In anticipation of next week’s visit by Robert Weisberg, I reread one of his articles that made a big impression on me when it first appeared a few years ago: “Norms and Criminal Law, and the Norms of Criminal Law Scholarship,” 93 J. Crim. L. & Criminology 467 (2003). This is basically an extended — perhaps even a little too extended, at 125 pages — critique of the scholarship of Dan Kahan. Kahan has had a huge influence on many other criminal law scholars (I’ll include myself among those influenced), so Weisberg is taking on a worthy adversary. And, on the whole, I think his criticisms hit the mark.
(Kahan himself, I should note, delivered a fascinating lecture at Marquette Law School not so long ago.)
In order to appreciate the significance of Kahan’s agenda, it is helpful to think about it (as Weisberg does) as a response to the law and economics movement.