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The Structure of Crimes

Law students are frequently surprised with modern Criminal Law case books. Often, they have had a semester of Torts or are taking Torts along side Criminal Law in their first year. In Torts, students initially learn elements of various causes of action. Thus, they may first study intentional torts, like assault (intentionally putting another in fear of an imminent battery), battery (an intentional unauthorized harmful or offensive touching of another) and the like. Most Criminal Law texts do not follow a similar pattern.

Students often expect Criminal Law to introduce them to the elements of major crimes that emerged at common law. For example, one might expect to learn definitions of crimes like burglary, murder, rape, robbery and theft. Indeed, that was the predominate approach to criminal law prior to the late 1960’s and early 1970’s.

In the 1950’s, the American Law Institute began one of its most widely acclaimed projects, the effort to develop a Model Penal Code. By comparison to the typical project pursued by the ALI, Criminal Law did not lend itself to a Restatement. Torts is the subject of a Restatement (now a third Restatement). The ALI has been able to find relative coherence in tort law around the country that has allowed it to identify the black letter law of Torts. The Criminal Law needed a fresh start.

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