Unit 1: Introduction


Substantive questions in this course:

  • What are the requirements for criminal liability in a given situation?  What elements must the prosecution establish beyond a reasonable doubt?

  • What policy perspectives underlie a given criminal offense (culpability, severity of punishment, exceptions)?

  • What is “reasonableness”?

Methodological questions in this course:

  • Where are the ambiguities in a doctrine, statute, precedent, or set of facts, and how can you use them to your advantage?

  • What story can you tell about a given case or set of facts?  What details matter, and why?

  • What interpretative work is required to reach a particular outcome, and on what is a given interpretation based?

  • What are the weaknesses (doctrinal, pragmatic, normative) in your own views of a particular issue?

  • When you disagree with a perspective you hear voiced in this class (from the instructor, the text, or a fellow student), is your disagreement factual, normative, interpretive, or something else?

General Advice:

  • One of the perpetual challenges of learning (and teaching) criminal law is how to approach the paradigms of “the common law” and “the Model Penal Code” (a model statute with which you will become very familiar — you’ll see it abbreviated “MPC”).  These paradigms are important organizing concepts.  And the MPC gives us a useful example of a complete criminal code (though I’ve only included on the website the portions of the MPC that are relevant to our class).  On the other hand, there is no jurisdiction that uses “the common law” or “the MPC” as its law.  There are only statutes and judicial opinions interpreting those statutes.  (Some of you will grow weary of Dressler stating or my saying that “it depends on the jurisdiction.”)

  • There are general principles and differences that you should know between the common law and the MPC.  I will emphasize various ways in which the MPC differs from the consensus (but rarely the unanimous) common law approach.   So, for example, the MPC broadens the scope of solicitation liability.  Or the MPC adopts unilateral rather than bilateral conspiracy theory.  I will highlight these key differences in the readings, in the unit summaries, and in the class discussions.

  • You do not need to know more granular detail, like which jurisdictions adopt which common law principles.  And you don’t need to organize cases by jurisdiction.  For example, there is no possibility that I will give you a fact pattern on the exam with the instructions to “apply California law.”  The only systematic code that we will consider is the Model Penal Code, and that is therefore the only such stipulation that I would make (e.g., “assume the MPC applies”).  In any other situation, I would give you the relevant statute and ask you to analyze the statute using the doctrine, principles, and tools that we cover in the course.  If you encounter an exam question that does not stipulate the MPC, then you’ll have to use your judgment about what kind of arguments to make.  We will review practice exam questions that require that kind of analysis.

Three Ways to do Poorly in this Class:

  • Don’t read the cases carefully.

  • Don’t learn statutory interpretation.

  • Decide that some of the classes and readings are “just background” or “just policy discussions” that you don’t really need to know.