Tuesday, July 25, 2006
“Teachin the MPC and Lovin Every Minute of It” or “The Content of a Criminal Law Course”
I’m not joining an anti-MPC movement. But I do think that underlying the critique of the MPC is a broader critique about the focus of criminal law courses, specifically, the focus on the general part of the criminal law.
First, a brief defense of the MPC. The MPC has its pedagogical purposes. If you are teaching the current general part focused standard crim law course, you are going to teach actus reus, mens rea, homicide, conspiracy, attempt, etc. Now, I think there are just some common law approaches out there that are either 1) stupid or 2) unfair. Stupid = not allowing an honest mistake to negate a subjective mental state (e.g., Pa. Cons. Stat. tit. 18 section 304). Unfair = Felony murder and Pinkerton. What the MPC does is to provide a thoughtful, logical, and fair approach to criminal liability. So when a student says, “this rule makes no sense” I get to say “that’s right, and the MPC fixes it.” Of course, the MPC isn’t perfect (e.g., not allowing a duress defense for natural threats) but it certainly is progress.
The problem, for those who have a problem, is not with the MPC, but with the fact that we don’t teach much of anything about 1) criminalization and 2) the special part of the criminal law. So, if you don’t talk about what to punish, you never talk about whether punishing drug offenses is permissible, and if you spend all your time on the building blocks of crimes (e.g., the general part), you never get to the crimes that folks are actually prosecuted for.
So, should we reorient the criminal law curriculum? Or, to put the challenge differently, what should I stop teaching so that I can start teaching criminalization and more special part crimes?
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There are some great discussions over at PrawfsBlawg about teaching criminal law. Russell Covey wonders why so many professors bother to teach the Model Penal Code (MPC): Well, guys, I'm here to say that the MPC-era is as yesterday as... [Read More]
Tracked on Jul 25, 2006 8:20:50 PM
I teach a 3-credit crim course, and find that it's very easy to cruise through lots of substantive crimes very quickly once you're done with homicide and sexual assault. The individual pieces are all there, and you can just show that different crimes are just a matter of putting the pieces together in different ways. For example, I cover theft crimes in one 55-minute class, and I cover robbery, burglary, and trespass together in another 55-minute class.
I suppose I could add a day on drug offenses, but I don't think it would be particularly useful; most law students have had the late-night-college-dorm debate on whether drugs should be legalized, and I suppose I don't much see the point in taking class time to rehash that debate in a law school setting. Plus, I don't think there's that much to say about the crimes themselves; most students get possession, PWID, etc. at a pretty intuitive level, and (Prof. Dubber's views aside) I'm not sure there is much else there.
Of course, I would be interested to hear if others have had different experiences.
Posted by: Orin Kerr | Jul 25, 2006 6:48:33 PM
I agree with Orin. And I'm more radical in my view of the lack of value of teaching particular crimes -- I only really focus on homicide. The key, I think, to getting students to understand criminal law is to teach them mens rea and statutory interpretation. Although it looks easy on the surface, I often find that students struggle with mens rea. They can articulate the standards, but they don't really feel it in their bones. And the same goes with statutory interpretation. It's easy for students to memorize elements of various crimes, but the hard part is internalizing the key concepts. Once students learn the basics of criminal law (actus reus, mens rea, causation, and statutory interpretation), they can apply it to nearly any criminal statute under the sun. On my exams, I often give the students new statutes they haven't seen before (either actual statutes or ones I create or modify). The goal is that no matter what criminal statute they confront, they'll be able to work with it.
My approach is perhaps less fun than covering a litany of specific crimes, but I think it serves the students better. Even those students who are not going into the criminal law field (and that's most of the students) will benefit from learning how to interpret and apply statutes.
Throughout discussions of mens rea or the inchoate crimes, we discuss cases involving drug offenses and other crimes, so students do encounter cases involving crimes beyond homicide. But the focus isn't on learning the elements of the drug offenses -- it is on learning more basic principles of criminal law and statutory interpretation.
I disagree that criminal law doesn't talk about "what to punish." The discussions on inchoate crimes are all about the question of what to punish.
Posted by: Daniel J. Solove | Jul 25, 2006 7:40:33 PM
I teach my course much the same way that you two do, and I am quite happy with it. I think, though, that those folks who are critical of teaching the MPC are actually critical of the focus on the general part. So, the question for them is what the benefit of teaching, say, drug offenses is, except that it is more likely that a student will prosecute a drug offense than a homicide. (Of course, having done the former and not the latter, I'd have to say that what you need is a good course in crim pro b/c the 4A questions are usually dispositive.)
As for whether we teach "what to punish," here, I do disagree. Sure we punish attempts, but they aren't anywhere near the borderline of what a state should punish. I see the problem in teaching this as two-fold 1) the old - harm to others v. legal moralism debate isn't where the action is -- most of the action is within harm to others and the question of what the outer boundaries of risk creation offenses should be. (so you can't sum up the problem simply by teaching Bowers) and 2) since most crim legislation is subject only to rational basis review, there are pretty much no legal impediments to what a state can criminalize (as Doug Husak says, a state could constitutionally criminalize eating sausage to prevent obesity) so wherever the limits come from, they aren't "legal" limits but either moral or political ones. Given that the politics of crim law lead to overcriminalization, there just aren't the boundaries there should be. But my challenge was to ask, how and where do you teach this? And in a 1L crim course, what would you give up?
Posted by: Kim Ferzan | Jul 26, 2006 8:58:35 AM
Since most crim legislation is subject only to rational basis review, there are pretty much no legal impediments to what a state can criminalize (as Doug Husak says, a state could constitutionally criminalize eating sausage to prevent obesity) so wherever the limits come from, they aren't "legal" limits but either moral or political ones. Given that the politics of crim law lead to overcriminalization, there just aren't the boundaries there should be. But my challenge was to ask, how and where do you teach this?
I'm not sure I understand. Criminal law is up to legislatures, so the key question is what legislatures want to criminalize. Lots of people want to criminialize things that the narrow segment of law professors doesn't want to criminalize. As I see it, that teaches a very important lesson of criminal law -- the limits of academic theorizing in a statutory field. Isn't this a lesson that comes up in almost every class? Or am I misunderstanding the comment?
Posted by: Orin Kerr | Jul 26, 2006 10:13:24 AM
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