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Teaching Criminal Law

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 tie-dye and the VW van. Peel off those bumper stickers and put away the MPC. What do our casebooks have to say about, say, drug crimes? Usually very little, even though 21% of state prisoners and 55% of all federal prisoners were convicted of drug crimes.

Likewise, Doug Berman argues that it is time to stop “obsessing” over the MPC.

For those unfamiliar with criminal law courses, they often consist of teaching two things — the common law of crimes and the MPC. The MPC is a complete criminal statutory code developed around the middle of the twentieth century by a group of judges, academics, lawyers, and others to be a selection of the best approaches in the various states. Many states have based some of their criminal statutes on the MPC. The common law is for the most part no longer in use. States have replaced the common law of crimes with statutes. Nevertheless, most criminal law courses still focus significantly on the common law.

I teach my criminal law class as a statutory course since most of criminal law involves working with statutes. I therefore spend a lot of time teaching students how to interpret and apply statutes. These skills are also useful for students who don’t go on to work in the criminal law field (most students won’t practice criminal law). And these skills are absolutely essential for those practicing criminal law.

The problem isn’t with the MPC; it is the fact that most casebooks and courses are still obsessed with the common law. True, the common law is on the Bar Exam, but this is one of the (many) unfortunate stupidities of the Bar Exam. The common law definitions of crimes have been replaced by statutes, and many of the traditional common law elements no longer exist in the majority of states. As I’ve said before, if you practice the criminal law on the Bar Exam, you’ll be disbarred.

Although the MPC is a bit dated, its great strength is its mens rea provisions, which are a big advance from the common law’s cacaphony of mens rea (mental state) terms (there are hundreds of mens rea terms in the common law which the MPC simplifies to four). So although not perfect and in need of a rewrite, the MPC is still useful as a basis for a criminal statutory code. Since hardly any casebooks have a statutory focus, the MPC is the most handy thing for professors to turn to when teaching the statutory side of criminal law.

So while the MPC has its problems, it isn’t the problem. Instead, blame the excessive focus on the common law.

Kim Ferzan at PrawfsBlawg also weighs in, not to bash the MPC, but to point out that “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.”

I’m not sure we serve students well by running through the definitions of a litany of different crimes. 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 them to nearly any criminal statute under the sun.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

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