Plant Tissue Culture Essay

Plant tissue culture is a collection of techniques used to maintain or grow plant cells, tissues or organs under sterile conditions on a nutrient culture medium of known composition. Plant tissue culture is widely used to produce clones of a plant in a method known as micropropagation. Different techniques in plant tissue culture may offer certain advantages over traditional methods of propagation, including: †¢The production of exact copies of plants that produce particularly good flowers, fruits, or have other desirable traits. †¢To quickly produce mature plants. †¢The production of multiples of plants in the absence of seeds or necessary pollinators to produce seeds. †¢The regeneration of whole plants from plant cells that have been genetically modified. †¢The production of plants in sterile containers that allows them to be moved with greatly reduced chances of transmitting diseases, pests, and pathogens. †¢The production of plants from seeds that otherwise have very low chances of germinating and growing, i.e.: orchids and nepenthes. †¢To clean particular plants of viral and other infections and to quickly multiply these plants as ‘cleaned stock’ for horticulture and agriculture. Plant tissue culture relies on the fact that many plant cells have the ability to regenerate a whole plant (totipotency). Single cells, plant cells without cell walls (protoplasts), pieces of leaves, or (less commonly) roots can often be used to generate a new plant on culture media given the required nutrients and plant hormo nes. Techniques Modern plant tissue culture is performed under aseptic conditions under HEPA filtered air provided by a laminar flow cabinet. Living plant materials from the environment are naturally contaminated on their surfaces (and sometimes interiors) with microorganisms, so surface sterilization of starting material (explants) in chemical solutions (usually sodium or calcium hypochlorite or mercuric chloride) is required. Mercuric chloride is seldom used as a plant sterilant today, unless other sterilizing agents are found to be ineffective, as it is dangerous to use, and is difficult to dispose of. Explants are then usually placed on the surface of a solid culture medium, but are sometimes placed directly into a liquid medium, particularly when cell suspension cultures are desired. Solid and liquid media are generally composed of inorganic salts plus a few organic nutrients, vitamins and plant hormones. Solid media are prepared from liquid media with the addition of a gelling agent, usually p urified agar. In vitro tissue culture potato explants The composition of the medium, particularly the plant hormones and the nitrogen source (nitrate versus ammonium salts or amino acids) have profound effects on the morphology of the tissues that grow from the initial explant. For example, an excess of auxin will often result in a proliferation of roots, while an excess of cytokinin may yield shoots. A balance of both auxin and cytokinin will often produce an unorganised growth of cells, or callus, but the morphology of the outgrowth will depend on the plant species as well as the medium composition. As cultures grow, pieces are typically sliced off and transferred to new media (subcultured) to allow for growth or to alter the morphology of the culture. The skill and experience of the tissue culturist are important in judging which pieces to culture and which to discard. As shoots emerge from a culture, they may be sliced off and rooted with auxin to produce plantlets which, when mature, can be transferred to potting soil for further g rowth in the greenhouse as normal plants. [1] Choice of explant The tissue obtained from the plant to culture is called an explant. Based on work with certain model systems, particularly tobacco, it has often been claimed that a totipotent explant can be grown from any part of the plant. However, this concept has been vitiated in practice. In many species explants of various organs vary in their rates of growth and regeneration, while some do not grow at all. The choice of explant material also determines if the plantlets developed via tissue culture are haploid or diploid. Also the risk of microbial contamination is increased with inappropriate explants. Thus it is very important that an appropriate choice of explant be made prior to tissue culture. The specific differences in the regeneration potential of different organs and explants have various explanations. The significant factors include differences in the stage of the cells in the cell cycle, the availability of or ability to transport endogenous growth regulators, and the metabolic capabilities of the cells. The most commonly used tissue explants are the meristematic ends of the plants like the stem tip, auxiliary bud tip and root tip. These tissues have high rates of cell division and either concentrate or produce required growth regulating substances including auxins and cytokinins. The pathways through which whole plants are regenerated from cells and tissues or explants such as meristems broadly fall into three types: 1.The method in which explants that include a meristem (viz. the shoot tips or nodes) are grown on appropriate media supplemented with plant growth regulators to induce proliferation of multiple shoots, followed by rooting of the excised shoots to regenerate whole plants, 2.The method in which totipotency of cells is realized in the form of de novo organogenesis, either directly in the form of induction of shoot meristems on the explants or indirectly via a callus (unorganised mass of cells resulting from proliferation of cells of the explant) and plants are regenerated through induction of roots on the resultant shoots, 3.Somatic embryogenesis, in which asexual adventive embryos (comparable to zygotic embryos in their structure and development) are induced directly on explants or indirectly through a callus phase. The first method involving the meristems and induction of multiple shoots is the preferred method for the micropropagation industry since the risks of somaclonal variation (genetic variation induced in tissue culture) are minimal when compared to the other two methods. Somatic embryogenesis is a method that has the potential to be several times higher in multiplication rates and is amenable to handling in liquid culture systems like bioreac tors. Some explants, like the root tip, are hard to isolate and are contaminated with soil microflora that become problematic during the tissue culture process. Certain soil microflora can form tight associations with the root systems, or even grow within the root. Soil particles bound to roots are difficult to remove without injury to the roots that then allows microbial attack. These associated microflora will generally overgrow the tissue culture medium before there is significant growth of plant tissue. Aerial (above soil) explants are also rich in undesirable microflora. However, they are more easily removed from the explant by gentle rinsing, and the remainder usually can be killed by surface sterilization. Most of the surface microflora do not form tight associations with the plant tissue. Such associations can usually be found by visual inspection as a mosaic, de-colorization or localized necrosis on the surface of the explant. An alternative for obtaining uncontaminated explants is to take explants from seedlings which are aseptically grown from surface-sterilized seeds. The hard surface of the seed is less permeable to penetration of harsh surface sterilizing agents, such as hypochlorite, so the acceptable conditions of sterilization used for seeds can be much more stringent than for vegetative tissues. Tissue cultured plants are clones. If the original mother plant used to produce the first explants is susceptible to a pathogen or environmental condition, the entire crop would be susceptible to the same problem. Conversely, any positive traits would remain within the line also. Applications Plant tissue culture is used widely in plant science; it also has a number of commercial applications. Applications include: †¢Micropropagation is widely used in forestry and in floriculture. Micropropagation can also be used to conserve rare or endangered plant species.[2] †¢A plant breeder may use tissue culture to screen cells rather than plants for advantageous characters, e.g. herbicide resistance/tolerance. †¢Large-scale growth of plant cells in liquid culture in bioreactors for production of valuable compounds, like plant-derived secondary metabolites and recombinant proteins used as biopharmaceuticals.[3] †¢To cross distantly related species by protoplast fusion and regeneration of the novel hybrid. †¢To cross-pollinate distantly related species and then tissue culture the resulting embryo which would otherwise normally die (Embryo Rescue). †¢For production of doubled monoploid (dihaploid) plants from haploid cultures to achieve homozygous lines more rapidly in breeding programmes, usually by treatment with colchicine which causes doubling of the chromosome number. †¢As a tissue for transformation, followed by either short-term testing of genetic constructs or regeneration of transgenic plants. †¢Certain techniques such as meristem tip culture can be used to produce clean plant material from virused stock, such as potatoes and many species of soft fruit. †¢Micropropagation using meristem and shoot culture to produce large numbers of identical individuals. †¢Production of identical sterile hybrid species can be obtained. Laboratories Although some growers and nurseries have their own labs for propagating plants by the technique of tissue culture, a number of independent laboratories provide custom propagation services. The Plant Tissue Culture Information Exchange lists many commercial tissue culture labs. Since plant tissue culture is a very labour intensive process, this would be an important factor in determining which plants would be commercially viable to propagate in a laboratory.

Criminal Law Outline

Criminal Law Outline Justifications of Punishment 1. Consequentialist Theory a. Actions are morally right if and only if they result in desirable outcomes b. Rely on theory of utilitarianism to justify punishment: Forward looking effects of punishment. General deterrence, specific deterrence, rehabilitation, incapacitation 2. Nonconsequentialist Theory c. Actions are morally wrong in themselves, regardless of the consequences d. Theory of Retributivism: look back at the harm and calibrate the punishment to the crime Theories of Punishment ) Incapacitation: Incarceration to render them harmless 2) Retribution: collective condemnation of society bearing down. â€Å"Just Deserts† 3) Rehabilitation: give the criminal skills and values to make them a law-abiding citizen 4) General Deterrence: deter other criminals from committing crimes 5) Specific Deterrence: deter the punished criminal from future crimes Justifications for Punishment in Context 1. The case of Thomas Dudley (Eng. 1884): Stranded at sea for 24 days, 2 men conspire and kill a third to eat. Charged with murder and sentenced to death a. Necessity defense doesn't apply.Lawfully killing another to save yourself is only in reference to necessity and self-defense (violence towards yourself) Retributive in nature 2. People v Suite: Man owned . 32 caliber pistol, not licensed as required by 1980 legislation. Sentenced to 30 days in jail b. Principle aim of the gun licensing law is general deterrence. Reduction of jail time would proclaim that first time offenses would not result in jail for first time offenders and would declare 30 days to be too harsh/abuse of discretion. Upheld to further principle of general deterrence legislature intended Standards of ProofProsecution: beyond a reasonable doubt (state has high burden b/c innocent until proven guilty) 1. Curley v US: Judge must ask if prosecution has introduced sufficient evidence such that a rational jury could decide that the prosecution has prov en its case beyond a reasonable doubt. If evidence reasonably permits a verdict of acquittal or guilt, decision is for the jury to make. Defense: by the preponderance of the evidence. (self-defense, insanity, necessity) Rule of Lenity When statutory intent is unclear, the ambiguity must be resolved in favor of the Defendant.US v. Dauray Actus Reus Definition: Voluntary Act, social harm A voluntary act that results in social harm, or an omission where there is a duty to act. 1. Thoughts do not constitute criminal acts 2. Actions compelled by the state do not constitute criminal acts 3. Criminal â€Å"acts† must be voluntary 4. No liability for omission unless there is a duty to act 5. â€Å"Status Crimes† are unconstitutional Cases Act, not thought 1) Proposition against thought crimes- State v Dalton: â€Å"act† was the writing of a child molestation diary. Acquitted.From a deterrence perspective he should not be guilty; from rehabilitation perspective maybe. Si nce regime is generally geared to deterrence it was the right outcome 2) Hate crimes/speech- Wisconsin v Mitchell: group of black men beats up young white boy a. Rule: Statutes penalizing bigoted motivations (thoughts) are justified b. Rationale: these acts are more likely to provoke retaliatory crimes, so society has a greater interest in punishing them. Deterrence and retribution justify harsher penalties Voluntary, not involuntary MPC 2. 01: Requirements of Voluntary Act 1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act. (2) NOT voluntary Acts: reflex/convulsion; bodily movement during unconsciousness or sleep; conduct during hypnosis; bodily movement that otherwise is not a product of the effort or determination of the actor, whether conscious or habitual 3) Acting under State Compulsion- Martin v State: drunk on public highway b/c police brought him there c. Rule: no voluntary act where state compelled the action. d. Rationale: prevent the government from punishing the innocent 4) Involuntary Acts- State v.Decina: epileptic who knew of his condition drives and kills children e. Rule: an involuntary act can be voluntary when the individual knew of its likelihood and failed to preventatively act f. Rationale: it doesn’t matter if a person is unconscious when the harm occurs as long as the act took place only because, during consciousness, there was bad thinking- here, recklessness or negligence in failure to prevent the harm. He purposefully put himself in a situation that created a further risk. 5) Powell v Texas: Powell charged with public intoxication g.Rule: Voluntary because he could have prevented his appearance in public h. Rationale: criminalizing involuntary behavior is cruel and unusual (8); this wasn’t involuntary MPC 2. 01: Voluntary, involuntary, omission, possession * Involuntary: Convulsion, moving while unconscious or asleep, conduct during hypnosis, or a movement no t a product of the effort or determination of the actor; Voluntary defined by the negative * Omission: liability for an omission cannot arise unless the omission is made sufficient expressly in the language defining the offense, or a duty to perform is imposed by law. Possession: D must have been aware of possession for sufficient period to have been able 2 terminate it Status Crimes- Criminalizing a status violates 8th Amendment: Cruel & Unusual 1) Robinson v California: man with track marks charged with narcotics addition a. Rule/Rationale: The act of using narcotics can be criminalized; addiction can’t. Criminal penalties may not be inflicted upon a person for INVOLUNTARY acts. 2) Powell v. Texas: a chronic alcoholic was charged with being drunk in public b. Rule: public drunkenness is not a status crime because it is PUBLIC. c.Rationale: convicted of being D. I. P. not chronic alcoholic. Volitional act of choosing to drink without preventing oneself from being in public i s sufficiently proximate to the inviolate act of going out while drunk to give the state an ACT to punish. 3) Jones v City of Los Angeles: punished behavior on sidewalks 24-7 which homeless people can’t avoid. d. Rule: it is unconstitutional to punish acts arising out of an involuntary status because these acts are also necessarily involuntary. Omissions 1) Omission can be an actus reus where there is a legal duty to act, and D was physically capable of acting. mens rea, causation, and concurrence still required) a. Contracts for care b. Special relationships c. Statutory duty d. D created the risk of harm e. D voluntarily assumed care (especially if others are prevented from giving care) 2) People v Beardsley: man and woman get drunk over weekend, she surreptitiously takes morphine and dies after D gave her to someone else to let her sleep it off f. Rule: no legal duty existed because none of the 5 above were present. g. Rationale: a legal duty is not the same as a moral obl igation; acquaintances aren’t close enough relationally to create a legal duty without one of the above. ) Commonwealth v Howard: mother failed to prevent her daughter’s torture and murder by a third party h. Rule: parents have a legal duty to protect their children- special relationship i. Rationale: parents can be legally forced to act; additionally, the omission was the direct cause of the death (medical testimony). 4) Commonwealth v Pestinikas: couple contracted to care for old man for $300/mo j. Rule: failure to care for another is only a breach of a legal duty when the caregiver has undertaken the responsibility of care through contract or voluntarily k.Rationale: the omission in situation of duty caused harm D could have prevented. Mens Rea Definition The particular mental state provided for in the definition of an offense. Rationale for Requiring Mens Rea Deterrence or Utilitarian Justification: you cannot deter someone who does not have a guilty mind. Retribut ive Justification: â€Å"Just Deserts. † You should not punish someone who is morally innocent. MPC v Common Law Equivalents of Mens Rea MPC 2. 02(2)| Common Law| Purposefully: conscious object to commit| Intent- natural and probable auses| Knowingly: awareness; substantial certainty| Knowledge- aware of the fact, or correctly believes it exists, including willful blindness| Recklessly: conscious disregard of foreseeable risk- subjective standard. Awareness. | Concepts of â€Å"recklessness† and â€Å"negligence† are often embodied| Negligently: should have been aware of risk and disregard it- reasonable person would have been awareNo distinction b/n general, specific intent| Distinction b/w general, specific intent| CL: Uses the concept of mens rea in many terms: Willfully, wickedly, maliciously, knowingly, intentionally, negligently.No uniformity across states as to definitions MPC: 4 mental states that are precisely defined. If no mental state is referenced i n a statute, read in recklessly. Proving â€Å"Intent†, common law- natural and probable consequences doctrine 1. Regina v Cunningham: Son in law stole gas meter to sell; mother-in-law was exposed to coal gas. a. Malice means (i) an actual intention to do the particular kind of harm that was in fact done or (ii) recklessness as to whether such harm should occur or not (foresaw risk; continued anyways) 2.State v Fugate: D shoots and kills store owner after forcing him into basement. b. Intent can be inferred from attendant circumstances and composite picture developed by evidence, including instrument used to produce death and the manner of inflicting a fatal wound. c. Intent to kill may be presumed where the natural and probable consequence of a wrongful act is to produce death. 3. Foreseeability Issues: If harm is so foreseeable as to almost be certain to occur, intent can be found. Proving â€Å"Knowledge†, common law- willful blindness 1.US v Jewell: a person acts k nowingly for common law if the person is aware of the fact OR correctly believes it exists OR suspects the fact exists and purposefully avoids learning the truth a. Deliberate ignorance and positive knowledge are equally culpable. To act â€Å"knowingly† is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, â€Å"positive† knowledge is not required. Transferred Intent – only where harm is to people; NOT property 1. Regina v Pembliton: D threw stone at enemy, hit window instead.Intent to hit friends is not intent to hit window; mens rea is lacking. 2. Regina v. Falkner: intent to steal rum is not intent to burn down a ship. 3. People v Scott: D intended to shoot A and shot B instead; mens rea (intent) transfers. Society has a greater interest in deterring and punishing (retribution) people who kill than damage property. Common law Specific v General Intent – consider the attendant circumstance * Specific intent statute: requires intent to cause harm to the attendant circumstance; to be convicted under a specific intent statute, you must intend (and succeed) in burning a BOOK.You must have a conscious objective that is more than just lighting a match. * Intending to complete the act- purposefully, knowingly * General intent statute: requires intent to do the act, only. Might punish setting fire to instead of saying, setting fire to woodland flora. Drunk people are likely to get netted under a general intent statute because the attendant circumstance is general. * Intending the act- negligent, reckless * People v Atkins: Attempt to raise voluntary intoxication to charge of Arson. * Court finds Arson as general intent crime. Inadmissible b/c only need to do actus reus.How MPC Avoids Specific Intent-General Intent Distinctions 1. MPC 2. 02(1): Minimum Requirements of Culpability a. Except as provided in 2. 05 (strict liability provision), a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently with respect to each material element of the offense 2. MPC 1. 13(9): â€Å"element of offense† means (i) such conduct or (ii) attendant circumstances or (iii) such a result of conduct as b. is included in the description of the forbidden conduct in the definition of the offense; or c. stablishes the required kind of culpability d. negatives an excuse or justification for such conduct e. Negatives a defense under the statute of limitations 3. MPC 1. 13(10): â€Å"Material element of an offense† means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct Strict Liability Crimes Statute lacks mens rea component. MPC reads recklessness into any statute missing a mens rea. * TRUE STRICT LIABILITY CRIMES: regulatory crimes, crimes against the public welfare, morality offenses (statutory rape), felony murder. MPC 2. 05 recognizes only minor â€Å"violations† and violations outside the MPC where it is plain that the legislature intended to create strict liability Morissette: Ordinary presumption is to read mens rea in the statute (recklessness). Courts are likely to construe the following as strict liability offenses: 1.Statute protects the public welfare 2. D is in a position to prevent the harm and it is reasonable to expect this of her 3. The penalties imposed are light 4. There is little stigma associated with the offense 5. It is a newly created crime Commonwealth v Barone: Woman killed another in a car crash, appeals on grounds that the statute imposed strict liability and she shouldn't be punished 1. If a statute is ambiguous, must read in reckless or neg ligent and cannot impose strict liability. Heavy penalties and negative stigma associated with this type of crime.Mistake and Ignorance In general: D commits a crime with a belief that turns out to be wrong. MPC: what does the statute require for mens rea? Rationales for Mistake and Ignorance Defenses 1. Deterrence/Utilitarian Justification: you cannot deter someone who does not possess a guilty mind 2. Retributivist justification: â€Å"just desserts. † you should not punish someone who is morally innocent Question Tree 1. MPC or common law? a. What statute are you being asked to apply? 2. Mistake of fact or law? — what must D show to prevail under mistake defense? b. MPC 2. 4: No distinction b/w mistake of fact and law i. Mistake of fact: must negate mens rea of the statute ii. Mistake of law: no defense unless provided in the statute iii. When D raises mistake claim, P must prove that notwithstanding the mistake, D possessed requisite mens rea c. Common law: iv. Mis take of fact: 1. Specific intent: honest but unreasonable mistake is a defense 2. General intent: defense only if both honest and reasonable v. Mistake of law: 3. No excuse, but three exceptions: relied on official interp. f law, knowledge of illegality is an element of the crime, or no fair notice Common Law: Cases – Mistake of Fact 1. People v Navarro: D took lumber, thinking it was abandoned. a. Larceny is a specific intent statute, so mistake of fact is a defense, if honest 2. Bell v State: MINORITY VIEW: no exculpation for mistake where, had the mistake of fact not been made, the conduct would still be illegal or immoral. b. Moral wrong test: there is no violation of the culpability principle if the conduct is criminally punished without regard to mens rea- mistake of fact not a defense if the conduct is morally wrong. . Ask if reasonable ii. If reasonable, look at factual panorama. â€Å"what is it that you (reasonably) thought you were doing? † Insert candid res ponse. iii. Evaluate morality of actor’s conduct. If morally wrong, it is sufficient to convict. c. Legal wrong test: even if D can assert a reasonable mistake of fact, mistake of fact isn’t a defense if, had the facts been as she thought, she would still be guilty of some other crime. d. Punishes D for the crime he was mistaken about committing (and so never did actually commit) instead of for a lesser crime he did actually commit.Cases- Mistake of Law Ignorance of the law is not a defense against criminal liability UNLESS: 1. Reasonably relied on an official interpretation of the law (Marrero) 2. Where knowledge that the conduct is prohibited is an element of the crime. Ignorance or mistake negates the mens rea. a. Cheek v US: When statute requires willfulness, Subjective standard is to be used and shall be determined by the factfinder. Need not be reasonable. b. Bryan v US: (Gun Trafficker) Knowingly requires proof of knowledge of the facts that constitute the crime .Willfully requires knowledge of the specific rule they are breaking. However, ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required. 3. The prosecution of person lacking fair notice can violate due process c. Lambert- no fair notice. In order to be punished, there must be a probability that D had actual knowledge of the law before committing the crime. MPC * Does not allow mistake as a defense where D would be guilty of another offense had the situation been as he supposed; but if that punishment is lesser, it will be imposed instead. Mistake of fact under MPC is a defense if it negates the mental state required for commission of the offense. * Mistake of law under MPC is a defense if the law provides that the state of mind established by such ignorance or mistake constitutes a defense * Relationship between various mistakes of fact and required mens rea levels: Required Mens Rea| Defense / D is not guilty if: | Purposely or knowingly| An y actual belief to the contrary (even if reckless)| Recklessly| Any non-reckless mistake of fact (even if negligent)| Negligently| Any non-negligent â€Å"reasonable† mistake|Strict Liability| Even a very reasonable, non-negligent mistake is no defense| * We applied MPC in RRH book burning example. Mistake can be a defense, but it has to be less than conscious disregard in all circumstances. RRH’s mistake was negligent at the very worst, not even reckless. Causation Question Tree 1. Actual cause? a. But for D's act, would the harm have occurred? i. No: actual cause. (proceed to proximate cause analysis) ii. Yes: not actual cause. 1. Proximate cause? a. Is D the direct cause, such that it would be fair and just to hold him liable? i. Yes: Then D has complete liability. ii.No: proceed to intervening cause analysis a. Was there an intervening cause? If Dependent, D typically is proximate cause unless bizarre i. Yes: 1. Was it dependent on D's voluntary act? a. Yes: next q uestion: i. Was it a bizarre situation? 1. No: D has liability. 1. Yes: D is absolved. 1. Was it independent of D's voluntary act? a. Yes: was it foreseeable? If yes, liable. If no, not liable a. No: does anything above fit? i. No: if there is no intervening cause and was proximate cause, D is liable. Cases 1. Commonwealth v Rementer: woman runs from boyfriend into street, hit by car, killed a.Actual cause? YES. But for their fight, she would not have been in the street. b. Proximate cause? First, was there an intervening cause? YES. ii. Was the intervening cause dependent or independent? 1. Dependent- he fought with her, and she ran. 2. In cases of intervening dependent cause, he is liable unless it was a bizarre situation. They were fighting in front of a road, so no. c. D is liable. Actual cause, and proximate cause, the latter through dep. Intervening 2. State v. Govan: D shot the V in the neck, she became a quadriplegic d. Actual cause? YES.But for†¦ e. Proximate cause? Wa s there an intervening cause? Yes- pneumonia killed her. iii. Dependent or independent intervening cause? 3. Dependent- you don’t die from TB unless you’re a quadriplegic 4. Dependent intervening cause, not bizarre- D liable. iv. An intervening cause that was a coincidence will be a superseding cause when it was unforeseeable. Intervening causes that are a response will be superseding when it was abnormal and unforeseeable 3. Henderson v Kibbe: drunk guy robbed and left on snowy highway w/o glasses f. actual cause?YES. But for being left there†¦ g. Proximate cause? Was there an intervening cause? Yes. Indep or dep? v. Independent: they weren’t driving the truck that hit him 5. If Indep, it was foreseeable, so D is liable. vi. Dependent: but he wouldn’t have been there without their robbing him 6. If Dep, truck wasn’t bizarre, so D is liable. Concurrence Temporal and Motivational 1. Temporal concurrence: D must possess the requisite mens rea at the same moment that her voluntary conduct (or omission) causes the social harm (or actus reus) 2.Motivational concurrence: the mens rea must be the motivating force behind the act Sexual Offenses MPC Rape: 213. 1: Rape if: * Compel to submit by force of threats of death, extreme pain, etc OR * You give V GHB, etc OR * V is unconscious OR * V is younger than age 10. Felony 2nd degree * NO MISTAKE OF AGE DEFENSE UNDER AGE 10 * There is a mistake of age defense between 10 and age of consent Rape Traditional: no rape unless force was used to overcome the victim’s resistance (No resistance, then no force, then no rape) rape determination based on victim’s actions. ) Heterosexual vaginal intercourse NO MENS REA 2) of a woman, not the man’s wife 3) by force and 4) without her consent – consent is an element; that she did not consent has to be shown beyond a reasonable doubt by the prosecution in order to convict (hard to prove) a. FORCE: Whether D’s act s used sufficient force to overcome P’s resistance, or whether his threats created in her mind a reasonable fear of harm. b. Rusk v State: she didn’t actively resist or attempt to run when she had the chance, so under the traditional view she could not have been raped. i.She said she was fearful, but unless D objectively manifested his intent to use physical force to accomplish his purpose, her submission will be read as consent because it couldn’t have been reasonable without an objective manifestation. ii. DISSENT: (now majority rule): this view requires too much resistance from the victim- and resisting victims get hurt more often. Modern: force requirement met by nonconsensual penetration- no need for resistance that requires force to overcome. Rape determination based on D’s actions, not V’s actions or character. * Modern rape law is built around meaningful consent. It is gender neutral, includes the word â€Å"coercion†, includes more than vaginal intercourse, uses the term â€Å"sexual assault† instead of rape * Consent is an affirmative defense, not an element 1) Physical force or coercion 2) NO EXPLICIT CONSENT ELEMENT – consent is an affirmative defense; a question that she may have consented has to be raised by a preponderance of the evidence a. State of New Jersey v MTS: force requirement met by nonconsensual penetration. Physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful i.There is an inherent wrong in forced sexual intimacy- crime against a person’s right to control her body. Rape is violating the sphere of privacy. 3) WHAT COUNTS AS CONSENT? Permission can be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances b. In re John Z: Woman participated in sexual acts for a while; after penetration told him to stop. ii. Forcible rape is still committed when V consents i nitially, then withdraws consent, but D continues having sex with her iii.Her consent can be debated- she consented through acts, then lightly verbally said no, but physically continued†¦ Statutory Rape * Common law: Sex with a female under the age of consent. * Assumes male D, female V * Heterosexual, vaginal intercourse * No force required * No non-consent required (so if she consented it’s still statutory rape) * MPC 213. 4: Sexual assault. Sex with child under age 10 is a strict liability crime, no mistake of age defense. Between age 10 and age of consent, there is a mistake of age defense. Garnett: even a mentally handicapped person can be convicted of statutory rape with a person his mental equivalent- we don’t care about mindset, only about the act. * Scholars think strict liability crimes don’t serve a deterrent purpose because they punish without regard to the actors’ state of mind. * But I think this sort of liability is a good thing overal l because people are aware that if they have sex with someone who looks young, they could be in trouble- forces people to be a bit more responsible- but then, people probably don’t think of the punishments ahead of time, either.Homicide Common law: 4 primary kinds of homicide. (** minority rule) Murder, 1st degree Murder, 2nd degree Voluntary Manslaughter Involuntary Manslaughter Murder: The unlawful killing of a human being with malice aforethought Manslaughter: The unlawful killing of another human being without malice aforethought CL: 4 conditions when malice aforethought is present 1. An intent to kill 2. Intent to commit serious bodily harm 3. An abandoned and malignant heart or depraved heart 4. The felony murder rule applies If D intends to kill, he acts with express malice.If malice aforethought is shown in any other way, it is implied malice. Acceptable Evidence when proof of murder depends on malice aforethought 1. Inferred from circumstantial evidence 2. Deadly wea pon rule: Can infer intent to kill when D uses deadly weapon and aims it @ vital part of body 3. Natural and probable consequences rule Murder, 1st degree: Murder involved * Premeditation and Deliberation * Premeditated intent to kill. Killer reflected upon and thought about the killing in advance * Deliberation. Refers to the quality of the accused’s thought process * Statutory felony murder. Lying in wait, poison, torture, etc. Murder, 2nd degree: * Unpremeditated intent to kill * Intent to cause great bodily harm** * Depraved heart/extreme recklessness * All other felony murders Murder Cases * State v Brown: Death of 4 y. o. resulting from beating from father. charged with M1 * To be guilty of first degree murder, one must act with premeditation and deliberation in addition to malice aforethought * Although premeditation can be formed in an instant, it must be done deliberately- with coolness and reflection * State v Bingham: Raped and strangled on highway To allow a findi ng of premeditation only because the act takes an appreciable amount of time obliterates the distinction b/w 1st and 2nd degree murder. Having the opportunity to deliberate is not evidence of deliberation. Otherwise, any form of killing which took more than a moment could result in a finding of premeditation, without some form add'l evidence showing reflection * Gilbert v State: 75 y. o. man killed dementia wife by shooting her * good faith is not a legal defense to first degree murder Voluntary manslaughter Intent to kill plus reasonable provocation (always has to be reasonable provocation for charge of voluntary manslaughter- something akin to heat of passion. But for provocation, this person wouldn't be a killer) * Provocation: One who kills in response to legally adequate provocation is treated as having acted without malice aforethought, the mens rea required for murder * Intent to kill plus imperfect self defense** (D might have over-defended themselves) * Diminished Capacity 3 ways to determine if D is entitled to provocation defense * Common law categorical defense.If kill in response to * Aggravated Assault or battery * The observation of a serious crime against a close relative * Illegal arrest * Mutual combat * Catching one’s wife in the act of adultury * Mere Words Rule: Mere words are never enough to constitute legally adequate provocation * People v Ambro: H stabbed wife after verbal goading and revealing that she was in an affair * Mere words are usually not enough. Exception to which is when there is a series of provoking statements and circumstances. * Modern Reasonable Man. Jury must find * D actually acted in the heat of passion The heat of passion was provoked by an act or event that would have also provoked a reasonable person in the D's shoes to lose self-control * D did not have sufficient time to â€Å"cool off† b/w provocative event and the killing * A reasonable person in Ds shoes would not have had sufficient time to co ol * There must be a causal connection b/w the provocation, the passion, and the killing * People v Barry: Husband strangled wife with phone cord after hearing that she was leaving him * Court considers the whole course of provocation over time, not just in the moments leading up to the murder * MPC Extreme mental or Emotional Disturbance test * MPC 210. 3(b): A homicide that would otherwise be murder may be considered manslaughter when it is committed â€Å"under the influence of extreme mental or emotional disturbance for which there is reasonable explanation and excuse. * â€Å"the reasonableness of such excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. † subjective * State v Dumlao: Husband shoots mother in law after thinking that family members were trying to cheat on him with his wife. Was a very insecure individual * Intense mental or emotional disturbance is distinguished from insanit y in that it is to be understood in relative terms as referring to a loss of self control due to intense feelings * 3 part test for EMED Will be found in a person who has * No mental disease or defect Is exposed to an extremely unusual and overwhelming stress * Has extreme emotional reaction to it, as a result of which there is a loss self control in reason is overborn by intense feelings, such as passion, anger distress, grief excessive agitation or similar emotion * Whether there is a reasonable explanation should be made by viewing the subjective internal situation in which the D found himself and the external circumstances as he perceived them to be at the time, no matter how inaccurate that perception may have been, and assessing from that standpoint whether the explanation for his emotional disturbance was reasonableInvoluntary manslaughter — Cause death with criminal negligence * Can secure IM conviction through Criminal negligence (â€Å"gross† negligence or ev en â€Å"recklessness†) or Misdemeanor manslaughter (felony murder, junior) * MPC Equivalent 210. 3(1)(a): â€Å"criminal homicide constitutes manslaughter when it is committed recklessly† * Commonwealth v Welanski: Night club burned down and killed hundreds * Not required to prove that he caused the fire by some wanton or reckless conduct. Enough to prove that the deaths resulted from his wanton or reckless disregard of the safety of the patrons in the event of fire form any case. Depraved Heart Murder What: When there is a killing but no proof of an intent to kill, the law may â€Å"imply† malice. One of these situations is when the individual who kills acts with an abandoned and malignant heart * Homicide involving â€Å"depraved heart† can be punished as a second-degree murder; gross negligence or simple recklessness can only be punished as involuntary manslaughter * Rule: Malice will be implied in a homicide case if it can be shown that the D acted w ith gross negligence and an extreme indifference to human life. D realized that his actions created a substantial and unjustified risk of death and yet went ahead and committed the actions anyways * People v Knoller (Supreme Ct.CA 2007): Dog mauled woman to death. D charged with Murder 2 * Abandoned and malignant heart is equated with D’s awareness of the risk created by his/her own behavior. Must act with conscious disregard of the danger to human life * Phillips test: Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to human life, which act was deliberately performed by a person with conscious disregard for life. Conscious disregard of human life is required, but is not subjective standard. Felony Murder * Killing during the commission of a felony is considered murder in the second degree.In some states, killing during the commission of certain statutorily proscribed crimes can elevate the murder to Murder 1 * Level of intent to perform a felonious act is evidence of malice which can be transferred to murder * People v Stamp (Ct. Appeal CA 1969): Man dies of heart attack following the robbery of his store. * A killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree. Malice aforethought is presumed on the basis of the commission of a felony inherently dangerous to human life. No intentional act is necessary other than the attempt to or the actual commission of the robbery itself. * Not limited to deaths which are foreseeable.As long as the homicide is the direct causal result of the robbery, FM applies * Inherently Dangerous Felony Limitation: For the FM Rule to apply, some jurisdictions require that the underlying felony is inherently dangerous * Hines v State (GA 2003): While hunting, D mistook friend for a turkey and shot him. convicted of FM based on the underlying crime of possession of a firearm by a convicted felon. * Felo ny is â€Å"inherently dangerous† when it is â€Å"dangerous per se† or â€Å"by its circumstances creates a foreseeable risk of death. † foreseeable risk of death when person was drinking, hunting * The Res Gestae Requirement: The felony and the homicide be close in time and distance (temporal and geographic proximity).There must be a causal connection between the felony and the homicide * People v Bodely (Ct of Appeal CA 1995): Escape from a robbery. Got in car, ran over victim. * The test used in FM cases to determine whether a killing is so closely related to an underlying felony as to justify an enhanced punishment for the killing is that the crime continues until the criminal has reached a place of temporary safety * the homicide is committed in the perpetration of a felony if the killing and the felony are parts of one continuous transaction. This escape rule serves public policy considerations of deterrence * King v Commonwealth (Ct of appeals of VA 1988 ): accidental death of co-felon during commission of a felony.D charged with FM 2nd Murder after crashing plane that had marijuana in it. * death must be a consequence of the felony and not just a coincidence * Only acts causing death which are committed by those involved in the felony can be the basis for a conviction * The act causing death must result from some effort to further the felony before malice can be imputed to the act * There must be some act attributable to the felons which causes death * The Merger Doctrine: In some states FM does not apply if the underlying felony is an integral part of and included in the fact of the homicide * People v Smith (CA 1984): Beating of a child which resulted in death.Claims FM should not apply * The ostensible purpose of the FM rule is not to deter the underlying felony, but instead to deter the accidental or negligent killings that may occur in the course of committing that felony * The Agency Rule: FM rule does not apply to killings b y third parties * State v Canola (Supreme Ct. of NJ 1977): During robbery of jewelry store, co-felon shot and killed by owner of store. Other felon charged with FM. * Felon is not liable for the death of a co-felon. For D to be guilty of murder under FM rule the act of killing must be committed by D or his accomplice acting in furtherance of their common design. Lethal acts of 3rd persons not in furtherance of the felonious scheme do not count towards FM rule Attempts, Complicity, Conspiracy See chart Attempts Inchoate Conduct: conduct which occurs after the mens rea has been formed but is shy of the completed act 1. Common Law Approach * Attempt to commit felonies = felonies; attempt to commit misdemeanors = misdemeanors * generally punished less severely than completed offenses 2. MPC Approach * Generally punishes crimes at the same level as the completed offense, except when the target crime is a capital offense or a felony of the first degree (then treated as second degree felon y) Mens Rea of Attempts * Common law * Requires specific intent to commit the targeted offense.True even when the target crime does not require specific intent * MPC 5. 01 * D must ‘purposely' engage in conduct (â€Å"substantial step†) which would constitute crime if the attendant circumstances were believed as D perceived them to be. Cases 3. People v Harris (IL 1978): D charged with murder even though he did not intend murder * Attempted murder is not proved by showing that D intended to do great bodily harm or that he acted in reckless disregard for human life- Intent is needed. Attempted murder requires intent to bring about that result described by the crime of murder 4. State v Hinkhouse (OR 1996): D had HIV, slept with multiple partners.Charged with attempted murder * A person is guilty of attempting to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward the commission of the crime * A person commits attemp ted murder when he or she attempts, without justification or excuse, intentionally to cause the death of another human being. To act intentionally is to act with a conscious objective to cause the result or to engage in the conduct so described. Actus Reus of Attempts * Common Law * No single test for determining when â€Å"mere preparation† for an offense becomes an attempt * Focus is on how much, or how little, is needed to be done to complete the target offense * MPC Conduct must amount to a substantial step toward culmination of the commission of the targeted offense * Focus is on what D has already done and whether the acts are corroborative of criminal purpose Cases 5. People v Rizzo (NY 1927): D was riding aroud looking for a person to rob. Arrested and charged with attempted robbery * Line is drawn between acts which are remote and which are proximate and near to consummation. * Felonious intent alone is not enough. There must be an overt act shown to establish an att empt. * Proximity approach: A crime is attempted if D did an act tending to the commission of this robbery. Because they had not found or reached the presence of the person they intended to rob, not guilty 6. People v Staples (CA 1970): Attempted burglary of a bank vault. Acts beyond mere preparation is enough to convict of attempted robbery * Preparation consists of devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission of the crime after preparations are made * The act must reach far enough toward the accomplishment of the desired result to amount to commencement * Where intent to commit the substantive offense is clearly established, acts done toward the commission of the crime may constitute an attempt where the same acts would be held insufficient to constitute an attempt if the intent with which they were done is equivocal and not clearly proved. Defenses to Attempt * Common Law * No aba ndonment. Majority of CL states do not recognize the defense of abandonment. nce D crosses line from preparation to attempt there is no turning back * Impossibility * Legal Impossibility- when no law makes the conduct a crime is a defense * No factual impossibility . * MPC * Renunciation: MPC 5. 01(4) allows a D to introduce evidence of renunciation in circumstances where * renunciation is voluntary and complete * No Impossibility Defense of Impossibility * You cannot commit a crime which is impossible to commit * US v Thomas- cannot rape a corpse. Group Criminality Complicity One who intentionally assists another in the commission of a crime can be convicted of that offense as an accomplice Mental State necessary to render one an accomplice Common Law: Act with the same mens rea as the principle AND the intent to aid * MPC: act with the same mens rea as principle AND the purpose of promoting or facilitating the commission of an offense Types of acts necessary to render on as an acc omplice * CL: any form of aid to the principle is sufficient, but a failed attempt to aid is not * MPC 2. 06: both aiding and attempting to aid are sufficient Cases Pace v State (IN 1967): man picks up hitch hiker; he robs man in back seat at knife point and driver is held as an accomplice * Negative acquiescence is not enough to constitute a person guilty of aiding and abetting the commission of a crime. Must have affirmative conduct State v Parker (MN 1969): Law student beaten in the back seat of his car by others; he escapes, claims robbery and stolen car. person in front seat held as accomplice * Aid by inaction is possible.If proof shows that a person is present at commission of a crime without disapproving or opposing it, jury may infer accomplice liability in connection with the attendant circumstances and thereby reach the conclusion that he assented to commission of the crime * Evidence of subsequent acts may also prove participation in the criminal acts- running from polic e Conspiracy An agreement between two or more persons to commit a crime CL Elements of conspiracy Actus Reus 1. An agreement between two or more persons to commit an unlawful act AND an overt act * State v Pacheco (WA 1994): PI and employee who was a cop. PI goes to FBI w/ info on employee about illegalities. Set up a sting where cop agreed to kill someone.Charged with conspiracy to commit Murder 1 * There must be an actual agreement between two or more conspirators. Unilateral agreements do not satisfy actus reus. * As it takes two to conspire, there can be no indictable conspiracy with a gov't informer who secretly intends to frustrate the conspiracy. Mens Rea 1. Specific intent to agree AND 2. specific intent that the object of agreement shall be achieved * D cannot be charged of conspiracy alone. Must be â€Å"conspiracy to commit crime X† * No Merger. Can be charged and convicted of both conspiracy and the crime itself * No abandonment defense unless the intent to abando n was communicated expressly to co-cons CasePeople v Swain (CA 1996): drive-by shooting resulted in the death of a boy. Man charged in conspiracy to commit 2nd degree implied malice murder * To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense * A conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice MPC 5. 03 Elements of conspiracy Main concern is about a â€Å"firm commitment to criminality† Actus Reus 1. an agreement or agreement to aid in the commission of a crime AND sometimes an overt act Mens Rea 1.Purpose of promoting or facilitating the agreement AND the result MPC Characteristics 1. D cannot be charged with conspiracy alone; must be conspiracy to commit crime X 2. Conspiracy merges with the target offense. D cannot be charged with bot h conspiracy and crime 3. For abandonment to apply, D must thwart the success of the conspiracy and must manifest â€Å"complete and voluntary renunciation† of his criminal purpose Case 1. Pinkerton Doctrine: Co-Conspirators can be held liable for ancillary crimes committed in promotion of their agreement if they are (1) reasonably foreseeable and (2) are committed in furtherance of the conspiracy 2.US v Mothersill (FL 1996): Cop blown up by pipe bomb that was intended for someone else * Each party to a continuing conspiracy may be vicariously liable for substantive criminal offenses committed by a co-conspirator during the course and in the furtherance of the conspiracy * Liability will not lie where the crime did not fall within the scope of the unlawful project or which was not reasonably foreseen as a necessary or natural consequence of the unlawful agreement * Deadly force and violence are more than peripheral possibilities so Pinkerton applies Criminal Law Defenses 1) C ase-in-chief defenses v. Affirmative defenses: 1. Case-in-chief negates one of the elements i. Ex: mistake, which negates the mens rea 2. Affirmative defenses apply even when there is clear proof of all the elements of the crime; D gets off for some other reason. ii. Ex: justification, excuse, necessity, duress 2) Burdens of Proof: 3. D has the burden of proof for affirmative defenses. Standard varies: iii.Majority: D must prove by a preponderance of the evidence iv. Minority: some states require proof beyond a reasonable doubt 3) Justification v Excuse and why it matters: 4. Justification: this conduct is right and should be encouraged. v. The evidence for justification is equally available to both sides, but P has advantage of law enforcement resources. vi. Third party liability: If D’s acts are justified, third parties are not criminally liable for helping, and may be liable for interfering. 5. Excuse: this conduct is wrong and should be discouraged. vii. The evidence for excuse is within D’s control because it is about him. viii.Third party liability: when D asserts an excuse, third parties ARE liable for helping D, and are NOT liable for interfering (if they stopped an insane person from hurting someone else, for example. ) Justification 6. D says, â€Å"I did no wrong. † Perhaps D did the right thing under the circumstances. 7. Ex: Self-defense ix. CL Self-defense: 1. D must have an honest and reasonable belief that 2. He was threatened with an imminent threat of unlawful force 3. And that the force used was necessary to repel and proportional to the threat 4. Must be subjectively and objectively reasonable, whether right in belief or not 5.PROVIDED: if D’s defensive force caused death: a. The harm avoided must be death or serious bodily injury (proportionality requirement) b. In some juris, D must try to retreat (majority rule: no duty to retreat) c. If D is the initial aggressor, additional requirements apply d. NOTE: if D f ails to meet all these requirements he may have a partial defense x. MPC Self-defense 3. 04(1) 6. D [reasonably? ] believed 7. Defensive force was immediately necessary to protect D against 8. Unlawful force by V â€Å"on the present occasion† 9. Provided: if D’s defensive force= â€Å"deadly force†: e.The harm avoided must be death, serious bodily injury, kidnapping, or sexual intercourse by force or threat f. D must try to â€Å"retreat† (except from his dwelling) if he knows that’s completely safe way to avoid V’s force g. D has no defense if he, with purpose to cause death or serious bodily injury, provoked V’s force in same encounter 4) Reasonableness standards in context of self-defense: 8. Objective reasonableness: usually includes at least some of D’s physical characteristics, plus D’s knowledge of external circumstances and surroundings; also at least some of D’s general knowledge and prior experiences. ( Pure objectivity is no focus on D at all- hypothetical reasonable person) 9.Subjective reasonableness: can include unique physical, mental, psychological characteristics 10. Purely subjective standard: whatever D actually believed, even if it was completely unreasonable by any standard [actual belief is also a requirement under objective and subjective reasonableness standards] xi. Goetz: they call it an objective reasonableness standard but they take into account D’s past experiences and perceptions- so not a purely objective standard. (And considering the proportionality requirement where D’s acts in self-defense caused death, we must ask if being outnumbered and cornered justifies the first shot or two, but not after they retreated) xii. Simon: man paranoid that Asians will attack him.Defense must try to show that this is reasonable by making racial slurs, statistics. Simon would be convicted under pure objective standard as well as objective reasonableness standard , because even considering his experiences his paranoia is unreasonable, and we’re not willing to go to the subjective standard. 11. Imperfect self-defense: When D’s belief about the circumstances permitting defensive force is unreasonable? Three competing rules: xiii. CL: if D kills based on an unreasonable belief in the necessity to kill, or in the existence of a deadly threat, or if D was the initial non-deadly force aggressor, D’s liability is mitigated from murder down to manslaughter (a partial excuse) xiv. MPC 3. 9: If Ds belief is reckless, he is guilty of a recklessness offense (manslaughter or assault); If D was negligent, it was negligent Homicide or assault. xv. The all-or-nothing rule: at common law, in MN, and in many states, if all self-defense requirements are not met there’s no defense or mitigation at all- if D’s belief is not reasonable, you cannot raise self-defense in MN. 5) Defense of another: 12. CL Act at Peril Rule: defende r of another stands in the shoes of the person being defended; he/she therefore takes the risk that, despite all reasonable appearances, the person being defended was NOT justified (eg, the person was resisting lawful arrest) xvi. People v Young: act at peril.Undercover police officers arresting someone. 13. MPC 3. 05: defender may act on reasonable appearances. Moreover, even if D’s belief is NOT reasonable, MPC only makes D liable for a crime of recklessness or negligence 6) Defense of habitation: 14. Trad CL: D could use any force necessary if he reasonably believed the force was necessary to prevent an imminent unlawful entry 15. Modern CL: Deadly force is permitted only when occupant reasonably believes such force is necessary to prevent imminent unlawful entry and the intruder intends to commit a felony or cause injury to the occupant or another occupant in the dwelling. xvii. Problem: you don’t know what they intend to do.But if they have a weapon or are screami ng that they will kill you, you’re safe in defending yourself. 16. MPC 3. 06: Use of force is justified to prevent trespass, theft, etc or to retake property, BUT must ask trespasser to desist (unless useless, dangerous), or harmful to property. Can use non-dangerous devices. 17. People v Brown: What constitutes a residence? xviii. Reasonable expectations test: whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions Necessity 1. Justification defense. Often used where people protested laws by breaking law, but not usually successful there; more likely to be successful where D acted in the interests of the general welfare. . Schoon: there can be no necessity defense to indirect civil disobedience (fake blood on IRS walls). ii. Hutchins: necessity cannot justify cultivation of medical marijuana. Court says don’t grow your own, wait for legislature to legalize it. 2. Generally: sometimes th e greater good is better served by breaking the law than by obeying it. Applies where the harm caused by breaking the law is less than the harm avoided by the action. (CL determines this from objective perspective, MPC, subjective) 3. Common Law Elements: Objective standard i. D reasonably (if D’s belief was unreasonable there is not defense or mitigation) believed ii.D’s criminal act was necessary to prevent iii. Imminent harm (the harm cannot have been created by the D) greater than the law which was charged was designed to prevent iv. There was no express or implied legislative preclusion of the necessity defense here 10. In context of Dudley: Prosecutor would argue Dudley created the harm, and so couldn’t use the defense 11. Defense would argue that murder was lesser than all four men dying- but would have to be MPC, not CL, b/c CL allows no justification for death of an innocent. 4. MPC 3. 02(1) Approach to Necessity: Subjective standard i. D believed ii. D ’s criminal act was necessary to prevent iii.Harm (this can include harm threatened by another person as well as nature, and the harm need not be â€Å"imminent†) greater than the charged criminal behavior the law was designed to prevent iv. PROVIDED: The harm sought to be avoided is greater than greater than the harm incurred; there is not express or implied legislative preclusion of the necessity defense 1. Ask about the following: MPC provides some middle ground- recklessness or negligence. Applies throughout category of AD’s. That is, if you believe but your belief is unfounded, it may be reckless, and you can be charged with a reckless act instead of the full blown crime that you thought you had a defense from. v. 3. 2(2): If D is reckless or negligent in creating the situation or in appraising the necessity, D is liable for any applicable crime of recklessness (e. g. manslaughter) or negligence 5. Necessity in context of Dudley to make it more clear: i. No necessity defense because killing an innocent is never justified, applying CL. MPC might have allowed him that excuse. Even through the MPC, if we’re evaluating the recklessness or negligence of his subjective belief, we’re still moving towards objective, because under negligence we care about the reasonable person. In recklessness, we care about the â€Å"law abiding† person. The difference is not obvious. 6. Similarities/Differences B/W CL and MPC i. Similar: Both use a balancing of the harms ii.Different: Under MPC there is no imminence requirement; CL suggests that necessity is not a defense to homicide b/c it can never constitute the greater good to kill an innocent person Excuse Defenses: 1. D says, â€Å"I did wrong, but I should not be punished. † 2. D is not morally blameworthy, and/or not deterrable and/or not dangerous. 3. Ex: duress, insanity, some self-defense claims 3 Categories of excuse defenses 1. Involuntary Actions i. Actions caused by D's body, but which are not the product of her mind (sleep walking, involuntary intoxicaiton) 2. Actions related to Cognitive Deficiencies ii. Actions which are caused by an actor who does not understand the nature of her conduct and whether it is right/wrong, legal/illegal 3.Actions relating to Volitional Deficiencies iii. Actions which are voluntary, but which are taken by an actor Duress 1. Trad. CL: i. D (without prior fault- there’s a defense if D was at fault in getting into that situation) was coerced to commit the charged criminal act. ii. By an actual or reasonably (if D’s belief was unreasonable there is no defense or mitigation) believed threat of imminent unlawful death or great bodily harm to D or a near relative if D did not commit the crime (this defense only excuses the specific criminal act demanded by the threatener, and never excuses homicide); and iii. D had no (legal) way to escape the threat. 2. MPC 2. 09 Duress: i.D, without prior fault (there i s no duress defense if D recklessly put himself in a position where such a threat was probable; if D was merely negligent in putting himself in that position, he is guilty of any applicable crime of negligence; if no such negligence crime applies, D has no liability), was coerced to commit the charged criminal act (this can include acts not demanded by threatener, + homicide) ii. By threat of unlawful force against his person or the person of another iii. That a person of reasonable firmness in D’s position (PORF) would have been unable to resist. 1. Example of putting yourself in a situation where duress is likely is joining a gang 2.If you are under duress and you are told to commit one crime and you have to commit another crime to get there, duress can be a defense to that crime, too- assault on the way to a robbery iv. Distinct from CL in that duress is not limited to situations involving threats of death or serious bodily harm; No explicit imminence requirement 7) Duress v Necessity: 18. Necessity: xix. Focuses on the consequences of the harming action and the concrete alternatives facing D xx. Assumes that D acts in a way that the law seems to approve and encourage (and is therefore â€Å"justified†) 19. Duress: xxi. Focuses on the way in which the choice is made and the extent to which it reflects the free will of the actor xxii.Assumes that D acts in a way that is regrettable and deserves to be discouraged, but that special circumstances makes the conviction inappropriate and unfair 12. Contento-Pachon: swallows cocaine, raises defense of duress. Court looks at the immediacy and escapability of the threat. D just has to meet preponderance standard- just needs to raise a question for the jury, no need to actually prove duress. 8) Intoxication: Voluntary and Involuntary 20. CL Voluntary Intoxication xxiii. Whether D can argue voluntary intoxication depends on whether or not the crime they are charged with is a general or specific intent cri me 13. Inadmissible when general intent b/c it is only intent to do the actus reus 14.Admissible for specific intent crimes but D must still show that b/c intoxicated, she lacked the specific intent required for commission of the crime 21. CL Involuntary Intoxication xxiv. Some jurisdictions allow evidence of involuntary intoxication to be admitted to negate either specific or general intent xxv. Most jurisdictions allow involuntary intoxication to be the basis for temporary insanity Some jurisdiction only allow only this second use of involuntary intoxication defense to stand if it caused the D to become temporarily insane 22. MPC 2. 08(4-5) xxvi. Distinguishes 3 types of intoxication. Any form of intoxication is a defense if it negates an element of the offense.Mens rea is broadly applied (except in the case of recklessness- a person acts recklessly as to an element of the crime if, as the result of the self-induced intoxication, he was not conscious of a risk of which he otherwis e would have been aware had he not been intoxicated) 15. Voluntary (â€Å"Self Induced†) Intoxication 16. Pathological Intoxication 17. Involuntary (â€Å"Non self-induced†) Intoxication h. Pathological and involuntary are affirmative defenses if the intoxication causes D to suffer from a mental condition comparable to that which constitutes insanity under MPC 2. 08(4) xxvii. Commonwealth v Smith: Intoxication produced by mixing of prescription drugs and alcohol is not involuntary even if without knowledge of synergistic effects. 18. 4 situations which I. I. admissible i.Intoxication caused by fault of another (force, duress, fraud, contrivance) j. Caused by innocent mistake of D (taking LSD thinking its advil) k. D unknowingly suffers from physiological/psychological that renders him abnormally susceptible to legal intoxicant l. Unexpected results from medically prescribed drug 9) Competence to Stand Trial: 23. In question is D’s ability to understand the legal proceedings as they are taking place, not about D’s competence at the time of the crime. 10) Insanity Defense 24. In question is D’s ability to resist the impulse for crime, know right from wrong; questions D’s ability based on the time of the incident itself. 25. Tests: xxviii.M’Naghten Rule: a right/wrong test- looks at COGNITION; focus is on D’s mental state 19. A person is legally insane if, at the time of committing the act, he was laboring under such a defect of reason, from disease of the mind, as: m. Not to know the nature and quality of the act; OR n. If he did know it, that he didn’t know it was wrong. 20. Criticisms: o. too narrow; looks only at cognition p. Does wrong mean legally wrong? Morally wrong? Morally wrong according to D personally, or society? Courts split. xxix. Irresistible impulse test: focus is on volition, inability to control acts 21. A person is legally insane if, as the result of mental disease r defect, she à ¢â‚¬Å"acted with the irresistible and uncontrollable impulse,† or â€Å"if she lost the power to choose between right and wrong, and to avoid doing the act in question, as her free agency was at the time destroyed. † 22. Criticisms: Too narrow- looks only at volition. xxx. Durham Test: focuses on testimony of psychiatrists 23. An accused is not criminally responsible if the unlawful act was the product of mental disease or defect. â€Å"Mental disease or defect† is â€Å"any abnormal condition of the kind which substantially affects mental or emotional process and substantially impairs behavior control. † 24. Criticisms: Focuses too much on expert testimony, to the point where the role of the jury is usurped- rubber-stamping an expert. xxxi. MPC 4. 1 – combination of M’Naughten and Durham- cognitive + volitional 25. A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lac ks substantial capacity either to: q. Appreciate the criminality (wrongfulness) of his conduct (cognitive) r. Or to conform his conduct to the requirements of the law (volitional) 26. The terms â€Å"mental disease† or â€Å"defect† do not include an abnormality manifested only by repeated criminal or other anti-social conduct. 27. Appreciate: wrongfulness is a m

From Africa to the Americans Essay

The first pages of Kelly and Lewis’ To Make Our World Anew: Volume I: A History of African Americans to 1880 had opened the eyes of its readers about the real nature of the African race. While discussing the slave history of Black in the Western Hemisphere, he redirect the focus in discussing the great history of the Black people in its homeland in Africa. Prior to the slave trade and during the peak and climax of the numerous Black civilizations that existed, the Black people had managed to construct and established huge empires that were characterized with civilized systems like language and systems of writing. In many cases, the achievements of the Black people during their stay in their homeland can be compared to the successes of some of the greatest empire and civilizations that had existed in the East and in the West. It is just disappointing that the heritages of the Black people in Africa are undermined when compared to the heritage of the Asians or Americans for example. Rather, what is plotted in the mind of many people is the Blacks history as a slave. As the modern world had managed to reverse its perception on Black in relation to slavery period, it is important to note what happened in the past and the real history. Lewis and Kelly with their objective approach of the situation and history had provided us a new way of perceiving the Black people. With their reminders that great civilizations like Egypt that impacted other great civilizations like Greece and Rome, we are now starting to appreciate the beauty and wonders of the Black culture and descent. Today more than ever, we now see them not as ‘other people’ but rather a person that is equal to us that just happened to be created with a different color. Indeed, this is an improvement in the way of life in the modern world. Works Cited Kelly, Robin & Lewis, Earl. To Make Our World Anew: Volume I: A History of African Americans to 1880. 2000. Oxford UP. Oxford. pp. 3-52. Print.

The history of Ottoman empire Essay Example | Topics and Well Written Essays - 750 words

The history of Ottoman empire - Essay Example The Empire was founded by Osman I. In 1453, following its capture from the Byzantine Empire, Constantinople, modern stanbul, became the new capital of the Ottoman Empire under the name 'Kostantiniye'. In the 16th and 17th centuries, the Ottoman Empire was among the world's most powerful political entities, with the powers of eastern Europe constantly threatened by its steady advance through the Balkans and the southern part of the Polish-Lithuanian Commonwealth. Its navy was a powerful force in the Mediterranean. On several occasions it even invaded central Europe, sieging Vienna, in its attempts to conquer the Habsburg domain, and was only repulsed by coalitions of European powers. In this period, the discussions among the elites of Ottomans on how to organize a new state constitute the most important detail. The location of this movement gave it access to many different cultures and experiences. Given the historical facts of other great empires, Ottoman elites believed that the power of the sword was not enough to build and maintain a powerful state. Swords must be wielded by men. It was important to find strong and capable men and bind them together in willing cooperation to conquer large sections of Europe, Asia, and Africa. It was also important to organize and govern their conquests in a fairly satisfactory fashion, and to establish a structure which would take great effort to dismantle. Ottoman elites gave precedence to the political ideas that constituted the life of the empire, which became their ruling institution. Only with these ideas was it possible to attract a great body of men from many directions and races and unite them in a common effort. The ideas and culture that were shaped during this period took three hundred years to decay and be destroyed. While it is arguable the empire had injustice, violence and destructive forces involved in the development of its structures, these must be considered within the context of their eight centuries of history, during which Turks began to drift southwestward away from the declining Saracen Empire Even though the Ottoman state existed before Osman I, he is regarded as the founder of the Empire, having given it its name and being the first bey to declare his independence. He extended the frontiers of the empire towards the Byzantine Empire, while other Turkish beyliks suffered from infighting. Under Osman I, the Ottoman capital moved to Bursa. He published the first coin under his name, demonstrating the trust he built. The economical structure of the Empire was defined by the geopolitical structure. The Ottoman Empire stood in between West and East, thus blocking the route eastward forcing Spanish and Portuguese navigators set out in search of a new route to the Orient. The Empire was holding the same path that Marco Polo once used. Ottoman studies imply that the change in politics between Ottomans and Central Europe did depend on the opening of the new sea routes. It is also possible to see the decay of the Ottoman Empire by tracing the loss of significance of the land routes. Decay is a very relative term, in reality while central Europe is moving forward, Ottoman were holding on to their traditions. The pragmatic thinking of Ottomans that once helped to reform the systems left behind by Roman Empire was once again giving out the same signs

Ninteenth Century Music Essay Example | Topics and Well Written Essays - 3000 words

Ninteenth Century Music - Essay Example Change, which is in most cases disliked by many, has to come and do its part in order to have a very meaningful life. The problem is, on how to go along these changes. Retaliation is just a part when new ideas are brought in the open to be deliberated, and it is only after the "trial" of such ideas can the real advantages be seen and appreciated. Music's global influence cannot be hidden since history for it had affected one's thinking and influenced life's perspective that made an impact in every society, community, and in every nation. Furthermore, in every office, organization, and in every government. In the occurrence of development, setbacks happen that becomes a key for future progressive developments. Though time and effort are crucial for the accomplishment, what matters is the influence of the legacy left that serves as springboard - for further progression or destruction. The debate raged through the 19th century as to the value of programme music versus absolute music, but the real question is not whether the music was inspired by some outside theme or event, or served as its own inspiration. Instead, it is whether the music moves the audience. A program could give an added value to both composer and listener, but a work cannot be a masterpiece based on that program. The musical merits of the piece alone can determine if it is destined for greatness or to be lost with the passage of time. Programme music is an instrumental music that attempts to convey a scene, feeling, or story to the listener. The "program" or theme of a piece can be simply indicated by its title, or it can be a complex story or poem provided in a separate text. In music theory, it is considered the opposite of "absolute music," that commands attention for itself alone without the support of secondary ideas or associations to give it other than musical meaning. Many different kinds of compositions can be "programmatic," including cantatas, operas, madrigals, overtures, and symphonies. As links were formed between music, painting and literature, composers started to compose programme music - music that tells a story. Issues involved in the debate over programme and absolute music in the 19th Century. Classic and Romantic are troublesome words used in literature and the fine arts and in general history that had great variety of meaning. "Classic" suggests something finished, perfect, exemplary, a standard against which later production may be measured. While the word "Romantic" is constantly used to mean so many different things that it is quite useless for describing a musical style until it has been especially defined for that purpose. Furthermore, the traditional antithesis Classic-Romantic causes confusion in music history because it is not a total antithesis. In a very general sense, all art may be said to be romantic; for though it may take its materials from actual life, it transforms them and thus creates a new world which is necessarily remote from the everyday world to a greater or lesser degree. From this point of view, romantic art differs from classic art by its greater emphasis on the qualities of remoteness and strangeness, with all that such emphasis may imply as to choice and treatment of materials. If remoteness and boundlessness are romantic, then music is the most romantic of the arts. Its material - ordered sound and rhythm

The Movie A Few good men Paper Term Example | Topics and Well Written Essays - 1750 words

The Movie A Few good men - Term Paper Example Two marines—Private First Class Louden Downey and Lance Corporal Harold Dawson are court-martialed under the accusation of murdering Private First Class William Santiago, A fellow marine assigned in their unit at Guantanamo Bay Naval Base in Cuba. Their defense lawyers are Lieutenant Junior Grade Daniel Kaffee, an inexperienced US Navy Lawyer who is notorious for arranging plea bargains rather than pursuing trials in courts regardless for the mere practicality of it; and Lieutenant Commander Joanne Galloway who believed that her clients are innocents and would known no bounds in pursuing her case and to prove her clients’ innocence (Reiner, 1992). In the course of their investigation, Galloway and Kaffee uncovered the real culture that is happening within the Guantanamo Bay Naval Base particularly the â€Å"code red†. It turned out, PFC Santiago was not able to keep up with the ‘culture’ that is being enforce by Col Jessep in his Base thus resulting to poor performance and poor relations with his other peers. He was struggling to keep up and wanted to be assigned somewhere else and went above his superior, disregarding the chain of command, for a bargain— a transfer for exposing the possibility that Dawson could have illegally fired on the Cuban side of the island. This have irked Jessep and prompted him to order Dawson and Downey to carry a code red against Santiago. In the end, Kaffee was able to pop out the truth from Jessep and proved the innocence of the two accused soldiers. However, they were still dishonorably discharged from the Marine Corps for causing Santiago’s death (Reiner, 1992 ). Effective leadership is the art of influencing others. Influence is the â€Å"ability to persuade, convince, motivate, inspire, and judiciously use power to affect others†¦Ã¢â‚¬  it is the ability to influence in both the good and bad circumstances (Klann, 2003). From what Klann had emphasized, it is

File Management Essay Example | Topics and Well Written Essays - 1000 words

File Management - Essay Example This essay focuses on analyzing and describing of modern file management and it's systems that refers to the fundamental methods used in naming, storing and handling computer files. In many applications today, a file acts as a central element, with the exception of the real-time and other specialized applications where, virtually, all output is saved within a file to provide for long term storage for future use by either the user or other programs. The lifespan for the files is independent of any applications that use them for their input-output functions. Therefore, users must be in a position to create access, save and maintain the files content and integrity. These actions encompass the file management systems. A typical file management system, that is discussed in the essay comprises of system utility programs running as privileged applications. Files are manageable in different ways based on platform and the type of file manager. Despite there being different kinds of file manag ers, effective file management must entail proper organization, management and location of directories, files and folders. In summary, file manager enhances locating the files, organizing, storing and backing up files. In organizing the files, the applications are made easier to find through creation of the program file. It is suggested that the documents with same file extensions can be saved in their own folders to facilitate easier and quick retrieval. The user can create nested folders within the folders to prevent orphans and widows.

Ducati Assignment Example | Topics and Well Written Essays - 500 words

Ducati - Assignment Example Along with this, such a niche market strategy is implemented by Federico Minioli in order to amplify its net sales thereby amplifying its profitability to a certain extent. Apart from this, in order to enhance its revenues, Ducati decided to utilize its own interpretation like high-performance super sport bikes, low-weight sports bikes, high comfort long riding bikes, stylish bikes and many others that proved extremely effective for the organization in future. Moreover, in order enhance the performance of the bikes Mr. Federico Minioli tried to offer more concentration over technical excellence and reliability as compared to others. By doing so, the EBITDA enhanced from 33.4 million Euros to about 60.0 million Euros in the year 2000. Not only this, the market share of the organization of Ducati also enhanced by 6.7 percent in 2000 that helped the organization of Ducati to protect itself from an insolvent condition. In addition, the reputation of the organization of Ducati also enhanced due to its ability to offer extremely comfortable and versatile bikes at a quite competitive price for all age-groups. This acted as a boon for the organization thereby enhancing its customer range and consistency and dependency to a significant extent among others. Thus, it might be clearly stated that the above mentioned strategy proved extremely beneficial for the organization thereby paving its path for success. In this age, every individual desire to attain stylish and value-added products at a quite competitive price. Keeping this fact in mind, Mr. Federico Minioli designed the bikes of the organization of Ducati. All the bikes of Ducati are extremely fashionable and trendy in appearance as well as comfortable, so as to cover long distances. Not only this, Ducati also designed knee-down bikes, bikes to cover urban roads high-performance and low weight bikes for the sport lovers and many others in order to

Compare the Gettyburg Address and the Funeral of Pericles Term Paper

Compare the Gettyburg Address and the Funeral of Pericles - Term Paper Example If we analyse these two speeches, we realise that the essence of the democracy is well conveyed by both the speakers on seemingly different yet similar occasions. In the article we are going to analyse these similarities and the message that was conveyed to all those who seek democracy as the tool for effective development of the society. Historical Background Astonishingly both the speeches were delivered in similar circumstances. The Gettysburg address delivered by Abraham Lincoln is considered one of his finest speeches. The speech does not go beyond 2 to 3 minutes, but it conveys the lifelong dream of a visionary to create a society based on equality and justice. The idea of accountability to the society is conveyed by a single phrase stating it is a government by the people, for the people and of the people.1 The background of the address is civil war which changed the course of history of America. Civil war ended the discrimination legally and freed a large section of the socie ty from slavery. The address was delivered at the end of battle of Gettysburg, at the time of consecration of national cemetery at Gettysburg. It was the last speech to be delivered on the occasion. Similar to this the speech delivered by Pericles is also after the battle is ended. It was a tradition in Athens to hold public funerals in the honour of the dead in the war. There were cypress coffins made as per the number of tribes participating in the war. Public was allowed to pay tributes and then the burial was carried out.2 This tradition seems to have been very prevalent as there are several references to these occasions in the history. It was also a tradition that a prominent citizen would address the gathering of the people on such people. Thucydides’ records give an account of what Pericles spoke on one such occasion. Themes of the speeches Both the speeches revolve round the idea of democracy although none of them directly make a mention of democracy. Another importan t feature is the tribute to the dead in the war. Fighting for the cause they believed in till the last breath is nothing less than heroic. The least a nation or a society can do is honour the dead by creating honouring the death of such heroes. Going forward both speeches emphasise on the greatness of the country and the society they are living in. The speeches end on the note of message to the society to not to forget the sacrifices made by the dead towards the living. Learning from the speeches The discovery of America represented liberty and equality. The speech emphasises on two perspectives. One is the death of the people who believed in the cause for which they died. It will be highly ungrateful of the society to forget the ultimate sacrifice made by these war heroes. War for any society travels from general to personal level, while the cause of the war is general and applies to the entire society by and large; the death of war heroes is every bit personal to the families and loved ones. The boundaries of sacrifice extend to these families for whom the loss is more than what can be expressed. Offering of a piece of land to create a cemetery is a gesture of gratitude. It should always be noted that any grand construction or building is created only when there are a few strong pillars who bury themselves underground. Only then the tall construction comes into being. For generations people have fought wars for

A House Divided Speech Analysis Essay Example for Free

A House Divided Speech Analysis Essay If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it. We are now far into the fifty year since a policy was initiated with the avowed object and confident promise of putting and end to slavery agitation. Under the operation of that policy, that agitation has not only not ceased, but has constantly augmented. In my opinion, it will not cease until a crises shall have been reached and passed. A house divided against itself cannot stand. I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved I do not expect the house to fall but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward till it shall become alike lawful in all the States, old as well as new, North as well as South. Have we no tendency to the latter condition? Let any one who doubts carefully contemplate that now almost complete legal combination piece of machinery, so to speak compounded of the Nebraska doctrine and the Dred Scott decision. Let him consider not only what work the machinery is adapted to do, and how well adapted; but also let him study the history of its construction, and trace, if he can, or rather fail, if he can, to trace the evidences of design and concert of action among its chief architects, from the beginning. The new year of 1854 found slavery excluded from more than half the States by State constitutions, and from most of the national territory by congressional prohibition. Four days later commenced the struggle which ended in repealing that congressional prohibition. This opened all the national territory to slavery, and was the first point gained. But, so far, Congress only had acted; and an indorsement by the people, real or apparent, was indispensable to save the point already gained and give chance for more. This necessity had not been overlooked, but had been provided for, as well as might be, in the notable argument of squatter sovereignty, otherwise called sacred right of selfgovernment, which latter phrase, though expressive of the only rightful basis of any government, was so perverted in this attempted use of it as to amount to just this: That if any one man choose to enslave another, no third man shall be allowed to object Then opened the roar of loose declamation in favor of squatter sovereignty and sacred right of self-government. But, said opposition members, let us amend the bill so as to expressly declare that the people of the Territory may exclude slavery. Not we, said the friends of the measure; and down they voted the amendment. While the Nebraska Bill was passing through Congress, a law case involving the question of a negros freedom, by reason of his owner having voluntarily taken him first into a free State and then into a territory covered by the congressional prohibition, and held him as a slave for a long time in each, was passing through the United States Circuit Court for the District of Missouri; and both Nebraska Bill and lawsuit were brought to a decision in the same month of May, 1854. The negros name was Dred Scott, which name now designates the decision finally made in the case. Before the then next Presidential election, the law case came to and was argued in the Supreme Court of the United States The election came. Mr. Buchanan was elected, and the indorsement, such as it was, secured. That was the second point gained The Supreme Court met again; did not announce their decision, but ordered a reargument. The Presidential inauguration came, and still no decision of the Court; but the incoming President in his inaugural address fervently exhorted the people to abide by the forthcoming decision, whatever it might be. Then, in a few days, came the decision. The reputed author of the Nebraska Bill finds an early occasion to make a speech at this capital indorsing the bred Scott Decision, and vehemently denouncing all opposition to it. The new President, too, seizes the early occasion of the Silliman letter to indorse and strongly construe that decision, and to express his astonishment that any different view had ever been entertained! At length a squabble springs up between the President and the author of the Nebraska Bill, on the mere question of fact, whether the Lecompton constitution was or was not, in any just sense, made by the people of Kansas; and in that quarrel the latter declares that all he wants is a fair vote for the people, and that he cares not whether slavery be voted dow n or voted up. I do not understand his declaration that he cares not whether slavery be voted down or voted up to be intended by him other than as an apt definition of the policy he would impress upon the public mind the principle for which he declares he has suffered so much, and is ready to suffer to the end. And well may he cling to that principle. If he has any parental feeling, well may he cling to it. That principle is the only shred left of his original Nebraska doctrine. Under the Dred Scott Decision squatter sovereignty squatted out of existence, tumbled down like temporary scaffolding, like the mold at the foundry, served through one blast and fell back into loose sand, helped to carry an election, and then was kicked to the winds We cannot absolutely know that all these exact adaptations are the result of preconcert. But when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places and by different workmen, Stephen, Franklin, Roger and James, for instance, -and we see these timbers joined together, and see they exactly make the frame of a house or a mill, all the tenons and mortises exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places, and not a piece too many or too few, not omitting even scaffolding or, if a single piece be lacking, we see the place in the frame exactly fitted and prepared yet to bring such piece in in such a case we find it impossible not to believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first blow was struck Our cause, then, must be intrusted to, and conducted by, its own undoubted friends -those whose hands are free, whose hearts are in the work, who do care for the result. Two years ago the Republicans of the nation mustered over thirteen hundred thousand strong. We did this under the single impulse of resistance to a common danger, with every external circumstance against us. Of strange, discordant, and even hostile elements, we gathered from the four winds, and formed and fought the battle through, under the constant hot fire of a disciplined, proud, and pampered enemy. Did we brave all then to falter now? now when that same enemy is wavering, dissevered, and belligerent? The result is not doubtful. We shall not fail if we stand firm, we shall not fail. Wise counsels may accelerate or mistakes delay it, but, sooner or later, the victory is sure to come.

Working with emergent change

Working with emergent change Introduction Nowadays, people tend to speak of living in a fast-moving and unpredictable world (Burnes, 2004, p. 886), in a turbulent, dynamic and unpredictable environment (Burnes, 2000, p. 300) in which the frequency, dimensions and unpredictability of changes are higher than ever before (e.g. Kotter, 1996). Hammer and Champsy even go so far as to say that because of its ubiquity and endurance change is the norm (2001, p.25). Thus, the Heraclitean dictum that everything changes and nothing abides seems more topical than ever. Nonetheless, you have to take notice of the fact that about 70% of all change initiatives fail (Beer Nohria, 2000, p.133). How can this phenomenon be explained? What approaches of change exist and what enables organisations to manage changes successfully? In the following essay, I will first outline the traditional approach of planned change, its critics and, out of these, the evolving Emergent Change approach. Subsequently, I will question if a sheer focus on the apparent predominant processual approach is sufficient. I will do so by outlining case studies of two organisations that successfully implemented changes by paying attention to both planned and emerging changes. These results and Burnes analysis of a further organisational change initiative will lead to my conclusion that the consideration of both perspectives is necessary for successful organisational changes. Then, I will briefly analyse possible reasons that might lead to the previously discussed one-sided perspectives before I end the essay with a conclusion. Planned Change The Planned Change approach seemed to prevail in the theory as well as the practice of change management from the late 1940s to the early 1980s (Burnes, 2000, p.281) and is often referred to as the best developed, documented and supported approach to change (Ibid.). Its roots mainly lie in the work of Kurt Lewin (Bamford and Forrester, 2003, p.547) who is called by Schein the intellectual father of (à ¢Ã¢â€š ¬Ã‚ ¦) planned change (1994, p.239). Many planned change attempts are based on his three-stage model of unfreezing, moving and refreezing (Livne-Tarandach Bartunek, 2009). Nevertheless, it has to be noted that Lewin himself believed that a successful change considered his concepts about Field Theory, Group Dynamics and Action Research in addition to his famous three-stage model (Burnes, 2004, p.887). However, in regard to his latter model, the three steps can be outlined as followed: Unfreezing describes the destabilization of a quasi-stationary equilibrium that exists in a compount field of driving and inhibiting forces (Ibid.). It is postulated that this equilibrium has to be unsettled to overcome old stable human behaviour. Moving refers to the process of transmission to a new way of being (http://www.change-management-coach.com/kurt_le win.html). To lead to an enduring change this process requires reinforcement. Thus, the last step, refreezing, covers the stabilization of the new behaviour (Burnes, 2004, p.887). Bamford and Forrester state that this perspective is grounded on the assumption that organisational change is a process that moves from one fixed state to another through a series of pre-planned steps (2003, p.547). Consequently, it is to be systematically analysable and can be intentionally designed, initiated, and realized (Livne-Tarandach Bartunek, 2009). The importance of Lewins work on organisational change is indisbutable. Accordingly, several authors have developed resembling approaches, such as Cummings and Huses (1989) eight-phase model or Bullocks and Battens (1985) four phase model of planned change (Bamford Forrester, 2003, p.547). Nonetheless, the weaknesses of the planned change approach at a time in which the environment becomes more and more unpredictable and turbulent seem obvious. Thus, many critical voices arouse especially in the early 1980s following the oil shocks of the 1970s, the expanding Japanese competitive power and the apparent eclipse of Western industry (Burnes, 2000, p.281). These events raised questions regarding the efficacy and appropriateness of the established approaches. The main points of criticism, that mainly came from the culture-excellence school, the postmodernists and the processualists are outlined in the following (Burnes, 2004). First, the Planned Change perspective is reproached to neglect environmental factors that might be incompatible with the planned change. For instance, Stickland, who draws on systems theory, emphasises the role of internal and external influences as drivers for organisational change (Tarandach Bartunek, 2009, p.4). A further point of criticism, that is especially brought out by the processualists, is that a change is not a series of pre-identified discrete and self-contained events, but a more open-ended and continuous process where it is often unfeasible or unwanted to define a precise end state (Livne-Tarandach Bartunek, 2009, p.5). Furthermore, critics, such as Pfeffer (1992), blame the approach for ignoring the role of power and politics. They claim, in addition, that the advocated assumption of easily recognizable and resolvable conflicts is unrealistic in most organisational settings (Tarandach Bartunek, 2009, p.5). Emergent Change Taking these points of criticism into account, a different perspective on organisational change has evolved, namely an emergent, processual approach. According to Weick, emergent changes comprise ongoing accommodations, adaptions, and alterations that produce fundamental change without a priori intention to do so (2000, p.237) and although Bamford and Forrester argue that its followers seem to be more united in their stance against planned change than their agreement on a specific alternative (2003, p.547), you can still highlight certain characteristics that are typical for the Emergent Change approach. Peculiar to the approach is the assumption that organisational change occurs as a continuous process of experiment and adaption with the goal of adjusting the organisational processes and competences to a continuously changing environment. The idea of a turbulent environment, that prevails in todays societies and makes exclusive planned change programmes insufficient, is supported by several authors. Dawson (1994) and Wilson (1992), for example, emphasize the demands for a higher employee flexibility and constant structural adjustment that are associated with an increasingly dynamic and uncertain business environment (Burnes, 2000, p.283). This constant structural adaption is brought about through a great number of small- to medium-scale incremental changes which might give rise to a major re-configuration and transformation of an organisation (p.299). Related to this assumption is a further characteristic of the Emergend Change Approach, that is to say, the belief in the iterative and messy fashion of change processes (p.300). Thus, Pettigrew stresses the multi-causal, non-linear and unpredictable nature of change that develops through the interplay of multiple variables (à ¢Ã¢â€š ¬Ã‚ ¦) within an organisation (p.284). These variables involve different contexts, political processes and consultation. Similarly, Dawson states that disruption, confusion and unforeseen events that emerge over long time-frames determine change processes (Dawson, 1994, cited in Burnes, 2000, p.285). Furthermore, the Emergent Change perspective sees organisational change as a political-social process and does not narrow it down to a sheer analytical-rational routine (p.300). Hence, it is assumed that during a change various parties will seek to preserve or amend their own interests. This can lead to conflicts and intrigues. Accordingly, Burnes argues that the successful management of power and politics is a prerequisite for effective change (p.292). These power struggles are not limited to the upper professions of an organisation. Thus, Burnes continues that it is beneficial not only to possess the support of senior and local managers, but also of trade unions and workplace employees. Summing up, you can say that the Emergent Change approach stems from the idea that change is continuous, unpredictable, and essentially political in nature (Livne-Tarandach Bartunek, 2009, p.5). It evolved in response to the traditional Planned Change approach that rooted in the works of Kurt Lewin, but seemed insufficient in a time characterized by a dynamic and unpredictable environment. However, although the declination of the Planned Change approach appeared predominant and the literature provided increasing support for the Emergent Change approach, it has to be questioned if a sheer focus on the lauded processual approach is adequate. Or would organisations profit from a combinational perspective paying attention to both approaches? Several authors, in fact, suggest combining varying approaches to change (e.g. Burnes, 2004; Beer and Nohria, 2000) or have developed connection frames to link planned and emergent change over time (Livne-Tarandach Bartunek, 2009, p.3). In the foll owing I will present two examples of organisational changes to underpin my opinion that neither a solely planned nor a sheer emergent change approach is likely to lead to successful changes. On the contrary, I argue for a combination of both approaches. Example 1 A first example of the insufficiency of a perspective that would solely focus on planned or emergent changes is provided by Orlikowski and Hofman (2003) who studied the introduction of a new technology and the accompanied changes in a software company. They even go one step further and assume not just planned and emergent changes in organisations, but also opportunity-based changes. Zeta is one of the Top 50 software companies in the USA and produces several powerful software products enabling decision support, executive information and marketing (p.269). Furthermore, it has a revenue of $100 million, and employs approximately 1000 people in its offices around the world. In 1992, a new groupware technology was introduced in the Customer Service Department (CSD) within which a new Incident Tracking Support System (ITSS) was developed. The CSD consisted of specialists who technically advised clients, consultants and other Zeta employees and stakeholders via telephone. The aim of the new ITSS was to facilitate the minuting of customer calls and of the respective resolving progress of customers problems. In the course of this process some planned organisational changes were executed. These changes are referred to as planned changes because they were predicted prior to the introduction of the new technology. For instance, the specialists were now to provide an additional work-in-progress documentation and the managers controled the departments recources more precisely through the real-time access to workload information (p.271). Nevertheless, while using of the new technology, several emergent changes could be noted as well. The specialists, for example, worked out a body of informal quality indicators to ascertain the quality and value of prior resolutions (p.270) and managers considered documentation skills as decisive factors in hiring and evaluation processes. In the course of time further changes were introduced which Orlikowski and Hofman reference to as opportunity-based changes. In contrast to the beforehand mentioned, these changes were neither anticipated before the introduction of the new technology nor did they simply emerge spontaneously. Opportunity-based changes occur when an emergent change is observed and actors deliberatley decide to reinforce (or undercut) that change (http://icd.si.umich.edu/~cknobel/?q=node/41). Thus, they are enforced in situ and responding to arising chances and problems. An example of such an opportunity-based change appeared along the invention of partnerships betwee n less expert junior specialists and more experienced senior specialists to redistribute call loads which lead to unforeseen problems. For instance, the junior specialists refused to cede calls that were too difficult to their senior partners because they wanted to appear competent and didnt want their senior partners to be overloaded. On the other hand, the senior specialists were too engaged to monitor their junior partners. Thus, the new role of an intermediary was introduced to prevent the collapse of the system. This intermediary was seen as a buffer to facilitate the information flow between the junior and the senior partner. A range of opportunity-based changes arouse during the usage of the new technology that demonstrated the importance of ongoing learning and change in practice in organizations. Thus, the example showed that although planned changes occur in organisations, they are usually accompanied by emergent and opportunity-based changes. This means that the planned change of the introduction of the new technology in the CSD was followed by other planned changes as the additional work tasks of the employees on the one hand. Nevertheless, further ongoing changes emerged that made a continuous adaption of the organization essential. Example 2 Wikstrà ¶m (2004) presents another vivid example of an organisation that has to deal with planned as well as emergent changes that arise at environmental, organisational and individual levels. His case study of the company Tieto-X discusses a successful customer relationship marketing (CRM) implementation and illustrates diverse ongoing changes to which the company had to respond. Tieto-X is Finlands leading contract work solutions company that specializes in Information Technology. In 2002 employed about 270 people. The structure of the organisation and the collaboration with its clients made it necessary that the customer could have recourse to Tieto-Xs operational system. This allowed the client, for example, to follow up the progress of an IT project. To cope with its rapid growth, Tieto-X decided to start a total systems renewal process in 2002 (p.6) and to change its business strategy from product/service-oriented to a customer-oriented one (p.8). In addition to this planned change event the company was exposed to several further planned as well as emerging changes that took place on an environmental, organisational and individual level (p. 6). On an environmental level of observation, Tieto-X faced, for instance, the socalled Year 2000 phenomen and Finlands accession to the EMU that both lead to increased business chances through higher demands for IT services. Another emergent change event that affected the company from the environment was the enlarged entry of foreign firms into the Finish market and the accompanied sharpened competetion. On an organisational level several planned change events could be observed in addition to the beforehand mentioned fundamental change of Tieto-Xs business strategy to a more customer-oriented perspective and the final CRM implementation. For instance, there were multiple company mergers during the years 2000 and 2002 and the associated merging of disparate organisational cultures. Furthermore, a new product and service portfolio was elaborated and an altered reward system was invented. However, even on this organisational level of observation, Tieto-X had to cope with an emergent change event, namely the turnover of top management. Moreover, you could observe different planned and emergent change events on an individual level. Thus, changes in occupational descriptions and new divisions of tasks represented planned change events and the rise in turnover of salespeople as well as the request for new competencies consituted emergent changes to which the company had to respond. The example illustrates that organisational change is a multifaceted phenomenon (p.9) with planned and emergent changes happening on an environmental, organisational and individual level. Tieto-Xs CRM implementation was successful because the organisation managed to deal with both the anticipated as well as the ongoing and unforeseen changes. Complementing the two discussed cases that clearly demonstrate the need for organisations to pay attention to both planned and emergent changes, Burnes is a decisive advocate of the combinational perspective. For instance, he draws on the case of XYZ construction, a multi-national enterprise that used planned as well as emergent changes between 1996 and 2000 to transform itself, illustrating that planned and emergent changes are not to be seen as competitors and that they are neither mutually exclusive nor incapable (Burnes, 2004, p.899). In addition to spotting the right moment when an organisation is ready for a change, he identifies the ability to understand the organisational context as a key competency of management to ensure successful organisational changes. Thus, the management has to comprehend the organisations nature and its circumstances that determine what and how changes have to occur (Ibid.). Possible reasons for a onesided perspective Regarding this discussion one might ask why people solely considered a planned or emergent change approach in the first place. The reasons for managers to consider planned change initiatives seem obvious. First, planned change programmes communicate a sense of security and control (e.g. Nutt, 1993). The idea of a change initiative starting at a certain point, running through a series of predetermined stages and ending at a predefined endpoint might appear riskless and especially appealing to managers who face the pressure of conducting a change programme while keeping up the business as usual. Furthermore, people perceive uncertainness as strongly aversive in general (Bordia, Hobman, Jones, Gallois and Callan, 2004). Even if one could argue that this promised predictability might be illusionary when conducting change problems in real dynamic business environments with people who are, at least partly, led by their own desires, fears, perceptions and assumptions, one has to take into a ccount that some situations certainly require a planned, systematic approach. Consider for example the introduction of a new IT-sytem. On the other hand, advocates of the emergend change approach might argue that planned changes are useless because of the unpredictable nature of the organisations business environment and the change process in general. Thus, they might ask why attempt a planned change anyway if you assume that plan A does not lead to anticipated result B. Here you see a problem that is often associated with approaches that arise out of a backblash from an apparent devaluated one. Although the main ideas themselves seem totally reasonable and appropriate, a sheer focus on the newly originated aspects might turn out to be as insufficient as the initially criticised approach. Conclusion This essay critcally discussed the statement that as the environment becomes more unpredictable, OD will have to help organisations learn to work with emergent change (in addition to planned change). Therefore, I introduced the traditional approach of planned change and the critical review that faced it especially during the 1980s. The Emergent Change approach that arouse out of the outlined points of cristicsm was presented subsequently. Afterwards, I challenged the appropriateness of the Emergent Change approach and raised the question if it might be necessary to consider both approaches to set the conditions for successful organisational changes. Hence, I analysed this question by presenting two case studies of organisations that faced planned and emergent change events during their organisational changes. Both companies succeed due to their attention paid to both approaches. This fact and Burkes case study strengthened my belief in the beforehand raised question and led to my con clusion that an organisation must to be able to deal with planned and emergent changes to survive in the dynamic and unpredictable environment of the 21st century.