POSC 130 NOTES - POSC 130 Notes 1 1/10 1. Counter...

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POSC 130 Notes 1 1/10 1. Counter majoritarian difficulty: courts have the power to strike down law. Founding Fathers had a fear of the tyranny of the majority and the vulnerability of those without political power 2. Organizations that protect civil rights: Miranda v. Arizona case (police interrogation rights) 3. Courts are part of the political system, not just the legal system 4. Henry Shue: Civil and political rights (negative) / economical, cultural, and social rights (positive) 5. Ideal/Real debate: Ideal (freedom of speech) v. Reality ( the government might not always allow it, such as the prohibition of publishing how to make a bomb) 6. Slogan: the difference of law in the books and law in action 7. Jurisprudence: legal theory 8. Legal positivism is the analysis of law and what counts as a legal system is a separate question than justice (justice is irrelevant) 9. Natural law: law and justice/morality must be coincident and overlap. An unjust law doesn't count 10. Mignonette v. Dudley Stephens (most famous common law case) 1. In 1880 Stephens was sentenced to death for the murder of their shipmate 2. The judge ruled that one must not eat ones shipmate 3. Binding precedent on homicide, regardless of necessity 4. Central authority on the defense of necessity 5. Captain Dudley, Stephens, and Brooks, Richard Parker (17 year old cabin boy). Case of cannibalism and charged for willful murder of Parker 6. Caught in a storm near cape hope, abandoned ship and took out a life boat with nothing but turnips and no fresh water. 8 days later Parker drank sea water. Dudley suggested they pull sticks to decide who to kill and eat, Brooks did not participate in the draw. 19 days later they killed Parker and ate him 4 days before being rescued. 7. Brooks testified for the prosecution 8. The defense argued that they acted out of necessity and that the elders would have died if they had waited any longer and that Parker was already ill 9. The prosecution argued that there was no reason for the boy to die any more than the elders 10. Dudley and Stephens were sentenced to death, while Brooks was given immunity 11. The facts were not in dispute but the judge used procedure to guarantee it went on appeal by restricting the juries participation 12. 1st argument: the men were in a state beyond the law and were in the realm of nature, necessity is beyond the realm of law 13. 2nd argument: when men are under great pressure they can’t be held responsible, the men lacked malice 14. 3rd argument: utilitarian, the greatest good for the greatest number of people 15. 4th argument: excuse/justification, what they did was wrong but they had justification 16. Initially the public opinion was in favor of the men, but the legal community was not so sympathetic
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POSC 130 Notes 2 17. It was the 1st time that the death penalty was used in that court in over 100 years for treason, lawyers immediately partitioned for a pardon. Home secretary reduced punishment to 6 months in prison with no hard labor
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This note was uploaded on 04/09/2012 for the course POSC 130 taught by Professor Rentelen during the Spring '08 term at USC.

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POSC 130 NOTES - POSC 130 Notes 1 1/10 1. Counter...

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