Teaching Criminal Procedure “Objectively”

The new semester is a little over a month away, and I have begun reflecting on whether I’d like to change certain teaching techniques from last year to this year. One of my main objectives as a professor is to foster a classroom environment where students feel free to disagree respectfully with each other and with me. One of the main ways to achieve this objective, I had believed, was to express my own personal opinions as little as possible.

This proved to be a difficult task, especially when teaching Criminal Procedure. Criminal Procedure is designed around assertions of constitutional rights based in the Fourth, Fifth, and Sixth Amendments. The Court’s most impassioned (and possibly compelling) language usually focuses on fears of an oppressive government and the importance of privacy rights. From Katz to Miranda to Brown v. Mississippi, students are exposed to police abuses and the need to prevent them. Of course, the importance of effective law enforcement is also highlighted, and the goals of law enforcement and the protections of the Constitution are not always in tension, but the course is very individual-rights centric.

I attempted, nonetheless, to be objective. I critiqued both majorities and dissents. I exposed vulnerable logic regardless of the outcome of the case. Students debated issues, and many took controversial positions. Often, a student’s views on a particular case were refreshingly unpredictable. Yet, two of my former students bumped into me in town after class was over and grades were in.  During our discussion of the class, they were able to pinpoint some of my views about criminal procedure.

I realized that, even if I try to keep my politics and my views about a particular case out of the classroom, my approach to the law will seep in, either deliberately or unconsciously. Moreover, isn’t this what I’m being paid for? Students ostensibly felt free to express contrary views, so perhaps the fact that my own biases were more transparent than I realized wasn’t as corrosive to the learning experience as I feared. Or perhaps I should try harder next time, and see how that goes.

I know blogs in the past have confronted the topic of how neutral professors should be, but I think these issues are particularly salient in criminal law and constitutional law, where policy is often incorporated into legal analysis and where philosophies of jurisprudence (the most abstract approach to the law), views about particular amendments, and personal politics (the crassest form of opinion about cases) are strongly held. I may decide on a balance where it’s more acceptable to reveal my views about and approach to the law the more abstract they are. I’d love to hear any thoughts.


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7 Responses

  1. I can’t offer you anything specific to the law school context. But I can say that, in general, the classes I’ve been in that felt both useful and open to varying points of view weren’t ones where the professor pretended not to have an opinion. Rather, the best professors I’ve had were open about their opinions, but treated differing opinions with genuine engagement and respect.

    Of course, that requires being able to distinguish crap ideas from well thought out ideas, whether they disagree with you or not. There’s always tendency to give more credit to students who reach the same result as you, even if they haven’t thought it through well at. Revealing your views makes it more likely that you’ll feel the need to overcompensate by dealing seriously with even the most ridiculous opposing view.

    But who said good teaching is easy? 🙂

  2. nidefatt says:

    You’re better off keeping your ideas out of it. My criminal procedure professor is a dyed in the wool liberal, but in the classroom he was vicious to any student that voiced an opinion, and since it was Boston, most were liberal. It made you think, you learned the material and you learned a little about arguing your point.

    I think if you go in making it clear what your views are, you will have a group of very unhappy students. The law is the law. You don’t have to give your view, the supreme court isn’t final because its right after all.

  3. Orin Kerr says:

    The most important concern is which approach will help the students master the material best.

    In general, I think making your views unimportant is the best way to do that. When students know that you have strong views, and you make your views an important part of the course, a lot of students will shut off their brains and only learn the stuff to know what you think so they can parrot it back to you on the exam. We all had professors like that in law school: They had such strong views that they thought their views were truth and other views were ignorant. To get an A, you had to play their game. That’s not a very good way to learn the law, in my view.

    This doesn’t mean that students can’t know what you think. Rather, it just means that if you introduce your views, you need to find a way to do it while making clear that your views are completely irrelevant to them. And especially that you’re not going to give students one iota of credit if they parrot back your views to them on the exam.

  4. Orin Kerr says:

    Errata: “To you on the exam.”

  5. Logan says:

    I can’t seem to find the law review article but a law prof did a line by line analysis of Jay-Z’s “99 Problems” song. It’s about the most engaging overview of criminal procedure I’ve ever seen.

  6. Nikka says:

    I can relate

  7. Mina Black says:

    Being a teacher myself, I can tell you that it can be pretty difficult at times to be unbiased regarding certain topics. I often hold debates between my students regarding current events and so on just to hear their perspective on different things. I really can’t help but share what I feel regarding these events but I also say that what I state are my own opinions. And, yes there are those students that would think very differently regarding a certain point that you wouldn’t think about.