an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
David Segal on Law Schools: A Note on the Published Correction
On Saturday evening I posted a response to David Segal's article in The New York Times on legal education. One of my points was that Segal didn't seem to know much about the law given his complaint that criminal procedure involved "case studies of common law crimes — like murder and theft" rather than training in plea bargaining. The Times has now revised Segal's article to substitute criminal law for criminal procedure and the following statement accompanies the online version of the article: "An article on Sunday about the emphasis on theoretical over practical learning in law schools misidentified a first-year course about common law crimes. It is Criminal Law, not Criminal Procedure."
Unfortunately, this correction doesn't improve the accuracy of the article.
Segal is wrong to suggest that the first-year course in Criminal Law is all about the common law. Instead, such courses typically discuss the Model Penal Code--and compare its provisions to the common law. Some professors, particularly at regional schools, emphasize the statutory provisions of their own jurisdictions. And I know of at least one professor who only teaches from the code.
Learning the common law is also hardly unimportant. Not all criminal offenses are codified. And the common law helps shed light on statutory provisions.
Segal's suggestion that students should be studying plea bargaining rather than the substantive law is just weird. No prosecutor or criminal defense lawyer would be in a position to conduct negotiations over a plea without understanding the basis of the charged offense. A sophisticated knowledge of the substantive law is quite essential to determining the strength of one's position, advising the client, appearing before the judge, and bringing the case to a resolution.
Moreover, it makes considerable sense to emphasize the substantive criminal law in the first-year course. Students headed for a career in the criminal law typically take upper-level courses in criminal procedure (the subject Segal originally complained about) and in so doing they are very likely to learn about plea bargaining. First-year students therefore all gain basic knowledge of the elements of criminal offenses so that whatever field they work in they can recognize when the criminal law is implicated. Students who will practice in criminal law obtain specialized knowledge about the procedural aspects of criminal prosecutions in the upper-level curriculum.
Finally, given Segal's complaint that scholarship lacks relevance, it is worth noting that there is a huge amount of scholarly attention to plea bargaining. Some of the best work in the field of criminal law/procedure is on the topic.