Rethinking the Law School Approach

Is this a realization? Is there any human culture in which miscarriage of justice is not part of the fundamental folklore?

Again, isn't this a strange thing to be calling an insight produced by law school? What would one have to have not read, not seen, not thought about before law school in order for this to strike one as a new conception?

I want to focus on one tangible piece of evidence in the Central Park jogger case: the defendants’ confessions.

A confession is testimony, not tangible evidence.

While the racial and class tensions at play may be too complex for this discussion, the defendants were ultimately responsible for the most destructive evidence against them. Why the five teenagers lied is probably based on social and psychological factors more than the law.

To call a false confession a lie is probably a category error. Why are you doing it? In order to indicate that they are at fault somehow?

White police officers were pressured by a concerned public to push harder for guilty confessions.

Nonsense. There is no reason to believe that the police officers who took the confessions were white; you haven't established that and it's not a reasonable assumption on no evidence. A "concerned public" is no basis for a police department to attempt to gather false confessions, and no one dealing with a highly-professionalized detective force like that involved in serious violent crimes in New York City would charge them with intentionally securing false confessions without strong evidence, of which, so far as I know, there isn't any. American public opinion is shaped by the basic ritual of the criminal trial, and while it is not necessarily faithful to the lawyers' ideal of a presumption of innocence, Americans are socially satisfied with an arrest and a trial. The public demand for confession tends to occur in societies with legal systems that themselves demand confession in order to sustain conviction, or where public confidence in the integrity or meaningfulness of trials is slight, so that only confession after apprehension provides any evidence whatever that the guilty individual has been found.

Detectives dragged questioning on for hours and informed a teenager that his DNA had been found on the victim’s clothing when it had not been. These methods of interrogation, aimed at teasing out a certain type of response, are not particularly uncommon. Sometimes, these methods are effective in manipulating the guilty to confess. Other times, they successfully manipulate the innocent to confess.

Not established. What actually "manipulates" people into confessing hasn't been established, let alone that any particular technique has equal or similar likelihood of facilitating a false confession as a true one. You have not even established a relationship between this particular aspect of the questioning and the production of the eventual false confessions. Nor have you explained why the false confessions appeared true enough to the police, the prosecutors and the jurors that they disregarded the disclaimers from the defendants after they realized what they had confessed to and what was going to happen to them in consequence. (This may seem simple to you, but it contains important complexities.) You do not mention the matters which seemed most problematic to those of us who doubted at the time the validity of the confessions, including the fact that the boys were not allowed contact with their parents, which they did know to ask for. The interrogation was only maintainable because they were too ignorant of the ways of the world to ask instead for lawyers, which if persisted in would have terminated the questioning. The parents were kept from the children because contact with parents would have resulted almost inevitably in the request for lawyers that would have terminated interrogation.

This passage too has a gee-whiz quality I don't understand. Criminal justice depends on accurate fact-finding? Law students need to remember that facts decide cases? Aren't these obvious?

I don't understand why that's easy to forget. On the contrary, it seems to me remarkably easy to remember.

The case of the Central Park Jogger stirs emotions, something that few cases in casebooks can do.

Are you sure that cases with no sensationalist aspects cannot stir emotions? I have seen people get pretty emotional about tax cases that are in the casebook, and I'm not sure you've fully considered the immense emotional investment certain real estate issues contain.

It is relatable. It occurred relatively recently in Central Park, where we have probably all spent a few lazy Sunday afternoons. The Jogger could have been a friend, a sister, or even ourselves. On the other hand, the defendants could have been as well. This particular case begs the question: what if that were me?

Which particularly begs the question, "Why is that a good way of thinking about this situation?" Why is identifying with the victim a better way of thinking about the situation than identifying with the boys who went to jail for something they didn't do? They too might have been a friend, a brother, or you. So might the detectives who were trying to do their jobs right, and who wound up building a case that sent the wrong people to jail. In particular, so might the prosecutors who enabled and pressed on the miscarriage of justice, and the defense counsel who found no way to stop it, and the judge who didn't see that something was wrong, and the jury that voted under the impression that everyone else had done a job on which they, inexperienced as they were, had to rely. You could take any of those points of view, and many others, if your goal were to identify with those whose actions contributed to the outcome. Why is that of the victim, who suffered greatly but who had no memories sufficient to make direct testimonial evidence, the one you choose to invoke?

No. The first year of law school is about teaching people to use the language of law and to learn law by reading the materials of the legal system. It is not a statement about what lawyering is, or a complete course in everything you need to know to be a lawyer, and it does not claim to be either. Whether something "fuels [a] misconception" depends on the engine of the misconception and the nature of the fuel, I suppose. But to complain of law school that by doing two things first it fuels the misconception that everything it does later will be less important seems odd to me. We usually assume that education is progressive, and that knowledge presented first will be deepened or made more sophisticated at later stages, don't we?

As I said before, the first point restated here seems to me obvious. It's hard to get the first university degree that is predicate to law school without taking some social science. Who comes to law school not knowing that "the legal system is intertwined with other social factors"? That "law should be approached as the study of people instead of rules" is indeed an important concept, one that could be considered central to legal realism, which as we discussed has been the organizing ideology of American law schools since the later 1930s. It's hard to see this as a "change in attitude" relevant to the current curriculum, unless the point is that the rules should disappear altogether. As to the conclusion that thinking like a lawyer means "simply" having the greatest possible breadth of social understanding, I would say that having such understanding is hardly simple, and that thinking like a lawyer requires not simply that, but that in addition to other knowledges as well.