Burglarized, Yes. Burgled, Yes. Robbery, No.

Criminal law on most bar exams is a bit unusual. Criminal law often tests a mix of common law principles and generally accepted legal doctrines. This means bar exam takers need to be fluent in the foundational rules established centuries ago, as well as the modern adaptations and nuances of these principles.

To see a real-world example, let's take a look at a recent Progressive Insurance commercial. In it, viewers are introduced to a scene where Flo, the familiar spokesperson, discusses an unfortunate incident involving her apartment being "robbed." While the commercial aims to promote Progressive's insurance products with humor and a bit of 1980s nostalgia, it misuses a critical legal term: "robbery." This mistake is common in many advertisements, but it presents a perfect teaching moment to clarify the difference between "robbery" and "burglary" under common law—a distinction that is crucial for anyone studying for the bar exam.

To provide context, here’s a summary of the Progressive ad:

Flo answers the door to her neighbor and coworker, visibly upset. She explains that her stylish, retro-modern apartment (think 1983 vibes) has been "robbed." The burglars have made off with her cable TV, VCR, and even her cassette player—all the latest tech from back in the day! Flo wistfully wishes that Progressive offered renter's insurance just like their homeowner's insurance, so she and her neighbor could bundle their car and renter's insurance to save money. Suddenly, they both realize they might have just invented a new type of insurance! Unfortunately for Flo, this realization comes too late to save her from the losses incurred in the "robbery."

While the commercial is designed to entertain and subtly promote insurance products, it uses the term "robbed" incorrectly, leading to potential confusion about the nature of the crime discussed.

Under common law principles:

Robbery is defined as the taking of property from a person or their immediate presence through the use of force or intimidation, with the intent to permanently deprive the person of that property. This crime requires a direct confrontation with a person and the use or threat of physical harm.

Burglary is defined as the unlawful breaking and entering into another person's dwelling at nighttime with the intent to commit a felony therein (usually theft). This crime does not require a person to be present or any use of force against a person.

Given these definitions, the scenario described in the Progressive ad aligns more with burglary than robbery. Flo's apartment was broken into, and items were stolen, but there was no indication that anyone was confronted or threatened. Thus, under common law, the correct term would be burglary.

For bar exam takers, understanding the difference between the two theft crimes is important. Misusing these terms can, of course, lead to incorrect analyses in both multiple-choice questions and essays. (Of course, you must always make sure there no facts in the test question that modify the common law definitions of robbery or burglary, which could affect their applicability.)

The Progressive commercial isn’t unique in its misuse of legal terms. Many commercials, TV shows, and movies often use "robbery" as a catch-all term for theft-related crimes, leading to public misconceptions. For law students and future lawyers, though, these misconceptions can pose challenges. After all, it's easy to adopt the incorrect usage when it’s so pervasive in everyday media.

So, the next time you see an ad or hear someone say their home was "robbed," take a moment to consider whether they actually meant "burglarized." Or is the correct word "burgled"?