What Is Criminal Law About?
Guyora Binder* & Robert Weisberg**
In “The Changing Market for Criminal Casebooks,” Jens David Ohlin offers an appreciative, but nevertheless critical review of established criminal law casebooks. He then introduces his own offering by describing “a vision for a new casebook” that will better serve the needs and wants of contemporary students. Ohlin begins with the arresting claim that criminal law professors are passionate about their subject because they are fascinated by human depravity. Then, throughout his essay, he stresses efficient, consumer-focused delivery of doctrinal instruction as the defining task of a successful casebook. Moreover, he argues, casebooks should devote less attention to academic theories and articles, to normative questions about what the law should be, or even to interpretive questions about what the law is. Prevailing rules should be quickly summarized by the editor, so that students can focus on learning the skill of applying these rules to challenging fact situations. While Ohlin raises important issues of pedagogical method, his own announced pedagogical method would translate criminal law into technical training in pragmatic lawyerly skills. As a result, he offers readers something less than a “vision” of what criminal law is about, why it is worth learning, and what a criminal law casebook should teach. In this Response, we address these unanswered questions, identifying those issues of justice and politics that we believe make criminal law interesting and important. Further, we argue that even if doctrinal instruction is the goal, achieving it requires consideration of political philosophy, legal and intellectual history, and empirical research. Moreover, we argue that the indeterminacy of doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. The discretion accorded many actors in the criminal justice system means that fundamental questions of justice are also highly practical questions. Finally, we argue that the high stakes of criminal law and its contingency on democratic politics make criminal law teaching as much a matter of civic education as of technical education.
* SUNY Distinguished Professor and Hodgson Russ Faculty Scholar, State University
of New York at Buffalo Law School. Thanks to Griffin Dault and Megan McGuiggan for
** Edwin E. Huddleson, Jr. Professor of Law, Stanford Law School and Faculty CoDirector,
Stanford Criminal Justice Center.