Did Legal Realism Engage the Real World of Criminal Law?

Professor Walker’s provocative article strikingly retells the story of the Wechsler revolution in American law books, and its depiction of the larger scholarly significance of the change in textbook materials is quite convincing. Yet it reveals one big lacuna or, to change the metaphor, it has left out its back-story. Much of Walker’s retelling rests on his notion that the pre-Wechsler, pure common law books were designed to help train young lawyers in the arts of regular criminal law practice, while, by contrast, Michael and Wechsler et al. set out quite deliberately to produce a new “‘liberal arts’ course, precisely so that law students would not become criminal lawyers.” Thus, Professor Walker piques our curiosity about the historical origins of a question that all of us who teach in the field deal with all the time: how does a first-year course in substantive criminal law address the needs or aspirations of students interested in practicing day-to-day criminal law? But I find Professor Walker’s retelling insufficiently curious about how the common law educators thought they had addressed this question, and incomplete as to the degree to which the Wechslerites intended to reconfigure—or utterly jettison—this project. Thus, as impressively as Professor Walker’s essay treats the larger intellectual goals of this transition in legal education, it leaves me wanting to know more about the mundane, but arguably pivotal, part of the transition—the part about practical pedagogy. Professor Walker implies that in principle, proponents of the Joseph Henry Beale School of teaching and casebook editing wanted to train criminal lawyers every bit as much as they wanted to train corporate and wills-and-trusts lawyers, but that they actually were somewhat ambivalent about this goal. On the one hand, Professor Walker leads us to think that some proponents of Bealism must have thought purer common law casebooks aimed at, and succeeded in, giving students the practical tools to engage in ground-level criminal litigation. But Walker also leads us to think that these pure common law educators recognized the low status of the criminal practitioner and may have indirectly endorsed that perception of low status by signaling that they wanted their students to enjoy the higher prestige of a practice with more savory clients. I am cautious in drawing