Teaching Criminal Law from a Critical Perspective

Recent turmoil in the marketplace has led to a massive attorney layoffs and the folding of several major law firms. Current prospective law students are fast becoming aware of the fact that having a law degree is no guarantee that one will be employed after graduation. Many parents, who have seen their retirement accounts shrink over the last three years can no longer afford to send their kids to law schools that charge $40,000 or more per year in tuition. This state of events in turn has prompted law students to take a hard look at proposals for curriculum reform as calls for law schools to train law students to become better practitioners grow louder. The debate over whether law students focus too much on theory as opposed to practice is an old one. In this short essay, part of a symposium on Anders Walker’s article, The Anti-Case Method: Herbert Wechsler and the Political history of the Criminal Law Course, Cynthia Lee and Angela Harris, co-authors of Lee and Harris, Criminal Law: Cases and Materials (West 2009), respond to the charge that the teaching of criminal law in today’s law school is deficient because it does not adequately train students to practice criminal law. Lee and Harris argue that viewing theory as completely contrary to practice is a mistake. Practicing lawyers do not simply apply the law to the facts in a mechanical way. They are constantly in the business of pushing the law in new directions or seeking to clarify doctrine by referring back to first principles. In so doing, practitioners need to understand the theory underlying existing doctrine or develop new theories to explain the way the law ought to be applied. In this way, teaching theory very much helps students become good attorneys. We argue that in order to practice criminal law, a student needs to do more than take the basic criminal law course usually offered in the first year of law school. A student interested in practicing criminal law needs courses in criminal procedure, trial advocacy, evidence, and legal ethics, and should probably take advanced criminal procedure, white collar crime, appellate advocacy and/or federal criminal law as well. Moreover, the practice of law, including criminal law, is not limited to the work of Assistant District Attorneys and Assistant Public Defenders. It also includes legislative and administrative work, work that involves reform of the criminal justice system. We conclude by noting that our criminal law casebook “situates us squarely as granddaughters of Herbert Wechsler and Jerome Michael, as well as daughters of Sandy Kadish, who describes his aim in teaching criminal law as producing good, sensitive, aware, socially conscious citizens.” The premise of our book is that substantive criminal law is an expressive enterprise. Legislatures pass criminal laws to express moral outrage at certain kinds of behavior. As an expressive enterprise, criminal law is intertwined with culture. We encourage our students to think about the myriad ways that American culture is infused with issues surrounding race, gender, sexuality, and class. We want our students not just to learn what the law is, but to think critically about the way the law should be. In this sense, we encourage the teaching of criminal law from a critical perspective