 1981).
91 KING, supra note 51.
2017 Law and Noir 321

crime’s gravity, risk, and moral deviancy. Its attempted distortion by the
corrupt, inept or fanatical is not simply troubling in crime fiction—abuses
and uses of law are a central element of any work of crime fiction’s
exposition of its subject. In amateur detective fiction law is too staid, in
police procedurals it is reliable, and in legal dramas it is a complex
labyrinth, but in all three it is the measure of success as well as the goal of
character, author and reader. It is no surprise that in noir, with its focus on
the ambiguity of heroism, free will, and moral values, law plays a murkier
role. In noir, law is not the presumptive goal of character, author, or reader.
In noir, law is the measure of inevitability rather than of success, and the
fate of the story rather than its object. Law’s invisible presence, in all crime
fiction, represents nothing less than ultimacy.