Chapter 1: The Rule of Law - Law in a Changing Communication Environment

Four Principals of the Rule of Law

1. All individuals and private entities are accountable under the law. 2. The laws are clear, public, stable and just; are applied evenly; and protect fundamental rights. 3. The process by which the laws are enacted, administered and enforced is accessible and fair. 4. Justice is delivered in a timely manner by competent, ethical, independent and neutral representatives who serve the public good.

Citizens United v. Federal Election Commission

A 2010 landmark Supreme Court case that ruled that individuals, corporations, and unions could donate unlimited amounts of money to groups that make independent political expenditures.

amicus brief

A submission to the court from an amicus curiae, or "friend of the court," an interested individual or organization who is not party in the case.

Six Sources of Law

Constitutions Statutes Equity Law Common Law Administrative Law Executive Orders

peremptory challenge

During jury selection, a challenge in which an attorney rejects a juror without showing a reason. Attorneys have the right to eliminate a limited number of jurors through peremptory challenges.

due process

Fair legal proceedings. Due process is guaranteed by the Fifth amendment and Fourteenth Amendments to the U.S. Constitution.

textualists

Judges - in particular, Supreme Court justices - who rely exclusively on a careful reading of legal texts to determine the meaning of the law.

equity law

Law created by judges to apply general principles of ethics and fairness, rather than specific legal rules, to determine the proper remedy for legal harm.

de novo

Literally, "new" or "over again." On appeal, the court may review the facts de novo rather than simply reviewing the legal posture and process of the case.

en banc

Literally, "on the bench" but now meaning "in full court." The judges of a circuit court of appeals will sit en banc to decide important or controversial cases.

stare decisis

Literally, "stand by the previous decision."

voir dire

Literally, "to speak the truth"; the questioning of prospective jurors to assess their suitability.

political questions

Questions the courts will not review because they fall outside the jurisdiction of the court or are incapable of judicial resolution; an issue that can and should be handled by another branch of government.

originalists

Supreme Court justices who interpret the Constitution according to the perceived intent of its framers

discovery

The pretrial process of gathering evidence and facts. The word also may refer to the specific items of evidence that are uncovered.

statutory construction

The review of statutes in which courts determine the meaning and application of statutes. Courts tend to engage in strict construction, which narrowly defines laws to their clear letter and intent.

probable cause

The standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed.

Marbury v. Madison

This case establishes the Supreme Court's power of Judicial Review

The Federal Court System

US District Court, US Court of Appeals, US Supreme Court

facial challenge

a broad legal argument that the challenged law or policy can never operate in compliance with the Constitution

subpoena

a command for someone to testify in court

grand jury

a group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and whether charges should be filed; grand juries do not determine guilt

writ of certiorari

a petition for review by the Supreme Court of the United States; certiorari means "to be informed of"

deference

a policy by which courts give weight to the judgement of expert administrative agencies or of legislative policies and strategies.

forum shopping

a practice whereby the plaintiff chooses a court in which to sue because he or she believes the court will rule in the plaintiff's favor

federalism

a principle according to which the states are related to yet independent of each other and are related to yet independent of the federal government.

tort

a private or civil wrong for which a court can provide remedy in the form of damages

demurrer

a request that a court dismiss a case on the grounds that although the claims are true they are insufficient to warrant a judgment against the defendant

motion to dismiss

a request to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way

concurring opinion

a separate opinion of a minority of the court or a single judge or justice agreeing with the majority opinion but applying different reasoning or legal principles

dissenting opinion

a separate opinion of a minority of the court or a single judge or justice disagreeing with the result reached by the majority and challenging the majority's reasoning or the legal basis of the decision

memorandum order

an order announcing the vote of the Supreme Court without providing an opinion

per curiam opinion

an unsigned opinion by the court as a whole

precedent

case judgement that establishes binding authority and guiding principles for cases to follow on closely analogous questions of law within the court's jurisdiction.

The State Court System

county, municipal, traffic, magistrate, etc. ; special court; superior court; court of appeals; state of supreme court

black-letter law

formally enacted, written law that is available in legal reporters or other documents

vague laws

laws that either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish

strict liability

liability without fault; liability for any and all harms, foreseeable or unforeseen, which result from a product or an action

venire

literally, "to come" or "to appear"; the term used for the location from which a court draws its pool of potential jurors, who must then appear in court for voir dire; a change of venire means a change of the location from which potential jurors are drawn.

executive orders

orders from a government executive, such as the president, a governor or a mayor, that have the force of law

doctrines

principles or theories of law (e.g., the doctrine of content neutrality)

moot

term used to describe a case in which the issues presented are no longer "live" or in which the matter in dispute has already been resolved; a case is not moot if it is susceptible to repetition but evades review

original jurisdiction

the authority to consider a case at its inception, as contrasted with appellate jurisdiction

discretion

the authority to determine the proper outcome

holding

the decision or ruling of a court

rule of law

the framework of a society in which pre-established norms and precautions provide for consistent, neutral decision making

jurisdiction

the geographic or topical area of responsibility and authority of a court

venue

the locality of a lawsuit and of the court hearing the suit. Thus, a change of venue means a relocation of a trial.

administrative law

the orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties

defendant

the party accused of violating a law, or the party being sued in a civil lawsuit

appellee

the party against whom an appeal is made

appellant

the party making the appeal; also called the petitioner

plaintiff

the party who files a complaint; the one who sues

judicial review

the power of the courts to determine the meaning of the language of the Constitution and to assure that no laws violate constitutional dictates

summary judgement

the quick resolution of a legal dispute in which a judge summarily decides certain points and issues a judgement dismissing the case

constitutional law

the set of laws that establish the nature, functions and limits of government

facial meaning

the surface, apparent or obvious meaning of a legal text

modify precedent

to change rather than follow or reject precedent

distinguish from precedent

to justify

affirm

to ratify, uphold or approve a lower court ruling

overturn precedent

to reject the fundamental premise of a precedent

overrule

to reverse the ruling of a lower court

remand

to send back to the lower court for further action

common law

unwritten, judge-made law consisting of rules and principles developed through custom and precedent

overboard law

violates the principles of precision and specificity in legislation

statutory law

written law formally enacted by city, county, state and federal legislative bodies