The Changing Market for Criminal Law Casebooks

INTRODUCTIONCriminal 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.2I. THE STATE OF THE FIELDAt 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. …