Abstract: INTRODUCTIONIn Changing Market for Criminal Casebooks, Jens David Ohlin offers an appreciative, but nevertheless critical review of established criminal law casebooks.1 He then introduces his own offering by describing for a new that will better serve the needs and wants of contemporary students.2Ohlin begins with the arresting claim that criminal law professors are passionate about their subject because they are fascinated by human depravity.3 Then, throughout his essay, he stresses efficient, consumer-focused delivery of doctrinal instruction as the defining task of a successful casebook.4 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.5 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.6While 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.I. WHAT MAKES CRIMINAL LAW COMPELLING?Ohlin's opening claim is that criminal law takes as its point of departure the indignities that human beings visit upon each other . . . . a parade of horribles, an indictment of humanity's descent into moral weakness.7 It thereby captivates us in ways that torts and contracts cannot, and he suggests that because of the human proclivity toward indulgence in this depravity, professors in the field are obsess[ed] and addicted to this intensity and despair.8 Of course, we concede that crime is dramatic and criminal law cases can be colorful. But surely criminal law also calls its teachers for deeper reasons.Punishment is the strongest manifestation of government power, and the need to justify, check, and channel that power is an intellectual challenge for professors and students alike. The conventional answers to that problem are supplied by utilitarian and deontological moral thought, but the problem of punishment, and the issues raised in criminal law, are political as well as moral.9 While American criminal law, as a historical matter, owes more to utilitarian legal thought than to deontological moral philosophy, any body of criminal law is both retributive and preventive in function. Criminal law regulates violence by asserting a public monopoly on vengeance. It mobilizes collective blame and deploys it to take sides in violent social conflicts. It may not be able to prevent every act of victimization, but by vindicating victims, it prevents them from suffering the indignity of an offender victimizing them with impunity. In this way criminal law serves as a guarantor of each individual's civic equality. By identifying the state as the ultimate protector of each individual's security and dignity, criminal law gives each individual a stake in the law's authority. …
Publication Year: 2015
Publication Date: 2015-01-01
Language: en
Type: article
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Cited By Count: 2
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