MEJO 341 Exam 1

De novo

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

En banc

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

Voir dire

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

4 Foundations in the Rule of Law by the World Justice Project

1. All individuals are accountable 2. Laws = clear, public, stable and just; applied evenly, and protect basic rights 3. Process by which laws are enacted, administered, and enforced is accessible and fair 4. Justice is timely and performed by people who serve the public good.

Rule of Law by Fuller

1. General and not discriminatory 2. Widely known 3. Forward-looking, not retroactive 4. Clear, specific 5. Self-consistent, complimentary 6. Capable of being obeyed 7. Relatively stable 8. Applied/enforced to reflect their intent

Marbury V. Madison

1803 landmark ruling that established the courts' power to interpret laws

O'Brien test

3-part test used to determine whether a content-neutral law is constitutional

Supremacy

Article 4, Part 2 of the Constitution (aka Supremacy Clause) establishes that federal law takes precedence over state laws

6 Sources of Law

Constitutions Statutes Equity Law Common law Administrative law Executive orders

Strict construction

Courts' narrow interpretation and application of a law based on the literal meaning of its language--esp. In interpreting the constitution

State court system

State supreme court, Court of appeals, superior court (hears serious cases; most trials held here), special court (divorce, juvenile, family, housing cases heard) and county, municipal, traffic, magistrate (minor)

Originalists

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

Federal court system

Supreme Court, US Circuit court of appeals (13), US District of Courts

Moot

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

Subpoena

a command for someone to appear or testify in court or to turn over evidence, such as notes or recordings with penalties for noncompliance

Injunction

a court order prohibiting a person or org from doing a specified act

Defamation

a false communication that harms another reputation and subjects him or her to ridicule and scorn; incorporates both libel and slander

Compelling interest

a g'vt interest of the highest order, an interest the g'vt is required to protect

Facial challenge

a legal argument that the challenged law or policy is unconstitutional in every application; there are no situations in which the law can be interpreted to be constitutional

Writ of certiorari

a petition for the review by the Supreme court of the united states; "to be informed of"

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

Concurring opinion

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

Prior restraint

action taken by the government to prohibit publication of a specific document or text before its distributed to the public; a policy that requires government approval before publication

Symbolic expression

action that warrants some first amendment protection because its primary purpose is to express ideas

Content neutral laws

advance a g'vt purpose unrelated to the content of speech

Discretion

authority to determine proper outcome

Black-letter law

available in legal reporters or other documents. (statutes and constitutions)

Seditious libel

communication meant to incite people to change the government; criticism of the g'vt

Supreme court has said

content-based laws are constitutional only if they pass strict scrutiny. To be constitutional, a content-based law must: be necessary, use the least restrictive means, advance a compelling government interest

Strict scrutiny

court test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to advance its compelling interest

Statutory construction

courts determine the proper meaning and application of statues

Overbroad law

courts should find laws unconstitutional if they restrict more legal activity than necessary

Equity law

created by judges to decide cases based on fairness and ethics and also to determine the proper remedy

Categorical balancing

deciding which cases by weighing different broad categories such as political speech, against other categories of interests, such as privacy to create general rules that may be applied in later cases with similar facts

Chilling effect

discouragement of a constitutional right, especially free speech, by any g'vt practice that creates uncertainty about the proper exercise of that right

Clear and present danger

doctrine establishing that restrictions on first amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm

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

Content based laws

enacted bc of the message, the subject matter, or the ideas expressed in the regulated speech

Judges provide

equity law in order to provide fair remedies and relief for various harm

Constitutional law

establishes the nature, functions, and limits of government

Due process

fair legal proceedings. Guaranteed by 5th and 14th amendments

time/place/manner laws

first amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content; also the laws that regulate these conditions

Public forum

g'vt property held for use by the public, usually for purposes of exercising rights of speech and assembly

Designated public forum

g'vt spaces or buildings that are available for public use (within limits)

Non public forum

g'vt-held property that is not available for public speech and assembly purposes

Jurisdiction

geographic or topical area of responsibility and authority of a court

Grand jury

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

Important g'vt interest

interest of g'vt that is substantial or significant (more than convenient or reasonable) but not compelling

As applied

interpretation of a statute on the basis of actual parties in the present case

Common law

judge-made law comprised of the principles and traditions established through court rulings (precedent-based law)

Common law is

judge-made law.

Textualists

judges--in particular, Supreme Court justices--who rely on exclusively on a careful reading of the meaning of the law

Deference

judicial practice of interpreting statutes and rules by relying on the judgements and intentions of the administrative experts and legislative agencies that enacted the laws

Traditional public forum

lands designed for public use and historically used for gathering, discussion and association (ex: public streets sidewalks and parks). Free speech is protected in those areas

Laws of general application

laws such as tax and equal employment laws that fall within the express power of g'vt. Laws of general application are generally reviewed under minimum scrutiny

Vague Laws

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

content-neutral laws

laws that incidentally and unintentionally affect speech as they advance other important g'vt interests

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 appear in court for voir dire; a change of venire means of the location from which jurors are drawn

Ad hoc balancing

making decisions according to the specific facts of the case under review rather than more general principles

Political questions

not subject to judicial review because they fall into areas properly handled by another branch of government.

Memorandum order

order announcing the vote of the SC without providing an opinion.

Executive orders

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

Administrative law

orders, rules, and regulations promulgated by executive branch administrative agencies to carry out their delegated duties (agencies like FCC, FTC,)

Precedent

outcome of previous case that establishes rule of law

Process of an appeal

page 28

Path of civil lawsuits

page 32

Marbury v Madison

page 38

Landmark cases diagram

page 52

Plaintiff

party who files a complaint, the one who sues

Forum shopping

plaintiff chooses a court in which he or she believes the court will rule in the plaintiff's favor (21)

Judicial review is

power of courts to determine the meaning of the constitution and decide whether laws violate the constitution.

Doctrines

principles/theories of law that shape judicial decision making

Overturn precedent

reject the fundamental premise of a precedent

Motion to dismiss

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

Dissenting opinion

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 legal basis of the decision

Stare decisis

stand by previous decision

Intermediate scrutiny

standard applied by the courts to review laws that implicate core constitutional values; also called heightened review

Probable cause

standard of evidence needed for an arrest or to issue a search warrant.

Rational review

standard of judicial review that assumes the constitutionality of reasonable legislative or administrative enactments and applies minimum strutiny to their review

Federalism

states are related to, yet independent of, the federal government and each other.

Facial meaning

straightforward meaning

Amicus brief

submission to the court from amicus curiae, or "friends of the court" which are interested individuals or organizations that are parties in the case

Incorporation doctrine

the 14th amendment concept that most of the Bill of Rights applies equally to the states

Original jurisdiction

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

Holding

the decision or ruling of a court (36)

Venue

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

Appelle

the party against whom an appeal is made

Defendant

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

Appellant

the party making the appeal; also called the petitioner.

Original intent

the perceived intent of the framers of the first amendment that guides some contemporary first amendment application and interpretation

Discovery

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

Summary judgement

the resolution of a legal dispute without a full trial when a judge determines that undisputed evidence is legally sufficient to render judgment

USA PATRIOT act

the uniting and strengthening america by providing appropriate tools required to intercept and obstruct terrorism Act of 2001. Gave law enforcement agencies greater authority to combat terrorism

Modify precedent

to change rather than follow or reject precedent. (pg 14)

Distinguish from precedent

to justify an outcome in a case by asserting that differences between that case and preceding cases outweigh any similarities

Remand

to send back to the lower court for further action

Per curiam opinion

unsigned opinion by the court as a whole

Statutory law

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