Document Type

Article

Publication Date

2010

Abstract

The very first time that I taught criminal law, I would occasionally tell my six-year-old son, Thomas, about selected cases and situations that I had come across. Thomas enjoyed these discussions—more than I would have guessed: he was captivated by the horror of Dudley & Stephens, he was uncomfortably intrigued by shaming punishments, he was appropriately outraged at all manner of outcomes that seemed to him too harsh or too lenient. But most of all, he wanted to test his own burgeoning intuitions about right and wrong, good and evil, the permitted and the forbidden, against my "criminal law stories." He was, in a word, excited by criminal law.

Criminal law provokes. It stimulates and incites. Criminal law often is taught in the second semester of the first year, so it labors under something of a disadvantage. It begins just after students have been faced with the realities of their first semester grades. One might therefore expect some disenchanted reticence—a bit of yawning 'plus-ca-change-isme'—but that has not been my experience. More than any other course, criminal law challenges students to confront the deep places of their own moral and political architecture, erected in fragments over a lifetime, with realities that are, often enough, unknown and frightening to them. At its best, criminal law induces alienation in students, shocks the safety, piety, and certitude of their worlds. It does this, at times, by confronting students with their own fears about their fellow human beings and demanding that they reflect on those fears with care-not with the express aim that they should be solved or overcome, but in order that they may be better understood.

Having canvassed admirably the historical changes to the criminal law case book over the twentieth century, Professor Anders Walker's article suggests that criminal law ought to concern itself with the business of training future prosecutors and defense attorneys by eliminating, or at least greatly reducing, the place of moral and political reflection in the course, which was in any event the supercilious indulgence of elite law schools that disprized criminal practice. His normative prescriptions are of a piece with much that is currently in vogue in criticisms of legal education: that it is impractical, that it does not respond to the urgencies of quotidian lawyerly concerns, and that it deludes itself that it ought to be something like a liberal education. "That law schools should strive to produce better citizens is hard to refute[,]" he writes, but "[w]hat good are ethics, philosophy, and sociology if graduating students do not know the law?"

This brief response to Professor Walker's article makes two points. First, "knowing the law," in the sense that Walker seems to intend the phrase, has very little to do either with what state prosecutors (to take the criminal practice with which I am somewhat familiar) actually do or, more importantly, with the reasons that lawyers decide to become criminal practitioners in the first place. Second, adopting the normative prescriptions pressed by Walker will extinguish precisely the excitement that criminal law can bring to the generally educated and interested lawyer. There have been, and there will always be, few lawyers who become prosecutors and criminal defense attorneys; no structural amendments to the course will change that. But bleeding the criminal law course of the very ideas that stimulate passion about the subject will ensure that law schools continue to contribute to the stultifying process by which students forget, inexorably, what it is that is worthwhile and fulfilling about becoming a lawyer at all.

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