chapter 1 Flashcards
Administrative law
The body of law created by administrative agencies in order to carry out their duties and responsibilities
Primary sources of law
US constitution
Statutory law
Laws from administrative agencies
Case law and common law
Secondary sources of law
Books and articles that summarize and clarify the primary sources of law
Constitutional law
Law that is based on the US constitution
The constitution is law of the land according to
Article 6
Statutory law
The body of law enacted by legislative bodies (as opposed to constitutional law, admin law or case law)
- includes ordinances
Ordinances
A law passed by a local governing unit such as a municipality or a county
Uniform laws
A model law created for the states to consider adopting. If the state adopts it it becomes statutory law
Executive agencies
An admin agency within the executive branch of the government. At the federal level, exec agencies are those within the cabinet departments
- subject to the authority of the president
Independent regulatory agencies
Not considered part of the executive branch.
- officials cannot be removed without cause
Case law
The rules of law announced in court decisions
- judge made law
Common law
The body of law developed from custom or judicial decisions in English and US courts, not attributable to a legislature
Remedies
The relief given to an innocent party to enforce a right or compensate for the violation of a right
In old days: land, items of value, money (remedies at law)
- could only be awarded in courts of law
Today: money damages
Chancellor
an adviser to the king at the time of early kings courts of England
Remedies in equity
A remedy granted in an equity court
Breaches
To violate a law by an act or omission, or to break a legal obligation that one owes to another person or to society
Equitable maxims
General propositions or principles of law that have to do with fairness (,equity)
Whoever seeks equity must do equity
Anyone who wishes to be treated fairly must treat others fairly
Where there is equal equity, the law will prevail
The law will determine the outcome of a controversy in which the merits of both sides are equal
One seeking the aid of an equity court must come to court with clean hands
The plaintiff must have acted fairly and honestly
Equity will not suffer a wrong to be without a remedy
Equitable relief will be awarded when there is a right to a relief and there is no adequate remedy at law
Equity regards substance rather than form
Equity is more concerned with fairness and justice than with legal technicalities
Equity aids the vigilant, not those who rest on their rights
Equity will not help those who neglect their rights for an unreasonable period of time
Laches
The equitable doctrine that bars a party’s right to legal action if the party has neglected for an unreasonable length of time to act on his or her rights
Defense
Reasons that a dependent offers why the plaintiff should not obtain what he or she is seeking
Defendant
One against whom a lawsuit is brought, the accused person of a criminal proceeding
Plaintiff
One who initiates the lawsuit
Petitioner
In equity practice, the party that initiates the lawsuit
Respondent
In equity practice, the party who answers a bill or proceeding (the defendent)
Statutes of limitation
A federal or state statue setting the maximum time period during which a certain action can be brought or certain rights enforced
In equity courts
The decision is made by a judge, no jury
The result is called a decree
The remedy is an injunction (an order to stop)
Precedent
A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts
Reporters
A publication in which court cases are published or reported
Stare decisis
A common law doctrine under which judges are obligated to follow the precedents established in prior decisions
- A court should not overturn its own precedents unless there is a compelling reason to do so
- Decisions made by higher courts are binding on lower courts
Binding authority
Any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided as well as court decisions that are controlling precedents within the jurisdiction
Cases of first impression
When there is no precedent
Persuasive authorities
Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision
Public policy
A government policy based on widely held societal values and expressed or implied in laws or regulations
Legal reasoning
The process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases
IRAC method of legal reasoning
Issue
Rule
Application
Conclusion
Issue
What are the key facts and issues
Rule
What rules of law apply to the case
Application
How do the rules of law apply to the particular facts and circumstances
Conclusion
What conclusion should be drawn
Alleges
To state, recite, assert, or charge
Cases on point
A previous case involving factual circumstances and issues that are similar to those in the case before the court
Jurisprudence
The science or philosophy of law
Natural law school
The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature.
Legal positivism (positivist school)
A school of legal thought centered on the assumption that there is no law higher than the laws created by a national government, laws must be obeyed even if they are unjust, to prevent anarchy
- no natural rights, rights exist bc of laws.
- US constitution belong to this
Historical school
A school of legal thought that emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should be
- looks at history of the legal system
Legal realism
Law is just one of many institutions in society and is shaped by social forces and needs.
- judges should take social and economic realities into account when deciding cases
Sociological school
A school of legal thought that views the law as a tool for promoting justice in society
Substantive law
Law that defines the rights and duties of individuals with respect to each other
- the law as it is applied to people
Procedural law
Rules that define the manner is which the rights and duties of individuals will be enforced
- the step by step process of how you go about resolving a dispute or how laws are created
Civil law
Deals with definition and enforcement of all private or public rights
Criminal law
Law that defines and governs actions that constitute crimes
- against society as a whole
Cyber law
All laws governing electronic communications and transactions
Citation
A reference to a publication in which a legal authority such as statue or court decision can be found
- used to find primary sources of law
Appellant
The party who takes an appeal from one court to another
Appellee
The party against whom an appeal is taken
- the party who opposes reversing the judgment
Opinions
A statement by the court expressing the reasons for its decision in a case
Majority opinion
A courts written opinion outlining the views of the majority of judges deciding the case
Concurring opinion
A written opinion outlining the views of a judge to make or emphasize a point that was not made of emphasized in the majority opinion
Dissenting opinion
A written opinion by a judge who disagrees with the majority opinion
Plurality opinion
No single position is supported by a majority of judges
Per curiam opinion
A court opinion written by the court as a whole instead of being authored by a judge
Administrative agency
A federal, state, or local gov agency established to perform a specific function. Authorized by legislative acts to make and enforce rules to administer and enforce the acts
