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Tuesday, July 25, 2006
The start of a "let's stop obsessing over the MPC" movement?
Arlo Guthrie in Alice's Restaurant famously sang that three people expressing the same view make an organization and fifty amount to a movement. Thus, with Russell Covey and Dan Markel here both joining me on the "let's not keep obsessing over the MPC" bandwagon, we have an organization. Will others make it a movement?
A few years ago, I wrote a very short article for the Ohio State Journal of Criminal Law that argued the MPC should be revised in order to better reflect modern criminal justice realities for teachers and students of criminal law. My article was part of a commentary symposium on revising the MPC in the first issue of the OSJCL. It was a response to this piece by Joshua Dressler, entitled "The Model Penal Code: Is It Like a Classic Movie in Need of a Remake?".
My piece carries the quirky title "The Model Penal Code Second: Might 'Film Schools' be in Need of a Remake?" and can be accessed here. The first paragraph of the piece only makes sense after reading Joshua's piece, but this later sentence captures my main theme:
Because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC’s continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice.
Posted by Douglas A. Berman on July 25, 2006 at 03:07 PM in Life of Law Schools | Permalink
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» Teaching Criminal Law from Concurring Opinions
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 8:22:00 PM
Comments
Russell writes:
(See, e.g., a recent Ninth Circuit decision on possession of child pornography which holds, consistent with every other federal appeals court to consider the issue, that a person "possesses" computer images merely by viewing them on the internet, at least if their computer stores a copy of the viewed image in the computer's cache file, even if this occurs without their knowledge, U.S. v. Romm)
Russell, that's not an accurate claim, is it? Here is the key quote from the Romm case:
"Therefore, to possess the images in the cache, the defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible material in his possession. . . . . Coupled with Romm’s conceded knowledge that the images were saved to his disk, the prosecution produced sufficient evidence to establish every element of knowingly possessing child pornography under 18 U.S.C. § 2252A."
Also, note that only one other court of appeals as weighed in on this issue.
Posted by: OrinKerr | Jul 25, 2006 7:03:06 PM
Doug,
Now that you mention it, I recall reading that piece when it first came out. I thought you were right then, and I think you are right now. Except for one thing. I disagree with your concluding call for an "MPC Second." The problem is not with the MPC's principled solutions to many classic criminal law problems, which are perfectly fine as far as they go, but with the whole idea of writing and teaching "model codes" in the first place, at least as long as real-world lawmakers continue to expand criminal liability by drafting ever-more-overbroad criminal statutes, which most courts are all too eager to uphold (see, e.g., a recent Ninth Circuit decision on possession of child pornography which holds, consistent with every other federal appeals court to consider the issue, that a person "possesses" computer images merely by viewing them on the internet, at least if their computer stores a copy of the viewed image in the computer's cache file, even if this occurs without their knowledge, U.S. v. Romm). In short, I'm not sure if we need a movement, Doug, but I do think we need a casebook.
Posted by: Russell Covey | Jul 25, 2006 3:56:51 PM
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