SMAD 370 Chapter 1

En banc

"on the bench" but now meaning "in full court" The judges of a circuit court of appeals will do this to decide on important or controversial cases.

Stare decisis

"stand by the previous decision" also known as precedent

4 principles 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; 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 public good

6 sources of law

Constitutions Statues Equity law Common law Administrative law Executive orders

Due process

Fair legal proceedings. Due process is guaranteed by the 5th and 14th amendments to the Constitution

Textualists

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

Venire

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

State Court System consists of

State Supreme Court (hear appeals from court of appeals) Court of Appeals (hear appeals from lower courts) Superior Court (serious cases) Special Court (divorce, juvenile, family) county/traffic, municipal (minor cases)

Originalists

Supreme Court Justices who interpret the Constitution according to the perceived intent of the framers.

Federal court system consists of

Supreme Court of united states US circuit of appeals (13) US district courts (94)

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

_________ courts are the only courts to use juries.

Trial

Common law

Unwritten, judge-made laws constiting of rules and principles developed through custom and precedent

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 wether charges should be filed. Grand juries do not determine guilt

deference

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

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 civl wrong for which a court can provide remedy in the form of damages

Demurrer

a request that a court dismiss a case of the grounds that although the claims are true they are insufficient to warrant a judgement 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

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 majority's reasoning or the legal basis of the decision

Trail courts

are where nearly all cases begin. also called district courts. They reach a decision by applying existing law to the specific facts before them

Original Jurisdiction

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

Golden Mean

balance between gain and loss, cost and benefit, personal desires and universal concerns (aristotle)

nine broad themes protected under the rule of law

constraints on government power. absences of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and informal justice

Clear laws define their terms and detail their application in order to limit government officials _______________.

discretion

Peremptory challenge

during the 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.

Vague laws

fail to define their terms or use such general language that neither citizens nor judges know with certainty what the law permits or punishes

Black letter law

formally enacted, written law that is available in legal reporters or other documents. (constitutional and statutory law are this)

rule of law

framework of a society in which pre established norms and procedures provide for consistent neutral decision making

Jurisdiction

geographic or topical area of responsibility and authority of a court (refers to a courts authority to hear a case) every court has its own jurisdiction

Precedent

heart of the common law and encourages predictable application of the law. case judgement that establishes binding authority and guiding principles for cases to follow on closely analogous questions of law within the courts jurisdiction

Equity law

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

Strict liability

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

Voir dire

literally, to speak the truth; the questioning of prospective jurors to asses their suitability

De novo

new or over again (use in court of appeals when appeals find new findings or new evidence)

memorandum order

order announcing the vote of supreme court without providing opinion

Executive orders

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

Writ of certiorari

petition for review by the supreme court (be informed of)

Forum shopping

practice whereby the plaintiff chooses a court in which to sue because he/she believes the court will rule in plaintiffs favor

Doctrines

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

Political questions

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

Federal courts deal with what type of cases

relate to interstate or international controversies or that interpret and apply federal laws treaties or constitution ex: can hear about copyright laws

Concurring opinion

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

Amicus brief

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

Discretion

the authority to determine the proper outcome

Holding

the decision or ruling of a court

Venue

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

Adminsitrative 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

Plantiff

the party who files the 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

Discovery

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

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. the US constitution was framed in 1787 and ratified in 1789. Each of the states also have a constitution

Probable cause

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

Facial meaning

the surface, apparent or obvious meaning of a legal text

Circuit courts

there are 13 intermediate-level appellate courts at the federal level

Modify precedent

to change rather than follow of reject precedent

Distinguish from precedent

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

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

3 levels of courts

trial courts intermediate appellate courts supreme courts

per curium opinion

unsigned opinion by court as a whole

moot

used to describe case in which issues presented are no longer live or in which the matter in dispute has already been resolved (ex. a high school student who is no longer in high school by the time the court hears the case)

Overbroad law

violates the principles of precision and specificity in legislation (too broad). For example, a noise ordinance law that prohibits all discussion out of doors at any time even in commercial districts would be poorly dram.

Statutory law

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