The changing market for criminal law casebooks.

• Author: Ohlin, Jens David
• Position: ESSAY

INTRODUCTION

Criminal law is a nasty business. The field takes as its point of departure the indignities that human beings visit upon each other--each one worse than the one before. A book or article about criminal law often reads like a parade of horribles, an indictment of humanity's descent into moral weakness. For those who teach criminal law, everything else pales in comparison. Neither the business disputes of contract law nor the physical injuries described in a torts casebook can compare with the depravity of what we teach in criminal law. Criminal law professors are often addicted to their subject. Nothing else matches its intensity and despair; by comparison, teaching a private law course can seem unreal to the criminal law junkie. Although we often hate the material because of what it represents, I do not know a single teacher of criminal law who is ambivalent about the subject. Teaching criminal law inspires a level of intellectual commitment bordering on obsession.

Criminal law professors are equally passionate about their teaching material. They use a variety of different styles in the classroom, and what works for one professor and his or her students may not necessarily work for another. This is not an indictment of any casebook, but simply a logical implication of pedagogical pluralism. There are multiple avenues for developing a rich and profound understanding of the criminal law, and it is unclear whether the current offerings in the field respond adequately to the needs of every professor. The question then arises whether there is room in the market for a new casebook that structures the learning materials in a new way.

In the following Review, I analyze the leading criminal law casebooks on the market and describe the ways in which they do--and do not--respond to the needs of criminal law teachers. At least part of the issue is the changing nature of law teaching--what actually happens in the classroom has changed in the last three decades. Moreover, there may be less uniformity in classroom practice than in the past; in other words, what works in one law school might not work in another, due in part to the changing profile of law students, as well as the great diversity of intellectual perspectives that law teachers bring to the lectern. (1) I then lay out a vision for a new casebook in criminal law that responds to some of these desiderata with a fresh yet flexible approach. (2)

1. THE STATE OF THE FIELD

   At the moment, a few offerings dominate the field. In 1962, Sanford Kadish published Criminal Law and Its Processes: Cases and Materials--a market leader now in its ninth edition. (3) It is no exaggeration to say that Kadish had a huge impact on the teaching and scholarship of criminal law. Multiple generations of scholars and polished pedagogues learned from Kadish's casebook as students and carried over its influence when they entered the academy. Along with other early works in criminal law theory, such as George Fletcher's Rethinking Criminal Law, (4) it is clear that the Kadish casebook played an important role in the evolution of criminal law to its present form. Among other things, it marshaled to the forefront the various concepts that continue to dominate the teaching and research of criminal law, including: the philosophical justifications for punishment and their use as barometers for evaluating the morality of competing doctrines in substantive criminal law, the significance of justification and excuse as categories for understanding defenses, and the criminal law's continuing struggles to appropriately define causal criteria for certain offenses. While these discussions were already under way in the academy at the time, and thoroughly debated by the American Law Institute during the adoption of Herbert Wechsler's Model Penal Code, (5) Kadish brought these theoretical debates into the classroom to educate a generation of future judges and scholars.

   The brilliance of the Kadish approach stems from its introduction, early in the semester, of the key philosophical ideas necessary for understanding the criminal law. Chapter 1 begins with a foundational discussion of the institutions and "processes" of the criminal law--the material from which the book draws its famous title. (6) This includes, among other things, a discussion of presentation of evidence, burdens of proof (both production and persuasion), standards of decision, and the role of the jury. The book then moves in Chapter 2 to justifications for punishment, which require the students to grapple with primary texts, including those from Bentham and Kant. (7) The goal of the materials is to force students to come to terms with the competing moral paradigms of deontology and consequentialism and map these competing moral frameworks onto modern theories of punishment, including retributivism, general and specific deterrence, rehabilitation, and incapacitation. (8) Students discuss reasons for--and the methods of--punishment; in so doing they build the necessary tools for understanding the building blocks of society's penal prohibitions.

   Nonetheless, despite its undeniable role in shaping the practice and study of the criminal law, Kadish et al. had its detractors. Some professors less interested in criminal law theory and philosophy were dissatisfied with the abstract nature of these materials in the long run-up to Chapter 4--on rape--when the doctrine begins in earnest. Moreover, even among those professors with an interest in theory or a background in philosophy, the overtly philosophical nature of the introductory materials often generated substantial complaints from students, many of whom asked, not entirely facetiously, whether they had taken a wrong turn at the campus quad and ended up in the philosophy department instead of the law school. Of course, student dissatisfaction need not be catered to when it is misguided, but nonetheless some professors who assigned Kadish et al. to their students were forced to listen to the whistling of the pages as the students frantically searched for the doctrine they so clearly craved.

   The landscape for criminal law casebooks changed in 1999 with the publication of Joshua Dressler's Cases and Materials on Criminal Law, now in its sixth edition. (9) Dressler's brilliant text, with the recent introduction of coauthor Stephen Garvey, is sometimes unfairly described as "Kadish-lite." To some, I suppose, that moniker is meant as a compliment. Dressler's book placed a premium on criminal law theory and a structural approach to understanding substantive criminal law. After a semester using Dressier & Garvey, students can intuit, at both a macro- and micro-level, the so-called tripartite structure of the criminal law: the material elements of the offenses that prohibit unlawful conduct, the justifications that negate the wrongfulness of the act, and the excuses that negate the culpability of the individual actors. (10) After a semester, students understand why self-defense and necessity are justifications, why duress is an excuse, and what implications these categories might have for the fate of accomplices. (11) All of it hangs together in a beautiful picture of structure, doctrine, and theory, woven together in one text. Like Kadish et al., Dressier and Garvey begin with introductory chapters on the criminal process and the principles of punishment (including materials from the dreaded Kant and Bentham), (12) but the rest of the chapters offer a clarity of presentation that some find wanting in Kadish et al. In many of the subsequent chapters, the unapologetically philosophical approach of Kadish et al. is replaced by Dressier and Garvey's light touch with a discussion of the criminal law's theoretical dimension. What remains is a beautiful exegesis of law and theory that helps convince students of the criminal law that theory matters, without hitting them over the head with it.

   For many professors, this approach hits the spot, although some find its theoretical orientation still too heavy for their classrooms and crave a more doctrinal approach. On the other hand, some professors find that Dressier and Garvey are sometimes too willing to characterize the law into a binary opposition: the Model Penal Code (MPC) approach and the "common-law" approach. (13) While the Model Penal Code undoubtedly has an "approach" for each topic of the substantive criminal law, it is doubtful whether anything can be properly described as the "common-law" approach to any particular issue of substantive criminal law. Indeed, even the term is confusing. If the term is used in its historic sense, then yes, the "common-law" approach might refer to how courts "at common law"--in England in, say, the 1800s--might have punished the behavior. But that is not what is meant by a "common-law" approach in this context. Rather, the phrase is an attempt to juxtapose the Model Penal Code with some non-MPC approach to which the label "common law" is affixed.

   This distillation of the criminal law into two categories--MPC versus common law--is misleading because it falsely suggests that there are only two avenues for each doctrinal fork in the road. Rather, for each issue, there may be two options or there may be five, depending on the multiplicity of standards or tests that courts and legislatures have deployed to solve that particular problem. For example, the law of insanity is replete with a series of tests: the M'Naghten cognitive test, (14) the irresistible impulse addition to the M'Naghten test, the Durham Product Test, (15) the pure medical test used in Norway, (16) and the Model Penal Code's combination of cognitive and volitional tests with the additional overlay of a "substantial capacity" standard. (17) This complex laundry list of tests and ideas is not helpfully arranged in an MPC versus common law matrix. To even use this matrix is to suggest a degree of coherence and singularity to the...