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A Statutory Approach to Criminal Law Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2004 A Statutory Approach to Criminal Law Kevin C. McMunigal Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Criminal Law Commons, and the Legal Education Commons Repository Citation McMunigal, Kevin C., "A Statutory Approach to Criminal Law" (2004). Faculty Publications. 540. https://scholarlycommons.law.case.edu/faculty_publications/540 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. A STATUTORY APPROACH TO CRIMINAL LAW KEVIN C. McMUNIGAU . A few years ago at an AALS hiring conference, several colleagues and I mtet\~lewed a bright, well-qualified faculty candidate interested in teaching Cnrrunal Law. During the interview, he told us he wanted to teach Criminal Law because it was a common law course and he was interested in how judges shape legal rules through the common law process. Criminal Law, though, has not been a true common law subject for many years. The Supreme Court, for example, announced almost 200 years ago that there are no federal common law crimes. 1 As a result of the nineteenth century codification movement, every American state has for decades accepted the notion of legislative supremacy in Criminal Law-the idea that legislators rather than judges should create and define criminal offenses. How could a recent graduate of a top law school have missed this point in his Criminal Law course? Quite understandably it turns out. This young man's conception of Criminal Law arose in all likelihood not from some peculiar lack of perceptiveness on his part. Instead, his attitude was a predictable product of current teaching methodology. Despite the fact that statutory rather than common law crimes have long been the norm in this country, legislators and statutes receive scant attention in modern Criminal Law casebooks and classrooms. Legality, legislative supremacy, and the demise of common law crimes make a brief appearance in the first act of the typical Criminal Law course, but then judges and their opinions take center stage for the rest of the semester. As the word casebook announces, judicial opinions are the primary vehicles used to teach the substance of Criminal Law. Casebooks spotlight the judge as lawmaker and leave the legislator lurking in the shadows. A first year Criminal Law casebook, for example, is usually indistinguishable from casebooks in subjects where judges are the primary lawmakers through a common law process, such as Torts, Contracts, and Property. It is little wonder, then, that the young man I interviewed thought of Criminal Law as a common Jaw course. In most law schools, Criminal Law, along with Torts, * Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law. l. See United States v. Hudson and Goodwin, II U.S. (7 Cranch) 32, 34 (1812); United States v. Coolidge. t 4 U.S. (I Wheat.) 415. 416-17 (1816). 12S5 1/''''"*"",'1.,, -.. •• ~_ ~,~~ ..... ,,.,. •• ~ ,.4 ...... _ - "' _, ..... .~. __"-"_~._,~."__ ___ lVol. 48:1285 1286 SAINT Lours UNIVERSffY LA \V JOURNAL Contracts, and Property are still treated as courses that "teach the substance, and the methodology, of the common law." In order to give students a more current and accurate view of criminal law as a statutory field, I recommend the incorporation of a statutory approach. My suggestion is not to replace cases entirely. Cases are wonderful teaching tools, allowing students to see the criminal law applied to concrete and often compelling factual scenarios and to gain insight into the policies behind the law from the rationales provided for deciding cases. Analyzing cases is a crucial skill for students to master. But it makes sense today to balance the traditional use of judicial opinions by giving equal time and attention to statutes. Combining augmented use of statutes with problems and other exercises requires students to work directly with the text of statutes to grasp the substance of Criminal Law. The starting point for analysis in any criminal case is typically the statute under which the defendant was charged. So students currently encounter statutes in reading cases, but they do so in a relatively passive way-reading how a judge analyzes or interprets a particular statute. A statutory approach casts students in an active role, requiring them to analyze and interpret statutes without guidance from a judicial opinion. It fosters in studeuts an appreciation of judicial opinions as exercises in interpretation rather than law creation. Blending a statutory approach with customary case-oriented methodology also fosters greater exploration of the roles the various branches of government play in shaping the criminal law than use of cases alone. There are a number of reasons to incorporate a statutory approach into teaching Criminal Law. One is that a statutory approach conveys to students the reality of the importance of statutes in the modern legal world, including criminal law. A second reason is that use of statutes better prepares students for the practice of law by giving them confidence and analytical skills in dealing with statutes, skills that will be vital to them regardless of the subject matter or locale of their practice. A third reason is that incorporating a statutory approach can make the course more engaging. It prompts students to confront some of the central issues in criminal law today, such as the roles played by the various branches of government in shaping the substantive criminal law. It facilitates students joining current debates about the proper method judges should use in interpreting legal text, whether the language is part of a statute, a rule of evidence, an administrative regulation, or a clause in a constitution. Finally, using statutes has pragmatic advantages. A criminal 2. ANTONIN SCALlA, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Consrirution and Laws, in A MATTER OF INTERPRETATION 3 (l997)("The overwhelming majority of the courses taught in that first year [of Jaw school], and surely the ones that have the most profound effect, teach the substance, and the methodology, of the common law - torts, for example; contracts; property; criminal law."). 20041 A STATUTORY APPROACH TO CRIMINAL LA W 1287 statute is often relatively compact in comparison to a judicial opinion. As a consequence, one can bring four or five statutes representing an array of policy approaches to a particular criminal law issue to the students' attention in one or two pages. Covering a similar range of viewpoints through cases requires more space and time. For the same reason, a statute also lends itself to student drafting exercises more easily than does a judicial opinion. In the following pages, I discuss each of these rationales in more detail and provide examples of how to incorporate a statutory approach. I. THE IMPORTANCE OF STATUTES IN THE MODERN LEGAL WORLD Over-reliance on cases does students a disservice because it fails to give them an accurate view of the importance of statutes in criminal law today. Many states and the federal government have abolished common law crimes entirely. Some states retain common law crimes as long as the legislature has not enacted a statute on the subject] Though such statutes give judges in some states the theoretical power to create new crimes, that power is rarely used.' Professor Wayne LaFave's hornbook gives examples of new crimes created by judges in states retaining common law crimes.i Almost all are from the nineteenth century or early decades of the twentieth century. Recently, while working on a new first-year Criminal Law text," I was looking for judicial opinions that would allow students to juxtapose cases with opposing points of view on common law crimes and would prompt students to think about the relative strengths and weaknesses of judges and legislators as lawmakers. The selection of cases from within American jurisdictions in which a court created a new offense were so meager and dated, that I decided to use a relatively recent Scottish case to demonstrate the common law approach to creating and defining crimes, In that case, a man was convicted and sentenced to prison for selling glue-sniffing materials to children, despite a prior legislative decision 7 not to criminalize such behavior. The dominant attitude expressed in American jurisdictions is one of legislative supremacy and exclusivity. This modem notion is reflected in the following passage from a Florida Supreme Court opinion reversing a woman's controversial drug distribution conviction for exposing the fetus she was carrying to cocaine: 3. See, e.g., N.M. STAT.ANN. § 30-1-3 (Michie 1978), Construction of Criminal Code ("In criminal cases where no provision of this code is applicable, the common law, as recognized by the United States and the several states of me Union, shall govern."). 4. A relatively recent exception is People v. Kevorkian, 527 N.W.2d 714, 739 (1994)(recognizing assisting suicide as a common law offense). 5. WAYNE R. LAFAVE, CRIMINALLAW, 78-83 (4lh ed. 2003). 6. Kate E. Bloch & Kevin C. McMunigal, CRIMINAL LAW; A CONTEMPORARY ApPROACH (forthcoming Aspen 2004). 7, See Khaliq v, Her Majesty'S Advocate, 1984 SCeR 23 (17 November, 1983), 1288 SAINT LOUIS UNIVERSiTY LA IV JOURNAL [Vol. 48:1285 Neither judges nor prosecutors can make criminal laws. This is the purview of the Legislature. If the Legislature wanted to punish the uterine transfer of cocaine from a mother to her fetus, it would be up to the Legislature to consider the attending public policy and constitutional arguments and then pass its Legislation.
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