The Case Studies Blog | Harvard Law School

New Product: “Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case”

In January 2011, an Assistant United States Attorney in Massachusetts’ Internet and Computer Crimes Unit was assigned a case from MIT. For months, a guest on the MIT computer network had been downloading much of the online journal database JSTOR; the magnitude and speed of downloading had disrupted JSTOR servers and caused MIT to lose access to the database for three days. Suspecting cybercrime, MIT police had asked for assistance from local authorities. It had become a federal case.

Aaron Swartz

The suspect had been traced and apprehended. The man was 24-year-old Aaron Swartz, an Internet prodigy who had worked on the web feed known as RSS 1.0, the social news website Reddit, and other tech projects since his early teens.

The prosecution offered a plea bargain involving three months imprisonment, but Swartz refused to plead guilty to any felony counts. Pre-trial negotiations intensified when the prosecution learned of the Guerilla Open Access Manifesto, authored in part by Swartz, which declared that “we need to take information, wherever it is stored, make our copies and share them with the world.” In July 2011, Swartz was charged with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer; the maximum sentence was 35 years in prison, but sentencing guidelines suggested that Swartz would face either probation or five to six years in prison.

A year later, a superseding indictment increased the counts. Other plea bargains were offered; the defense came back with different proposals; the negotiations reached a stalemate. Both parties had played the bargaining game and failed. Swartz would go to trial, a prospect costly for each side, and if Swartz were found guilty, the judge might issue a sentence that failed to meet the objectives of either side.

Then, two years after Swartz’s arrest, months before the trial proceedings would begin, Swartz committed suicide.

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Swartz’s family said of his death, “It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

U.S. Attorney Carmen Ortiz responded to these claims. “There is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life,” she said. “I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. [The prosecutors] took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.”

Did the prosecutors make the best decisions they could have at the time? When their plea bargain strategy failed and a suboptimal deal seemed likely, should the prosecution have changed course? What would have been the repercussions of drastically changing their strategy?

The case study “Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case” explores the logic behind the controversial prosecutorial discretion in Swartz’s case. Participants discuss prosecutorial decisions at five turning points: the initial charges, the pre-indictment plea offer, the indictment, subsequent plea offers, and the superseding indictment.

Professors Adriaan Lanni and Carol Steiker, who developed this case for their Adjudication course at HLS, chose to teach charging and plea bargaining with the case study method because of the reflection and perspective that narratives provide. By taking participants through the decisions in the order and context in which they occurred, the case study sidesteps hindsight opinions. Participants do not merely cast judgment on the decisions made—they are asked to inhabit the pressured environment facing the prosecution and think through how they would make those difficult decisions themselves.

The Aaron Swartz case study affords law students a lasting example to guide their philosophy of prosecution. At the end of the class discussion, participants consider if there are systemic flaws in our nation’s criminal justice, and what place prosecutorial discretion should have in that system, or if it perhaps had no place here.

“Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case” and related teaching materials are available free of charge through the Case Studies website.

Elizabeth Moroney is the Case Studies Program Editorial Assistant and an author of the case.

Last week, we discussed the origins of case-based learning at Harvard Medical School, a curriculum that teaches medical students a new methodology: how to learn what they don’t know.

In 2001, HMS turned to case studies to address another gap in the medical curriculum: culturally competent care. Physicians must tailor their care to the way that patients understand authority, family dynamics, communication, gender and sexuality, spirituality, and the role of the physician—a task that requires not rote knowledge, but strategic thinking, sensitivity, and social awareness.

The Culturally Competent Care Education Committee created case studies to bring these skills to instructors, residents, and students. These case studies narrate a patient’s medical history and ask students to apply their medical knowledge, but also have a latent cultural dimension. For instance, in “A Pain in the Knee,” students are asked to identify the cultural issues that exacerbated the pain of a cancer patient from the Bronx. The doctors in the case study failed to provide the patient sufficient palliative medicine because of his history of drug addiction, and overlooked the race-based problem of access in New York City: the patient could not fill his prescription, because many pharmacies in “predominantly non-white neighborhoods” understock pain medications.

Doctors, like lawyers, need to be competent interviewers and negotiators. Ultimately, says the CCCEC, “a physician should engage in negotiation with the patient to try to achieve the best possible outcome.” The case studies give students a space to think about cultural issues before their clinical practicums, when the actual negotiations will take place. Medical students can imagine how they might negotiate their own standards of acceptable care while working around obstacles in access and communication.

The case studies illustrate the moral hazard of hard bargaining—these are scenarios where the alternatives to a negotiated agreement could be deadly. As such, the CCCEC acknowledges that sometimes successful negotiations achieve “acceptable,” rather than “optimal,” health standards. This lesson is one familiar to legal negotiators. If a patient fails to trust the doctor or see the process as fair, the healthcare system becomes illegitimate. It is better to adopt a realistic healthcare recommendation rather than compromise the doctor-patient relationship.

Click here to read more about how law schools can learn from the medical school model. If you are interested in case studies about culturally competent lawyering, see our teaching unit on “Mediating Value-Based Conflict.”

Medical schools have traditionally trained doctors through a combination of cramming and clinicals. But Harvard Medical School, like Harvard Law School, has recognized the value of the problem solving pedagogy and participatory learning. Since 1985, HMS has incorporated case-based tutorials into the “New Pathway” curriculum.

Harvard Medical School

The tutorials at HMS are ungraded discussion groups that analyze patient stories as they unfold, explains HBS Professor David A. Garvin in his review of case-based learning at Harvard. The multi-part cases systematically review symptoms, physical examinations, lab tests, diagnosis, treatment, and the patient’s health over time. For each part, students work together to fill in knowledge gaps and set learning goals that lead them closer to answers. Ultimately, students present their findings in a group discussion before moving to the next part of the case.

Tutors ensure that the learning comes from the students, asking students to articulate their logic, consider substantive dimensions, and investigate further. Tutors do not manage, steer, or orchestrate, says Garvin; instead, tutors redirect conversation during points of confusion.

The teaching philosophy at HMS is a case study in its own right, offering to educators a healthy caveat against overly sculpted lesson plans and micromanaged discussion. Preliminary studies suggest that the New Pathway curriculum meets its objective to “foster a true spirit of inquiry.”

One study of HMS students showed that compared to traditional lecture- and lab-based education, the New Pathway curriculum encouraged more students to pursue primary care or psychiatry. New Pathway students felt better prepared to practice “humanistic medicine” and handle “psychosocial problems,” said the report.

In another study, New Pathway students reported more engagement with the material and stronger relationships with faculty, but found it stressful to navigate tutorial relationships and the vast body of medical knowledge. The authors of the report concluded, “These experiences are similar to challenges that successful clinicians must overcome during their professional socialization. Uncomfortable though these experiences may be, students exposed to them during medical school may arguably be better prepared for life-long learning and the strains of teamwork.”

Despite the stress of uncertainty, New Pathway students rivaled students of traditional medical education on measures of problem solving skill and biomedical knowledge. Self-directed learning, it seems, can adequately prepare students for the medical profession. And the value of the problem solving approach lies not in a competitive edge, but in the culture it produces: a fulfilling, emboldening learning environment realistic about the challenges ahead.

For a history of case-based learning across the university, see “Making the Case” in Harvard Magazine. Written in 2003, this article shows how the cross-pollination of ideas transformed the case method, which, years later, returned to Harvard Law School as the case study method our program uses today. Click here to read more about how law schools can learn from the medical school model.

A case-based General Education course at Harvard College studies religious conflict in the unlikeliest of places: our own backyards. Launched in fall 2007, Professor Diana Eck’s “The World’s Religions in Multicultural America: Case Studies in Religious Pluralism” shatters the illusion that freedom of religion in America brings harmonious coexistence—instead, this freedom has put religions in direct contact, conversation, and conflict. Professor Eck’s class uses the case study method to fulfill a primary goal of the required undergraduate curriculum: “not to draw students into a discipline, but to bring the disciplines into students’ lives.”

The Pluralism Project at Harvard University, a research and resource-sharing venture in religious diversity founded and directed by Eck, developed these case studies organized by “Sites of Encounter”: schools and universities, city halls, suburbs, workplaces, and memorials. The selected problems were either nationally provocative, such as the “Mosque at Ground Zero”; locally consequential, as when the city of Cambridge considered adding the Muslim holidays Eid al-Fitr or Eid al-Adha to its school calendar; or internationally relevant, like the domestic traces of Middle Eastern conflict between Jews and Muslims.

I took this course in fall 2011; it was my first introduction to the case study method. The class centered on written and verbal discussion, and each student was encouraged to share their personal religious perspective. The diversity came alive in the classroom, proof that the lessons were widely applicable. Now, working at Harvard Law School, I imagine these case studies could be spun to teach future lawyers and leaders to interpret anti-discrimination law, negotiate and mediate faith-based controversy, advise local governments, and make fair and informed decisions on behalf of a diverse constituency.

“Driven by Faith or Customer Service? Muslim Taxi Drivers at the MSP Airport” asked us to articulate deeper, unspoken issues and to consider the risks of action and inaction in intractable conflicts. Other case studies required us to respond effectively to propaganda and religious rhetoric—rather than trying to change or dismiss certain viewpoints we considered inflammatory or incorrect, we had to legitimize every opinion and change our responses.

There were no exams to prove oneself as righteous or superior; it would have undermined the very point of the course. Rather, Professor Eck gave real attention to cultivating reflective, empathetic minds.

For the final project, each student wrote a contemporary case study about religious conflict—we were able to identify nascent crises around us, inhabit another’s perspective, and apply our problem solving skills to a novel situation.

Three years later, I don’t remember the names of every case study’s protagonist or all of the discussion questions asked, but I find myself approaching conflict with a greater appreciation of individual identity. So rarely in conflict do we value interpersonal skills to the extent we do strategy or power. Only by participating in these conflicts myself could I learn that.

Last summer and fall, the Case Studies Program at Harvard Law School set out to learn more about what kinds of teaching methods and materials law school professors used. We sent out surveys to approximately 1,000 faculty and deans at law schools throughout the country and received about 290 responses.  We wanted to know whether the buzz about innovation in the legal classroom reflects reality. Are faculty using more participant-centered, experiential methods? Or are lectures, casebooks, and the Socratic method continuing to dominate?

On first blush, we found what looked like a revolution. The chart below shows that class discussion was used far more than lectures and the Socratic method. An astonishing 98% of our respondents reported using class discussions frequently or occasionally versus 79% using lectures and 69% using the Socratic method frequently or occasionally. Although over 80% of our respondents reported that they “rarely or never” use the more innovative “flipped classroom” method, 79% used role plays, hypotheticals, and simulations and 73% reported using group exercises frequently or occasionally. Taken together, these findings seemed to point to a real change in how the law is taught.

But a deeper look at the materials used in the classroom shed more light on the methods reported in the previous slide. For example, 63% of respondents reported using casebooks frequently, followed by 61% using problems, hypotheticals, and discussion questions found in casebooks, and 49% using lecture slides and handouts. Only 36% used discussion-based case studies frequently and only 23% used workshop-based case studies frequently. This leads one to infer that casebooks and case teaching continued to be the primary method for teaching legal doctrine.  We also theorize that the discussions and role plays being reported in the methodologies question are brief departures during a lecture-based class, rather than an entire class devoted to engaging students as participants in the learning process.

Based on these results, it seems that law professors are making room in their courses for student interaction through discussions, hypotheticals, and role plays, but there is still a long way to go before learning becomes a participant sport. And the more cutting-edge innovations such as workshops and flipped classrooms are rare indeed. This supposition is even stronger when one considers that most likely those who chose to respond to our survey are more interested and engaged with experiential learning.

Another finding from the study was that, by far, the most common source for experiential materials was the professors themselves, with 90% reporting that they used self-written materials. Other reported sources were other professors and schools (nearly 40%) and online resources (nearly 30%).

The vast majority of respondents self-identified as professors (including associate and assistant professors). Most taught doctrinal courses, with a few teaching clinical, LRW, skills, or a combination.

We are still collecting data through our survey.  If you would like to take part, go to this link.

Better Browsing and Ready-to-Teach Units on HLS Case Studies Site

The Case Studies Program is piloting new website features to help customers explore our offerings. Now, visitors can browse by product type: discussion-based case study, workshop-based case study, role play, DVD, international materials, and free materials. Workshop-based case studies generally involve more class sessions than discussion-based case studies, and include a fairly extensive work-product assignment or exercise in addition to in-class discussion.

New drop-down menu

Over twenty sample teaching units are now available as well, designed to help educators implement cohesive case studies modules and to inspire other creative pairings of our materials. Included in each teaching unit are learning goals and two to five cases that pair nicely to meet these goals, as well as alternative case studies that could be substituted. Multiple units can be combined to produce an entire experiential course; for instance, the Problem Solving Workshop (PSW) units build upon one another to take students through increasingly difficult legal problems: interviewing and advising a client, representing the public, and handling transactions and controversy.

Case study teaching units

The units based on substantive law and skills are modeled after HLS courses such as the Problem Solving Workshop, Advanced Problem Solving Workshop: Cyberlaw & Intellectual Property, and Internet & Society: Creating the Public Domain. Each case in the PSW units is listed with the legal role of its protagonist; the course intends to expose 1L students to a variety of legal careers. The units on the business of law feature law firm or in-house counselprotagonists. They are intended to help experienced attorneys sharpen their business and leadership skills as they gain seniority in law firms and law departments; however, these teaching units could also be implemented in upper-level law school courses on the legal profession. These cases include topics related to career planning, client services, team leadership, business planning, compensation, mergers, change management, and innovation.

Sample teaching units from the Advanced Problem Solving Workshop. These units can stand alone as an experiential component of a traditional course, or can build upon one another for a semester-long case study curriculum.

As always, customers can still browse the homepage menu by author and subject. New subject categories include Internet and Society, Legal Writing, and Problem Solving. The Legal Writing cases include substantial work products such as memoranda, contracts, and trial motions; the writing assignments are usually detailed in the teaching manuals, but can be adapted to meet specific course objectives. To browse offerings from a specific HLS program, see the program listings in our footer. The Case Studies Program welcomes feedback on our navigational redesign. What other features do you need to meet your needs for browsing and case selection? How can we make our existing options more robust?  What new teaching units would you like to see? Have you implemented one of our case studies teaching units or designed one yourself? Email us at hlscasestudies@gmail.com.