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February 08, 2011


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Marc DeGirolami

Anders, thanks for the shout-out (even an amicably adversarial one!). For what it's worth, and at least in part because of both your very good piece and Chad Flanders's smart reaction to it, I've expanded my coverage of New York criminal law in my course considerably. New York's criminal law is very rich and so I've got lots to choose from. But I've done so not primarily for the reason that market pressures seem now to require it (if they do), but because as I've thought about it, part of the uniqueness of criminal law is its highly local flavor, and the localism of criminal law is, it seems to me, something very worthwhile to communicate to students.

As to cases, I like them very much and think that a hearty diet of cases is extremely useful to teach doctrine as well as policy. My memory of our exchange (which I enjoyed very much) was not so much whether to rely heavily on cases, but whether it is (or continues to be) right to emphasize policy in the criminal law class. Thoughts?


How about greater emphasis on arbitration and mediation in Civ Pro and on negotiation skills generally within the law school curriculum?

Shubha Ghosh

I would frame the issue as the current crisis providing an impetus to make changes that should have ben made a long time ago. One change is to have legal education contain more business skills, particularly managerial skills for a law office. Many of these skills fall under the broad and sometimes unhelpful rubric of entrepreneurism.

Anders Walker

Marc is right, part of my critique of current criminal law casebooks is that they focus too much on normative, policy questions better suited to upper level theory/policy courses, and actually provide students with a hazy notion of what, precisely the criminal law is. Fictions like the "common law state" vs. "MPC state" only exacerbate this confusion, leading me to agree with Chad Flanders' "one-state solution." Marc, I understood you're critique of this view, in part, to be that studying more cases is not that practical either, at least not for preparing the criminal law practitioner. You've got me there. Yet, I still agree with Langdell that analyzing a series of cases (not just one or two cases accompanied by pages of notes) provides a more active way of learning black letter rules.

Marc DeGirolami

Thanks, Anders. I guess that my skepticism toward the "more cases" view doesn't stand alone. Most criminal law text books are predominantly cases, including the one that I use, and I wouldn't want at all to change that.

My critique of introducing more cases was connected to (and really dependent on) the change in aims of the criminal law course that I thought you were pressing -- a move away from policy and toward a more exclusive focus on learning black letter doctrine. My view was that if the course should aim to (1) prepare an (appellate) criminal lawyer (the kind of lawyer who conceivably might really benefit from a deep sense of the variety of black letter legal doctrine across jurisdictions), and (2) get students who might not otherwise have considered criminal law to get excited about it, the move toward serial case analysis/crunching and away from thinking about the law's wisdom might not achieve the desired goal and/or have other drawbacks.

But none of that means that I don't think cases are extremely relevant to an effective criminal law class. I think they are the most relevant and important teaching vehicle we've got, however they are used.

employment genius

There is an interesting debate in the blogosphere exploring the reasons for the persistent high unemployment rates in the US and elsewhere. Conservatives lay the blame on the structural skills mismatch and argue that this cannot be resolved through any stimulus spending measures. Liberals claim that the massive slump in aggregate demand from the boom, means that there are massive idling resources which can be brought to work with an appropriately structured stimulus program.

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