Confession is all the rage these days. During one recent week, The New York Times Magazine ran an “Endpaper” about the emotionally blighting effect of a man’s failure to admit an adolescent crime, expiated only by a deathbed confession to his children; The Wall Street Journal ran a front page story about Japanese police practices that end up eliciting false confessions from suspects; Court TV ran a trailer for a program showing police interrogation videotapes of confessing perpetrators; even the nearby subway stop featured a billboard that suggested passersby dial a telephone number—I think it was 1-900-CONFESS —to have their jaws drop at the ensuing revelations. It seemed only fitting that by the end of the week—right before the pledge drive—my local public radio station invited listeners to visit its website and view an execution by lethal injection: an offer of consequences after all this truth.

In his recent book, Troubling Confessions: Speaking Guilt in Law and Literature, Peter Brooks, Chester D. Tripp Professor of Humanities and Director of the Whitney Humanities Center at Yale University, takes this fascination one step further and concludes that confession—the personal revelation of otherwise hidden and frequently shameful facts about the self—is at the heart of the modern identity. Citing Foucault, he tells us that “the practice of confession creates the metaphors of innerness that it claims to explore: without the requirement of confession—one may overstate the issue —there might be nothing inward to examine.” In a “world of massification,” confession fulfills the function of assuring each of us that he is still “a unique individual with a unique story to tell.”

Professor Brooks traces this “confessional model” of society and self to the Fourth Lateran Council in 1215, which, at one and the same time, issued a profession of dogma, established an inquisition for the extirpation of heresy, and imposed the requirement of yearly auricular confession on the faithful. Since then, he argues, confession has occupied a central place in our culture, with its rituals of self-revelation, punishment, absolution, rehabilitation, and eventual reintegration into the community. Today, Professor Brooks observes, the confessional mode permeates every corner of life, from the popular media, literature, and psychiatry, to the law, where confession retains its ecclesiastical status as the “queen of proofs.”

Now this is all well and good, but it certainly gives Professor Brooks a lot of ground to cover in 171 pages of text, not including notes. His stated aim is nothing less than to consider the role of all these confessional practices in our culture, as well as our attitude toward them and—the citations to de Man, Lacan, and Foucault are the dead giveaway—the different kinds of truth we associate with them. To achieve this, he proposes “to cross-cut between confession according to law and confession according to literature,” not to mention “the religious tradition of confession,” in order to “illuminate the kind of cultural work we expect confession to do and whether we are, or should be, entirely comfortable with the results.”

In fact, what seems to interest Professor Brooks most is something that every cop on the beat knows firsthand: for reasons known only to themselves, people voluntarily confess to plenty of things they haven’t done. And, while under duress, people confess to plenty of things they have done as well as a lot of things they haven’t. The law deals with this untidy situation by setting a threshold requirement that a confession be voluntary—hopefully ensured by the “Miranda warnings” familiar to everyone who has ever seen a detective show —and assigning any further issue of truth to a jury of the defendant’s peers.

For Professor Brooks, this approach presents deep existential problems. He brings to bear on the legal opinions that embody it the mechanisms of literary criticism, the full weight of contemporary psychiatric theory, and a smattering of other disciplines. He wants to compare the law with everything from old Hitchcock movies and modern performance art to Rousseau’s Confessions and Dostoyevsky’s Crime and Punishment. He pronounces that law cannot be treated as an hermetic discipline sealed from outside influences—a position that no one has taken seriously since 1908 when Louis Brandeis first presented the Supreme Court with a brief full of sociological data and one that would come as news to all the economists and philosophers who currently populate our law school faculties.

Pace Professor Brooks, even though law is not wholly autonomous, it is a distinct discipline with its own methods and purposes. Above all, a legal opinion is not a work of the imagination. A judicial opinion is, in the end, a command—for example, go to jail—that operates in the real world of time and space. Its task is to grapple with the unruly world of events and fit them into available legal categories in a persuasive and legally predictable way, with all the compromises this entails. In effect, Professor Brooks’s argument is that literature and law are alike because they both deal with the human condition, a claim that is at once both obvious and empty. What results from such indiscriminate lumping is neither good legal analysis nor meaningful literary criticism.

Brooks’s reading of the Supreme Court opinion in Oregon v. Elstad nicely illustrates this problem of translation from one discipline to another. Briefly put, after being placed in police custody at his parents’ home, Michael Elstad offered that he had been at the scene of a burglary in which he was a suspect. Later, at police headquarters, Elstad received his Miranda warnings and made a full confession of his involvement. The Supreme Court had to decide whether that first unwarned, but uncoerced, statement tainted the later full confession and rendered it inadmissable as evidence at his trial. After a fair amount of soul-searching, the court eventually concluded that if there was a sufficient break between the two statements, the second could be treated as, in essence, a new and admissible confession even if the police had used information in Elstad’s first statement in the investigation that led to the second.

The court framed its reasoning in a series of painfully worn metaphors: After the defendant “let the cat out of the bag,” did “the dam finally break … as a result of the first leak?” If so, the ultimate confession was subject to suppression as the “tainted fruit of the poisonous tree.” And so on. Now, no one is going to claim that this is great art, or even anything beyond serviceable prose, hardly worth the attention of a famous literary critic. Recognizing the obvious, Professor Brooks explains that he pointed out this language not to “ridicule” the court, but to “suggest how the problem of what prompts a confession almost of necessity elicits a confused, imagistic language in which an everyday psychology traversed by legal dogma yields unconvincing and dubiously analytic pronouncements.”

Now, I could be cruel and suggest that the imagistic language of the court is a good deal less dubiously analytic than an everyday psychology traversed by deconstructionist dogma. But I won’t. Instead, I will point out that Brooks has missed some important constraints on legal discourse itself, which explain why, although law may look like ordinary literature, it is actually rather different. At the most obvious, judges must reach a decision, no matter the level of factual and legal ambiguity before them. This is a problem that artists and filmmakers don’t face. In addition, as first-year law students learn, Anglo-American judges and lawyers tend to reify all abstractions—ideas become things in an effort to craft clear rules. What is more, these reified concepts acquire public meaning by accretion, a little more with each case in which they are invoked. The “tainted fruit of the poisonous tree” may sound like “confusing imagistic language”; it is, in fact, a term of art that evokes very specific associations to anyone trained as a lawyer in this country.

As often as not, Professor Brooks misreads the distinct concerns of the law as well as its methods, something that is most evident when he begins to “cross-cut” from legal opinions dealing with criminal confessions to confessional art and literature in his search for confessional accuracy. As a technical legal matter, Miranda and its cousins involve a more narrow issue than truth: whether the defendant’s confession will be admissible as evidence at his trial. But more significantly, the primary focus of the court’s confessional jurisprudence—like its decisions about the exclusionary rule, which prevents the use of physical evidence illegally gathered by the government—is on a matter wholly apart from the veracity of the criminal or the reliability of the trial process. Instead, it centers on the conduct of the government official who elicited the confession. Fundamentally, the confession cases are about the boundaries of government behavior in a free society. Yet this driving force behind the court’s decisions seems to be of little or no interest to Professor Brooks.

In one very practical way, however, the Supreme Court’s decisions were of profound moment to Professor Brooks. The book bears all the indicia of authorial and editorial haste, including an unconscionable amount of repetition in so brief a text. The haste is presumably due to the fact that, as of last spring, when the book went to press, the Supreme Court was considering whether Congress had actually done away with the Miranda rule in a previously unnoticed provision of the 1968 Omnibus Crime Control Act. The court’s impending decision could have destroyed much of the book’s raison d’être, not to mention most of what Professor Brooks had written about the legal status of confession. As matters turned out, in June Justice Rehnquist held that Miranda was mandated by the Constitution and, therefore, could not be overturned by Congress—in the process, saving Professor Brooks’s authorial hide.

So, in the end, where does all this post-modern handwringing get us? Well, Professor Brooks repeatedly concludes his analyses of the difficulties presented by the legal use of confessions with the admonition that society should recognize that “this is a confession, handle with care.” All I can say is that if this is what postmodern multi-disciplinary studies have to bring to legal analysis, it’s a long road to an awfully small house.