February 19, 2008
Questioning law school priorities in instruction and programming
As Dan Filler notes in this post at The Faculty Lounge, at the terrific U Penn Eighth Amendment symposium last week I complained about the over-emphasis on capital punishment instruction and related programming in law schools. Here is how Dan nicely summarizes my comments:
He argues (his stats, not mine) that about 150 law schools offer courses on the death penalty, while only about 30 offer general sentencing classes. And Sharon Dolovich and Margo Schlanger piped up that there are no more than 5 lecture-style courses on the constitutional law of incarceration and corrections. Doug contends that this reflects the preferences of law faculty — who find the death penalty a glossy and compelling issue — and also serves to reproduce this view of the world on the part of students. He argues that those seeking real change in criminal justice policy should refocus students on the big picture issues like mass incarceration, oversentencing, prison conditions, and the like.
I am drawn back to these comments today upon tripping across this law school website that indicates that nearly 100 law schools have a course on animal law. The website explains: "Nearly half of US law schools teach an overview course and a growing number of schools now offer clinical opportunities. Lewis & Clark Law School has the most developed animal law program offering six courses, including summer courses, moot court, and the Animal Law Clinic." To my knowledge, though there are death penalty clinics at many law schools (including in states that do not have the death penalty), I am not aware of any established sentencing clinics or prisoner rights' moot courts.
I suppose it is a sad and telling commentary that many law schools have devoted more resources toward having students question the legal treatment of animals than the legal treatment of criminal offenders. Perhaps advocates for sentencing and corrections reform need to find some incarcerated people with sad puppy-dog eyes so that humans locked in cages will evoke as much sympathy in elite law schools as animals locked in cages. Then again, if the human has committed a brutal murder and been sentenced to death row, the offender is then likely to get lots of attention no matter what his eyes look like.
February 19, 2008 at 10:14 AM | Permalink
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Over at my other site, I've had occasion to note the boom in courses in animal law in legal academia, fueled by generous grants from a foundation established by TV game show host Bob Barker. Doug Berman at Sentencing Law... [Read More]
Tracked on Mar 3, 2008 8:47:26 AM
"To my knowledge, though there are death penalty clinics at many law schools (including in states that do not have the death penalty), I am not aware of any established sentencing clinics or prisoner rights' moot courts."
You may note that Wayne State (fellow professor Joshua Dressler's old stomping grounds) had (still has?) a prisoner rights clinical program. Litigation was (is?)primarily, if not exclusively, under 42 USC 1983. I question whether it is still active as the attorney who supervised the litigation is no longer there. I think the University of Michigan has a similar program. Finally, both schools work with the State Appellate Defenders Office to expose students to the criminal appellate process. Obviously, there may be exposure to sentencing law during that process.
Posted by: Tim Holloway | Feb 19, 2008 11:03:52 AM
Sentencing needs to be a part of every 1L criminal law course. My prof, to his credit, at least took a couple days to discuss the Apprendi line up to that (pre-Booker) time. But the general omission of sentencing from the 1L course is anachronistic, since it is increasingly the main battlefield over which criminal cases are really fought. I find that Americans in general, including lawyers, and even including lawyers who have done criminal law clinics at good law schools, are very ignorant about how sentencing works in practice, because they learn only the elements-of-the-crime approach to analyzing criminal law. It's like learning arithmetic but not mathematics.
I wonder how many law schools teach sentencing under other names. My law school, Cardozo, did not have a course called "sentencing law" while was there, but did offer an upper-level course called "Advanced Criminal Law" which focused mostly on sentencing.
A brief word of defense for Lewis & Clark Law School, though. I competed in their Animal Law Moot Court Competition a few years ago, and it didn't prove to be a fluffy experience. Though the fact pattern involved animal testing, the law involved some legitmately thorny questions of federal preemption.
Posted by: M. | Feb 19, 2008 11:07:30 AM
Add GW to the list of schools that will offer a sentencing course. I will teach sentencing there next fall.
Posted by: Jason Hernandez | Feb 19, 2008 11:18:21 AM
As much as it pains me to say it, I don’t think that sentencing should be a 1L course. First, it is fairly specialized, and requires that the practitioner FIRST understand crim law, crim pro, and con law. Second, sentencing varies considerably by jurisdiction, and so a course would have to cover general state regimes as well as the guideliens. This is just too much to cover.
Finally, unlike other areas of law, in most jurisdictions there is little need for a trial-level clinic in this area, as most people are represented at sentencing by a lawyer paid for by the government. In most cases, sentencing is the product of pretrial negotiations and really can’t be divorced from regular criminal practice.
Posted by: S.cotus | Feb 19, 2008 11:29:47 AM
Great point Doug. As this article shows (http://findarticles.com/p/articles/mi_m1282/is_4_58/ai_n16359635) there's more than one way to have criminal law clinics as well.
I wonder, what is the fascination with animal rights at law schools anyways? Perhaps, I'm being sort-sighted, but what relevancy do such courses have for schools which will largely graduate practitioners?
Perhaps this follows the trend in legal academia of offering largely theoretical courses in an attempt to demonstrate that law is a profession and not a trade?
It's curious to note that HLS often has numerous legal theory courses but often only 1 advanced criminal law class. And guess where the student demand is? (hint: the legal theory classes are often unfilled)... But, it's rarely about student demand, but the academy's demand for ever esoteric topics which helps explain the preferences on the "meat market" I suppose.
Posted by: Steve | Feb 19, 2008 11:30:26 AM
I didn't say that sentencing should be a 1L course -- I said it should be part of the 1L crim course, and I stand by that. Just as we teach the FRCP and call that "civil procedure" -- even though every state has its own civil rules -- a review of the federal system could take up a few weeks of the 1L crim course without getting people too confused.
Posted by: M. | Feb 19, 2008 11:43:21 AM
An Animal Rights clinic exposes students to AN emerging area of the law where there is considerable litigation and not too much “practice.” (Though I once attended a meeting of an animal rights bar group, and they seemed to think that there was enough law and regulation to consider themselves a real “field.”)
See, part of the disconnect between law schools and practice is that law professors frequently forget that most areas of law devolve into fairly routine proceedings. This isn’t to say that areas which have not devolved (i.e. GTMO detainees, challenges to faith-based programs, etc.) are not valid, but the practice in them require a different skill-set: being able to latch into whatever kinds of extraordinary remedies are available to help a client. In “devolved” areas of law (i.e. most criminal, civil, and administrative practice), lawyers need to know the way that things *are* done, and what changes in the law as they happen. While they do need to think “outside” the box, for the most part lawyers are trying to fit their clients interests into whatever box exists.
Posted by: S.cotus | Feb 19, 2008 11:45:27 AM
Michigan does have a Criminal Appellate Clinic, taught by two attorneys from Michigan's State Appellate Defender Office (http://cgi2.www.law.umich.edu/_ClassSchedule/aboutClass.asp?term=1670&classNbr=10037)
It's an excellent offering, and the professors definitely covered sentencing issues under Michigan's Guidelines.
Posted by: Reader | Feb 19, 2008 11:55:57 AM
Does anyone ever say that an offering that their own school is "crap-tacular"?
There are wastes of time in law school. I suspect that some clinics are, in facts, wastes. But, nobody seems to own up to them.
Posted by: S.cotus | Feb 19, 2008 12:08:48 PM
I believe Bob Barker is the driving force behind the focus on animal rights law. He has established endowments at many, many schools. Look at the results of google search at
Sentencing law needs a philanthropist.
Posted by: | Feb 19, 2008 12:12:24 PM
I don't know if anyone noticed this, but...
lots of people care about animals.
Besides, caring about animals is below the political radar, and even on 9/12/01, you could claim to be pro animal rights without being called a traitor, except by me, who accused chinchillas of being terror-supporters.
Posted by: S.cotus | Feb 19, 2008 12:22:42 PM
S.cotus: "Does anyone ever say that an offering that their own school is "crap-tacular"?"
I don't know about that. I and my fellow students frequently talked about how craptacular certain classes and/or professors were. Calling random classes craptacular, however, would not have pertained to the point under discussion -- do law schools have offerings concerning sentencing law?
Posted by: Reader | Feb 19, 2008 1:17:00 PM
Sentencing is "where the action is" today in the criminal courts. In my opinion, very few trial lawyers understand the basics of NC's extraodinarily complex structured sentencing grid. This is a problem not only in sentencing hearings before a judge following a guilty jury verdict or plea, but also in terms of plea bargaining.
Part of the reason that Apprendi came to be is that, in their zeal to micromanage the criminal justice system through a series of mandatory minimum sentences, state legislatures were trampling on the rights of defendants. Not just jury trial rights , but the right to know "the crime the state actually seeks to punish." Scalia writing in Blakely.
Posted by: bruce cunningham | Feb 19, 2008 1:24:57 PM
Sentencing – if done right – is no more complex than other areas of the law. The problem is that some lawyers don’t do whatever area of law they are in right and don’t have a health respect for the beauty and complexity of whatever area of law they are in.
It is sad to see that lawyers in NC are not going into criminal representation adequately prepared. But, I could say the same for lots of fields.
Reader, Lots of law students bash their own schools. I want to see professors at schools in the top 100 bash their own schools (in public) rather than simply say that their offerings are great.
Posted by: S.cotus | Feb 19, 2008 1:33:23 PM
State sentencing, where most criminal offenses happen, unlike federal sentencing, is rarely terribly elaborate in a doctrinal sense, and is often very ideosyncratic.
Sentencing practice is mostly done by a small, discrete and insular group of prosectors, city attorneys, public defenders, private criminal defenders, magistrates and trial judges with whom the unwritten understandings about what sentences are customary is more important than legal doctrine.
Most states have nothing like the federal sentencing guidelines, and hence the biggest questions in most cases are consecutive v. concurrent sentences, determining the correct maximum sentence, and determining eligiblity for alternative sentences.
Thus, real sentencing law faced by most students upon entering criminal practice is important, but hard to teach in an appellate case, law school case method fashion.
In the same way, many legal skills areas are hard to teach in law school because the law school format isn't well suited to it. Mentorship is usually the preferred way to learn these skills.
Posted by: ohwilleke | Feb 19, 2008 2:47:02 PM
I think ohwilleke and I mostly agree. However, I would argue that the “understandings about what sentences are customary” create a “law” of its own that is just as complex as anything else.
In fact, I am surprised there isn’t more literature on these customary sentences. But, I suspect that people don’t want to talk about them too much because they often too enlightened to be politically expedient.
Posted by: S.cotus | Feb 19, 2008 3:57:08 PM
It isn't a clinic, but here at Arizona State we have a Sentencing Workshop. That workshop (which is held one weekend every spring) brings together students and local state trial court judges to discuss the appropriate sentence in a past case where one of the participating judges has already imposed a sentence.
I blogged about the workshop last spring on PrawfsBlawg:
I'm happy to say that we have a great group of students and judges lined up for this year as well!
Posted by: C.Hessick | Feb 19, 2008 5:56:14 PM
Oh come on.. a one or two day class (with just students and judges) isn't serious academic discussion of anything. Usually these "workshops" (in other fields -- I avoid AZ) are just grandstanding by judges and sucking up by students.
If sentencing is going to be taken seriously there needs to be MORE endowed chairs concentrating mostly on sentencing, and more law review articles written about it. I mean, for crying out loud, there are only 2 or 3 sentencing blogs out there. Compare this to everyone who thinks that they can do con law.
Posted by: S.cotus | Feb 20, 2008 7:27:05 AM