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Monday, January 13, 2014

A couple reading suggestions for students in criminal law and the Spring 2014 schedule for the NYU Crim Theory Colloquium

N.B. This post is a revised version of an earlier post and is basically for crimprofs and those interested in crim theory.

This week marks the onset of classes for many law schools across the country, and that means  the first criminal law class is here or around the corner for some 1L's.  As many crim law profs lament,  first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most first year casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and, for a contemporary flourish, a nod to Jeffrie Murphy or Michael Moore or Herb Morris.

Murphy, Morris, and Moore deserve huge kudos for reviving the field in the 1970's and since.  Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.  But for those of you looking to give your students something more meaty and nourishing than Kantian hand-waving to fiat iustitia, et pereat mundus, you might want to check out and possibly assign either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism.  Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication.  Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.

Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. On the heels of AALS, we had Francois Tanguay-Renaud and Jenny Carroll present last week, and the schedule for the balance of the semester is this:

February 25: Stuart Green (Rutgers) and Joshua Kleinfeld (Northwestern)

March 31: Amy Sepinwall (Wharton Legal Studies) and Alec Walen (Rutgers)

April 28: Corey Brettschneider (Brown/NYU) and Jennifer Daskal (American)

As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is now the seventh semester of the colloquium and we are grateful to our hosts at NYU and Brooklyn Law School who have made it possible. If you're a crimprof and interested in joining us occasionally, let me know and I'll put you on our email list for the papers.

Posted by Administrators on January 13, 2014 at 04:44 PM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory | Permalink


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Steal away! As for Kennedy's opinion, I generally try not to focus on 8A cases in crim law, in part because I worry it gives students a false sense that 8A law is actually an important day-to-day part of criminal law; especially as 1Ls, they don't know enough to know how little it matters IRL. But it's an interesting idea.

Posted by: Orin Kerr | Jan 15, 2014 1:08:50 PM

Thanks, Orin. You make some nice point on the substantive DP issue. And I like your approach to the Cunningham case too, which I will steal.

One additional thought is that some of the 8th Amendment cases can be useful in giving some legal substance to the punishment theory discussion. I find that, for example, Justice Kennedy's opinion in Kennedy v. LA not only goes through retributivist and consequentialist functions, but it also even discusses some more particular ideas like expressivist functions as well as victim vindication (the discussion of whether the defendant's death would vindicate the child's or the family's interest). There are other 8th A. cases that do some of this too. So it might be that these cases give some legal flesh to the intuitionist/academic skeleton of punishment theory.

Posted by: Marc DeGirolami | Jan 15, 2014 10:42:20 AM

Marc, I do think teaching retributive theory is quite different. When you teach con law, there is a body of law that exists. No one expects actual judicial decisions to match a theory; judge aren't theorists, and decisionmaking on multi-member courts is always somewhat messy. So you can know the arguments and the results of the opinions, and if the arguments are weak, well, that's just how the Supreme Court works. When we teaching retributive arguments for legal rules, in contrast, there is no set law that preexists. Instead, we are making normative arguments that are supposed to generate rules. So if our normative arguments are silly, weak, or circular, we have a problem: We can't really use those arguments, or if we do, we have to acknowledge the arguments are silly, weak, or circular. In other words, we are purporting to base the rule on the theory, so it's a problem if the theory isn't strong enough to generate the rule.

As for teaching the role of culpability in mens rea, I teach a full-hour class on why mens rea should be essential in criminal law based on the theories of punishment. I primarily use the English case of the guy who took the gas meter off the wall in his basement to get the coins inside, exposing his mother-in-law in the adjacent apartment to gas fumes. I ask the students to imagine that the mother-in-law died from the gas fumes, and I imagine five scenarios about the man's state of mind when he removed the meter: (a) he hoped to kill his mother-in-law; (b) he knew his mother-in-law would die, but he didn't care one way or the other; (c) he thought about the serious risk she would die but proceeded anyway; (d) he didn't even think about the risk but really should have, and (e) he didn't think about the risk and there was no reason he should have. I then ask students to consider in which scenario should the man receive the highest punishment and in which the lowest punishment; and to consider how much the man valued his mother-in-law's life in each scenario. Students naturally rank them from (a) through (e). We then debate why that is. Students get that the man in (a) is the most evil, (b) slightly less evil, etc. And I focus them on the implicit value of the victim's life: in (a), the man intuitively weighed her life as having negative value (he wanted her to die), in (b), he weighed her life as having zero value (he didn't care); in (c), slight value, etc. So students get that the "evilness" of the scenarios is linked to the implicit value of the victim's life in the man's acts. I then try to link that to Hampton's theory of punishment reasserting the moral worth of the victim, with more punishment needed in response to how the man had implicitly measured the worth of his mother-in-law. I think that's the most successful use of retributive theory the entire semester, as the range of different mens reas allows for the comparison and gives you variables to determine the relative worths and fits nicely into Hampton's theory. But I find that very few examples in the criminal law class allow for a nice example like that that both (a) exactly fits student intuitions and (b) simultaneously fits a theory.

Posted by: Orin Kerr | Jan 15, 2014 12:15:35 AM

Just to add to Marc's point, the other suggestion would be to weave in the role of democracy and judicial review in making the assessments of the intuitions or instincts you identify. Some new-fangled retributive theories (like Duff's and mine) purport to be sensitive to democratic constitutionalism while traditional theories are relatively indifferent to democracy or even law and legality principles. And some might say we should adjudicate culpability considerations through careful individualized ex post assessments while others would say let democracy decide through the legislature, or let's use what Robinson calls empirical desert through some form of deliberative polling to come up with the sentencing table, etc. The point is that there's plenty to use in a way that unsettles students' preconceived notions about what's warranted on non-instrumental grounds alone, not to mention the typical instrumental considerations. Hope this helps.

Posted by: Dan Markel | Jan 14, 2014 9:08:06 AM

Hi, Orin. I thought I'd give your question a shot. I think the problems you are identifying are not unique to punishment theory or criminal law (you did not say that they were, so maybe you will agree). For example, it is generally but not universally agreed that mens rea is a necessary feature of culpability and we have a whole unit about mens rea. But the reasons for thinking mens rea important as a basis for culpability are either intuitive (and often just assumed) or derived from a theory of culpability. How do you teach that, other than by exploring the intuitions or explaining the theory? Admittedly, most people don't spend much time exploring why mens rea is an important basis for culpability; but maybe they should? Constitutional law has many examples like this too. What is the reach of substantive due process protections? Maybe it depends on a general common evolving moral/cultural sense, or maybe it derives from a political or moral theory of harm or rights, or some combination of the two. That issue can be frustrating to teach, too. Or, assuming one is not an originalist, how about the reach of the 8th Amendment? Or the general issue of the bindingness and legitimacy of the Constitution on present-day Americans.

Posted by: Marc DeGirolami | Jan 14, 2014 7:36:04 AM

Dan, thanks for the reply. My difficulty is, what do you mean by "adequate" and "warrant"? In my experience, we all have feelings and instincts about when non-instrumental reasons justify punishment. To measure those feelings and instincts as either adequate to justify punishment or not adequate, either we just automatically recognize those feelings as inherently adequate (adequate because they reflect a shared sense, whether theorized or not) or else we measure adequacy based on a particular theory of adequacy that people may or may not share. If we do the former, then we're just saying, "we punish this because we all agree it deserves punishment," which is pretty empty. But if we do the latter, then we end up saying, "Professor X would argue that this normatively deserves punishment for theoretical reasons A, B, and C," which also seems pretty limited if the community doesn't actually share Professor X's view.

Posted by: Orin Kerr | Jan 14, 2014 1:53:37 AM

Here are a couple things I do to integrate the theoretical materials with the cases and statutes. First, I try to make sense of why we want to punish offenders, and how that might differ from wanting bad people to suffer. This raises distinctively institutional questions about whether "just deserts" is an adequate grounds to create institutions of criminal justice or whether something else is going on that would warrant criminal punishment in light of the costs and the risk of error and abuse. Second, once I've spent some time identifying the instrumental and non-instrumental reasons for having institutions of criminal justice, I then spend a bit of time through the course asking whether the doctrinal rules or statutory provisions are doing a good job advancing the instrumental (chiefly crime-control/dangerousness) concerns or non-instrumental (chiefly culpability/desert) concerns.

Posted by: Dan Markel | Jan 13, 2014 11:29:27 PM


Can you shed light on how you use retributive theory when you teach criminal law? I always find it hard to teach that topic, as there are as many retributive theories as there are retributive theorists. It seems to me that each scholar has his or her personal view of what retribution *should* in theory mean, and yet the views of the scholars is often really far from the views of regular people. I don't want to waste the time of entering 1L students by teaching them in the first 2-3 weeks of law school about the views of Professor X, Y, and Z that often are not persuasive or influential to anyone but the theorists themselves. (That would make a lot of sense in an upper level class on punishment theory, but it doesn't make much sense to me for Fall 1Ls who are just learning the very basic concepts of the legal system.) So when I teach criminal law, I end up teaching retributive theory as a set of shared societal instincts about what is reprehensible, which usually (but not always) can be traced to certain features like treating oneself as more important than others. In other words, I end up trying to describe what retributive views tend to be in society, rather than individual normative theories of individual scholars about what theory society should adopt for criminal punishment. In other words, I end up being descriptive rather than normative. Either way, the exercise always seems sort of forced. If I am just descriptive, then the argument for retributive punishment is just that we should do it because most people feel that it is good; if I am going with normative scholarly views, then the argument for retributive punishment is just that we should do it because Professor X has some theory that hardly anyone else actually buys. Either way, generating arguments based on retributive theories always seems circular; it is because someone says it is, either the public or some person who writes law review articles. Do you have any helpful ways to get out of the swamp?

Posted by: Orin Kerr | Jan 13, 2014 10:09:07 PM

Thanks, Dan--great and timely post. I am beginning to discuss punishment theory tomorrow and will direct my students here.

Posted by: Marc DeGirolami | Jan 13, 2014 9:14:17 PM

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