This casebook is the result of a collaboration with a team of 11 law students, who worked with us over the course of the pandemic summer of 2020. Our project aimed to redress some of the shortcomings of conventional casebook approaches to criminal law. Too often, casebooks surface issues of mental health, sex, gender, race and sexual orientation without meaningful context to situate how these issues have been treated by the criminal legal system, how they reflect social norms, how they have changed over time, etc.). Too seldom do casebooks invite a meaningful discussion of the role of race in the criminal legal system. Instead, most are marked by a failure to acknowledge, let alone grapple with ongoing discussions of alternatives to policing, alternatives to criminalization, and critical thinking about why we deal with social problems via the criminal legal system (But see Cynthia Lee and Angela Harris’ excellent Criminal Law text for an exception).
Our aim in compiling these materials was not to sanitize criminal law; it is by definition a gritty, challenging subject. Instead, we sought to be thoughtful about when and how we expose students to difficult material, aiming to give them the context and the analytical tools needed to process it. This casebook is the result of a team effort to reconsider and reframe the criminal law cannon (so many casebooks use the same cases, after all).
Our working model has been central to our work, rendering this casebook less a “product” than the current version of a collective, collaborative, work-in-progress. “Our” casebook is yours—clone it, revise it, make it truly your own. And let us know how you’ve improved on our work. It is not just law as code, to quote one of our former professors Larry Lessig—it is “casebook as coding project.” The beauty of the open casebook system is that we will continue to edit and revise the materials as we use them this semester. If you would like more information about the casebook or the project, please contact David Ball or Michelle Oberman.
One final note: We developed a second casebook, Current Challenges in Criminal Law, which we suggest using as a companion to this casebook. (Although it can be used independently, of course). It features links to audio and video content, keyed to the topics in the criminal law casebook. For example, a collection of podcasts on addiction (as volitional choice, as crime, as public health challenge) accompanies this book’s Actus Reus materials. There are numerous entries on alternatives to incarceration, including excerpts like Chenjerai Kumanyika's amazing interview with Ruth Wilson Gilmore. We pair our weekly classes with small-group discussions based on the supplemental material. These sessions require students to reflect on the points of intersection linking the material covered in our casebook and the chosen issue or problem, as well as to consider the law's role in relation to the issue.
*We are deeply indebted to the following individuals, among others, whose work helped constitute the foundation upon which we've built: Joshua Dressler; Stephen Garvey; Cynthia Lee; Angela Harris; Jeannie Suk; Tim Wu; Amna Akbar, Alice Ristroph, Paul Butler, Allegra McLeod, Jocelyn Simonson. Thanks to Karen Tani for telling us about the Open Casebook platform! Thanks to our associate dean and colleague Mike Flynn, who found time for our work amidst the chaos of leading our school through the pandemic chaos. And thanks to our students and co-authors, who are the driving force behind this project: Cydney Chilimidos; Miriam Contreras; Jenai Howard; Christina Iriart; Angela Madrigal; Leah Mesfin; Zachary Nemirovsky; Nicholas Newman; Nathanial Perez; Michael Pons; and Phillip Yin.
This book, and all H2O books, are Creative Commons licensed for sharing and re-use. Material included from the American Legal Institute is reproduced with permission and is exempted from the open license.