The New Common Law: Courts, Culture, and the Localization of the Model Penal Code
Volume 62, Issue 6, 1633-1672
Few tropes in American legal teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law—what this Article terms “new common law”—transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this Article proposes a radical update, emphasizing two objectives: (1) the need to stress the interplay between individual state cases and codes, and (2) the need to abandon the position that the Model Penal Code represents a bold new vision of criminal law reform, particularly since that vision is itself almost half a century old.