The One State Solution to Teaching Criminal Law, or Leaving the Common Law and the MPC Behind
Saint Louis University - School of Law
Ohio State Journal of Criminal Law, Vol. 8, p. 167, 2010
Saint Louis U. Legal Studies Research Paper 2010-37A
How should criminal law be taught to first-year law students? Professors preparing their classes for the first time, and even veterans of many semesters of criminal law, find themselves facing a dilemma. On the one hand, the common law is no longer good - law in nearly every state; it has been superseded by statute. Even states that leave a large role for the common law usually have a combination of common law and statutory law or strongly limit the scope of the common law. On the other hand, there is no uniform code that actually exists as law in all fifty states. While the Model Penal Code (MPC) may serve as a useful stand-in for such a uniform law, few, if any, states have adopted the MPC in its entirety, and most have rung interesting changes on it, accepting some parts and rejecting or modifying others.
The way out of the muddle, I suggest, is to focus on one state‘s criminal code and to read cases from that state interpreting its statutes. Using this approach, students are exposed to a consistent and actual existing body of law to master - not one state‘s law for one case, another state‘s law for the next, and a discussion about a proposed set of laws (the MPC) and its commentary. Although this approach may raise some objections, my argument will be that it is a sound approach to teaching first year criminal law and that the advantages outweigh the disadvantages. It represents, in short, a more than satisfactory answer to the dilemma of what law to teach. If criminal law is for the most part statutory law, why not expose students early and often to actual statutes? And why not have the statutes be from the state in which they are actually studying and in which many will go on to practice?
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Date posted: August 3, 2011 ; Last revised: September 20, 2011