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Criminal Law Preface
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. Good teachers matter, but the real determining factor in learning is the student. We see a version of this thinking in the idea that one learns best from 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, in some quarters, 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. (There is no prohibition against the kind of learning that comes when students posit questions to a teacher.) In legal education, we've adopted the fanciful notion that this question and answer, 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 there is any relationship to Socrates at all. We have, to put it simply, rather crudely adopted the teaching of Socrates. However weak our appropriation of Socrates, the law school method of teaching does call into question the information/expertise model of teaching, where the teacher purports to be the expert that conveys the information on which his expertise is based on to the student. 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 and to talk about law in the way a lawyer or judge would. The questions put to you by a teacher can be quite basic. They are basic because you are new to the language in which law is addressed. The questions can be quite complex, so complex that even a roomful of lawyers and law teachers would struggle to provide a satisfactory answer. There is much more to be said about the Socratic method, that is, 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 even the law school version of the Socratic method can be an improvement over the lecture method. You may conclude, after some experience with the Socratic method, that it is either vital to your education as a lawyer, or, you may find, on the other hand, that it is a great hindrance to the education you had in mind when you arrived at law school. 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, and they have no more skill in Socratic teaching than they do brain surgery. 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, see James R. Elkins, Finding Our Back to Socrates | The law-school version of the Socratic-method has both defenders and 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 about Socrates and shares none of the philosophy which gave rise to the "method" is a pedagogical prescription for teaching that 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 it is 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 the method, and by the teacher using it. We see this happen, even when Socrates himself is involved in the dialogue, e.g., we see it in 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, a defender of the Socratic method in legal education, puts it, the Socratic method is still viable if you can tolerate its "bitter knowledge." [Thomas D. Eisele, Bitter Knowledge: Socrates and Teaching by Disillusionment, 45 Mercer L. Rev. 587 (1994). Eisele's "Bitter Knowledge" essay should be required reading by first year law students. For a review of Eisele's book, Bitter Knowledge: Learning Socratic Lessons of Disillusion and Renewal (Univesity of Notre Dame Press, 2009), see Douglas Lind, Book Review (60 J. Legal Educ. 705 (2011)).] My strong preference has always been to carry on in-class
discussions with those who want to be involved in discussion and can learn from it. The problem with my predilection is that it doesn't work in the large group setting. The number of students who want to participate in a class dialogue are far out numbered by those who do not.
(And, there is the phenomenon of a small number of students so eager to talk that they come to be viewed
with disdain by fellow students.) In order to address this
common classroom dynamic--few participate while the majority remain
silent--I will call on students in class.
The author of your casebook, Joshua Dressler, has written a hornbook/treatise/study guide entitled Understanding Criminal Law (5th ed., 2009). Dressler is an acknowledged criminal law scholar and has attempted, in his study guide, to provide a solid introduction to criminal law. Understanding Criminal Law contains far more law (legal rules and legal doctrine) than any single person would ever attempt to learn. If you want law delivered up in the form of clearly stated propositions, and presented in a logical linear fashion, accompanied by brief explanations and commentary, that refers to many of the cases we discuss 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 casebook, Cases and Materials on Criminal Law that will be used as the source of a fair number of assigned cases. 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. If you find the law school version of the Socratic method troubling, it might help to better understand the method. We are sometimes turned off simply because we don't understand what is going on. I know of no better introduction to Socratic pedagogy than Tom Eisele's Bitter Knowledge: Socrates and Teaching by Disillusionment.
I'm not sure there is a simple yes or no answer to this question that 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. Most law teachers believe, and rightfully so, that for most students there is no substitute for careful reading of assigned cases, working through the cases, and the questions raised in class discussion about the cases, and then, 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 and 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 what an individual student may end up doing to succeed 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, either by your own standards, or by those established by the institution. Virtually all of you, by one means or another, and some of you working harder than others, and some of you learning better how to translate your day-to-day reading into the skills you will need for your final examinations, will survive not only criminal law but all of your courses. Whether you will consider your passage successful is a complex matter that I will not attempt to address here.
In lieu of using a study-guide, you can: (1) read some of the cases a second time (or at least the pertinent parts of the case that you have underlined during your first reading); (2) make 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) pay particular attention to the jury instructions which you are assigned (considering the fact that they are something akin to "pure" law); (4) read, as time and energy permit, the background materials presented on the course website; (5) read law review articles and cases cited by Dressler in the notes following the assigned cases and on the course website; (5) develop, 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 you want to begin to structure your course outline. You should produce a course outline in sufficient time to spent the final weeks of the semester distilling a long outline down so that it exists in ever diminishing size. For example, a thoroughly conscientious (and slightly obsessive student) might produce, over the course of a semester, an outline of 60-100 pages in an effort to summarize the assigned cases, set forth propositions of law (and the variations thereof), with notations for problems and concerns identified in class discussion, including anything you glean from out-of-class and reading. 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 1/2 of the original outline. Of course, you may find you are no more capable of memorizing 20-30 pages than you do the full outline, and this means that in your final days of study, you should produce a still shorter outline--4 or 6 pages let's say--that will provide a structural outline of the entire course and that you can access from memory. This way of working through a course--a way that is thorough and comprehensive (recognizing 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 we do 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 associated with particular legal doctrines. Even if you do not have the kind of memory that permits you to learn a short outline verbatim, you will still have "collected" and "connected" and given "structure" to the law you are trying to learn. You might think of your long outline as a novice version of Dressler's Understanding Criminal Law. It's quite alright that your outline is fragmentary, personal, and specifically directed to what you study in class. By progressively working your way from a long outline to a short one, you should, at the time of the examination, have a workable course that allows you to address the kind of problems you will find on the final examination.
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 outline here. As a realist, I know that everyone cannot give the course a 110% effort. Some of you, for one reason or another, make not give the course a 100% effort. I suspect that some of you will manage to survive the course and do subtantially less work than I would do. If you are determined, early on, to be less than the ideal student, I'm afraid I have no advice for those who will follow this path.
In most criminal law case books, there are hundreds of pages of background reading. I'm not sure what teacher assigns all of this background reading. If you are a medical student, you are eventually going to be standing before a cadaver with a scapel in you hands. For a law student, our cadaver is the judicial opinions that we read. For my part, I say, let's get started reading them from Day One. We study law--rightly or wrongly--by reading judicial opinions and while there may be a logic to weeks of background reading, I find the better approach is to launch forthwith into the cases and let you catch up on the necessary background reading as we proceed. In 2002, I resumed teaching criminal law after a hiatus of some 25 years. I began my preparation for the course by reading some of the coursebook background material. I decided after several weeks of this background reading that there must be a better way. I decided to take a different tack: Why not read the West Virginia criminal code. If the coursebook authors are going to begin the course with criminal justice generalities, I thought the cure might be to read the statute itself. The West Virginia code's general crimes provisions turns out to be relatively short--147 pages--and the code was far easier to read and no more boring than the background chapters you find in Dressler's book. There are several points that can be made about reading a criminal code: (1) The West Virginia code has not been subject to modern revision, and in many places, the homicide provisions being a perfect example, is quite poorly drafted. 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 was criticized for criminalization of harmless conduct); accuracy in grading liability and punishment (West Virginia scores better than only Maryland and Missouri on this measure). West Virginia received an overall rating (using an A/B/C/D/E scale) was an E and was spared the lowest ranking of all the states, only by the distinctive honor of beating out Mississippi. We tend to think of a "code" as being something like granite; it's there to be reckoned with, and it's solid and complete. Yet, some criminal codes (and perhaps granite too) turn out to be better than others. A final point about criminal codes: Codes vary from state-to-state, and while we will read a fair number of West Virginia cases, our focus in the course is criminal law in the more general sense.
The Dressler case book is over 900 pages long and includes the American Law Institute's Model Penal Code which comprises another 60 plus pages. It would be foolish in the extreme to think about covering all of this material in a first semester law school course in which you are trying to get your feet on the ground, learn how to read cases (and learning law in the process), 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, keeping an eye on how the cases fit together, and what you should remember about the case as you prepare for a final 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, according to 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 that what you are doing is trying to learn how to talk like a lawyer, to make legal arguments about the application of the law to a particular set of facts, to write like a lawyer, and to develop a sense of self that allows you to identify yourself as a lawyer. The problem with learning to talk, argue, and write like a lawyer, and then to identify yourself as a lawyer is that you may find that this new lawyer orientation you are asked to adopt expands your thinking in certain directions, and at the same time, limits your thinking and prompts a false sense of self. Paradoxically, and some will think perversely, legal education can become an obstacle to becoming the kind of lawyer you want to be (and that some teachers aspire for you to be). My concern in Criminal Law is that you learn, initially, how to talk about law cases. When you read a case in criminal law, you must read with the idea that you need to know the case well enough to talk about it. 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 to the jury, the actus reus and mens rea elements of crime, problems involving causation (did the defendant cause the injuries for which the crime is charged?), 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," and Dressler's introduction to criminal statutes. These materials do not, in my view, add materially to your understanding of the cases and do not prepare you to read the cases as you will learn to read them. Finally, we will not focus our attention on the Model Penal Code (MPC) as Dressler does in his notes and questions, and 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 and jury instructions from other jurisdictions 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 observed 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)]
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Some law school teachers suggest that they intend for us to
teach ourselves. Do they (do you) really mean that? 
