[caveat

written late, not so organized.] "Does the criminal law do more good than harm?" is, in one way, a straw-man question. YES, I agree that we are doing more harm to the people we incapacitate than we prevent to potential victims.
However, over-incarceration only indicates a hysteric willingness to punish (relatively) victimless crimes -- i.e. utilitarianism with the thumb on the scale of white-collar comfort. It CANNOT logically tell us that we have underutilized softer options with better utilitarian outcomes.
The criminal law is (by definition?) the *last and most drastic of a series of processes designed to effect the goals of a whole swath of crime-related law: to protect potential victims and perpetrators. This complex includes elementary schools, churches, special-ed programs, unemployment insurance, sex-ed classes, Sesame Street, civil courts as fora for disputes, and criminal sanctions. In a legal system seen functionally, all these have criminal implications. (I guess they're also all Criminal Law, since Sesame Street is on PBS.)
Could we better distribute our harms among this system? We SHOULD shift harms dealt with ex-post by the criminal code into the preventive, social code. We have made huge advances in psychology and education.
But that's not an available answer when you ask "does the criminal law do more harm than good." The criminal law does LOTS of harm, because it's the last tool we have. We reserve incarceration for cases that by definition were least responsive to the rest of the system. Again I'm tired so, if this looks like a logical hairsplit, my main point is this: I call it a "straw man" question because, yeah, the criminal law is SUPPOSED to look shitty, it reflects our (alleged) inability to prevent crime by any other valve in the system. -- AndrewGradman - 24 Jan 2008

-- CarinaWallance - 23 Jan 2008

Introductory Remarks Three words not contained in any introduction that was written: duty, responsibility, and risk (Note: write shortly and concisely!)

Holmes – The Path of the Law Logic: We were considering the way in which logic is both not what the law is and not what it is often considered to be – a way of knowing the universe Holmes: logic is an imposition on the world, a system human in nature to comprehend that which is not necessarily logically organized but is beyond our capacity to the extent it is not logically organized

Holmes says ‘we find ourselves excessively dependent upon history in order to understand legal phenomenon’ - This is a preface to another question – history is deprecated not because it is a false way of understanding, but because it is an adequate way – it doesn’t focus the questions appropriate to the lawyer trying to predict the incidence of force - Instead, there are a variety of questions we leave open because we are satisfied to know where the rules come from so that we can imitate them

“What have we better than a blind guess to show that the criminal law in its present form does more good than harm” (p 22) - Most historians who work on criminal enforcement have great doubts about crime rates: o Instances of unreported crimes, depends on what you define a crime to be and what you define a criminal to be - is there impunity?, general tendency to let certain criminal behavior go unprosecuted – ex: downloading music, what about criminal torture from the US government? o Profiles of danger – Men: statistically significant crime – being robbed Women: statistically significant crime – sexual assault Responding to the risks as they actually are than as the news says they are would yield very different outcomes - Does punishment deter? Have we answered that question? - The point is that these questions are completely open o We imprison a larger proportion of our population than any free society on earth – are we getting something from it? what?  Apparently we don’t want to know - Question: Doesn’t the fact that we are asking these questions suggest that we have more than a ‘blind guess’? o The realism of criminal law is never discussed - Eben: incarceration is great social error o If there is a value to incarceration we might want to ask where the value of diminishing returns come in In Holland prisons are places the public should see and inspect - Question: How do you fix the criminal justice system when the making of it is so political in terms of needing to be tough on crime? o Making change – if you know what you want and you know how to get it you can create change - Question: There seems to be an assumption that we can know whether criminal system does more good than harm – which is that we know what good and harm is (?) o The very fact that the questions remain open is itself a statement of an ideological kind Maybe the reason we don’t answer Holmes’s questions is that we don’t ask them

‘The man of the future is the man of statistics and economics’ – Holmes - For him those disciplines mean knowing what law does - We are seeking to find a way to make policy by understanding what happens now - ‘The object of ambition, power, generally finds itself in the form of money alone … it is in the end not the appetite but the opinion that needs to be satisfied (Hegel)’ – Holmes

If you want to make things happen in society using words, you need to take risks It is surprising that in work that people think is neither good nor really bad – they get enough satisfaction - Why is the answer that the only work we will do is the work that does good? - Why is the answer we will do some stuff that isn’t any good as long as it’s not too bad?

Outsourcing: - The reason it is more serious for CLS students than the ‘non-elite’ people is that the people who go to these law schools are packaged as servants for financial services – this work is already extensively done in many places around the world in addition to NY - Because the client has no actual existence and does not need face-to-face contact 90 percent of the time, the location of the lawyers is irrelevant – the quality of the opinion letter matters, but this is a mechanical activity - Unlike late 1980s and early 1990s, as firms rebuilt again from the bottom, this time many jobs are going to go to India and they are going to stay there when it is over – even now they are paying between ¼ and 1/5 of US wages - The actual shape of outsourcing should be something we study carefully here - No answer, except change who you are and how you learn and how you go about constructing your professional life – the question is not is there room for lawyers but what is a good life for you? - This brings us back to the problem of imagination o Law school is an imagination test, almost everybody fails - often because they don’t show up for the test, just follow the conveyor belt o Change that is taking place in the world is change you not only need to take advantage of, but change you need and want to reckon with

Goes back to memory – recommendation of a lot of sleep, daily practice in overnight rem sleep The use of reading breaks –read, break, think , interaction w/the information, form more pathways to it Figure out what you want, keeping options open is not a career

Why do Buddhists do well in law school?