Abraham S. Goldstein's Contributions to Criminal Law Scholarship

By Stith, Kate | The Yale Law Journal, December 2005 | Go to article overview

Abraham S. Goldstein's Contributions to Criminal Law Scholarship


Stith, Kate, The Yale Law Journal


Abraham S. Goldstein was an extraordinary legal scholar. His law review articles and books are now "classics" in a broad array of criminal law fields: (1) conspiracy law, (2) trial procedures, (3) the insanity defense, (4) comparative criminal procedure, (5) prosecutorial discretion and plea bargaining, (6) victims' rights, and (7) the criminal jury. While now classics, each of his writings was path-breaking when published. Moreover, each soon became the seminal work in the area--by which I mean that each Goldstein contribution spawned an immense amount of further research and scholarship, including many subsequent books and articles by his former students here at Yale Law School.

Goldstein wrote with elegance and intellectual power. His scholarship sought to understand the impact of criminal law doctrines in real courtrooms and in the real world. His analytical approach was rigorous and balanced, devoid of rhetorical or ideological excess. And he had a writing style unusual in the legal academy: He strove to be at once thorough but concise, each page chock full of powerful insights.

Goldstein was one of the early scholars to document the dangers and ambiguities of the law of conspiracy. In his powerful 1958 article, Conspiracy To Defraud the United States, (1) he wrote about the lack of boundaries imposed by the vague terms "conspiracy" and "defraud." Like all of his articles, this one could not have been written had he spent his entire life in the academy. It was the first law review article he wrote after serving for five years as a criminal defense and civil rights trial lawyer in Washington, D.C. His cases included the defense of a businessman accused of "conspiracy to defraud the United States," rather than the more usual charge of conspiracy to commit a particular offense. (2)

In the classroom as in his scholarly articles, Goldstein tackled issues that for most in the academy were barely on the horizon. In 1959, he and Joseph Goldstein (3) produced, but never published, a textbook-length set of mimeographed materials that essentially constitutes the first criminal procedure casebook (4)--predating Yale Kamisar's path-breaking and celebrated casebook by four years. (5) The Goldstein & Goldstein "book" organized what was then a barely existing field of study, excerpting not only leading Supreme Court and other appellate cases, but offering rich textual notes and questions. While the text was never published, some of its insights were pursued in the criminal procedure textbook that Goldstein and Leonard Orland published more than a decade later. (6) Like the unpublished Goldstein & Goldstein text, Goldstein & Orland was full of annotations and questions that were unusually challenging and original.

Goldstein's interest in practical applications and real-world consequences made him at home in a legal academy that embraced legal realism. In a 1966 article, (7) he commented on the increasingly interdisciplinary nature of legal scholarship, in particular the incorporation of criminology and other behavioral sciences into legal research. The next year he addressed the relationship between legal scholarship and education. (8) He called for reform in legal education, urging schools to move beyond the case method into "rich interdepartmental resources," and theoretical and practical application. (9) In 1971, he and Joseph Goldstein published a collection of articles designed to help bridge this gap between casebooks and legal scholarship. (10)

It was in 1962 that Goldstein first turned his sharp attention to the insanity defense. (11) He was urged to tackle this controversial and difficult subject by Judge David L. Bazelon, (12) who had appointed Goldstein as his first law clerk in 1949, and who was a strong proponent of a broad insanity defense. Goldstein's 1967 book on the subject, read and reviewed both in this country and around the world, (13) was a meticulous examination of the history and development of this legal defense to crime. …

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