More on Liptak’s Criminal Justice Exceptionalism: Making a Case for Comparative Law?
As I blogged about here, Adam Liptak has a terrific occasional series (“American Exception”) in the NYTimes examining common features of the US criminal justice system that are quite at odds with the approaches of other democracies. Liptak’s piece today examines the felony murder rule — a rule we adopted from the English common law, but which has in recent years been abolished in most other common law jurisdictions. Again, the focus of exceptionalism here — as with life sentences for juvenille offenders and the death penalty — is not so much that the US criminalizes behavior that others protect, but rather that the US system of punishment is out of step with the rest of the world.
I am not a comparative law scholar — though I often find myself explaining to my colleagues what comparative law is and how it is different from public international law. If, as a comparative law colleague at another school once told me, the value of studying other legal systems is to gain “critical distance” from the U.S. system, it strikes me that comparative criminal law would be a great place to start. This may be counterintuitive, particularly at state school where our graduates go on to populate the offices of the public defenders, prosecutors and attorney general, and thus appear only focus on state criminal law and constitutional criminal procedure. But it is precisely because many of our grads will control the levers of political power and the machinery of the state criminal justice system that they might usefully learn from how other states and countries handle the same questions of crime and punishment. I’d be interested to hear what OJ readers think about the value of teaching comparative law at non-elite schools.