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Wednesday, November 30, 2011

The Common Law Method and the Criminal Law

Does it make any sense to say that studying the common law and learning how to synthesize many discrete cases is an "outdated" way to understand how to "solv[e] problems" in criminal law?  In my last post (thanks Dan and Prawfs), I want to argue that it makes no sense.  Yes, much of criminal law has now been codified.  So what?  That only means that there will be ample opportunity for particularistic interpretation, revision, and even return to older, putatively outdated, ways of thinking about the law.

Take depraved indifference murder in my own home state, New York, NYPL 125.25(2).  I've written here before about the rich doctrinal history of New York's experience with this common law offense (at common law, depraved heart murder was a killing in which malice aforethought was implied).  I believe depraved indifference gives students a wonderful sense of how the common law can continue to influence and inform the development of doctrine.  Nothing outdated about it.

In the 1970s, in People v. Register, New York adopted an approach which tried to make DI purely about the "objective" degree of risk.  As I noted in one of those earlier posts, the idea was to try to distinguish between a "substantial risk" and a "grave" or "transcendent" risk.  That approach was reaffirmed in one case from the 2000s, P. v. Sanchez, but overturned in another series of cases in  (P. v. Suarez, P. v. Payne, P. v. Feingold), returning the law to a "subjective" "mens rea" inquiry.  There has been a deliberate re-adoption of words like "heinousness," "barbarity," and "atrocity" -- words which prevailed in the pre-1970s New York understanding of depraved indifference murder.  The difficulty, as always, is in pinning down the meaning of these words. 
New York seems to have 2 categories of depraved indifference murder now: (1) where without the intent to kill, D "shoots into a crowd or otherwise endangers innocent bystanders."  This is the more conventional category which will be familiar to most criminal law teachers; or (2) where without the intent to kill, D directs his acts to one specific victim in an uncommonly brutal or barbaric fashion. 
The second category is, for me, the more interesting.  But how to get across to students the quality of mens rea involved?  To do this, I believe that the best approach is something very much like what Jonathan Dancy describes as seeing the "moral shape" of the crime.  And the only way to do that is to get very particular.  We go through the facts of some of the New York cases where the second leg of depraved indifference has been held to apply.  Among these are P. v. Poplis (the beating of a three year old over a long span, without intent to kill); P. v. Bryce (the fracturing of the skull of a seven-week-old baby by dropping him from a height after having shaken him, without intent to kill); P. v. Best (repeated and sustained beatings of a nine year old child creating open wounds through which bacteria enter, giving the child blood poisoning, child vomits repeatedly, becomes so sick he cannot vomit, dies of asphyxiation, without intent to kill); P. v. Mills (check it out for yourselves, folks, and try to see and sense the moral shape of the offense).  
I enjoy these cases because of the ineffable common law quality of the depraved heart.  Its defining feature seems to be its elusively and highly particularized nature (I should say also that Ken Simons's article on culpable indifference tries to make theoretical sense of what I consider to be a lovely tangle -- it's a superb piece, as is all of Ken's writing).  I want to see the horror in the eyes of students when they describe these cases, and then I want them to explain their intuitions.  

Obviously not all criminal law doctrine is like the depraved heart.  Some is much more straightforward and simple.  Even for that comparatively easy material, it'd be useful to read a few cases, and I hope the point of this post is not the fatuous and uninteresting observation that students need to study cases to know what the law is. 

It's that (1) sometimes the criminal law can take an unexpected turn toward an older, common law method of doing things.  A settled rule that seemed to have updated an older doctrine is itself updated, and in such a way that we wander backward to antecedent legal time; and (2) when that happens (but not only then), a lawyer needs to be able to see the moral shape of the offense, already to have traveled a little on the wandering, mazy, rolling common law road, not for any silly nostalgic reason, but for the very practical reason that that's how the lawyer will be able to persuade fellow travelers to see the case as he or she does, to argue from particulars about what is or ought to be (again, channelling Dancy) legally "salient."  And in order to do that -- to "solve problems" in an altogether contemporary way -- a lawyer, and certainly a criminal lawyer, benefits from extensive training in the common law method.

Posted by Marc DeGirolami on November 30, 2011 at 08:12 AM | Permalink


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That's a shame, Scott.

It was you, not I, who raised the issue of legal scholarship. As you have admitted, my post had nothing at all to do with legal scholarship. It had to do with legal education. It's therefore strange, indeed, for you to claim that you have been "suckered" into anything. This is what you wanted to talk about and I've tried to engage in good faith with your own chosen topic.

But it's doubly strange, and doubly a shame, because it seemed to me that the issues you wanted to discuss about legal scholarship dealt with its usefulness and relevance. And yet when pressed about what you mean by usefulness and relevance, you offer a standard which seems to demand that law professors get involved in live litigation, either by representing parties or filing amicus briefs, and you take me to task for not having done so myself. When I then ask you why those should be the criteria by which we measure scholarly relevance, and offer you examples of scholars who have written relevant and useful scholarship in a context outside of participating as advocates in a current, live case or filing amicus briefs in those cases, you reply that your standard for utility and relevance should be self-evident.

But it isn't self-evident. The standards for scholarly usefulness and relevance are contestable; they are not resolved by fiat. You have not explained or defended your standard. And I'm sorry too.

Posted by: Marc DeGirolami | Nov 30, 2011 4:28:26 PM

I don't see what's the big deal with Heidegen. The Appeals Court found that the jury could reasonably have concluded that the defendant knew he was driving the wrong way. If so, it matches perfectly with the classic DIRM situation of riding a horse into a crowd. Even if you think the jury, the trial court and the appeals court all got that issue wrong, it is a highly fact specific question and thus not terribly interesting to the development of the law.

Furthermore, it is very weird to see someone being chastised for *not* attempting to help a killer get out of jail. First do no harm and all that.

Posted by: brad | Nov 30, 2011 4:27:16 PM

You have the ability to write something useful. You have the forum available to you. You have the issue you choose to discuss. You have the desire to use it to criticize Segal. And then...then...then...you do nothing with it.

And you say you don't understand. I can explain it to you, but I can't understand it for you. Sorry.

Posted by: shg | Nov 30, 2011 1:16:55 PM

Thanks, Scott, but I really don't understand. Why are the cases that I raise in my post safe and irrelevant? They might be revisited. They might form the basis of changes in the law. Is it because they are not happening now? But there are many important and interesting issues in the law -- issues worth talking, studying, and thinking about -- which are not happening right now. Also, why is your understanding of the test of usefulness dependent upon affecting real people, right now? That's one kind of utility, I guess. But much legal scholarship that has been deeply influential and otherwise important has nothing to do with what is happening right now. It is not necessary, nor has it ever been necessary, for law professors to get in the game of litigation. Some law professors do this, but do you really believe that only those law professors who represent actual people in court are doing useful or meaningful work?

Here's an example from another field that I work in, religious liberty. Douglas Laycock and Michael McConnell, two of the preeminent scholars of religious liberty, have represented clients in important cases. As much as I respect their considerable abilities and efforts as advocates and brief writers, I do not believe that the most lasting, "relevant," or "useful" contributions that these men have made *as legal scholars* derives from those representations. It derives from their writing -- writing which has not helped anybody to win a case in the here and now. Is there space in your vision for legal academia for that kind of contribution?

Posted by: Marc DeGirolami | Nov 30, 2011 12:22:48 PM

Dear Marc,

While I'm generally disinclined to get suckered into a discussion that takes my point in a different direction than I intended, I'm honestly not sure if you are as naive as your last comment suggests. Criminal defense lawyers (and even some prosecutors) deal with real people with real problem facing real consequences. Addressing these real things is what makes scholarship useful.

The Heidegen (and Valencia, etc.) line of cases was a huge depraved indifference issue of monumental real life significance right in your backyard. You implicitly complain about the Segal article's questioning teaching of the common law, and use depraved indifference as your example. Great! Now make it pay off by relating it to something real and smack Segal in the kisser. Instead, you take the safe, and irrelevant, route.

Better still, given your doctrinal concerns, faith in teaching common law and scholarly zeal to be relevant, why didn't you write an amicus brief on these cases, where you could have put your brilliance to good use by actually impacting the outcome in a real case. You might have made a difference. You could have tried. You could have been relevant rather than claimed relevance. Yet you didn't. In fact, no lawprof did.

Practicing criminal defense lawyers submitted amicus briefs, because we recognize that this is a hugely important issue. We don't argue about our relevance. We just do what needs to be done to improve the state of the law. What we lack in genius, we make up for in taking action when real life demands it.

Why not you? Get in the game. Use your scholarship for good. Make your existence matter. Or else stop complaining when someone says you serve no useful purpose, and concede the point.

Posted by: shg | Nov 30, 2011 12:00:11 PM

Dear Scott (if I may),

Since I take it from your comment that you did not intend to be hostile, please call me Marc, which is decidedly less hostile-sounding than the technically accurate but somewhat dehumanizing "New York lawprof."

I was pleased by your latest comment because I was concerned that I had somehow misstated or misread the New York case law on depraved indifference murder. I now feel more confident in my understanding, but I should add that I welcome correction and assistance by New York practicing attorneys like you who are familiar with this doctrine, recognizing that they have their fingers on the pulse of this body of law, while I am processing it from afar.

It also seems to me that we have reached rough agreement about the importance of the common law method for legal education. There are many different strands in the complaint against the way in which legal education is pursued and administered, and my post had to do with one fairly discrete strand of that complaint -- that the common law method was outdated for people interested in studying and learning about criminal law.

I also now understand from your second comment that you want to take on a different strand of the complaint -- that legal scholarship is not useful, and perhaps also that this criticism applies to my own scholarship.

On this distinct question, I think we can find at least some surface agreement, but then I think there may be differences. Where we can find agreement is that I, too, think that legal scholarship should be "useful." The differences quickly pop up, I think, when the question is asked what makes a piece of scholarship useful. It might well be the case that a piece of writing on, say, the Heidegen case would be "useful." Heidegen, I think we also agree, is controversial inasmuch as it extended DI murder to a new sort of factual scenario. But I'm sure you would agree that not every case which extends a doctrine in a controversial way is "useful" to write about or even to study. Sometimes it might be, but sometimes not. If you can explain to me why Heidegen is important enough that it can ground an extensive scholarly effort, then I'm all ears.

One last thought: it may well be that none of my own scholarship will be useful. It might all be totally useless. I hope it is not, but there is no way for me to predict which sorts of concerns will last and which will die, or to whom my ideas might seem useful in the future, if anyone. I have to use my best judgment about the sorts of concerns that are meaningful, and my judgment may well go wrong. This makes usefulness an extremely uncertain criterion as a guide to plotting one's scholarly projects. I'm new at this business, but that's how it seems to me so far.

Thanks for the engagement. Marc

Posted by: Marc DeGirolami | Nov 30, 2011 11:15:42 AM

My question had nothing directly to do with your post. My bet is that you're smart enough to understand why I posted the comment. You choose instead to see the question as hostile. I also bet that other lawprofs who read it will agree that it's hostile (to scholars, though not so much to practicing lawyers), but similarly understand my purpose, particularly given the complaints about the Segal article and Paul Campos.

I realize you work at St. John's. I know you're in New York, though quoted it because you made a point of it in your post. So, New York lawprof, you eschew useful scholarship on critical New York legal issues because it's not doctrinally interesting. Got it.

Posted by: shg | Nov 30, 2011 10:03:00 AM

Gee, shg, I don't understand why you would be so hostile. I think you have misread what I wrote, or perhaps you have not understood it.

I'm pleased that you took the time to google me. You will have noticed that, regretfully, I haven't had a chance to write an article about depraved indifference. You also may have seen in your google search that I do, indeed, live in New York, so perhaps your doubts about that, suggested by your quotation marks, have been put to rest.

But, again, if you read the post, you will also have noticed that it has nothing to do with my scholarship, but with legal education. So I don't understand why what you claim is a non-snarky comment talks about my scholarship.

On Heidegen, yes, I've heard of it. It's a case that doctrinally, in my opinion, falls into the first category of DI that I raised above -- where the D endangers the life of many people by his wildly reckless conduct. There are other cases where the issue involved extremely erratic driving (P. v. Gomez is one), and they fall into that first category which is, I think, familiar to many criminal law teachers and not especially interesting doctrinally. Heidegen made a splash for a different reason that has nothing to do with my post -- namely, that it controversially applied DI murder to a drunk driving charge. But I don't see what that has to do with the substance of my post.

Finally, if you think that talking and thinking about cases in which DI was applied by the Court of Appeals, whether it makes sense to use the doctrine, and so on, is useless because those are cases of "settled law" or "outlier cases" (I don't understand the description), then I think we are sufficiently far apart on the nature of legal education that it will be difficult to find agreement, at least in this forum.

Posted by: Marc DeGirolami | Nov 30, 2011 9:50:02 AM

This isn't intended to be snarky, but this post compels me to ask a very serious question. I just googled your name and Heidegen to see if you've written anything, anything at all, about the Heidegen case. I assume you have at least a passing familiarity with the case, where the defendant was convicted of depraved indifference murder for deaths caused by drunk driving.

Here, you speak to outlier cases, barely coming anywhere near the edge of depraved indifference, and yet my Google search reveals that you've written absolutely nothing about critical issues at the cutting edge in your "home state" of New York.

Why? You have the opportunity to write about cutting edge issues, being decided right before your eyes, and you ignore them, preferring instead to write about settled law. You want to be relevant? Lawprofs proclaim their scholarship important? So be relevant. Be important. Don't dick around with nonsense when there is real law being made, and you are nowhere to be found.

Posted by: shg | Nov 30, 2011 8:41:32 AM

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