Sunday, March 1, 2009

Op-Ed: What are We Studying?

At the start of law school, my criminal law professor challenged the class to not only learn the law, but to question the law. We were to embrace this opportunity to ponder what the law should be; not merely accept what the law is. This, he explained, was an essential component of our legal education.

I was reluctant at first to accept this challenge. Who was I to question legal precedent? I wanted to learn the law, apply the law, and, ultimately, secure a job. To hell with this intellectual component of legal education!

I somewhat digress from this article’s main point, but I believe the digression is necessary to frame my argument. I am a young white male. I grew up in a small, relatively affluent, Connecticut suburb. This undoubtedly caused much of my initial indifference, as I was largely shielded from many of this nation’s unfortunate realities. But, living in a diverse city, working at the United States Attorney’s Office, and, of course, studying the law has offered me a new and welcome perspective. The indifference which once figured so prominently in my legal education has become a lost remnant of a different life.

And it's a good thing that it did, because studying criminal procedure inevitably leads one to question whether the laws are “fair.” Are they merely a means of maintaining the status quo and protecting the politically/economically elite? I don’t consider myself a conspiracy theorist. I surely don’t believe that any explicit agenda exists within the criminal justice system to apply disproportionately burdensome laws on the lower class and minority population. However, implicit within this system is a policy that disproportionately incarcerates these individuals.

The more I study criminal procedure, the louder I want to yell at our Supreme Court Justices. I don’t know if I’m angry, I suppose I am. But, more than anything, I’m confused. Throughout my (albeit limited) legal education, I’ve had enormous respect and admiration for the Court. No matter whether I agreed or disagreed with the holding, I remained envious of the Justice’s ability to interpret the law. And now, I just want to know what happened. Why is it that I suddenly wish to correct the Court on its application of criminal procedure?

What is it I disagree with, you ask? No, I won’t bore you with the overly analyzed crack/powder cocaine disparity. But what about “reasonable suspicion?” Such a vague concept may, at least implicitly, encourage profiling and ultimately perpetuate this system that incarcerates lower class and minority individuals at a truly startling, if not sickening, rate. Specifically, I’d like to discuss Illinois v. Wardlow, 528 U.S. 119 (2000). The Court held, per Justice Rehnquist, that unprovoked fleeing from police presence in “high-crime” areas was sufficient to establish reasonable suspicion (for a Terry stop).

What is a “high-crime” area? The first image for most would be the classic low-income, “ghetto” neighborhoods in major cities. But would Wall Street classify as a “high-crime” area? For some odd reason, I don’t believe Bernie Madoff would have been stopped a year ago if he fled from the presence of police. What about Yale’s campus? I’m sure the percentage of student’s engaged in criminal conduct would compare to that of South East, D.C. or Harlem, New York. Granted, Yale students (likely) wouldn’t be committing violent crimes, but the type of crime has no bearing on whether “reasonable suspicion” exists.

It is cases like Wardlow that force me to throw up my hands and wonder what exactly it is that we're studying.


  1. I think this is a great posting not only because it highlights the substantive legal issues you have come to take exception to, but more importantly because it validates how successful law school's pedagogical method can be.

    I wonder how your account accords with your colleagues' well-informed discussion regarding the merits of policy-driven instruction in the class room.

  2. Too much policy can be bad though. It's important for law school to train lawyers, and I think a lot of law students are coming out of school without adequate practice in making legal arguments (as opposed to policy ones, which don't work in courts), and often can't write worth a lick. I'm not saying law school should simply be a trade school but sometimes I think that law students are a bit too revolutionary and end up disadvantaging their causes ultimately by not coming to them with a deeper bag of recognized legal skills.


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