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UH / Political Science / POLS 1337 / What is the meaning of actus reus?

What is the meaning of actus reus?

What is the meaning of actus reus?

Description

School: University of Houston
Department: Political Science
Course: POLS 1337 US Govt: Congress, Pres & Crts
Professor: Kenneth abbott
Term: Spring 2015
Tags:
Cost: 50
Name: Exam 1 Study Guide
Description: Exam 1 Study Guide created based off of the lecture notes and review topics that the professor sent out.
Uploaded: 02/28/2015
26 Pages 13 Views 16 Unlocks
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Key Terms to Know:  


What is the meaning of actus reus?



 • Actus Reus :  

 ◦ Wrongful deed that comprises the physical components of a crime and  that generally must be coupled w/ mens rea to est. criminal liability.  • Nothing to do with anyone's mental state  

 • Ex: took can of gasoline, doused state building and set on fire -->  that indiv. Would Actus Reus of arson.

 ◦ A forbidden act (the actus reus for theft is the taking of or unlawful control  over property w/o the owner's consent)

 • Amicus Curiae :  

 ◦ "friend of the court"

 ◦ A person who is not a party to a lawsuit but who petitions the court or is  requested by the court to file a brief in the action b/c that person has a  strong interest in the subject matter

 • Ex: have a white guy who applies for law school, gets rejected 1st  year- applies 2nd year and gets rejected. Has higher gpa and test  scores than other minorities so he is mad.


What is assault?



Don't forget about the age old question of pertaining to the ilium

 ▪ Brings a lawsuit against law school trying to get admission   ▪ Other people who could be benefited or harmed in the  outcome not directly involved.  

 ▪ If third party but have interest in outcome, would file amicus  brief --> filed by anoyone  

 • Typically by interest groups  

• Indiv. People  

• Fed or state gov.  

• Dozens of pages long  

• Make arguments on why one side should win or lose..  

Cite court decisions…

 ▪ Not required for the brief to impact the decision.   ▪ 10%, 20%, 15% not that common  

 ▪ Sometimes can have more than one amicus briefs  • Hot button issues: abortion, death penalty, same sex  marriages..

 • Assault :  

 ◦ The threat or use of force on another that causes that person to have a  reasonable apprehension of imminent harmful or offensive conduct  • Notice guy hitting on your girlfriend, ask to stop. You get angry, just  rear back to punch not punch.  


What is certiorari?



 • Giving individual an impression that you are about to do an un wanting touching of their body.

 ◦ In criminal law it is an attempt to commit battery, requiring the specific  intent to cause physical injury.

 ◦ REMEMBER: THIS IS NOT THE ACTUAL OFFENSE IT IS A THREAT   • Battery : We also discuss several other topics like gsu icollege

 ◦ The application of force to another, resulting in harmful or offensive  contact

 • The actual contact (unwanted) that you make with another person's  body

 • When you punch someone, kick their shin..  

 ◦ There are 3 basic elements to battery  

 • The defendant's conduct (an act or omission)  

 • His "mental state"  

 • Harmful result to the victim  

 ◦ THIS IS THE ACTUAL OFFENSE

 • Chattel :  

 ◦ Moveable or transferable property

 • Anything that has monetary value  

 ▪ Cars, cellphones, computers, deed to land, copyright  • Exceptions  

 ▪ Brand new $20 from the year 2015 --> current money in  circulation tends not to be chattel  If you want to learn more check out affirming an exclusive disjunct

 • If it has a misprint and makes $20 more to collectors  is chattel

 ▪ If you collect belly button lint all your life and no one wants to  buy so it's not chattel  

 • Why do we care?  

 ▪ Supreme Court decisions before Civil War actually had  justices that would refer to African Americans as chattel.

 ◦ A chattel can be a tangible good or an intangible right (such as a patent)

 • Certiorarai :  

 ◦ An extraordinary writ issued by an appellate court, at its discretion,  directing a lower court to deliver the record in the case for review  

 • Trying to appeal case in U.S Supreme Court (can come into play in  any court) If you want to learn more check out derivative of secent

 • Has 9 members in SC  

 • When people appeal to supreme court have attorneys for each side  and file briefs --> tells whos involved, what happened, what legal  

issues are at stake, what lower court decided, why their case  

should be heard.

 ▪ Can be long  

 ▪ Each justice has their own clerk and the clerk reads briefs  and summarizes

 • Will include own opinion on what should happen  • First thing they do is whether they should hear the  

case

 ▪ Why a case would not be heard:  

 • The supreme court only deals with some issues We also discuss several other topics like applied anthropology encompasses any use of the knowledge and/or techniques of its four subfields to identify, assess, and solve theoretical problems.

 • Commerce, law, treaties, u.s constitution..   • Maybe the supreme court has recently dealt with a  similar case and don't want to deal with it again

 ▪ Operate w/ rule of 4 if 4 or more justices agree to hear the  case they grant Certiorari  

 ▪ If less agree then they don't grant Certiorari and don't hear  the case  

 ▪ In recent years only 1% granted certiorari  ◦ The supreme court uses certiorari to review most of the cases that it  decides to hear Don't forget about the age old question of uf textbook

 • Also termed a writ of certiorari  

 • Concurrence :  

 ◦ A vote cast by a judge in favor of the judgment reached, often on grounds  differing from those expressed in the opinion or opinions explaining the  judgment.

 • Case goes to supreme court, grants certiorari  

 • Out of 9 members --> 7 to 2 opinion, abortion case   ▪ 7 say is constitutional 2 say no  

 ▪ 7 is winning side, can write majority opinion all can sign it  and say "we say it's constitutional" give reasons why it is…  

 ▪ 4 could write majority, 3 could write concurring opinion  • Agree with the conclusion but DON’T agree on how  they reached the opinion  

 ◦ A separate written opinion explaining such a vote -- also termed a  concurring opinion

 ◦ CAST IN FAVOR OF JUDGEMENT

 • Dissenting Opinion :  

 ◦ An opinion by one or more judges who disagree with the decision reached  by the majority--often shortened to dissent.

 • Can write one dissenting opinion and all sign or 2 write dissenting  opinion

 • At most you will have 4 dissenting opinion  

 • Over time the opinions of society and the court change…what used  to be a dissent could be something part of the majority

 • Brown vs. Board of Education  

 ▪ Segregation was wrong

 ◦ Also termed minority opinion

 ◦ DOES NOT AGREE  

 • Libel :  

 ◦ A defamatory statement expressed in a fixed medium (such as writing, a  picture, sign, or electronic broadcast)

 • To prove in court:  

 ▪ Something you see with your eyes (handwritten note, photo,  in a book, txt message,

 ▪ Has to be a defamatory statement

 ▪ They must be witnessed by a third party  ◦ Libel is classified as both a crime and a tort, but is no longer prosecuted  as a crime.

 ◦ TO PROVE IN COURT, DOES NOT HAVE TO BE A DEFAMATORY  STATEMENT

 • Slander :  

 ◦ A defamatory statement expressed in a transitory form such as speech  • To prove in court:  

 ▪ Something you hear (spoken word to you, recorded convo,  something on t.v…) in certain contexts in could be a certain  

sound

 ▪ Has to be a defamatory statement

 • A statement that hurts your standing or rep. in  community

 • Must be false statements  

• Must also be believable  

 ▪ Must be witnessed by a third party

 • Make a statement one on one.. No one else hears so  it's not slander

 ◦ Damages for slander, unlike those for libel, are not presumed and thus  must be proved by the plaintiff.

 ◦ The act of making such a statement

 ◦ IS A DEFAMATORY STATEMENT, HURTS A PERSONS'  REPUATATION.

 • Res Judicata :  

 ◦ An issue that has been definitively settles by judicial decision  ◦ An affirmative defense barring the same parties from litigating a second  lawsuit on the same claim, or any other claim arising from the same  transaction or series of transactions that could have been, but was not,  raised in the first suit.

 • Also known as Double Jepardy  

 • 2 courts:  

 ▪ Criminal court

 • Governments bring charges against you for violating a  penal code

 • Go to prison or jail  

• Have a lot more to lose  

 ▪ Civil Court

 • The person that you harmed brings a lawsuit against  you

 • If you lose you don't go to jail or prison  • You have to pay money to the person or family of  

person that you harmed

 • What would violate:  

 ▪ Attempted to bring charges against the same act in a 2nd  criminal trial

 • Federal courts and state courts  

 ▪ Sometimes an indiv. Will have federal and state charges  against them. Some say this violates Res Judicata because  

you have charges for same act in different lvls.  

 ▪ Some debate if it violates.  

 • Res Ipsa Loquitor:  

 ◦ Latin Translation, "the thing speaks for itself".

 ◦ The doctrine providing that, in some circumstances, the mere fact of an  accident's occurrence raises an interference of negligence so as to est. a  prima facie case.

 • A legal concept rarely used.  

 • Ex: you're walking in a major downtown area, no people walking  near you, no cars, pretty vacant. Walk past a big flour factory--> big  metal doors see flour packs. You blackout and when you wake up  

the 50 pound flour sack on top of your head, you don't know what  

happened.

 ▪ Common sense tells you that the flour factory had something  to do with it

 ▪ No direct evidence, there is overwhelming circumstantial  evidence connecting the wrong doer to the act

 ▪ The flour factory is responsible UNLESS they can prove that  someone else committed the act (then they are relieved of  

liability to you)

 • Guilty until proven innocent --> don't prove this unless there is a  strong case in which this is applied.

 • Respondeat Superior:  

 ◦ The doctrine holding an employer or principal liable for the employee's or  agent's wrongful acts committed within the scope of the employment or  agency.

 • Say you order a pizza, the pizza boy is a 17 year old high school  kid, drives down the street to give pizza to you, the kid is on his  

phone and hits a young girl.  

 ▪ The victim's family would want to sue the company under  respondeat superior

 ▪ The pizza kid is in the scope of the company doing his job  • Instead he decides to go to girlfriends house across town, hits a girl  and isn't in the scope of the job.  

 • If he has a history of not doing their job and hits someone and kills  them, the employer can be held civilly liable because they know the  worker's history. They should give a warning to fix behavior if they  

don't then they should let go or the employer will be held liable.

 • Summary Judgement :

 ◦ A judgment granted on a claim about which there is no genuine issue of  material fact and upon which the movant is entitled to prevail as a matter  of law.

 ◦ This procedure device allows the speedy disposition of a controversy w/o  the need for a trial.

 ◦ Try it most likely knowing that it won't work but it will pay off big if it does.  • Pre trial motion  

 • If the judge agrees with one side then they win summary judgment  then they win the trial

 • If you lose you still have ability to appeal to federal courts   ▪ You can tell appellate court that it's not an obvious slam  dunk case

 ▪ If higher court agrees then they will put the course on trial.   ▪ Rarely granted  

 ▪ If granted many times overturned on appeal   • Voir Dire :  

 ◦ "speaking the truth"

 ◦ A prelim. Examination of a prospective juror by a judge or lawyer to decide  whether the prospect is qualified and suitable to serve on a jury.

 • Process of jury selection  

 • If no celeb or big company  

 ▪ Around 30 jury pool

 • If celeb or big company  

 ▪ Around 300 or 400 jury pools

 • Varies state by state  

 • Attorneys and judges play big roles  

 ▪ They tell you about the case and figure if you have biases  ▪ Tell you who is involved

 ▪ What happened

 ▪ Type of evidence

 ▪ Type of punishment

 • Usually each side gets 3 people removed from each side w/o telling  why

 • Then they can remove people who are bias  

 • If no one is removed then then are in the pettet jury   • Higher juries usually get open-ended questions  NOTES FROM LECTURE:

Chapter 5 -Civil Rights:  

 • Civil Rights: rights that the government protects from arbitrary or discriminatory  treatment by the government or individuals.

 • Legal Classifications:  

 ◦ Suspect class: When the laws treat people differently due to their race or  when the legislation infringes on some fundamental rights  

 • The court applies a strict scrutiny standard of review

 ▪ When strict scrutiny is applied there must be a  compelling state interest (is the highest standard -- it  

makes it the most difficult to treat people differently that fall  

into the suspect class.  

 • EX: When the Court held that the government had a compelling  state interest to relocate the Japanese Americans during WW2  

( because the Japanese had bombed Pearl Harbor -- Americans  

wanted to segregate the Japanese from everyone else, like  

prisoners) (The Korematsu case)

 ◦ Quasisuspect Class: When the laws treat people differently based upon  their gender - the court applies intermediate standard of review.   • There must be an important state purpose for the law or  classification. The law must be related to the ends.  

 • When the Court upheld the federal law which required males but  not females to register for the draft. (Rostker case)  

 ◦ Nonsuspect Class: When the laws treat differently based on age,  wealth, or sexual orientation. -- Court applies minimum rationality standard  of review.  

 • There must be a rational basis for the law or classification   ▪ Rational basis is the lowest standard of review, it is easiest  to treat people differently who fall into the nonsuspect class.  

 ▪ When the Court upheld Missouri law requiring public offciails  to retire at age of 70. (Gregory case)  

 • Civil War Amendments  

 ◦ 13th Amendment: Banned all forms of slavery and involuntary servitude.  ◦ 14th Amendment: Grants equal protection of the laws and due process to  all citizens. ( Also used to incorporate civil liberties to the states).

 ◦ 15th Amendment: Extended the right to vote to all adult males,  regardless of race.

 • Black Codes - the laws Southern states passed which prevented African  Americans from:

 ◦ Voting

 ◦ Sitting on juries  

 ◦ Appearing in public places.  

 ◦ These codes were to restrict the rights of the former slaves before the  passage of the 14th and 15th amendments.

 • Jim Crow Laws - the laws that the South enforced which were designed to  prevent the intent of the Civil War Amendments:  

 ◦ Efforts were made to keep African Americans (along with Hispanics, and  low income voters of all races) from voting by using:  

 • Poll Taxes  

 ▪ Had to pay a fee in order vote - cost about $30-$35 today   • Literacy Tests

 ▪ Had to take a literacy test to vote -- had little to do with  voting  

 ▪ Designed to make people fail them  

 ▪ Texas did not use these tests  

 • Whites only Primaries  

 ▪ Only whites could vote in primaries -- were picking  candidates for general election.  

 ▪ Mostly democratic so the Democratic Primary would win the  general election  

 • Grandfather clauses  

 ▪ If your grandfather was a slave you can't vote   • MLK's "I Have a Dream" speech  

 ◦ Clarence Jones helped write the speech -- first 12 minutes were scripted.   ◦ A gospel singer asked Martin Luther King Jr. to tell about his dream.   ◦ His speech provided hope for the future that America will live up to "all  

men are created equal" and that equality must happen without the force of  physical violence but with passion from the people.  

 • The Civil Rights Act of 1964  

 ◦ Outlawed the discrimination in voter registration (no more poll taxes,  literacy tests..)

 ◦ Barred discrimination in public accommodations  

 ◦ Desegregation of schools and public facilities.  

 ◦ Allowed the federal gov. to withhold funds from discriminatory state and  local programs

 ◦ Prohibited discrimination on the classification of race, color, religion,  national origin or gender.  

 ◦ Created Equal Employment Opportunity Commission (EEOC)   • To monitor and enforce bans on employment discrimination.   ◦ Southerners argued that this act violated the U.S Constitution and was an  unwarranted use of federal power.

 ◦ Ruled that de jure segregation must be eliminated at once  • De Jure segregation: Segregation mandated by law, became  norm in the South

 ▪ Passed miscegenation laws which banned interracial  marriage, cohabitation, or sex with severe penalties imposed  

for those who violated them.  

 ▪ Interracial couples who married risked losing their property  and even their liberty, since heavy fines and jail sentences  

were among the penalties for breaking those laws.

 • De facto Segregation (the segregation caused by the tendency of  ppl to live in neighborhoods w/ others of their own race, religion, or  ethnic group) still prevails in many communities throughout the U.S  today.

Chapter 12 - Congress:

 • House of Representatives  

 ◦ 2 yr terms.

 ◦ Initiate revenue bills

 ◦ Has 435 members

 ◦ Formal

 ◦ Specialize in 1 or 2 policy areas

 ◦ Tax policy

 ◦ Seats are reapportioned ever 10 years

 ◦ Representation based on state's population  

 • Senate  

 ◦ 6 yr term

 ◦ Advise and consent  

 ◦ 100 members (2 Senators per state)

 ◦ Relaxed  

 ◦ Know a little about most ( or all ) the policy areas  

 ◦ Foreign policy

 • Representational Role of Members of Congress  

 ◦ Delegate - Elected officials who vote the way their constituents want them  to even if the official does not think that it is the best decision

 ◦ Politico: Elected officials who act as a trustee or delegation depending on  the issue at hand.

 ◦ Trustee: Officials who use their own best judgment when voting and  making decisions. Don't always do what their constituents want them to  do.  

 • Lawmaking  

 ◦ Only a member of the House or Senate may INTRODUCE the bill but  ANYONE can write a bill  

 • Constituents  

 • Interest groups  

 • Someone on behalf of the president  

 ◦ A member of the Congress has to introduce the bill

 ◦ Over 9,000 bills are proposed in a session of Congress -- fewer than 5 to  10% of the proposed bills are enacted.

 ◦ Most of the bills originate in the executive branch

 • The president or someone on the behalf of the president writes or  proposes a bill and finds a member of Congress (same party) to  

introduce the bill.

 ◦ A bill goes through 3 stages to become a law  

 • Committees  

 • The floor  

 • Conference committee  

Chapter 13 - The Presidency  

 • The qualifications for presidential office  

 ◦ Must be 35 years old

 ◦ Be a U.S Resident for 14 years  

 ◦ A natural born citizen  

 • Terms of Office  

 ◦ 22nd Amendment - Limits presidents to two 4-yr terms.  • Removal of a President  

 ◦ A 2- step process

1. The U.S House of Reps. Conducts the investigation and drafts the  Articles of Impeachment for either treason, bribery, or high crimes and  misdemeanors.

 1. The U.S Senate tries the case with the Chief of Justice of the U.S Supreme  Court.  

 ▪ If 2/3 of the Senate votes for the articles then the president is removed  from office.  

 ◦ 2 presidents have been impeached: Andrew Johnson and Bill Clinton. Neither  removed from office.

 • The Power to Make Treaties  

 ◦ The president has power to make treaties but 2/3 of the U.S Senate must  ratify  

 ◦ Has the power to formally recognize the existence of a country   ◦ Executive agreements: do not require Senate approval -- only binding  during the administration that made them.  

 • Have been used more often than treaties since 1900.   • Veto Power  

 ◦ Presidents can reject any congressional legislation through a general or  pocket veto.

 • pocket veto - occurs when Congress has adjourned and the  president effectively "puts the bill in his pocket" and the bill dies.  

 ◦ Congress can override a veto with 2/3 vote of both houses.   ◦ Have been over 2,500 presidential vetoes  

 • 1,485 regular vetoes  

 • 1,068 pocket vetoes  

 • 58 have been overridden  

 • Presidential Establishment  

 ◦ Has numerous advisors to help make policy and fulfill the duties of the  executive

 • The Cabinet  

 • Executive Office of the President (EOP)  

 • The first lady and her staff  

 • Vice President and his staff  

 • White House staff.  

Chapter 14 - The Bureaucracy  

 • There are 15 cabinet departments today  

 ◦ Account for 60% of the federal workforce

 • 1789 Cabinet Departments

 ◦ Dept. of War

 ◦ Dept. of State  

 ◦ Dept. of Treasury  

 • Government Corporations  

 ◦ They are businesses created by Congress to perform functions that could  be performed by private business --- not profitable.  

 • EX: Amtrak and Tennessee Valley Authority  

 • Largest gov. corp is the U.S Postal Service.  

 ▪ Fed Ex is a profitable competitor to the U.S Postal Service  • Independent Executive Agencies  

 ◦ Resemble Cabinet departments but have narrower mandates than  Cabinet depts.

 ◦ Usually perform a service function not a regulatory one.   • EX: CIA, EEOC, NASA, EPA  

 • Marbury v. Madison  

 ◦ Formed basis for the exercise of judicial review in the U.S   • Fifth Circuit  

 ◦ Has appellate jurisdiction over district courts in southern districts   • Judicial Review: power of the supreme court to declare acts of Congress or  actions of the executive -- or even acts or actions of the state gov to be  unconstitutional

 ◦ Nowhere mentioned in the constitution.

 ◦ Used on hundreds of occasions -- sometimes sparingly but other times  more frequently.  

 • Judical Activism: an approach to judicial decision making which holds that a  judge should use his/her position to promote a desirable social end.  

Proximate Cause

 • Proximate Cause: A cause that is legally sufficient to result in liability.  ◦ Directly produces an even and without which the event would not have  occurred.  

 ◦ All about finding out where does your liability end if you commit a wrongful  act.  

 • Palsgraf v. Long Island R.R. C.O  

 ◦ Facts of case:  

 • Plaintiff was standing on a platform of defendant's railroad after  buying ticket.

 • 2 men ran to catch another train, one reached platform of the car  without problems -- train still moving  

 • Other man was carrying a package and jumped aboard the car but  seemed as if he was about to fall

 • A guard on the car who was holding the door open reached to try  and help the second man in  

 • Another guard on the platform pushed him from behind   • The man's package fell upon the rails '

 ▪ Small package -- covered in newspaper

 ▪ Contained fireworks  

 • The fireworks exploded when they fell, threw down some scales  and struck the plaintiff which caused injuries for which she sued.

 ◦ The holding  

 • Majority held that conduct of the defendant's guard was not a wrong  in relation to the plaintiff standing far away.

 • Defendant's guard didn't know that his actions could result in harm  so the defendant is not liable for the harm caused in the case.

 • Enright v. Eli Lilly & Co.  

 ◦ Facts of case

 • Karen Enright's grandmother ingested DES to prevent miscarriage  during a pregnancy which resulted in the birth of Patricia Enright  

 • Patricia Enright says she developed abnormalities of her  reproductive system due to the exposure of the DES which resulted  in many miscarriages and the early birth of Karen Enright

 • Karen suffers from cerebral palsy and other disabilities   • 1971, FDA banned drug use after the studies establishing a link  between in utero exposure to DES and the occurrence in teen-age  women of a rare form of vaginal and cervical cancer  

 ◦ Holding

 • The effects of DES exposure may extend for generations, was the  court's duty to confine liability within manageable limits

 • Limiting liability to those who ingested the drug or were exposed to  it in utero served this purpose.

 • Court recognized public policy favors the availability of prescription  druge even though most of them carry risks.

 • Drug manufacturers should conduct adequate testing a research  prior to the marketing of their products.  

 • Bartolone v. Jeckovich  

 ◦ Facts of the case  

 • Plaintiff was involved in 4-car chain reaction collision in Niagara  Falls  

 • Sustained relatively minor injuries  

 ▪ Whiplash  

 ▪ Lower back strain  

Suffered an acute psychotic breakdown from which he has not  

recovered

 ▪ Argued that the accident aggravated a pre-existing paranoid schizophrenic  condition which has disabled him

 ◦ Holding  

 • Court held that a defendant must take the plaintiff as he finds him and may  be held liable in damages for aggravation of pre-existing illness

 • Defendants not allowed to argue that the plaintiff should be denied  recovery because his condition might have occurred even without the  accident.

Key Terms to Know:  

 • Actus Reus :  

 ◦ Wrongful deed that comprises the physical components of a crime and  that generally must be coupled w/ mens rea to est. criminal liability.  • Nothing to do with anyone's mental state  

 • Ex: took can of gasoline, doused state building and set on fire -->  that indiv. Would Actus Reus of arson.

 ◦ A forbidden act (the actus reus for theft is the taking of or unlawful control  over property w/o the owner's consent)

 • Amicus Curiae :  

 ◦ "friend of the court"

 ◦ A person who is not a party to a lawsuit but who petitions the court or is  requested by the court to file a brief in the action b/c that person has a  strong interest in the subject matter

 • Ex: have a white guy who applies for law school, gets rejected 1st  year- applies 2nd year and gets rejected. Has higher gpa and test  scores than other minorities so he is mad.

 ▪ Brings a lawsuit against law school trying to get admission   ▪ Other people who could be benefited or harmed in the  outcome not directly involved.  

 ▪ If third party but have interest in outcome, would file amicus  brief --> filed by anoyone  

 • Typically by interest groups  

• Indiv. People  

• Fed or state gov.  

• Dozens of pages long  

• Make arguments on why one side should win or lose..  

Cite court decisions…

 ▪ Not required for the brief to impact the decision.   ▪ 10%, 20%, 15% not that common  

 ▪ Sometimes can have more than one amicus briefs  • Hot button issues: abortion, death penalty, same sex  marriages..

 • Assault :  

 ◦ The threat or use of force on another that causes that person to have a  reasonable apprehension of imminent harmful or offensive conduct  • Notice guy hitting on your girlfriend, ask to stop. You get angry, just  rear back to punch not punch.  

 • Giving individual an impression that you are about to do an un wanting touching of their body.

 ◦ In criminal law it is an attempt to commit battery, requiring the specific  intent to cause physical injury.

 ◦ REMEMBER: THIS IS NOT THE ACTUAL OFFENSE IT IS A THREAT   • Battery :

 ◦ The application of force to another, resulting in harmful or offensive  contact

 • The actual contact (unwanted) that you make with another person's  body

 • When you punch someone, kick their shin..  

 ◦ There are 3 basic elements to battery  

 • The defendant's conduct (an act or omission)  

 • His "mental state"  

 • Harmful result to the victim  

 ◦ THIS IS THE ACTUAL OFFENSE

 • Chattel :  

 ◦ Moveable or transferable property

 • Anything that has monetary value  

 ▪ Cars, cellphones, computers, deed to land, copyright  • Exceptions  

 ▪ Brand new $20 from the year 2015 --> current money in  circulation tends not to be chattel  

 • If it has a misprint and makes $20 more to collectors  is chattel

 ▪ If you collect belly button lint all your life and no one wants to  buy so it's not chattel  

 • Why do we care?  

 ▪ Supreme Court decisions before Civil War actually had  justices that would refer to African Americans as chattel.

 ◦ A chattel can be a tangible good or an intangible right (such as a patent)

 • Certiorarai :  

 ◦ An extraordinary writ issued by an appellate court, at its discretion,  directing a lower court to deliver the record in the case for review  

 • Trying to appeal case in U.S Supreme Court (can come into play in  any court)

 • Has 9 members in SC  

 • When people appeal to supreme court have attorneys for each side  and file briefs --> tells whos involved, what happened, what legal  

issues are at stake, what lower court decided, why their case  

should be heard.

 ▪ Can be long  

 ▪ Each justice has their own clerk and the clerk reads briefs  and summarizes

 • Will include own opinion on what should happen  • First thing they do is whether they should hear the  

case

 ▪ Why a case would not be heard:  

 • The supreme court only deals with some issues

 • Commerce, law, treaties, u.s constitution..   • Maybe the supreme court has recently dealt with a  similar case and don't want to deal with it again

 ▪ Operate w/ rule of 4 if 4 or more justices agree to hear the  case they grant Certiorari  

 ▪ If less agree then they don't grant Certiorari and don't hear  the case  

 ▪ In recent years only 1% granted certiorari  ◦ The supreme court uses certiorari to review most of the cases that it  decides to hear

 • Also termed a writ of certiorari  

 • Concurrence :  

 ◦ A vote cast by a judge in favor of the judgment reached, often on grounds  differing from those expressed in the opinion or opinions explaining the  judgment.

 • Case goes to supreme court, grants certiorari  

 • Out of 9 members --> 7 to 2 opinion, abortion case   ▪ 7 say is constitutional 2 say no  

 ▪ 7 is winning side, can write majority opinion all can sign it  and say "we say it's constitutional" give reasons why it is…  

 ▪ 4 could write majority, 3 could write concurring opinion  • Agree with the conclusion but DON’T agree on how  they reached the opinion  

 ◦ A separate written opinion explaining such a vote -- also termed a  concurring opinion

 ◦ CAST IN FAVOR OF JUDGEMENT

 • Dissenting Opinion :  

 ◦ An opinion by one or more judges who disagree with the decision reached  by the majority--often shortened to dissent.

 • Can write one dissenting opinion and all sign or 2 write dissenting  opinion

 • At most you will have 4 dissenting opinion  

 • Over time the opinions of society and the court change…what used  to be a dissent could be something part of the majority

 • Brown vs. Board of Education  

 ▪ Segregation was wrong

 ◦ Also termed minority opinion

 ◦ DOES NOT AGREE  

 • Libel :  

 ◦ A defamatory statement expressed in a fixed medium (such as writing, a  picture, sign, or electronic broadcast)

 • To prove in court:  

 ▪ Something you see with your eyes (handwritten note, photo,  in a book, txt message,

 ▪ Has to be a defamatory statement

 ▪ They must be witnessed by a third party  ◦ Libel is classified as both a crime and a tort, but is no longer prosecuted  as a crime.

 ◦ TO PROVE IN COURT, DOES NOT HAVE TO BE A DEFAMATORY  STATEMENT

 • Slander :  

 ◦ A defamatory statement expressed in a transitory form such as speech  • To prove in court:  

 ▪ Something you hear (spoken word to you, recorded convo,  something on t.v…) in certain contexts in could be a certain  

sound

 ▪ Has to be a defamatory statement

 • A statement that hurts your standing or rep. in  community

 • Must be false statements  

• Must also be believable  

 ▪ Must be witnessed by a third party

 • Make a statement one on one.. No one else hears so  it's not slander

 ◦ Damages for slander, unlike those for libel, are not presumed and thus  must be proved by the plaintiff.

 ◦ The act of making such a statement

 ◦ IS A DEFAMATORY STATEMENT, HURTS A PERSONS'  REPUATATION.

 • Res Judicata :  

 ◦ An issue that has been definitively settles by judicial decision  ◦ An affirmative defense barring the same parties from litigating a second  lawsuit on the same claim, or any other claim arising from the same  transaction or series of transactions that could have been, but was not,  raised in the first suit.

 • Also known as Double Jepardy  

 • 2 courts:  

 ▪ Criminal court

 • Governments bring charges against you for violating a  penal code

 • Go to prison or jail  

• Have a lot more to lose  

 ▪ Civil Court

 • The person that you harmed brings a lawsuit against  you

 • If you lose you don't go to jail or prison  • You have to pay money to the person or family of  

person that you harmed

 • What would violate:  

 ▪ Attempted to bring charges against the same act in a 2nd  criminal trial

 • Federal courts and state courts  

 ▪ Sometimes an indiv. Will have federal and state charges  against them. Some say this violates Res Judicata because  

you have charges for same act in different lvls.  

 ▪ Some debate if it violates.  

 • Res Ipsa Loquitor:  

 ◦ Latin Translation, "the thing speaks for itself".

 ◦ The doctrine providing that, in some circumstances, the mere fact of an  accident's occurrence raises an interference of negligence so as to est. a  prima facie case.

 • A legal concept rarely used.  

 • Ex: you're walking in a major downtown area, no people walking  near you, no cars, pretty vacant. Walk past a big flour factory--> big  metal doors see flour packs. You blackout and when you wake up  

the 50 pound flour sack on top of your head, you don't know what  

happened.

 ▪ Common sense tells you that the flour factory had something  to do with it

 ▪ No direct evidence, there is overwhelming circumstantial  evidence connecting the wrong doer to the act

 ▪ The flour factory is responsible UNLESS they can prove that  someone else committed the act (then they are relieved of  

liability to you)

 • Guilty until proven innocent --> don't prove this unless there is a  strong case in which this is applied.

 • Respondeat Superior:  

 ◦ The doctrine holding an employer or principal liable for the employee's or  agent's wrongful acts committed within the scope of the employment or  agency.

 • Say you order a pizza, the pizza boy is a 17 year old high school  kid, drives down the street to give pizza to you, the kid is on his  

phone and hits a young girl.  

 ▪ The victim's family would want to sue the company under  respondeat superior

 ▪ The pizza kid is in the scope of the company doing his job  • Instead he decides to go to girlfriends house across town, hits a girl  and isn't in the scope of the job.  

 • If he has a history of not doing their job and hits someone and kills  them, the employer can be held civilly liable because they know the  worker's history. They should give a warning to fix behavior if they  

don't then they should let go or the employer will be held liable.

 • Summary Judgement :

 ◦ A judgment granted on a claim about which there is no genuine issue of  material fact and upon which the movant is entitled to prevail as a matter  of law.

 ◦ This procedure device allows the speedy disposition of a controversy w/o  the need for a trial.

 ◦ Try it most likely knowing that it won't work but it will pay off big if it does.  • Pre trial motion  

 • If the judge agrees with one side then they win summary judgment  then they win the trial

 • If you lose you still have ability to appeal to federal courts   ▪ You can tell appellate court that it's not an obvious slam  dunk case

 ▪ If higher court agrees then they will put the course on trial.   ▪ Rarely granted  

 ▪ If granted many times overturned on appeal   • Voir Dire :  

 ◦ "speaking the truth"

 ◦ A prelim. Examination of a prospective juror by a judge or lawyer to decide  whether the prospect is qualified and suitable to serve on a jury.

 • Process of jury selection  

 • If no celeb or big company  

 ▪ Around 30 jury pool

 • If celeb or big company  

 ▪ Around 300 or 400 jury pools

 • Varies state by state  

 • Attorneys and judges play big roles  

 ▪ They tell you about the case and figure if you have biases  ▪ Tell you who is involved

 ▪ What happened

 ▪ Type of evidence

 ▪ Type of punishment

 • Usually each side gets 3 people removed from each side w/o telling  why

 • Then they can remove people who are bias  

 • If no one is removed then then are in the pettet jury   • Higher juries usually get open-ended questions  NOTES FROM LECTURE:

Chapter 5 -Civil Rights:  

 • Civil Rights: rights that the government protects from arbitrary or discriminatory  treatment by the government or individuals.

 • Legal Classifications:  

 ◦ Suspect class: When the laws treat people differently due to their race or  when the legislation infringes on some fundamental rights  

 • The court applies a strict scrutiny standard of review

 ▪ When strict scrutiny is applied there must be a  compelling state interest (is the highest standard -- it  

makes it the most difficult to treat people differently that fall  

into the suspect class.  

 • EX: When the Court held that the government had a compelling  state interest to relocate the Japanese Americans during WW2  

( because the Japanese had bombed Pearl Harbor -- Americans  

wanted to segregate the Japanese from everyone else, like  

prisoners) (The Korematsu case)

 ◦ Quasisuspect Class: When the laws treat people differently based upon  their gender - the court applies intermediate standard of review.   • There must be an important state purpose for the law or  classification. The law must be related to the ends.  

 • When the Court upheld the federal law which required males but  not females to register for the draft. (Rostker case)  

 ◦ Nonsuspect Class: When the laws treat differently based on age,  wealth, or sexual orientation. -- Court applies minimum rationality standard  of review.  

 • There must be a rational basis for the law or classification   ▪ Rational basis is the lowest standard of review, it is easiest  to treat people differently who fall into the nonsuspect class.  

 ▪ When the Court upheld Missouri law requiring public offciails  to retire at age of 70. (Gregory case)  

 • Civil War Amendments  

 ◦ 13th Amendment: Banned all forms of slavery and involuntary servitude.  ◦ 14th Amendment: Grants equal protection of the laws and due process to  all citizens. ( Also used to incorporate civil liberties to the states).

 ◦ 15th Amendment: Extended the right to vote to all adult males,  regardless of race.

 • Black Codes - the laws Southern states passed which prevented African  Americans from:

 ◦ Voting

 ◦ Sitting on juries  

 ◦ Appearing in public places.  

 ◦ These codes were to restrict the rights of the former slaves before the  passage of the 14th and 15th amendments.

 • Jim Crow Laws - the laws that the South enforced which were designed to  prevent the intent of the Civil War Amendments:  

 ◦ Efforts were made to keep African Americans (along with Hispanics, and  low income voters of all races) from voting by using:  

 • Poll Taxes  

 ▪ Had to pay a fee in order vote - cost about $30-$35 today   • Literacy Tests

 ▪ Had to take a literacy test to vote -- had little to do with  voting  

 ▪ Designed to make people fail them  

 ▪ Texas did not use these tests  

 • Whites only Primaries  

 ▪ Only whites could vote in primaries -- were picking  candidates for general election.  

 ▪ Mostly democratic so the Democratic Primary would win the  general election  

 • Grandfather clauses  

 ▪ If your grandfather was a slave you can't vote   • MLK's "I Have a Dream" speech  

 ◦ Clarence Jones helped write the speech -- first 12 minutes were scripted.   ◦ A gospel singer asked Martin Luther King Jr. to tell about his dream.   ◦ His speech provided hope for the future that America will live up to "all  

men are created equal" and that equality must happen without the force of  physical violence but with passion from the people.  

 • The Civil Rights Act of 1964  

 ◦ Outlawed the discrimination in voter registration (no more poll taxes,  literacy tests..)

 ◦ Barred discrimination in public accommodations  

 ◦ Desegregation of schools and public facilities.  

 ◦ Allowed the federal gov. to withhold funds from discriminatory state and  local programs

 ◦ Prohibited discrimination on the classification of race, color, religion,  national origin or gender.  

 ◦ Created Equal Employment Opportunity Commission (EEOC)   • To monitor and enforce bans on employment discrimination.   ◦ Southerners argued that this act violated the U.S Constitution and was an  unwarranted use of federal power.

 ◦ Ruled that de jure segregation must be eliminated at once  • De Jure segregation: Segregation mandated by law, became  norm in the South

 ▪ Passed miscegenation laws which banned interracial  marriage, cohabitation, or sex with severe penalties imposed  

for those who violated them.  

 ▪ Interracial couples who married risked losing their property  and even their liberty, since heavy fines and jail sentences  

were among the penalties for breaking those laws.

 • De facto Segregation (the segregation caused by the tendency of  ppl to live in neighborhoods w/ others of their own race, religion, or  ethnic group) still prevails in many communities throughout the U.S  today.

Chapter 12 - Congress:

 • House of Representatives  

 ◦ 2 yr terms.

 ◦ Initiate revenue bills

 ◦ Has 435 members

 ◦ Formal

 ◦ Specialize in 1 or 2 policy areas

 ◦ Tax policy

 ◦ Seats are reapportioned ever 10 years

 ◦ Representation based on state's population  

 • Senate  

 ◦ 6 yr term

 ◦ Advise and consent  

 ◦ 100 members (2 Senators per state)

 ◦ Relaxed  

 ◦ Know a little about most ( or all ) the policy areas  

 ◦ Foreign policy

 • Representational Role of Members of Congress  

 ◦ Delegate - Elected officials who vote the way their constituents want them  to even if the official does not think that it is the best decision

 ◦ Politico: Elected officials who act as a trustee or delegation depending on  the issue at hand.

 ◦ Trustee: Officials who use their own best judgment when voting and  making decisions. Don't always do what their constituents want them to  do.  

 • Lawmaking  

 ◦ Only a member of the House or Senate may INTRODUCE the bill but  ANYONE can write a bill  

 • Constituents  

 • Interest groups  

 • Someone on behalf of the president  

 ◦ A member of the Congress has to introduce the bill

 ◦ Over 9,000 bills are proposed in a session of Congress -- fewer than 5 to  10% of the proposed bills are enacted.

 ◦ Most of the bills originate in the executive branch

 • The president or someone on the behalf of the president writes or  proposes a bill and finds a member of Congress (same party) to  

introduce the bill.

 ◦ A bill goes through 3 stages to become a law  

 • Committees  

 • The floor  

 • Conference committee  

Chapter 13 - The Presidency  

 • The qualifications for presidential office  

 ◦ Must be 35 years old

 ◦ Be a U.S Resident for 14 years  

 ◦ A natural born citizen  

 • Terms of Office  

 ◦ 22nd Amendment - Limits presidents to two 4-yr terms.  • Removal of a President  

 ◦ A 2- step process

1. The U.S House of Reps. Conducts the investigation and drafts the  Articles of Impeachment for either treason, bribery, or high crimes and  misdemeanors.

 1. The U.S Senate tries the case with the Chief of Justice of the U.S Supreme  Court.  

 ▪ If 2/3 of the Senate votes for the articles then the president is removed  from office.  

 ◦ 2 presidents have been impeached: Andrew Johnson and Bill Clinton. Neither  removed from office.

 • The Power to Make Treaties  

 ◦ The president has power to make treaties but 2/3 of the U.S Senate must  ratify  

 ◦ Has the power to formally recognize the existence of a country   ◦ Executive agreements: do not require Senate approval -- only binding  during the administration that made them.  

 • Have been used more often than treaties since 1900.   • Veto Power  

 ◦ Presidents can reject any congressional legislation through a general or  pocket veto.

 • pocket veto - occurs when Congress has adjourned and the  president effectively "puts the bill in his pocket" and the bill dies.  

 ◦ Congress can override a veto with 2/3 vote of both houses.   ◦ Have been over 2,500 presidential vetoes  

 • 1,485 regular vetoes  

 • 1,068 pocket vetoes  

 • 58 have been overridden  

 • Presidential Establishment  

 ◦ Has numerous advisors to help make policy and fulfill the duties of the  executive

 • The Cabinet  

 • Executive Office of the President (EOP)  

 • The first lady and her staff  

 • Vice President and his staff  

 • White House staff.  

Chapter 14 - The Bureaucracy  

 • There are 15 cabinet departments today  

 ◦ Account for 60% of the federal workforce

 • 1789 Cabinet Departments

 ◦ Dept. of War

 ◦ Dept. of State  

 ◦ Dept. of Treasury  

 • Government Corporations  

 ◦ They are businesses created by Congress to perform functions that could  be performed by private business --- not profitable.  

 • EX: Amtrak and Tennessee Valley Authority  

 • Largest gov. corp is the U.S Postal Service.  

 ▪ Fed Ex is a profitable competitor to the U.S Postal Service  • Independent Executive Agencies  

 ◦ Resemble Cabinet departments but have narrower mandates than  Cabinet depts.

 ◦ Usually perform a service function not a regulatory one.   • EX: CIA, EEOC, NASA, EPA  

 • Marbury v. Madison  

 ◦ Formed basis for the exercise of judicial review in the U.S   • Fifth Circuit  

 ◦ Has appellate jurisdiction over district courts in southern districts   • Judicial Review: power of the supreme court to declare acts of Congress or  actions of the executive -- or even acts or actions of the state gov to be  unconstitutional

 ◦ Nowhere mentioned in the constitution.

 ◦ Used on hundreds of occasions -- sometimes sparingly but other times  more frequently.  

 • Judical Activism: an approach to judicial decision making which holds that a  judge should use his/her position to promote a desirable social end.  

Proximate Cause

 • Proximate Cause: A cause that is legally sufficient to result in liability.  ◦ Directly produces an even and without which the event would not have  occurred.  

 ◦ All about finding out where does your liability end if you commit a wrongful  act.  

 • Palsgraf v. Long Island R.R. C.O  

 ◦ Facts of case:  

 • Plaintiff was standing on a platform of defendant's railroad after  buying ticket.

 • 2 men ran to catch another train, one reached platform of the car  without problems -- train still moving  

 • Other man was carrying a package and jumped aboard the car but  seemed as if he was about to fall

 • A guard on the car who was holding the door open reached to try  and help the second man in  

 • Another guard on the platform pushed him from behind   • The man's package fell upon the rails '

 ▪ Small package -- covered in newspaper

 ▪ Contained fireworks  

 • The fireworks exploded when they fell, threw down some scales  and struck the plaintiff which caused injuries for which she sued.

 ◦ The holding  

 • Majority held that conduct of the defendant's guard was not a wrong  in relation to the plaintiff standing far away.

 • Defendant's guard didn't know that his actions could result in harm  so the defendant is not liable for the harm caused in the case.

 • Enright v. Eli Lilly & Co.  

 ◦ Facts of case

 • Karen Enright's grandmother ingested DES to prevent miscarriage  during a pregnancy which resulted in the birth of Patricia Enright  

 • Patricia Enright says she developed abnormalities of her  reproductive system due to the exposure of the DES which resulted  in many miscarriages and the early birth of Karen Enright

 • Karen suffers from cerebral palsy and other disabilities   • 1971, FDA banned drug use after the studies establishing a link  between in utero exposure to DES and the occurrence in teen-age  women of a rare form of vaginal and cervical cancer  

 ◦ Holding

 • The effects of DES exposure may extend for generations, was the  court's duty to confine liability within manageable limits

 • Limiting liability to those who ingested the drug or were exposed to  it in utero served this purpose.

 • Court recognized public policy favors the availability of prescription  druge even though most of them carry risks.

 • Drug manufacturers should conduct adequate testing a research  prior to the marketing of their products.  

 • Bartolone v. Jeckovich  

 ◦ Facts of the case  

 • Plaintiff was involved in 4-car chain reaction collision in Niagara  Falls  

 • Sustained relatively minor injuries  

 ▪ Whiplash  

 ▪ Lower back strain  

Suffered an acute psychotic breakdown from which he has not  

recovered

 ▪ Argued that the accident aggravated a pre-existing paranoid schizophrenic  condition which has disabled him

 ◦ Holding  

 • Court held that a defendant must take the plaintiff as he finds him and may  be held liable in damages for aggravation of pre-existing illness

 • Defendants not allowed to argue that the plaintiff should be denied  recovery because his condition might have occurred even without the  accident.

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