Walker, Anders

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Response to Readers of "The Anti-Case Method:Herbert Wechsler and the Political History of theCriminal Law Course"*Anders Walker**To have one's work read by a panel as esteemed as the one assembled in thissymposium is both an honor and a privilege. Only a few additional thoughts cometo mind. One, Professor Weinreb is no doubt correct to say that Columbia did notreconfigure its criminal law course simply to re-direct students out of criminalpractice. While criminal practice may have gained marginally more recruits fromColumbia due to Depression-era freezes in corporate hiring, Wechsler and Michaelwere primarily interested in using criminal law to redirect students out of privatepractice and into administrative agencies housed within the rapidly expandingfederal state. Then, as now, it was undoubtedly regional, not national schools thatsupplied the bulk of our nation's prosecutors and criminal defense attorneys.However, the question of who actually supplies criminal lawyers raises amore significant point, namely, to what extent law teachers should be concernedwith practical training. Even elite institutions like Harvard have struggled withthis question. In 2004, for example, Harvard's First Year Lawyering ProgramCommittee noted that "most lawyers and educators would agree that the more therelatively abstract quality of the first year curriculum can be given additionalmeaning by relating the substantive courses to what lawyers do, the greater theeducational experience."' On this point, several commentators question whetherreading more cases would actually better prepare students for practice.2 My shortanswer is that even criminal lawyers need to know how specific offenses work indifferent contexts, if for no other reason than to help them design charge-bargaining strategies. Further, I agree with Joseph Henry Beale, cases providestudents with an opportunity to actively learn the nuance of legal rules, somethingthey would not do if they simply read criminal codes or commercial outlines.* Anders Walker, The Anti-Case Method: Herbert Wechsler and the Political History of theCriminal Law Course, 7 OHIO ST. J. CRiM. L. 217 (2009).** Assistant Professor, Saint Louis University School of Law.Memorandum from the Comm. on the First Year Lawyering Program to the Faculty ofHarvard Law Sch. (Apr. 7, 2004) (on file with author).2 Donald A. Dripps, On Cases, Casebooks, and the Real World of Criminal Justice: A BriefResponse to Anders Walker, 7 OHIO ST. J. CRiM. L. 257, 257 (2009); Douglas Husak, Criminal LawTextbooks and Human Betterment, 7 OHIO ST. J. CRIM. L. 267, 271 (2009); Robert Weisberg, DidLegal Realism Engage the Real World of Criminal Law?, 7 OHIO ST. J. CRIM. L. 293, 295 (2009).OHIO STATE JOURNAL OF CRIMINAL LAWFor those who remain unconvinced, I have only one point to make. Whycontinue to use the trappings of the case method, i.e. the casebook, if cases havelost their currency? To me, law teachers should either tell their students they areusing the case method, and use it, or abandon it completely and approach theircourses in some other way, perhaps modeling their syllabi after political science,sociology, or philosophy classes. Moving away from the casebook entirely, in myopinion, would be the logical conclusion to the "struggle to liberate" the teachingof law from cases that Professor Weinreb mentions in his comment.3 Thoughmany of the commentators in this symposium understand the contours of thatstruggle, not only because they lived through it but also because they themselveshave contributed to it in writing their own case-leavened texts, it is my profoundsense that many law professors, particularly young ones, do not realize that Romehas changed hands.This, to my mind, goes to the core of pedagogy. If we say we are employinga particular method of teaching, then why not remain true to it? As conceived, thecase method hinged on running students through at least six or seven cases pertopic, precisely so that they would see how rules worked in different contexts.Further, six or seven cases provided studefits with an opportunity to distinguishbetween fact patterns and synthesize legal holdings, in short engage in legalreasoning. Finally, the Socratic method coincided closely with the case method,providing professors with a methodology for shepherding students through thedifferent cases, until they came to a nuanced understanding of the rule in question.None of the commentators seem to lament the reduced assignment of cases,nor do they appear to dispute my claim that casebooks have substituted othermaterials, many theoretical in nature. Professors Angela Harris and Cynthia Leeprovide perhaps the most cogent rationale for this move, maintaining that theoryshould be included in the first year because it too is practical. They maintain that"practicing lawyers" do in fact need theoretical knowledge because they are"constantly in the business of pushing the law in new directions," or alternatelytrying to "clarify" doctrinal questions "muddled by trying to move back to firstprinciples."4  To illustrate, Harris and Lee provide an example of Californiaprosecutors who, in the 1980s, found themselves with extra funding to prosecutesome but not all statutory rapists in their districts. In order to proceed, saidprosecutors needed "to develop a theory of statutory rape that would allow them todecide which cases to prosecute." 5 While this is certainly a good example, it doesnot necessarily prove the point that young lawyers are "constantly" pushing law innew directions. Yet, I agree with Harris and Lee that to the extent theory isincluded, it should be subordinate to practical concerns. My only caveat would be3 Lloyd Weinreb, Teaching Criminal Law, 7 OHIO ST. J. CRIM. L. 279, 280 (2009).4 Angela P. Harris & Cynthia Lee, Teaching Criminal Law from a Critical Perspective, 7OHIO ST. J. CRIM. L. 261, 262 (2009).5 Id.[Vol 7:303RESPONSE TO READERS OF "THE ANTI-CASE METHOD "that before including a note on theory, it would be helpful to include more thansimply one or two cases on the rule in question.Incidentally, just because I see a greater need for cases, does not mean that Ireject critical approaches to teaching law. On the contrary, I agree with Dean Paristhat the inclusion of theory has no doubt led to "greater academic prestige" for lawschools, provided law schools with "a seat at the grownups table ' 6 in terms ofuniversity politics, and undoubtedly attracted greater "student talent." My onlyquibble is that we need to move away from the masquerade of teaching theory inthe garb of the case method. Here, the PhD holder in me comes out. Most PhDswould undoubtedly maintain that theory deserves its own methodology, its own setof texts (not casebooks), and ideally its own advanced level courses. What wehave now, I fear, is a type of pedagogical Frankenstein, a little bit of theory, asmattering of cases, and some random normative questions designed to jump startclass discussion.Would abandoning such a methodological salad bore talented students, asParis fears, perhaps even discourage them from continuing their legal study? Notnecessarily. As I try to demonstrate in class, cases provide a window into the livesof average people, allowing students to see distinctions between rural and urban,religious and secular, liberal and conservative. Often, one or two contextual notescan greatly enrich the students' appreciation for a particular case, without thenprecluding the addition of other cases. In fact, such an Aristotelian, case-basedapproach to teaching law lends itself to highlighting aspects of local culture andlocal knowledge that more abstract, Platonic methods do not.This is particularly true if cases are drawn from the same jurisdiction. In mycourse, I augment readings from a traditional casebook with cases drawn fromMissouri, using them to illustrate not only the nuance of legal rules, but also thepeculiar behavior of local juries and the regional nature of certain types of crime.Such an approach lends itself, in my opinion, to a Geertzian "thick description" ofcriminal life, one that appears to interest both the theoretical and practical-minded.To commentators who worry that such a case-based approach ignores thecodification of criminal law,7 I argue that it has been almost half a century sincemost states abandoned the common law in favor of versions of the Model PenalCode (MPC). This means that even though many casebooks continue to treat theMPC as a refreshing alternative to the common law, there is now in fact almostfifty years of common law interpreting the MPC in most states. Making studentsaware of this "new common law," as I term it, has reinvigorated the need forreading cases, particularly since most state courts have substantially altered MPCprovisions based on local norms. At least that has been the case in Missouri.6 Margaret L. Paris, Four Good Things About Wechsler's Approach, 7 OHIO ST. J. CRIM. L.275, 278 (2009).7 Dripps, supra note 2, at 257; Harris & Lee, supra note 4, at 265; Husak, supra note 2, at2009] 305OHIO STATE JOURNAL OF CRIMINAL LAWMore supportive of the case method critique is Robert Weisberg, who asks thereasonable question whether the Bealian method of reading cases truly trained "thepractitioner in the criminal law's daily rounds," or whether it too had a hiddenagenda. 8  Here, Weisberg points out the intriguing possibility that Beale'scompilation of appellate cases may have done relatively little towards preparinglawyers for "ground-level advocacy," but sought instea to hone the skills ofaspiring private attorneys, the very lawyers likely to spend the first part of theircareers sifting through cases in law firm libraries. 9Weisberg's point invites at least two possible responses. One, as he himselfnotes, many of the "ground-level advocacy" issues that he mentions have sincebeen made the focus of criminal procedure, not criminal law. Two, even if Bealeviewed criminal law to be sleazy and therefore did not want to train practitioners,his text nevertheless leaves one with a profound sense of how specific offenses,defenses, and so on operate in different factual contexts. To my mind, these areimportant concerns. They are important not only for students, but alsopractitioners, who currently spend much more time sifting through possiblecharges and defenses than they do litigating procedural matters. Indeed, this is oneof Professor Donald Dripps's primary points. He maintains that even "the simplestcourse of criminal conduct" under today's codes can give "rise to a wide range ofpossible charges and penalties." 10 Further, "due process" in the "great majority" ofcases today, argues Dripps, amounts to little more than charge bargaining betweenprosecutors and defense attorneys. I I Though Dripps joins his colleagues inquestioning whether "preparing students for actual practice even ought to be ourprimary goal," his critique nevertheless indicates that understanding black-lettercrime definitions remains as important as ever.2Finally, a note on Wechsler. As I argue elsewhere, Wechsler was deeplyengaged in legal reform and believed legal pedagogy to be part of that project.13 1do not believe that he had any more disdain for criminal lawyers than corporateones. In fact, I suspect the opposite was true. As the Great Depression broughtAmerica to its knees, Wechsler viewed much of the problem to have originatedfrom a lack of foresight on Wall Street and a lack of sympathy on the SupremeCourt. Even though we are in a somewhat similar predicament today, I doubt thathe would have singled out lawyers in the same manner. In fact, I think he wouldhave been pleased with the manner in which civil rights has ennobled criminal law.I join the commentators in appreciating the significance of his contribution.8 Weisberg, supra note 2, at 297.9 Id.10 Dripps, supra note 2, at 258.11 Id.2 Id. at 259.13 Anders Walker, "Neutral " Principles: Rethinking the Legal History of Civil Rights, 1934-1964, 40 Loy. U. CHi. L.J. 385 (2009).[Vol 7:303

Response to Readers of "The Anti-Case Method: Herbert Wechsler and the Political History of the Criminal Law Course"

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Response to Readers of "The Anti-Case Method: Herbert Wechsler and the Political History of the Criminal Law Course"

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