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Friday, April 05, 2013

Focusing Criminal Law on the Law of a Single State

After what has been a generally good run with Dressler’s Criminal Law casebook, I’ve decided to create my own set of materials.  What I’m attempting to do departs from what I take to be the standard approach to teaching Crim, and I’d be interested in the getting your thoughts, especially if you happen to have tried something similar.

The biggest change is that I plan to make a single state’s cases and statutes the centerpiece of the class.  Rather than using the common law and the MPC as the relatively fixed vantage points from which we analyze varying state approaches, we will focus on Wisconsin statutes and cases, with the MPC, common law, and other state approaches serving as points of comparison.  (My present plan is to assign Dressler’s Understanding Criminal Law as the primary source for this general grounding.)  One of the hoped-for advantages of this approach is that it will expose students to the messy realities of a single statutory scheme while providing the same grounding in basic concepts as the class I’ve been teaching.  It may also allow for more of a focus on statutory interpretation.  And since most of my students who go on to practice criminal law do so in Wisconsin, giving them a more systematic exposure to the state’s law should be beneficial in that respect, too.

I have contemplated other changes as well.  On the suggestion of one of our adjuncts, and with the help of a research assistant, I’ve compiled the entire record, from complaint through appeal, of a two-witness disorderly conduct case in which the defendant raised vagueness and overbreadth challenges.  That will provide context, at a minimum, and I'd welcome thoughts on ways to maximize its value.  I plan to incorporate more opportunities for feedback, including some short, ungraded multiple-choice quizzes designed to allow the students to get a sense of whether they are understanding the material and focusing on the appropriate things, as well as distributing problems requiring a written answer (a few of which I would select for collective critique during the following class session).

Pulling this off will, I think, require something of a “less is more” approach.  (And writing this has pretty well convinced me to hold off on trying to roll in a supplementary text like Fred Schauer’s Thinking Like a Lawyer, at least this year.)  If you’ve tried anything like this, whether in Crim or another class, I hope you’ll chime in.

Posted by Chad Oldfather on April 5, 2013 at 03:24 PM | Permalink


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May I highly recommend Chad Flanders's "The One State Solution to Teaching Criminal Law," which describes Chad's approach to doing exactly what you describe? http://moritzlaw.osu.edu/osjcl/Articles/Volume8_1/Flanders.pdf

Posted by: William Baude | Apr 5, 2013 3:49:44 PM

I like the idea of introducing an actual code into class. For the past few years, I've merged Dressler with the Missouri Code & Missouri cases. Class starts off using Dressler exclusively for Principles of Punishment, Role of Criminal Statutes, Actus Reus, Mens Rea and Causation. Then, we go to the Missouri Code for specific offenses, looking at how courts have interpreted the statutes. My biggest problem so far is that a tension emerges between preparing students for the bar, which is multi-state, and focusing on a state code. My current solution is to focus on the MPC/common law split for homicide, then to apply MPC/common law analysis to state statutes, which tend to meander between the two. Any new ideas on this, however, would be welcome!

Posted by: Anders Walker | Apr 5, 2013 4:24:46 PM

Last spring I did about exactly what you are proposing above, except in Ohio (at Cleveland-Marshall): I assigned Ohio cases and statutes (with a bit of federal or other state approaches mixed in), plus Dressler's Understanding Criminal Law (specified sections). (I was inspired by Chad Flander's article cited above.)

I thought it went extremely well, although at the front end of course it was a lot of work. The Dressler book was critical, as it is short and clear.

The students were very engaged. In addition to the benefit of learning Ohio criminal law (since most of them will practice in Ohio), I think it was particularly engaging to read "local" cases in which the students knew many of the locations. They had a much better sense that these doctrines/laws have real and profound impacts on very real people (victims, defendants, etc.).

Another benefit is that you can probably get lawyers or judges (justices) who actually litigated/decided some of the cases to come in and talk to your class. Next year I will have in Judge Melody Stewart, who wrote a great dissent in one of my assigned rape cases, State v. El-Berri, 2008 WL 2764873, 2008-Ohio-3539 (Ohio Ct. App. 8th Dist. 2008).

I'd be happy to share my syllabus/assignments.

Posted by: Jonathan Witmer-Rich | Apr 5, 2013 5:00:00 PM

What a bold idea! Teaching horizontally (focus on a state) rather than vertically (focus on SCOTUS cases that originated in states) holds the possibility for a more real-world appreciation of the law and a more practical view without sacrificing theory (except for the theory that doesn't reflect reality). Along those lines, if you're able to include a mid-semester writing assignment, it might be a great addition. I had my crim pro I students write a Fourth Amendment motion to suppress. I gave them a real police report, we spent one class going over the details re how to draft a motion, and then a class debriefing. It helped them learn Fourth Amendment law, how to draft a motion, and how abstract legal principles work their way into the real-world system.

Posted by: Steven R. Morrison | Apr 5, 2013 5:58:53 PM

Robert Blecker at NYLS does that -- focusing on the NY Penal Code and state Court of Appeals cases.

Posted by: Crimlaw | Apr 5, 2013 9:46:17 PM

This is a fantastic idea, for several reasons. First, any legal reasoning skills that a student would gain by studying from a national-based casebook will also be gained from studying a single state's law. Second, having practiced Wisconsin criminal law for eleven-or-so years now, I know that other states' laws are compared and contrasted within many of the Wisconsin decisions, so the students will get ample exposure to national law anyway. Third, because most of your MU grads (like me) will be practicing in Wisconsin as you pointed out, this will give them a tremendous advantage. While my crim and crim pro professors were great, and we even had a smattering of Wisconsin law in each course, I would have been better off if it were entirely Wisconsin based. The amount of post-law school reading and study I had to do in order to learn Wisconsin criminal law was immense. Your approach will make students more practice ready without sacrificing any legal "theory." (I think the theoretical and the practical are inseparable anyway, but that's another topic altogether.) Fourth and finally, I like your approach of including "disorderly conduct" in your materials. These "low end" crimes are by far and away the most common crimes in Wisconsin, and the national case books (based on my recollection) tend to ignore this reality of criminal law, and instead focus on the much rarer cases like homicide. In short, well done! There's only so much a prof can do within the existing law school structure, but your approach will make a big improvement to your students' legal education, regardless of whether they end up being criminal lawyers.

Posted by: Michael Cicchini | Apr 6, 2013 3:11:56 PM

I'm writing in to second (or third) the endorsement of my SLU Law colleague Chad Flanders' article cited in the first post, which reflects on the substantial effort he put into a similiar approach a couple of years ago. Chad's on a Fulbright in China this year, but I'm hoping our posts will lure him back from across the dateline to chime in electronically.

Posted by: Monica Eppinger | Apr 8, 2013 1:02:43 PM

Thanks for all the comments. I had missed Chad Flanders' article, which I agree does a terrific job of outlining the case for this approach.

Posted by: Chad Oldfather | Apr 8, 2013 2:29:15 PM

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