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Saturday, August 19, 2006

Where to Begin Criminal Law?

Classes get started again next week, and, with them, the never-ending process of tinkering with my Criminal Law course.  Last year, I tried beginning with theft, which is, I think, a very unorthodox thing to do--anyone else ever try that?  Anyway, I thought it worked.  This year, I am not only beginning with theft, but actually supersizing the unit to cover a couple additional property crimes over the first four weeks of the semester.  This will no doubt strike some crim profs as simply bizarre, so let me explain.

First, I am not a fan of starting with the con law limitations on criminalization, which is where many begin.  These con law doctrines are so anemic--why give students the misconception that they matter by foregrounding them in the course coverage?  Moreover, some of these doctrines, like privacy, get ample coverage in Con Law.  Finally--a personal idiosyncrasy--a major part of my pedagogical agenda in Crim is introducing students to statutory interpretation (something they will not otherwise get much of in their 1L courses), so I want to get students working with statute-based cases right away.

Second, the casebook I use (Arnold Loewy's) has a nice set of short, accessible, factually interesting theft cases (Topolewski, Pruitt, and Rogers) that are great for brand-new law students.  Topolewski and Rogers, in particular, present some nifty problems that can generate lively, useful discussion among students whose technical knowledge of the law is still extremely limited.  I did these three cases right out of the gate last year, and will do so again this year.

Third, the big-picture story of theft--eighteenth-century judges and juries made Swiss cheese out of common-law larceny in order to mitigate the absurd severity of the sentencing regime, legislatures plugged some of the holes in an ad hoc fashion, twentieth-century rationalizers attempted to bring coherence to the whole messy system--is a wonderful introduction to the dynamic interaction of legal institutions and the historical contingency of legal doctrine--two more key elements of my pedagogical agenda.

Before last year, I led off with homicide, which has some of the same pedagogical benefits as theft, but I found it to be a total downer--case after case of senseless loss of life.  I still cover homicide, but I find it to be the most depressing topic I do in any of my courses, and not something that I want to be a tone-setter at the start of the year.

Posted by Michael O'Hear on August 19, 2006 at 10:37 AM in Teaching Law | Permalink


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I start the course with Keeler v. Superior Court, which is all about the separation of powers and introduces the different players in the system and the historical and current role of each -- with particular emphasis on the notion that the field is statutory, so what the statute says trumps all. That's the context the frames the course.

I cover theft in one day, as I find the historical development of theft law interesting to a professor but of limited use to a 1L. But I can see how you would use them at the beginning of a course in a very different way.

Posted by: Orin Kerr | Aug 19, 2006 12:41:20 PM

Sounds like a smart plan to me. The first week, I typically start with Dudley & Stephens, which leads to a discussion of punishment purposes, which sets up a sentencing hearing for two prototype criminals (a poor person found guilty of theft and a college kid convicted of drug dealing). But I'm intrigued by your approach. How do you deal with actus reus and mens rea, though?

Posted by: Doug B. | Aug 19, 2006 12:42:34 PM

Doug, I introduce ar and mr in the theft unit when we break theft down into its elements. I observe that some elements are act elements and some mental. I tell the students that most crimes we discuss will have both types of elements and urge them to keep these categories in mind. I get into more fine-grained mr distinctions in the homicide unit. I use felony murder to explore how far we can/should go in dispensing with mr. Also in the homicide unit, I use Hinkle (an automatism case) and Jones and Davis (failure to act cases) to explore how far we can/should go in dispensing with the voluntary act requirement.

Posted by: Michael O'Hear | Aug 19, 2006 2:00:29 PM

I began my career as an AUSA. I quickly learned that virtually nothing I learned in my criminal law class (at Harvard) had any application to my work as a prosecutor. I subsequently practiced criminal law for many years, and almost never had occasion to call on anything I learned in law school. My pedagogical inclination is toward a problem-oriented approach because it better mirrors what criminal lawyers are expected to do than any approach that stresses the study of appellate opinions or even the historical or conceptual development of particular crimes. To practice criminal law, students need to learn how to take a fact pattern and identify what statutes in the pertinent criminal code may be applicable, and what defenses may be available. For that reason, I use the Robinson casebook, which begins with a pair of hypotheticals involving a fairly wide variety of crimes and defenses designed to get students to do just this. Robinson asks the students to identify the crimes and defenses available on these facts under the Model Penal Code, but I supplement with the California Penal Code in order to give the students a look at a "real" code with the kinds of political influences found in the real world.

Posted by: Larry Rosenthal | Aug 19, 2006 10:21:02 PM

Michael - I agree with you entirely re: the constitutional "limitations" on criminalization (that is, I agree that there is not much point in teaching them in a first-year crim course. I'm inclined to think, for what it's worth, that they *should* be fairly "anemic", but that's another matter.) I have always started my crim class with the Speluncean Explorers, and used it not so much as a mini-jurisprudence unit on utilitarianism, etc., but as an introduction to (a) reading, interpreting, and disambiguating statutes and (b) to using and developing evidence to construct a narrative.

Posted by: Rick Garnett | Aug 19, 2006 11:20:45 PM

I am sorry to disagree with you about starting with Homicides. For most students(and especially those who want to practice in the field) Homicides are the most compelling cases. With the advent of TV shows like CSI, and Law and Order, students do not find these cases depressing but riveting. It also gets you right into the Mens Rea and Actus Reus issues. The failure of my Crim Law Prof. to grasp the compelling nature of this field in the beginning of the course nearly soured me on the field. Thank God for my Crim Procedure Prof. and Contract Prof. (Monroe Freedman who taught Contracts as if it were an interdisciplinary course.)

Posted by: That Lawyer Dude | Aug 20, 2006 12:36:57 AM

"a major part of my pedagogical agenda in Crim is introducing students to statutory interpretation (something they will not otherwise get much of in their 1L courses), so I want to get students working with statute-based cases right away."

well, why don't you assign students a few problems out of the model penal code, then?

the major problem with assigning "cases" to teach someone statutory interpretation is that cases do not give due weight to the authoritative weight of various sources of law.

my biggest gripe about 1l year was teh fact that, at the end of it, i was taught that cases were "the law", and statutes were ancillary. i was under the impression that the right method of solving legal problems was finding the "case on point", rather than the statute or regulation on point.

it's a horrible disservice to students to continue to insist on the case-law method 95% of the time, when 95% of the law is codified (either in statutes or agency regulations). it would be wonderful if law profs-- particularly during 1l year-- actually taught students how to read statutes, but cases are deemed more "interesting," unfortunately. it's shocking that this method of "teaching" (!) persists.

i had 3 law & econ profs my 1l year, and at the end of the year, i actually thought that the accepted way to solve a legal problem was to determine which solution provided the best "ex ante" incentives, irrespective of the statutory structure. it's unfortunate that i was never taught that statutory interpretation governs the vast majority of cases, and not law & econ theories.

a professor can do his/her students a gigantic favor by teaching them how to read statutes, rather than rewarding those who "brief cases" the best.

Posted by: andy | Aug 20, 2006 3:43:51 AM

Speaking as someone who finds Con Law insufferable: if my Crim professor started the class with Con Law stuff, I would have immediately signed up for the pass-fail option and stopped coming to Crim lectures. Really. The mysterious few who want to understand how Crim is situated within a larger constitutional framework can always take seminars. The rest of us just want to learn the damn statute and move on to the fun stuff. Like the Article 9.

Posted by: Kate Litvak | Aug 20, 2006 5:36:22 AM

I taught crim law last fall for the first time and started off with the con law stuff (for about a week and half) have to agree with Kate and the others who found it, well ... I dont want to say "insufferable" (how could my lectures ever be that?), but not the most compelling classes I've ever experienced from either side of the podium. I teach it next spring and plan to revise the readings and lecture to tone down the con law portion and include more problem solving within the MPC and/or the GA code. I think that the students (and I) will find it much more interesting.

Jeff Yates
Associate Professor
University of Georgia
SSRN: http://ssrn.com/author=454290

Posted by: Jeff Yates | Aug 20, 2006 12:58:50 PM

I'm not a full-time prawf - just an adjunct, but comments from students and my own memories support this: Don't start it like they do in every class. Do as they try to teach trial lawyers - the theory or primacy and recency - start strong, end strong.

Grab their attention with some headline cases (talk about McVeigh, the Peterson case, Michael Jackson, etc.) - then slide into the cases and basic premises on which these prosecutions rest. Or give them the odd stuff on day one: buggery, mopery, beastiality - make it fun - don't bore them to death in the one class that is probably easiest to make real (versus the theories of contracts, remedies, property, etc).

There are prawfs who want to teach and take great satisfaction in getting students excited about the law, and then there are those who could care less about teaching and prefer to focus on research, writing, publishing, etc. While the latter often believe it will establish them as the preeminent experts/scholars in the field - students who "studied underneath" those prawfs think otherwise. A good friend of mine from Harvard said that Dershowitz's class was a tremendous let-down and that it wasn't even "Dershowitz-on-the-law" as much as it was really "Dershowitz-on-Dershowitz."

Crim law is the only topic that is on the nightly news, that they base prime time TV shows on, that movies revolve around, etc. You've got a leg up on other prawfs who teach in other subjects - take advantage of it.

Posted by: Deuce the Lawlinebacker | Aug 20, 2006 8:28:30 PM

"the fun stuff. Like the Article 9." Kate, you're a sick, sick puppy.

Posted by: Paul Gowder | Aug 21, 2006 1:13:15 PM

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