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Legal Commentary

: Prawfs

What Are We Supposed to Be Doing Here?: On the Tension between Theory and Practice

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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Not to name drop, but I was having dinner last week with a fairly famous law professor closely associated with the Law and Society movement. [Name withheld only because I haven't asked his permission to blog this.] We were discussing teaching criminal law and he said that he tried it once and couldn't bear it because he didn't feel like what was taught in criminal law bore any relationship to reality. The casebook he used (and that I use) focuses on homicide and rape, not the far more common property and drug crimes with which criminal courts generally deal. Also, although the book has an extensive section on the workings of the criminal justice system, it generally presents the substantive law through reported appellate cases, as nearly every other law school casebook does.

But this professor's greatest criticism of the book's had to do with its focus on the Model Penal Code. "That's not the law anywhere," he complained. "It's just an analytic exercise." What was interesting to me is that this is exactly the same criticism that my students, not generally immersed in the Law and Society tradition, make against the book. Many of them want to practice criminal law in this state and expect our class to focus on what Colorado's laws provide rather than on the MPC's attempt to systematize and rationalize the common law.

So I guess my question is, what is our obligation to familiarize our students with the realities they will encounter when they hit the real world? How much should we teach them about the law of a particular jurisdiction (or even what the majority rule is nationwide) and how much should we encourage them to think expansively about what the law ought to be? The Carnegie study of legal education indicated that law schools do a poor job of giving our students the practical skills they will need to practice. But how much is that our responsibility? Shouldn't we be teaching our students analytic rigor and expecting their future employers to help them find the courthouse? Or do we dis-serve our students by teaching them the MPC's approach to attempt law, but not how to negotiate a plea agreement?

Full post as published by Prawfs on February 03, 2009 (boomark / email).