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Tuesday, February 03, 2009

What Are We Supposed to Be Doing Here?: On the Tension between Theory and Practice

Not to name drop, but I was having dinner last week with a fairly famous law professor closely associated with the Law and Society movement.  [Name withheld only because I haven't asked his permission to blog this.] We were discussing teaching criminal law and he said that he tried it once and couldn't bear it because he didn't feel like what was taught in criminal law bore any relationship to reality.  The casebook he used (and that I use) focuses on homicide and rape, not the far more common property and drug crimes with which criminal courts generally deal.  Also, although the book has an extensive section on the workings of the criminal justice system, it generally presents the substantive law through reported appellate cases, as nearly every other law school casebook does.

But this professor's greatest criticism of the book's had to do with its focus on the Model Penal Code.  "That's not the law anywhere," he complained.  "It's just an analytic exercise."  What was interesting to me is that this is exactly the same criticism that my students, not generally immersed in the Law and Society tradition, make against the book.  Many of them want to practice criminal law in this state and expect our class to focus on what Colorado's laws provide rather than on the MPC's attempt to systematize and rationalize the common law.

So I guess my question is, what is our obligation to familiarize our students with the realities they will encounter when they hit the real world?  How much should we teach them about the law of a particular jurisdiction (or even what the majority rule is nationwide) and how much should we encourage them to think expansively about what the law ought to be?  The Carnegie study of legal education indicated that law schools do a poor job of giving our students the practical skills they will need to practice.  But how much is that our responsibility?  Shouldn't we be teaching our students analytic rigor and expecting their future employers to help them find the courthouse?  Or do we dis-serve our students by teaching them the MPC's approach to attempt law, but not how to negotiate a plea agreement?

Posted by Sam Kamin on February 3, 2009 at 05:15 PM in Criminal Law | Permalink


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The question of to MPC or not to MPC really leads to the larger issue of legal education generally. There seems to be general agreement that students graduate without knowing how to be an attorney, and that seems to be okay. My thoughts:

In regards to what is owed the student, do professors see themselves as teachers or lawyers? Before I went to law school, I saw law professors as academics, but after law school I see them as attorneys. The law university is a Big Law firm to me, serving clients whom they charge upwards of $1,400 a credit hour. So the question is which professional norms apply? Lawyer-client, teacher-student, lawyer-profession, teacher-profession, what?

Further, don’t law schools as institutions have obligations to (1) “the legal profession” and (2) the “public” that the profession allegedly serves? Are not the profession and the public best served when law students are given a fair shake? And if not, would it not be in the interest of honesty and good conscience to let prospective students know that when they graduate they will have little marketable skill, and unless they do very well and/or go to a prestigious school they are best served by not becoming lawyers?

As a recent graduate from Suffolk Law, a regional school, I am one who is stuck in that odd limbo of not being hirable by large law firms because of class rank and school prestige and untouchable by smaller firms because, surprise, I know nothing of being an attorney, and have no experience. Fantastic. Thank you so much for the non-dischargeable debt. If this is the situation you put people in who are trying to join your profession, I can’t imagine what you do on weekends to strangers. My guess is I’ll hang a shingle and take my learning curve out on the poor.

Between the post, the comments, and my own experience, I can only conclude that law schools, and their professors are a part of a system that takes advantage of people for a lot of money knowing full well they are not giving their clients, students, or customers the “benefit of the bargain”. I went to law school to become a lawyer. I paid 112k directly to a group of attorneys to be trained as a lawyer. I am not a lawyer. Great system.

Posted by: George | Feb 5, 2009 6:11:27 PM

Jason Solomon is a more generous person than I am. He gives Sam Kamin credit for being genuine and earnest. I don't. At least not here. In fact, I can't read Kamin's first two sentences as anything other than coy self-inflation. None of this is of much moment, of course, so there's no need to belabor the point. I'm sure Sam Kamin is a nice guy. But would the substance of this converation be any different if Kamin just asked about the MPC directly, leaving out the details of his (apparently robust) social calendar? If not, should we run all of these blog-versations through "famous" professors before we start them?

Posted by: anon in la | Feb 5, 2009 12:37:35 PM

The only place I've ever encountered the MPC in the "real world" was as a federal law clerk. It sometimes is employed under the "categorical approach" to figure out whether some state offense qualifies as "generic" burglary, arson, etc. This is the main issue in federal criminal appeals depressingly often, as whether someone is an armed career criminal, committed a crime of violence, etc, is relevant to multiple penalty-enhancing provisions in both the USC and the Guidelines.
Also, Prof. Rosenthal's comment made me realize how legally class-based (so to speak) criminal law is. Almost no one who goes to a top 10 law school will become a state prosecutor or the kind of small firm/solo practicioner who takes on a lot of drug/violent crime defense work. I'm sure Harvard is well represented among SDNY AUSAs and folks at Main Justice, while some on the other side of the spectrum will end up at the DC Public Defender's Office for a couple of years. But by and large, I'd guess the criminal justice system is run by those who went to "local" law schools and will probably practice in the state of their JD.

Posted by: Jay | Feb 4, 2009 6:41:38 PM

I'll also add that the focus on 1L crimlaw is a little unfortunate. At my ("national") law school, the students interested in actually practicing criminal law almost invariably took upper-level courses relating to federal criminal law. In other words, at (some?) top schools, students do get instruction in the substantive law of the relevant jurisdiction since they almost exclusively went on to be AUSA's, Federal Public Defenders, or white-collar criminal defense attorneys.

The mid-tier of schools that mostly place students locally, but don't offer to teach local law, would seem to disserve their students relative to both the upper- and lower-tier law schools. (Or at least that's what Clarence Darrow, who happens to be looking over my shoulder, suggests.)

Posted by: JP | Feb 4, 2009 3:27:40 PM

OK, I'm generally all for poking fun, but Kamin wasn't trying to be coy -- just to make the important point that a prominent legal academic thinks the way most of us teach crim law is totally useless. Which might give us pause, and has. So thanks for the interesting post.

On the merits, first, I don't teach crim law, but my understanding is that Paul Robinson's casebook uses some version of the problem method, to address some of the concerns that Prominent Legal Academic and Larry Rosenthal have. Second, consistent with some other comments, I think the theory-practice debate often takes place at unhelpful levels of generality, with false choices, etc.

So here's a concrete example: our students ought to, probably by the end of the first year, be able to make strong arguments, orally and in writing, on both sides of a moderately difficult legal issue that might come before a state appellate court.

But the heavy reliance on the case method, and discussions/testing about "black-letter" law generally but not in a particular jurisdiction with statutes, binding precedent, etc, leaves them largely unable to do this. The only time they're really asked to do this is in their LRW brief, if then; that's not enough. Would love to be convinced I'm wrong.

Posted by: Jason Solomon | Feb 4, 2009 3:19:41 PM

I think Ariella is right, and the issue has a lot to do with signalling. The top schools aren't going to teach local criminal law, because it is impractical--students not going into Biglaw will spread across the country.

Other law schools (students, faculty, and/or administration) have delusions or aspirations of being "national," and accordingly emulate the schools with real nationwide placement.

Posted by: JP | Feb 4, 2009 3:07:21 PM

A law professor could very easily assign pertinent law review articles as additional reading.

Posted by: Jack Krevins | Feb 4, 2009 2:54:36 PM

I think there's a practical reason the MPC is taught: because it's there - Crim Law case books use it, rather than the Crim law statutes of a particular state.

Why? So the case book will sell to law profs in other states. If I published a case book using, for example, Rhode Island crim statutes, it wouldn't sell in most other states.

Posted by: w pepper | Feb 4, 2009 12:20:54 PM

I've always thought that schools that generally cater to their particular state should teach the actual practice of that state. So, if you're teaching in a school that doesn't routinely place a high percentage of its students at Big Law offices, then you're doing the students a disservice by not teaching them the local rules and local laws. They're simply not prepared when they go to work at regional law offices because they haven't been taught anything but "fake" law.

As another commenter stated above, Big Law offices have the resources and desire to teach their new hires how they prefer to practice law. But regional firms want their new hires to know something about the local practice and local laws. When their new hires don't know anything except the Restatement and the MPC, for example, it puts more stress on the regional firms to teach their new hires the basic fundamentals of practice. It also makes it more difficult for new graduates of "local" law schools to find a job because of the regional firms' desire to have an associate that's somewhat conversant in the local laws.

That being said, I think the reason that law schools continue to teach the Restatements and MPC is because they don't want to "admit" to being "just" a school that serves a certain region. I went to a Tier 2 school and felt that I would have been served much better by a practical education, but the school was always striving obsessively to make it into Tier 1 and so refused to change its curriculum to reflect the actual needs of its students.

Posted by: Ariella | Feb 4, 2009 12:02:19 PM

I am amazed to learn, Orin, that Hand was more vocal than Moses in this conversation. After all, Moses got to carry around the very first draft of the MPC (though, according to Mel Brooks, he dropped a big part of it).

In any event, when I was having coffee recently with Roger Clemens, Plaxico Buress and Michael Phelps, I was pleasantly surprised by how interested they all were in the MPC's definition of "knowingly."

While we were talking, Ted Stevens came over and asked who else was planning to visit Michael Vick once he was transferred to a halfway house. I used the question as an excuse to launch into a long lecture about how the MPC's sentencing provisions are being revised by the ALI. Everyone seems to find the lecture very pertinent, but nobody offered to buy me a second cup of coffee.

Posted by: Doug B. | Feb 4, 2009 7:01:48 AM

I was having dinner last week with Chief Justice Roberts, Learned Hand, and Moses, and the four of us agreed that studying the MPC is excellent training for a career in criminal law. Indeed, Learned Hand was particularly exercised about it -- he kept saying that Herb Wechsler had made him serve on the MPC advisory committee because it was so impossible to teach the common law of criminal law. I thought that was a fair point: I have a bunch of pre-MPC criminal law casebooks, and it is quite hard to understand the law from them given the absence of a common statutory basis.

Posted by: Orin Kerr | Feb 4, 2009 1:18:36 AM

So what's sillier: name-dropping or coy non-name-dropping? I'm not sure, but you sure are clever, Sam Kamin! You've got us all wondering who you get to break bread with. Neat-o!

Posted by: anon | Feb 3, 2009 11:31:58 PM

For the very little my two cents are worth on this issue, I agree with Prof. Rosenthal that "[b]eing able to talk about what the law 'ought to be' ... turns out not to be an especially marketable skill." Every person you walk past on the street has an opinion on what the law ought to be, and most of their theories turn out to be only marginally more or less sensible than the fruits of elaborate theories cooked up by the professionals. (Prof. Graglia once quoted Orwell on the point: "'there are some ideas so wrong that only a very intelligent person could believe in them.'' 31 Harv. J. of L&PP at 73.) People don't spend a stupendous amount of money to send their children to law school, it seems to me, in order that they might learn slightly more sophisticated language in which to describe their mundane, idiosyncratic ideas of natural justice.

Posted by: Simon | Feb 3, 2009 10:56:47 PM

Marcia writes: "So few people are going to go on to practice criminal law . . . ." Hmmm. Who do you suppose prosecutes and defends those millions of people who cycle through the criminal justice system each year? Her other claim is that the MPC is a good tool for teaching statutory construction. This one makes me wonder how many statutes she has read. The MPC was drafted by law professors -- and it shows. In the real world, criminal and other statutory codes are drafted by politicians -- and it shows.

Perhaps most important, in a curriculum that concerns itself with skills as well as theory, the "transcendent value" of teaching criminal law is that it provides an opportunity to expose students to the problem method. Criminal law gives students an opportunity to examine real-world events and determine how they might give rise to a prosecution -- and how that prosecution might be defended. These are the marketable skills that students will need in practice. I never had a client offer to pay me to analyze an appellate opinion, or tell the client what the law "ought to be." Clients have problems on which they need legal advice, and criminal law provides an excellent opportunity to expose students to the problem method early in their career. The problem method, in turn, is far more likely to develop marketable skills than the traditional case method approach to teaching law.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Feb 3, 2009 10:05:46 PM

So few people are going to go on to practice criminal law, and many law students won't necessarily practice in the jurisdiction where they go to school, so teaching the content of Criminal Law has limited usefulness. Criminal Law works fantastically as a class in statutory interpretation, as Donald suggests, and that's its transcendent value. Everyone will be reading statutes for the rest of their career. The MPC and the common law are simply two models that the states may choose their laws from and alter for their purposes. So my students learn about the primary doctrines of both. They don't complain that they're not learning "the law" because there's no such thing that's true for the whole country. And in terms of the MPC versus common law, some jurisdictions may be solely common law, but many jurisdictions have adopted pieces of the MPC even if they haven't adopted the whole thing. My state has adopted quite a bit of the MPC, in fact.

Posted by: Marcia | Feb 3, 2009 9:23:34 PM

As a criminal defense attorney, I have to admit that I'm baffled as to why the MPC is taught, unless it's simply as a lesson in statutory construction.

First year criminal law should focus heavily on the common law. But why, then, address the MPC's approach to codifying/rationalizing the common law? It simply hasn't been widely adopted. It's like satisfying an undergraduate language requirement by studying Esperanza. Interesting knowledge to have, but not terribly useful. Instead of comparing the MPC to the common law, couldn't you import the relevant Colorado statutes into your classroom discussions? You'd still get students to critically analyze a statute (and its common law roots), and it'd be useful for those who remain inside the state to practice.

Teaching the MPC is not the same as teaching the UCC in Contracts (or Sales or Secured Transactions). The UCC has been much more widely adopted than the MPC; have you ever heard anyone discuss an MPC provision outside of a classroom?

Professor Rosenthal is right: there doesn't have to be a choice between theory and practical skills. But your students are unrealistic to expect their first-year course to teach them "how to negotiate a plea agreement." Litigation is necessarily comprised of a substantive component and a procedural component. I think law students understand that on the civil side, as substance (torts, contracts, property, etc.) and procedure (CivPro) are taught side-by-side first year. Most law school curriculums, though, only teach substantive CrimLaw first year, leaving CrimPro as second- and third-year electives. That's where students are going to--or at least should be able to--learn how to find the courthouse and what a motion to suppress is.

And hopefully your students are doing something professionally useful with their summers....

Posted by: Donald | Feb 3, 2009 8:42:52 PM

Professor Kamin's post assumes a dichtomy between "analytical rigor" and practical skills that I reject. Analytical rigor is required of lawyers who practice at the highest level, but that does not mean that law school should reject skills training. After all, law school is preprofessional education -- students spend all that time and money in order to obtain a marketable skill. Being able to talk about what the law "ought to be," or to navigate the Model Penal Code, turns out not to be an especially marketable skill, even though "analytical rigor" is, at least when accompanied by the other skills required to succeed in practice.

The failure to focus on skills training has had little effect to date on elite law firms. They often prefer to do their own skills training. For public interest and government law firms on tight budgets, however, this approach has been a disaster. These firms lack the resources to train new lawyers -- who too often know little of the skills needed to survive in practice. As the economy deteriorates, the failure of most law schools to prepare their graduates for practice will, however, likely have ramifications throughout the legal profession, as the resources available to train new lawyers shrink everywhere. Perhaps the pendulum is about to swing.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Feb 3, 2009 5:56:19 PM

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