Professor Renteln Fall 2014 Political Science 130g Study Guide for Midterm Tuesday October 14th The midterm examination will consist of two parts For Part I you will choose 4 out of 8 short answer questions Be sure to describe the item and then analyze it explain its significance for the course For Part II you will choose one of two topics and write an analytic essay PART I Possible items for short answer questions Advantages disadvantages significance While this list is fairly comprehensive the test may include additional material based on lecture or readings Note that the items are grouped by topic so you might be asked define the concept explain a case or identify a leading figure You should be sure to provide the context for the item Give a brief description and then analyze the term Your answer should be no more than a 2 or 3 paragraphs Also add stuff from last day The Queen v Dudley and Stephens case doctrine of necessity cannibalism case Types of arguments Utilitarian greatest good for greatest of people o Criticisms hard to quantify worth of lives retroactively applied no random choosing non consensual Intentionality volition intent is not to murder but rather to sustain life o Criticisms weakened by lack of consent he couldn t speak Doctrine of necessity extreme circumstances and measure of last resort o Applies in self defense however the guy didn t threaten them o Precedent 1842 The United States vs Holmes left open the possibility of necessity as defense o Criticisms it was struck down Judgement of necessity is unclear who judges by what measure Principle leaves him who profits to determine the necessity which will justify taking someone s life to preserve his own o Judges didn t want to make precedent that would justify murder o Not recognized as a plausible defense because it will do more harm than good by creating a defense that could justify many types of murder Example hunger could be defense for stealing homelessness a defense for trespassing etc o Today SCOTUS recognizes defense of necessity but strongly limits its scope defense of necessity must show imminent peril lack of reasonable lawful alternatives to actions and proportionality of harm caused and avoided o English court did not recognize necessity defense until 2000 when began to open it up a little 1 Professor Renteln Fall 2014 Conjoined twins were born and if they were not separated the healthier one and unhealthier one would both die parents wouldn t separate them but High Court judge gave doctor permission to go ahead with the operation Appeals court agreed said that in the situation of the conjoined twins doctors had no personal gain ailing twin was designated for death doctors were unable to act in the interest of both parties State of nature argument argument that outside of society in sea state rules laws don t apply no jurisdiction in the middle of sea o State of nature argument is dangerous because it means that you can go to places in the world where you are not bound by moral or legal conduct o They are in an English boat they are subject to English laws Relate to 3 schools of jurisprudence o Legal positivism cannibalism was seen as necessity on open seas legal positivism says that law is valid if there is force backing it on the boat the captain is the state law o Natural law act lacked core morality b c eating your brothers at sea is wrong Judge used natural law we are often compelled to set up standards we cannot reach our selves and to lay down rules which we could not ourselves satisfy moral compass Used legal positivism the act fits the legal definition of the crime o Historical school since there is precedent that people do this at sea it is accepted public opinion supported acceptable Is the value of life absolute o Verdict says that it is murder is never justified o Later sentence is contradictory b c sentenced to death Life of cannibals is not as good as the life of the kid who was killed Fair procedure o Public opinion would swing in their favor if they had more fair procedure o Fair procedure strengthens utilitarian intentionality volition and necessity argument Utilitarian proves that they wanted greatest good for greatest number of people not only for specific people Intentionality assuming part of the risk proves that purpose intent is only for survival Necessity assuming part of the risk proves that purpose intent is for necessity for survival Consent o Would due process matter Relationship between law and justice o Relationship between law and public opinion Law is constant public opinion fluctuates originally was positive towards prisoners then became sour William v Walker Thomas Furniture Company doctrine of unconscionability Facts of the case 2 Professor Renteln Fall 2014 o Selling furniture on payment plan where furniture company owns it until all payments are fully paid o Any accounts or imbalances if there s one imbalance the furniture company gets all furniture with running balances o Woman buys record player defaulted on one payment and company possessed all furniture Social worker lived on 218 a month with 7 kids o Furniture company was aware of her financial situation and sold her the stereo player anyway o Trial court and appellate court didn t make findings on possible unconscionability case remanded to trial court for further proceedings Established doctrine of unconscionability contracts that include an absence of meaningful choice on one party with contract terms unreasonably fair to the other party o Meaningful choice determined by equality of bargaining power AND reasonable opportunity to understand terms of contract Without reasonable opportunity to understand contract there is lack of real consent to terms of contract Amplified by her background social worker income uneducated Inequality in bargaining power determined by general commercial background you need to know about the trade or profession need education and commercial needs of trade case Equality of bargaining power it has to be mutually favorable and you have to be able to bargain for it Precedent Scott v United States 1870 SCOTUS stated that unconscionable contracts are unenforceable under Congress s Uniform Commercial Code court gives plaintiff what he is equitably entitled to Found that the contract was unconscionable and unenforceable Dissent by Danaher it is role of legislature not courts to determine when contracts are unenforceable since many low income clients push items on credit out of