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Wednesday, July 24, 2013

Things you ought to know if you're about to teach criminal law

I realized a few weeks ago that people may have forgotten about our pedagogical series, Things you ought to know if you teach X. Of course, I'm only now reminding you, and I hope it will be helpful for the group of rising professors among our readership, or for those undertaking new preps.

Oddly, we didn't have a criminal law version of this post, so I informally took a stab at drafting one for Facebook, and here's what I've got. I've appended some of the comments from fellow prawfs (without attribution) in the event that a few extra perspectives are helpful.

Dear Crim prof friends:
A friend who's a rising crim prof wants to know what she should know as she enters the legal academy and begins teaching crim/crim pro. Here's an opinionated stab at what I wrote her, but let me know what else you'd add in terms of conferences, resources, opinions about casebooks, etc.

So, for crim law's basic class, I'd highly recommend using the Dressler casebook. If you want to make casebook costs very cheap for your students I'd use the 5th edition. In the chapters I teach, there's basically no difference b/w the 5th and 6th edition, and that would make the cost go down substantially. That said, at the very least there will be a secondary market for the used 6th edition this fall so if that's enough, you could do that. With apologies to friends who have their own casebooks, I'll just say that I've never had a complaint about the Dressler casebook in teaching this casebook over ten times. Also, there's a very good teacher's manual, Dressler has a good hornbook, and there are lots of folks who can give you their notes/outlines,etc. Also, Joshua and Steve are very good about servicing the casebook meaning that they respond to emails quickly.

For crim pro, I teach only bail to jail and I used Marc Miller and Ron Wright's excellent book, Criminal Procedures, most of my career. Last year I experimented with the Allen/Stuntz casebook and I found it unsatisfying for reasons that it is a) too Supreme Court focused,  b) too federal focused and c) here, i'll get in trouble, but I found it too Stuntzian in the embrace of perversity and fantasy in the interpretation of criminal procedure. (Yes, Bill was a prince of a guy, teacher and colleague; still, the work has largely been over-valued imho--sorry, friends). That said, it is probably easier to teach/test material from that casebook than the Miller and Wright one. Both have very good teacher's manuals and support from the casebook authors. Your choice on this matter should probably turn on whether you're interested in crim pro II as an extension of con law stuff, or whether you're interested in, you know, criminal procedure in all its legal and policy diversity. There are important and interesting reviews of these casebooks back in the day by Bob Weisberg and Stephanos Bibas.

Regarding intellectual networks: if you're interested in crim law theory, I co-run a colloquium up in nyc (usually at nyu) that meets once a month or so during the academic year and I can put you on that list. If you're interested in presenting crim-related papers, there's a shadow conference at Law and Society that Carissa Hessick and I run. There also used to be a junior crimprof workshop that met once a month. I'm not sure if that's still up and running.

There's a crimprof listserv: I think the way to get on it is by emailing Steve Sowle at Chi-Kent. 

There's a crimprof blog you might want to bookmark:

And Doug Berman's sentencing law blog is indispensable too:

For reading generally, you might want to make sure you get the Ohio State Journal of Criminal Law, which is excellent, and consider perusing some other "specialty" peer-edited journals, such as the New Criminal law review, Punishment and Society, and Criminal Law and Philosophy.

From the FB thread: some people chimed in to say they agreed on Dressler, and liked Dressler's crim pro book with Thomas; others liked Paul Robinson's crim law casebook b/c of its emphasis on statutory interpretation; some liked Chemerinsky and Levinson for criminal procedure (my recollection is that this would be a heavily doctrinal scotus kind of book); and some liked Kadish/Schulhofer et al or Kaplan Weisberg for crim. I had heard complaints before about Kadish/Schulhofer as too dense but the revised editions seem quite good. The best advice is to order them all and see what fits your teaching priorities. The next tidbit: be leery of over-assigning. I only assign 20 pages or so per 80 minutes class.  Better to do what you can well rather than over-reach and be scattered. Keep in mind that criminal law is a class that students have lots of priors about and so you want to make sure you can exploit that level of interest by having rich discussions rather than racing through the material. Of course, YMMV.

Please feel free to use the comments for signed and substantive contributions, especially with respect to criminal procedure (cops and robbers), which I've not taught and which might have other networks and nodes of which I'm scarcely aware.


Posted by Dan Markel on July 24, 2013 at 12:12 PM in Criminal Law, Dan Markel, Teaching Law, Things You Oughta Know if You Teach X | Permalink


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If you use powerpoint slides or want to use images/video clips for your classes, the Crimprof Multipedia website is a goldmine of useful information. (http://jackson.law.ou.edu/criminal/default.aspx). It is run by professors Stephen Henderson and Joseph Thai and provides numerous humorous, powerful, and thought provoking clips to spur classroom discussion.

Posted by: Andrew Ferguson | Jul 25, 2013 10:35:49 AM

I tend to think that the American criminal law curriculum is way too focused on the general part and way too little focused on actual crimes, and so overrates some high-falutin' philosophical issues to do with agency and responsibility. My sense, from a review of casebooks prior to choosing Dressler, was that there are only three crimes dealt with in detail: homicide, rape, and theft. The major question then is: how do you want to deal with these three crimes, the general part (emphasize statutes, or emphasize conceptual problems with the doctrine), and what bells and whistles do you want to add on once you've done that?

The failure to provide a detailed investigation of the range of crimes against property and crimes against the person is a unique failing of the American legal curriculum, one that is not replicated in the other Anglo-American jurisdictions. I know there are cultural/political reasons for this: one interesting discussion is prompted by Anders Walker's article in the Ohio State J. Crim. L. http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Walker-FinalPDF.pdf. Nonetheless, there are a whole host of interesting issues with actual crimes that the focus on the general part just misses, and it misrepresents the focus of the criminal law as on a mixture of serious physical or sexual injury and 19th century worries about possession. Accordingly, were I to teach criminal law again (I'm not teaching it for the foreseeable future) I'd very much consider switching to Stuntz and Hoffmann's Defining Crimes. Alternatively, one might want to supplement the book with (lots of) state case law. Again, there is a useful article in the Ohio State J. Crim. L., this time by my other former colleague, Chad Flanders. http://moritzlaw.osu.edu/osjcl/Articles/Volume8_1/Flanders.pdf. Both Flanders and Walker are excellent and innovative classroom teachers, and Walker won teacher of the year at Saint Louis University three times (so far). And both, I believe, primarily use Dressler, but supplement in various ways.

Posted by: Eric Miller | Jul 26, 2013 10:46:48 AM

I'm not a Professor, but I did just graduate from law school so hopefully my perspective will be somewhat helpful. My Criminal Procedure class (cops and robbers version as you described it) used Saltzburg's casebook. I liked it in some ways, but the number of note cases was flat out overwhelming. Sometimes the Professors would mention one of those cases but generally not, but, as a student, there's always a fear he will. For a new professor who uses that book, I would suggest giving some guidance about how you plan to treat those cases (I was reminded of this when reading Stephanos Bibas's review of those casebooks you mentioned that Satlzburg and Capra's book has 416 cases).

I think there is merit to taking a real world look at the law as it functions, especially for a Crim Pro II/Advanced Crim Pro course. However, I do think most people take Crim Pro I for the nuts and bolts black letter law, not for a discussion of the Criminal Justice system. Really, I tend to think that Law School has three functions: Teach the black letter law, prepare you to be an attorney (learning about the real world is part of this, along with the cliched "teaching you how to 'think'" argument), and advancing the intellectual jurisprudential debate about the law (today's law students are tomorrow's Judges, so there's merits to this head in the clouds stuff).

On that last point, I would suggest any Crim Pro professor truly engage the philosophy of the Exclusionary rule. Much of the justification for the rule is forgotten because the narrative starts with Mapp (which doesn't justify the rule as a matter of first principles) and then follows along as it gets eroded with Leon, etc. One way might be to start with Boyd, Weeks, etc. and actually tracing its history up to Mapp. This might take away valuable time that could be better spent, though. Force-feeding scholarly works on this subject, tracing the history, might work. I am a big fan of Sina Kian's "The Path of the Constitution: The Original System of Remedies, How it Changed, and How the Court Responded," but I also know Roger Roots's "The Originalist Case for the Fourth Amendment Exclusionary Rule" makes, well, an originalist argument for the Exclusionary Rule. Of course, turnabout's fair play, so scholarly criticism of the rule (perhaps Akhil Amar) would be valuable.

Anyway, those are my thoughts from the prospective of a recent graduate. Perhaps more curious of a graduate than many who just spend three years dealing with this, but I hope any incoming Professor would find this information valuable.

Posted by: Erik | Jul 26, 2013 9:07:09 PM

Please permit me to echo Eric Miller's praise for Chad Flanders' article. I have found pretty much every word in it to be quite accurate. I can only add that in addition to familiarizing students with statutes, a course in criminal law provides an ideal opportunity to introduce students to the problem method, which exposes them to a variety of skills that lawyers must employ in practice, and that are not captured by the case method. For that reason, I have used Paul Robinson's casebook, which focuses on the problem method, and I have supplemented it with the California Penal Code and California cases interpreting that code.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 27, 2013 12:12:16 PM

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