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Friday, March 30, 2012

On teaching Criminal Law again . . . and getting stoked

It's probably not on par with finding one's long-lost "rad-ass hoodie" (warning:  This Onion News Network clip has some bad words), but pushing my way back into the rotation for teaching first-year Criminal Law next year has me stoked.  Although I don't write in the area, I have always found teaching the subject to students in their first year (at Notre Dame, their first semester) of law school incredibly rewarding and fun. 

Anyway, here's a bleg for Prawfs readers and bloggers:  I would welcome thoughts and suggestions for changing, or even re-working, the traditional first-year Criminal Law class, based on your experiences in recent years, involving new books, teaching cases, outside readings and materials, films and clips, subjects, etc.  (An example:  Because I have used Joshua Dressler's book, I've always spent a lot of time on necessity, on justification and excuse, etc., and current events certainly put these questions at center-stage.  Another:  I worry that I have not "done enough," in my class, to get students thinking about "criminology" and "criminal justice," as opposed to "criminal law."  What do you all do?)


Posted by Rick Garnett on March 30, 2012 at 11:51 AM in Criminal Law, Rick Garnett | Permalink


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As you know, I don't teach criminal law, but if you'd like to see my bibliography ('criminal law, punishment, and prisons...with Internet sites) for same (recently updated), I'd be happy to send it along.

Posted by: Patrick S. O'Donnell | Mar 30, 2012 1:42:58 PM

Patrick -- Sure, thanks!

Posted by: Rick Garnett | Mar 30, 2012 1:49:11 PM

I've sent it via a non-.edu e-mail account so let me know if you don't receive it.

Posted by: Patrick S. O'Donnell | Mar 30, 2012 2:11:04 PM

On that last question, I've always thought that depends on what you see as the point of the course. Is the point of the course to develop basic legal skills, or to understand philosophical arguments in law, or to understand the problem of crime -- or some mix of the three?

Posted by: Orin Kerr | Mar 30, 2012 2:59:53 PM

If you want to bring in more of a criminology/criminal justice perspective, you might have the students read the Pew Foundation's report "1 in 100," perhaps either at the start or the end of the class:
It's a few years old now, but the numbers haven't come down that much and it's a short/quick enough read that I think you could assign it without cutting into the doctrinal reading. It's usually what I point people to for a quick intro to "mass incarceration" as it gives a good overview without being too theoretical (which can be a problem with a lot of criminology/sociology).

Perhaps more ambitious/out-of-the-box, but two other ideas -

If it's logistically feasible, I'd recommend setting up a tour of a state prison, if there is one close enough (even if you make it optional) - especially since 1L Crim Law can get pretty abstract (as vs., say, Crim Pro), I think it is helpful for students to have a concrete reference point for what punishment actually looks like in their area. Of course, this is not always possible logistically and some prisons are better than others about how they run tours. But when I was recently a law student myself, I noticed that students seemed to be very interested whenever there were opportunities either through a course or student group to tour a prison.

Another idea, though I've never heard of anyone actually doing this, would be to have students go to the nearest county courthouse and sit in on the criminal docket, even for just a half hour... again, if there happens to be somewhere close enough. There can be such a big gap between theorizing about degrees of homicide, etc. and what the day-to-day operations of the criminal justice system actually look like in run-of-the-mill cases, and while a 1L Crim Law class isn't a criminology class per se, I think again it might be helpful for students to at least have some sense of that gap.

Posted by: Sara Mayeux | Mar 30, 2012 3:01:33 PM

As usual, Orin Kerr gets to the heart of the matter. What is the objective here?

In my view, the current state of the legal market should concentrate the mind. First and foremost, our students expect and need marketable skills. If we refuse to provide them, we ought to at least disclose that fact up front, and then see how many are willing to ante up tuition to fund our handsome salaries.

Most of our students will not practice criminal law, so they need little acquaintance with criminology or the philsophical issues underlying criminal law. Those with nonprofessional interests in these subjects can pursue them as undergraduates. Even students who enter criminal practice with have little need to concern themselves with these policy and philosophical issues, which are primarily the domain of elected officials and senior officials long out of law school, and who are likely to be more responsive to prevailing political currents than whatever they can remember from law school (if they even went to law school). But, we can impart important professional skills as part of a first-year criminal law course -- proficiency in statutory construction and the ability to understand the process of investigating and analyzing a tangle of evidence for its legal significance. For that reason, I am quite fond of Paul Robinson's casebook, which uses the problem method and focuses on issues of statutory construction. To my mind, Professor Robinson rather overstresses the little-used Model Penal Code, and accordingly I supplement it with the California Penal Code to give students familiarity with a more realistic statutory code. That said, I think that Professor Robinson's approach better equips our students to be lawyers, as opposed to criminologists, philosophers, or policymakers.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Mar 31, 2012 3:05:00 PM

We could all use a sip of Professor Rosenthal's tonic, but I think he (and Prof. Kerr) might be making more of the distinction between philosophy and criminal law skills than actually exists. The person that avoids philosophical thinking during an interrogation of the canons of statutory construction is likely to be limited as a result. Those canons come from a rich tradition of hermeneutics, a field embraced by philosophers and theologians (both of which are numerous at Notre Dame). A discussion of how best to mediate between two conflicting canons might be right at home in an introductory hermeneutics class. And I'd imagine that being comfortable in the role of Socratic gadfly would be a very handy skill when it comes to disagreements about the "tangle of evidence."

Perhaps Professor Rosenthal has in mind a more limited definition of philosophy, such as "the history of philosophers of crime and punishment." Along those lines, a discussion of, say, the differences between Kantian and Hegelian retributivism would be off the menu.

Regardless of one's views, it strikes me that it would be difficult to keep philosophy (broadly understood) out of the classroom, particularly at Notre Dame. To riff on Wittgenstein, it can be difficult to kick out the philosophical ladder while one is still standing on it.

Posted by: B.Sheppard | Mar 31, 2012 6:59:54 PM

Ya nice post. I really like this its very informative thanks for share it. Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey these laws. Criminal law is to be distinguished from civil law.

Posted by: Criminal Law Attorney | Apr 25, 2012 1:15:50 AM

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