Wechsler’s Century and Ours: Reforming Criminal Law In a Time of Shifting Rationalities of Government

Abstract

Wechsler’s Century and Ours: Reforming Criminal Law In a Time of Shifting Rationalities of Government Jonathan Simon • If we are to avoid dictatorship, we must be content to face problems that are of trivial importance to a dictator. 1 I. Introduction: Herbert Wechsler and the 20 th Century Herbert Wechsler who died in 2000 at over 90, led a life in the law that could well define the legal 20 th century in America. Students today might first encounter him as a constitutional scholar whose article “Toward Neutral Principles of Constitutional Law.” 2 was for decades discussed as the most principled intellectual criticism of the Supreme Court’s greatest 20 th century decision, Brown v. Board of Education. 3 Wechsler was one of the leading exponents of the legal process school that dominated academic law in the 1950s and 1960s. 4 Along with Herbert Hart, Wechsler was the original co-author of the most influential casebook in that quintessentially 20 th century field legal field “federal courts.” 5 Wechsler served as the reporter for the Model Penal Code, 6 which since the 1960s has served as the most influential source of modern criminal law reform thought for American scholars and state legislatures. 7 His casebook on criminal law, co-authored with Jerome Michael became the template for all contemporary criminal law casebooks and perhaps the modern casebook more generally. 8 A teacher at Columbia Law School for over half a century, Wechsler also helped define the role of the law professor in the post-World War II legal academy and influenced its relationship with other institutions including the social sciences and government. It is in these last two roles that I want to draw on Wechsler in the 1930s, when his approach to criminal law (and I would speculate his view of law more generally) entered into its public form, to reflect on the criminal law at moments of history when the very Professor of Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley Caveat, at 633 73 Harv. L. Rev. 1 (1959) 347 U.S. 483 (1954) Harold Edgar, “Herbert Wechsler and the Criminal Law: A Brief Tribute,” 100 Colum. L. Rev. 1347, 1355 (2000). Avowed admirers of the legal process school in the current faculty of American law schools today are few. Like other dominant academic theories of the post-World War II period, it often seems tainted by having co-existed with national security hysteria in the political mix of that day, but there is one point at least, on which I for one, would want to wholly affirm the legal process school and that was its focus on law as a form of governance, and of legal expertise as a form of expertise about governance. Henry Hart and Herbert Wechsler, Federal Courts and the Federal System (Brooklyn, NY: Foundation Press 1953) American Law Institute, Model penal code and commentaries : official draft and revised comments, with text of Model penal code as adopted at the 1962 annual meeting of the American Law Institute at Washington, D.C., May 24, 1962 (1985) “MPC” hereinafter Sanford Kadish, Fifty Years of Criminal Law: An Opinionated Review, 87 Cal. L. Rev. 943, 946 (1999) Herbert Wechsler and Jerome Michael, Criminal Law and its Administration: Cases, Statutes, Commentaries (Chicago: Foundation Press, 1940)