Darryl Brown

What Can Kafka Tell Us About American Criminal Justice?

Texas Law Review

UVA Law Faculty Affiliations


In what follows, I briefly sketch many of the troubling practices and outcomes of American criminal justice that Burns persuasively analogizes to the world Kafka depicts in The Trial. I then identify some distinctions among forms and functions of bureaucracy. Those distinctions help to sort out some important differences between America’s and Kafka’s criminal justice institutions. Those differences, in turn, suggest different causes— bureaucratic and democratic—to the practices shared by our justice system and Joseph K.’s. One insight is that more bureaucracy, of the right sort, can be part of the solution rather than the problem.

For better or worse, all this does not lead far from Burns’s argument that widespread American exercises of deceitful, coercive, and excessively punitive exercises of state authority are fairly characterized as Kafkaesque. Rather, it reinforces a conclusion that Burns implies throughout his book even if he never states it bluntly: Kafkaesque criminal justice can endure over time and across national systems that differ greatly in their bureaucratic and democratic traditions.


Darryl K. Brown, What Can Kafka Tell Us About American Criminal Justice? (reviewing Robert P. Burns, Kafka’s Law: The Trial and American Criminal Justice) 93 Texas Law Review 487-503 (2014).

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