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Criminal Law Preface I have, in this preface, asked some questions on your behalf. Yes, I think they mean for you to do just that. Many educators would agree that the only education worth having is the education you devise for yourself. We see a version of this thinking in the idea that one learns best from experience. (As in, the cliché, "experience is the best teacher"; "I know this from hard experience.") Experience teaches best because it is direct and personal; the lesson is imprinted on one's psyche and soul (unless, of course, one happens to be a sociopath unable to learn from experience). But it is not these conventional platitudes about education we have in mind when we claim, in law school, that you are responsible for your own learning. There is, or perhaps I should say once was, a notion that the way to learn law is by way of conversation that proceeds by way of questions and answers (primarily questions put to you by a teacher but with no prohibition against the student positing questions to the teacher). In legal education, we've adopted the fanciful notion that this question and answer (or conversational approach) to teaching is related to Socrates and the Socratic method. I say the notion is fanciful because the law school version of the Socratic method is a rather peculiar adaptation (if it has any relationship to Socrates at all). We have, to put it simply, rather crudely adopted the teaching of Socrates. However, weak our link to and appropriation of Socrates, the law school method of teaching does call into question the expertise/information model of teaching, where the teacher purports to know something which is to be conveyed to the student. (The teacher has a full glass, the student an empty glass, and the expertise/information model proceeds on the idea that teaching results when the teacher fills the student's empty glass.) In the Socratic model of teaching, the teacher's expertise (real or feigned) is not simply transferred by way of lecture ("telling you the law"), but by propounding questions which help you learn to think about the law (in something akin to the way a lawyer or judge might think about the law). The questions can be quite basic; they are basic because we are trying to learn to talk about the law. The questions can be quite complex, so complex that even a roomful of lawyers (or law teachers) would struggle to provide a satisfactory answer. There is much more to be said about the Socratic method (the method as it was used by Socrates, and as it is adapted for use by the best and worst of law teachers). You will undoubtedly find, as you gain exposure to different law school variants of the Socratic method, that you find it a vast improvement over the lecture method and vital to your education as a lawyer, or, you may find it a great hindrance to your education as a lawyer. For those who find more nonsense than meaning in the Socratic method, you may take solace in the knowledge that: (1) it is far less prevalent in legal education today than it was 30 years ago; (2) it has been under serious scrutiny and sustained criticism for half a century; (3) those who intensely dislike the law school version of the Socratic method still manage to become lawyers; and (4) many law teachers know no more about Socrates or his method than they do physics; they execute the method with about the same skill as they would brain surgery; all to say that some law teachers are thoroughly inept with the Socratic method even as they sing its praises. [If you are interested in Socrates and his methods, and want to see my own perspective on the subject, see Socrates and the Socratic Method and accompanying web resources which allow further pursuit of the subject.] The law-school version of the Socratic-method has both its defenders and its critics. I am in the anomalous position of being both critic and defender. The law-school brand of Socratic questioning when carried on by an arrogant law professor who knows little to nothing about Socrates and shares none of the philosophy which gave rise to the "method" is a prescription for a pedagogy which benefits the few at the expense of the many. I defend the Socratic-method when it honors the philosopher for whom it was named and when used in a genuine spirit of truthful inquiry. And yes, it's true, that even when conducted with the utmost care, some students exposed to this method of teaching and learning "feel" threatened by it (and the teacher using it). We see this happen, even when Socrates himself is involved in the dialogue (e.g., we see it in the Protagoras and Gorgias, two of the early Socratic dialogues that are still quite readable and instructive today). As my law teaching colleague, Tom Eisele, at the University of Cincinnati, observes (in his defense of the Socratic method), the method is a valuable one but it results in what Eisele calls "bitter knowledge." My strong preference has always been to carry on in-class
discussions with those who "volunteer" to engage in a discussion.
The problem with this predilection is that a small number of students
volunteer and the larger group act as an audience for the discussion.
(Some students are so eager to volunteer that they come to be viewed
with disdain by their student colleagues.) In order to address this
common classroom dynamic (a few participate while the majority remain
silent), I will call on students in class. As I've noted, this way of teaching--probing, questioning, critical, dialogical, conversational--has long been associated with Socrates, and so traditional law school teaching has often been known as the "Socratic method."
The author of your casebook, Joshua Dressler, has written a hornbook/treatise/study guide entitled Understanding Criminal Law (4th ed., 2006). Dressler is an acknowledged criminal law scholar and has attempted, in his study guide, to provide a solid, informed introduction to criminal law. Understanding Criminal Law contains far more "law" than any single person might ever try to learn. If you want law delivered up in the form of clearly stated propositions, presented in a logical structural fashion, accompanied by brief explanations and commentary, with a discussion of at least some of the cases we take up in class, then Dressler's Understanding Criminal Law is the ticket. It is of no small consequence that Dressler is the author of the course text/casebook, Cases and Materials on Criminal Law, which means you're dealing with the same author in both books. I have not made the purchase of Dressler's Understanding Criminal Law mandatory. Indeed, it was fashionable at one time for teachers to strongly discourage students from using study guides and "canned" briefs. But in the last twenty years, the market for study guides has matured and study guide's like Understanding Criminal Law are quite sophisticated. You may well find Understanding Criminal Law helpful; I use it and recommend that you make use of it.
A good question and I'm not sure that a simple answer, yes or no, applies across-the-board. If you feel like you need a study guide to keep things straight, and to fully understand what we talk about in class (and what Dressler has you considering by way of the casebook), then by all means use a study guide (Dressler or some other). Most law teachers believe, and rightfully so, that for most students there is no substitute for careful reading of assigned cases, working through the notes, cases, and questions which follow the assigned cases, and constructing an outline based on the cases, your readings, and the class discussion. Each of you have probably set out with some hope of succeeding brilliantly in law school. I'm afraid that stuffing your head with a prepackaged condensed version of Criminal Law, even of the kind you find presented in Dressler's Understanding Criminal Law, is not going to make you a brilliant student. It is quite impossible to predict that any individual student may do or must do to do well in law school. Doing well may ultimately depend more on preparing for class, being fully attentive to what goes on in class, and working up a good course outline, than it does in finding a good study guide. In law school, as in much else in life, there's no guarantee that hard work and due diligence will result in brilliant success. But without hard work and due diligence, you take the risk that you will fail, if not the course, yourself. Most of you, by one means or another, and yes, some working far harder than others, will get through the course. Whether you will consider your passage successful is a complex matter that deserves more attention than I can give it here.
In lieu of using a study-guide you might consider: (1) reading the case a second time (or at least the pertinent parts of the case that you have underlined during your first reading); (2) making sure that you have "extracted" from the case (so far as possible and in your own language), the various propositions of law presented therein; (3) paying particular attention to the jury instructions which you are assigned (noting that they present something akin to "pure" law); (4) reading, as time and energy permits, "background," "related websites," and "for further study" materials presented on the course website (and law review articles and cases cited by Dressler in the notes following the assigned cases; (5) developing, over the course of the semester, a working outline of the cases, legal doctrines, legal conundrums, and class commentary on the cases. Most students wait until too near the end of the semester to produce an effective and comprehensive course outline. You should begin, as soon as possible after the course begins, to think about a course outline. Good outlines can be produced in the last several weeks before the final examination. You should produce a course outline in sufficient time to spent the final weeks of the semester in devising increasing shorter versions of the outline. E.g., a thoroughly conscientious (and slightly obsessive student) might produce, over the course of a semester, an outline of 60-80 pages which summarizes assigned cases, sets forth propositions of law to be found in the cases, notes problems and concerns identified in class discussion, and summarizes commentary gleaned from out of class and from reading law review articles. As the end of the semester approaches and you realize you don't have the mental powers to memorize a massive outline (a problem compounded by the fact that you have more than one of these outlines to contend with), you'll need to think about condensing the outline. It is now time to read the comprehensive outline carefully, and to produce from it, a tighter, more compact version, something in the range of 20 pages. Of course, you may find you are no more capable of memorizing 20 pages than 60 pages and so, in your final days of study, you need to produce a still shorter outline of no more than 4 or 5 pages (perhaps less) that will provide a structure from which you can access (by amplification) the cases, legal doctrines, and legal problems you have been studying. This way of working through a course--a way that is through and comprehensive (realizing that there are real world limits on the amount of time you can spend on any single course)--means that you must read the cases, prepare to talk about the cases in class, and then, you must outline the case/class discussion in an outline that reflects everything you've done in the course. In "making" the long outline, keep in mind that you are not just trying to capture information or organize legal rules, which of course is one aspect of what you are doing, but you are actively learning--learning by doing--as you sift through and organize what you learn from each case, and from the cases as they are organized into legal doctrines. The goal is not to produce an outline which can be learned verbatim, but which will "collect" and "connect" and give "structure" to what you are learning. (Collecting, connecting, structuring, are part of the process of learning. And, it doesn't hurt, to have a good memory!) You might think of your "long" outline as an amateur's version of Dressler's Understanding Criminal Law, albeit more fragmentary, more personal, and more directed to what you study in class. By progressively working your way from a "long" outline to a short one (from which you can mentally access the long outline), you should have, at the time of the examination, a workable, remembered structure, from which an array of criminal law problems can be addressed.
No, in all honesty, I don't have any advice for those who think there might be some kind of shortcut, some kind of approach to law school that will make it possible for you to avoid the kind of work I have outlined here. As a realist, I know that everyone cannot give the course a 110% effort. And I know that some of you, for all manner of reasons, will manage to survive the course and do so with far less work than I have outlined. If you are determined, early on, to be less than the ideal student, I have no advice that will be of any benefit to you.
In most criminal law case books, there are hundreds of pages of background reading, all to be read before you begin reading the judicial opinions by which you study how courts interpret the law and how they make the law. There is, of course, a logic to all this background reading, but as I think about the course, I found vast stretches of this background reading to be unnecessary to reading real criminal law cases. Note: When I resumed teaching Criminal Law in 2002, after a 25 year hiatus, I began my preparation for the course by trying to read and think about assigning this "background" material. I decided after several weeks of reading, that there must be a better way. I first turned to the West Virginia criminal code. ("If the case book author is going to deal in generalities, then the cure for that is to read the statute itself.") The West Virginia code's general crimes provisions (not counting the separate chapter on drug offenses and a chapter on crimes against children) turns out to be relatively short--147 pages--and the code was far easy to read and no less boring than the typical background chapters in Dressler (and other criminal law case books). The West Virginia criminal code turned out to be interesting reading for perhaps the wrong reasons: there are some rather surprising "crimes" to be found in the code and for the knowledgeable reader, the code turns out to be surprising bad. [We are more likely to think of a "code" like we do granite--it's there, solid; it's all there is. Yet, some criminal codes (and perhaps granite too) turn out to be better than others. According to a study conducted by Paul H. Robinson (with others), the West Virginia criminal code, by evaluative measures, is one of the country's worst in terms of: accuracy in imposing liability (47th ranking on this criteria); appropriate criminalization decisions (West Virginia criticized for criminalization of harmless conduct); accuracy in grading liability and punishment (West Virginia scores better than only Maryland and Missouri); overall rating (using an A/B/C/D/E scale, West Virginia received an E and was spared the lowest ranking of all the states, only by the distinctive honor of beating out Mississippi)] The important point here is that criminal codes vary from state-to-state, and they vary not only in what behavior is criminalized, but also how behavior criminalized in every state is defined.
The Dressler case book is 969 pages long and includes
the American Law Institute's Model Penal Code which comprises
another 62 pages. It would be foolish in the extreme to think about
covering all of this material in a first semester, first year law school
course in which you are trying to get your feet on the ground, learn
how to read cases (and learn law), and, how to talk about the cases
that you've read (determining what is important about the case, figuring
out why the case has been assigned, how the case fits with the other
cases you read, and what you might want to remember about the case as
you prepare to respond to legal problems presented on an examination).
While there may be a primary focus in your first year, first semester
courses, on learning the law of contracts, torts, criminal law, you
might keep in mind that you are also learning how to be a lawyer, and
to do that you must learn how to deal with legal problems in a lawyerly
way. This means, to use a vastly overused cliché, that you are trying
to learn to think like a lawyer. I think it more accurate, and more
helpful, to think about what you are doing as learning how to talk like
a lawyer, to write like a lawyer, and to develop that sense of self
that allows you to identify yourself as a lawyer. The problem with learning
to talk, write, and identify yourself as a lawyer is that you may find
that this way, oddly enough, that even as you gain new skills, knowledge,
and perspectives, you find that "legal thinking" limits your
thinking, prompts a false sense of self, and that, paradoxically, legal
education in some fundamental (and perverse) ways is an obstacle to
becoming the kind of lawyer you want to be (and that some teachers aspire
for you to be). [I have written a number of critical
essays exploring what it means to "think like a lawyer" and
the education that makes this kind of thinking its avowed goal: With so much laid out before us, and knowing we cannot pursue everything that Dressler covers in the course book, means that choices have to be made. The coverage in Criminal Law will be govern primarily by the concern that you learn, initially, how to talk about law cases (that is, the need to read cases with the idea that you will be involved in a conversation about these cases) (and the idea that it is by this talking about the case and your reevaluation of the case in light of our discussion that you learn law, prepare to practice law, and along the way, you become a student who knows more than what the law is, but also how law works, and how it fails to work. In Criminal Law, we will focus on the major doctrines of criminal law, but will do so primarily through the use of homicide cases. In the assigned cases, we will focus on the role of criminal statutes in defining the crime, the judge's instruction to the jury which explains the crime, the actus reus and mens rea elements of crime, problems involving causation (who caused the crime?), liability for the conduct of another (accomplice liability), inchoate offenses (attempts and conspiracy), and general defenses to crime, with a particular focus on the psychological defenses (battered woman syndrome in self-defense cases, competence to stand trial, diminished capacity, insanity defense). To cover these basic areas of criminal law requires that we skip the lengthy introduction to criminal law, Dressler's "principles of punishment" (pp. 30-84), and Dressler's introduction to criminal statutes (pp. 85-120). These materials do not, in my view, add materially to your understanding of the cases and do not prepare you to read these cases well. In reading the cases, we will, of course have frequent occasion to refer to the statutory provisions which define the crime. Finally, we will not focus our attention on the Model Penal Code (MPC), as Dressler does (especially in his notes and questions)(and as he does throughout Understanding Criminal Law). [See generally: Readings on the Model Penal Code] The West Virginia statutory provisions on crime are not based on the Model Penal Code (with a few exceptions; e.g., the insanity defense) and therefore MPC provisions and nuances will not be a focus of the course. While the Model Penal Code provides an opportunity to compare statutory provisions found in the cases you read, I prefer to have you read West Virginia jury instructions, jury instructions from other jurisdictions, and recently drafted revised West Virginia Jury Instructions, for this comparative perspective. I will draw attention to West Virginia cases and statutory provisions throughout the course, but the course is not designed to be a study of West Virginia law.
You might want to keep in mind a premise stated with notable clarity by Steven L. Winter, a fellow law teacher, who observes that, "Riding a bicycle can be reduced to laws of physics, but no one thinks that we learn to ride a bicycle by mastering those formal expressions. So, too, much of what we do in law--applying rules, characterizing precedents, making or predicting decisions in litigated cases--cannot be described in the analytic terms of legal doctrine." [Steven L. Winter, A Clearing in the Forest: Law, Life, and Mind 3 (Chicago: University of Chicago Press, 2001)] More Questions About the Course
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Some law school teachers suggest that they intend for us to
teach ourselves. Do they (do you) really mean that? 
