A somewhat interesting question arose when Denver lawprof Sam Kamin asked, in a post at PrawfsBlawg, whether law schools are doing the right thing by teaching criminal law theory rather than practice.  Coy Kamin opened up with this teaser:

Not to name drop, but I was having dinner last week with a fairly famous law professor closely associated with the Law and Society movement.  [Name withheld only because I haven’t asked his permission to blog this.] We were discussing teaching criminal law and he said that he tried it once and couldn’t bear it because he didn’t feel like what was taught in criminal law bore any relationship to reality.

The issue grew legs when Orin Kerr and Doug Berman chimed in about their own social circles.  First Kerr, who is clearly better situated to make the rounds of really cool people in the law:

I was having dinner last week with Chief Justice Roberts, Learned Hand, and Moses, and the four of us agreed that studying the MPC is excellent training for a career in criminal law. Indeed, Learned Hand was particularly exercised about it — he kept saying that Herb Wechsler had made him serve on the MPC advisory committee because it was so impossible to teach the common law of criminal law. I thought that was a fair point: I have a bunch of pre-MPC criminal law casebooks, and it is quite hard to understand the law from them given the absence of a common statutory basis.

But Berman, as if to prove that Ohio isn’t the backwater of the legal nation, responds:

I am amazed to learn, Orin, that Hand was more vocal than Moses in this conversation. After all, Moses got to carry around the very first draft of the MPC (though, according to Mel Brooks, he dropped a big part of it).

In any event, when I was having coffee recently with Roger Clemens, Plaxico Buress and Michael Phelps, I was pleasantly surprised by how interested they all were in the MPC’s definition of “knowingly.”

While we were talking, Ted Stevens came over and asked who else was planning to visit Michael Vick once he was transferred to a halfway house. I used the question as an excuse to launch into a long lecture about how the MPC’s sentencing provisions are being revised by the ALI. Everyone seems to find the lecture very pertinent, but nobody offered to buy me a second cup of coffee.

Yeah, right Doug.  Like Plaxico doesn’t have travel restrictions. Actually, I can’t tell you how good it is to know what a bunch of cut-ups these lawprofs turn out to be.  I hope to go to the next AALS beer bash and watch them dance with lampshades on their heads.

But back to important matters, such as Sam’s initial inquiry.  Complete the first year criminal law curriculum, ace the final, and a law student is competent to do . . . another course in third year.  But as Larry Rosenthal argues,

Professor Kamin’s post assumes a dichotomy between “analytical rigor” and practical skills that I reject. Analytical rigor is required of lawyers who practice at the highest level, but that does not mean that law school should reject skills training. After all, law school is preprofessional education — students spend all that time and money in order to obtain a marketable skill. Being able to talk about what the law “ought to be,” or to navigate the Model Penal Code, turns out not to be an especially marketable skill, even though “analytical rigor” is, at least when accompanied by the other skills required to succeed in practice.

The failure to focus on skills training has had little effect to date on elite law firms. They often prefer to do their own skills training. For public interest and government law firms on tight budgets, however, this approach has been a disaster. These firms lack the resources to train new lawyers — who too often know little of the skills needed to survive in practice. As the economy deteriorates, the failure of most law schools to prepare their graduates for practice will, however, likely have ramifications throughout the legal profession, as the resources available to train new lawyers shrink everywhere. Perhaps the pendulum is about to swing.

The “analytical rigor” aspect is no different for crim law than any other area; We need to be able to dissect the statutory and case law just like any other lawyer.  Actually, better than other lawyers since the consequences of our incapacity to think tend to be more severe.  But this doesn’t require that it be grounded in the theoretical Model Penal Code for the convenience of textbook authors or fungibility of jurisdictions.

There’s a real world out there.  One can learn analytical rigor by beating the real ground just as well as a Code that no one anywhere uses.  If it so happens that you pick up some actual useful information, would that be a crime?

The whole “national law school” and “elite law firm” dichotomy is simply institutional arrogance.  Harvard is much too important to teach some snot-nosed law student Massachusetts law, since its “best and brightest” students will span out across the nation to be “thought leaders,” far above the mundane workings of night court in Boston.  Is this true?  Well, probably.  But what harm comes from teaching Massachusetts reality in lieu of Model Penal Code unreality? 

Since no jurisdiction uses the MPC, and since they can test their mettle with real law and practice in a real court that affects real people in their own neighborhood, why not?  That some smart aleck will end up in the Manhattan DAs office changes nothing, since she will have to learn New York criminal law either way.  That MPC nonsense isn’t going to help her one iota more than Massachusetts law.

As for the “elite law firms,” this discussion is just plain silly.  First, they don’t actually practice criminal law, white collar or otherwise.  Second, to the extent they claim to have a white collar criminal law practice, it’s on the shoulders of some recent emigre from the US Attorney’s office, whose never defended a case anyway.  They don’t hire first year associates to do criminal law when they can get them out of St. Andrews Plaza, with a brand new oil change and lube.  You guys are fooling yourselves.

A comment by a recent Suffolk law school grad, George, injects a dose of reality into the academy:

Further, don’t law schools as institutions have obligations to (1) “the legal profession” and (2) the “public” that the profession allegedly serves? Are not the profession and the public best served when law students are given a fair shake? And if not, would it not be in the interest of honesty and good conscience to let prospective students know that when they graduate they will have little marketable skill.

Between the post, the comments, and my own experience, I can only conclude that law schools, and their professors are a part of a system that takes advantage of people for a lot of money knowing full well they are not giving their clients, students, or customers the “benefit of the bargain”. I went to law school to become a lawyer. I paid 112k directly to a group of attorneys to be trained as a lawyer. I am not a lawyer. Great system.

I can hear that smack all the way in New York. Ouch.

I discussed George’s comment during dinner last night with Clarence Darrow, William O. Douglas and Thurgood Marshall.  We all agreed that the rarified world of the Supreme Court really isn’t all that different from the dirty, smelly world in the trenches of a criminal court in any city in America, where Justices with law clerks who are smarter than they are try to remember how exactly things play out in courtrooms and on streets, where theory is discussed at the end of a gun and hungry babies cry while waiting for their daddies to be brought out in leg irons. 

We all agreed that the lust for theory in the quest for analytical rigor was better taught in a bar around the corner from the law school, since the real work of lawyers, save the handful who ever get the chance to argue at the Big Show, happens in the dirty, smelly trenches.  And Wild Bill and Thurgood then guffawed, agreeing that even at the Supreme Court, the justices are just trying to figure out the real life implications of a case while the litigants are arguing pie-in-the-sky theory.  “If it wasn’t for law clerks from Harvard,” Thurgood said, “I wouldn’t have a clue what half of them are talking about.”

Subject law students to analytical rigor, but do it by way of real law.  If the lawprof lacks the background to know anything about real law, relying instead on whatever textbook is most popular at the moment, find a new lawprof.  Do it, just in case they don’t get that first year associate job at Biglaw.  Maybe then, come graduation day, you will have trained someone to be a lawyer.