OrinKerr.com

The Goals of Teaching Criminal Law

A series of very interesting posts at PrawfsBlawg, carried over to Concurring Opinions, is considering whether first-year law school courses in criminal law should focus on the Model Penal Code. I think the answer depends on what kind of class the professor wants to teach, which in turn depends on what the professor’s goals are in teaching the class.  There’s no right answer to this – just different approaches – and I think the different approaches nicely explain the different views of teaching the MPC.

If you’ll allow me to paint with a very broad brush, it seems to me that there are four of five traditional types of criminal law professors.  Each type brings its own set of interests to the class. For example, some crim law professors have a great deal of practical experience, and want to give students a feel for the real-world of criminal law practice that they experienced. Other criminal law professors see themselves as specialists in law and philosophy, and want to show students how legal doctrines follow from philosophical commitments and arguments. Some see themselves as legal reformers, and focus on the injustice of the legal system and the need for change.  Some are interested in criminology, and want to focus on criminal law as a response to the social problem of criminal activity. Others teach the class as case study of how to learn about law, and focus more on the basic skills such as statutory interpretation and policy arguments.  (To be clear, most profs are a mix of these types, but I think it’s helpful to see the different strands.)

Returning to the question of whether to teach the Model Penal Code, I think it depends largely on the “camp” to which a particular professor belongs.   For example, I tend to teach criminal law as a basic skills course; the point is not so much to teach students the categories of homicide liability, or to master the works of a particular criminal law theorist, but rather to learn the basic tools of studying law (and in particular, statutory law).  I take this approach for a few reasons, among them that I teach crim to students in their 1st semester of law school, and most students don’t go into criminal law.  In that environment, I find that criminal law is ideal as a basic tools class because the facts of cases are usually very simple, which makes it easier to jump into the two key questions of the course: 1) generating policy arguments in favor of or against a given legal rule, and 2) understanding a statutory code and applying it to a set of facts. 

For my purposes, then, the MPC is ideal.  The MPC becomes a law student’s first statutory code, and learning the code teaches them how to master a complex statutory scheme.  It’s a perfect beginner’s code because its so well thought out; the pieces fit together nicely, with very few loose ends.

Of course, if a professor comes from another camp, the MPC can come up short.  Russell Covey’s initial post on why he doesn’t like the MPC provides a good illustration.  If I’m reading his post correctly, his frustrations with the MPC seem to be that they draw attention away from criminology and the realities of criminal law practice.  I think those are fair points, but they ultimately go to the broader question of goals for crim law professors more than intrinsic problems of the MPC as a statutory code.