Eric_-_Crim_Outline[1] - CRIMINAL LAW Fall 2007 I II III IV...

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CRIMINAL LAW Fall 2007 I. Purposes of Punishment and Sentencing II. Actus Reus III. Mens Rea IV. Mistake of Fact, Mistake of Law, and Strict Liability V. Rape VI. Homicide VII. Causation VIII. Justification and Excuse Defenses I. Why Punish? Dudley and Stevens : “cannibalism on ship” case; temptation is never an excuse for murder ; it does not equal necessity; you can kill in self-defense, but you can’t kill an innocent life to save yourself; you can’t judge which life has more value (on the same moral plane as the innocent victim); the honorable man ought to rather die himself than kill the innocent. Types of Arguments 1) ad hominem attack – fallacy “attacking the source” 2) analogy – using other scenarios to make a point (like larceny comparison in Dudley and Stevens p.137) 3) circular argument – A critique that an argument tries to prove itself ( Dudley and Stevens when Lord Hale said Lord Bacon’s argument was wrong because it is not the law today. p.138) 4) deductive/inductive Deductive: (straight forward logic) if the first and second statement are true, the third must be true. If A is B and B is C than A must be C. Inductive: (logic from experience) How do you know the sun is going to rise? Because it always does. 5) deontological – “the end of the argument” – morality--appeal to nature, the right thing to do regardless of the consequences. Ex: It’s wrong to beat your wife. (Dudley and Stevens the morally right thing to do is die yourself, as opposed to killing an innocent life.) 6) floodgate utilitarian argument – a particular ruling will result in a flood of claims, crimes, etc. 7) foreshadowing the outcome – giving clues as to the conclusion ( Dudley and Stevens p. 137 “negative argument”) 8) hindsight – fallacy second guessing a decision with the actual result ( Dudley and Stevens p. 136) 9) legal authority – Referring to nonprecedential sources of legal thought (every law professor’s dream) 10) precedent – using (binding or persuasive) case law as authority ( Dudley and Stevens p.137 “Lord Hale”) 11) slippery slope utilitarian argument – (inductive—does not mean the next judge will definitely rule a certain way) decide a case by looking to future occurrences; each case will slide further into oblivion if you don’t establish precedent with this case, you need to stop the “downward slope” from happening. Counter: “those future cases are not in front of us. We cannot be worried about the cases after this one. Sliding down the slope is not our concern. We can draw a line here for this case, under these circumstances.” 12) utilitarian – “if you don’t do it, society will fall apart” – based upon consequences of action; try to do what is in the best interest for society. The greatest good for the greatest amount of people. The purposes 1
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f punishment are utilitarian in nature. (If law is not moral, than people would lose faith in the law itself-- Dudley and Stevens p.138) 13) anecdote – tell stories to try and persuade.
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