Chapter 1 - Development of American Law - Terminology Flashcards
a system of justice involving conflicting parties where the role of the judge is to remain neutral
adversarial system of justice
judicial tribunals that review decisions from lower tribunals
appellate courts
The Constitution under which the United States was governed between 1781 and 1789
Articles of Confederation
The first ten amendments to the US Constitution, ratified in 1791, concerned primarily with individual rights and liberties
Bill of Rights
A codification of principles of the English Common Law published in 1769 by Sir William Blackstone, an author and professor
Blackstone’s Commentaries
The violation of a provisions in a legally enforceable agreement that gives the damaged party the right to recourse in a court of law
breach of contract
The laws of a church
canon law
Purposeful, peaceful lawmaking to dramatize one’s opposition to the law
civil disobediance
The law relating to rights and obligations of parties
civil law
Code of laws compiled by Roman Emperor Justinian c. 535 AD
Code of Justinian
Collection of laws usually indexed by subject matter
codification
A nation’s fundamental law
constitution
An offense against society punishable under the criminal law
crime
The law defining crimes and punishments
criminal law
The process by which a person is charged with a criminal offense
criminal prosecutions
Law declared by appellate courts in their written decisions and opinions
decisional law
Formal document of July 4, 1776, establishing the United States of America as an independent nation
Declaration of Independence
A person charged with a crime or against whom a civil action has been initiated
defendant
Articles I, II and III of the US Constitution, delineating the powers and functions of the legislative, executive, and judicial branches, respectively of the national government
distributive articles
In constitutional law, the doctrine that the 14th Amendment incorporates the provisions of the Bill of Rights and thus makes them applicable to the states
doctrine of incorporation
Procedural and substantive rights of the citizens against government actions that threaten the denial of life, liberty or property
due process of law
A system of legal rules and principles recognized by English judges prior to the colonization of America and accepted as a basic aspect of the American legal system
English common law
Historically, a system of rules, remedies, customs, and principles developed in England to supplement the harsh common law by emphasizing the concept of fairness. In addition, because common law served only to recompense after injury, this was devised to prevent injuries that could not be repaired or recompensed after the fact. In modern America, these are administered by the same courts.
equity
The function of appellate courts in correcting errors committed by lower tribunals in their interpretation and application of law, evidence and procedure
error correction function
An order by a president or governor directing some particular action to be taken
executive order
A hearing in a court of law that conforms to standards of procedural justice
fair hearing
The requirement stemming from due process that government provide adequate notice to a person before it deprives that person of life, liberty or property
fair notice
The collective term for the myriad departments, agencies and bureaus of the federal government
federal bureaucracy
The constitutional distribution of government power and responsibility between the national government and the states
federalism
A serious crime for which a person may be incarcerated for more than one year
felony
Ratified in 1868, prohibiting states from depriving persons in their jurisdictions of due process and equal protection
Fourteenth Amendment
“You have the body.” A judicial order issued to an official holding someone in custody, requiring the official to bring the prisoner to court for the purpose of allowing the court to determine whether that person is being held legally.
habeas corpus
A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury
injunction
English institutions founded in the 14th century where judges and experienced barristers served as teachers and mentors to those aspiring to become barristers
Inns of Court
a decision by a court of law
judicial decision
generally, the review of any issue by a court of law. In American constitutional law, refers to the authority of a court to invalidate acts of government on constitutional grounds
judicial review
One of the principal functions of an appellate court, often referred to as the law development function, in which the appellate court makes law by interpreting or reinterpreting a constitutional or statutory provision
lawmaking function
Compilations of statutory laws usually indexed by subject matter
legal codes
An elected lawmaking body such as Congress or a state assembly
legislature
The ancient law of retaliation, commonly referred to as “an eye for an eye”
lex talionis
The idea that law should protect people from one another but not protect the individual from his or her unfortunate choices
libertarian view of law
The “Great Charter” signed by King John in 1215 guaranteeing the legal rights of English subjects. Generally considered the foundation of Anglo-American constitutionalism
Magna Carta
A minor offense usually punishable by fine or imprisonment for less than one year
misdemeanor
The codification of the civil and criminal laws of France promulgated under Napoleon Bonaparte in 1804
Napoleonic Code
Principles of human conduct believed to be ordained by God or nature, existing prior to and superseding human law
natural law
An enactment of a local governing body such as a city council or commission
ordinance
The party initiating legal action; the complaining party
plaintiff
The power of government to legislate to protect public health, safety, welfare and mortality
police power
The written law enforced by the government
positive law
Judicial decisions cited as authority controlling or influencing the outcome of a similar case
precedents
Set of procedures designed to ensure fairness in a judicial or administrative proceeding
procedural due process
Popular acceptance of an institution based on the perception that it operates by valid procedures
procedural legitimacy
A legally binding rule or order prescribed by a controlling authority. The term is generally with respect to the rules promulgated by administrative and regulatory agencies
regulation
Laws that prevailed among the Romans first codified in the Twelve Tables; basis of the modern civil law in most European countries
Roman Law
The idea that law, not the discretion of officials, should govern public affairs
rule of law
Formal process by which regulatory agencies make rules that carry the force of law
rulemaking
The authority of an independent nation or state to govern within its territorial limits
sovereignty
a court-imposed requirement that a party perform obligations incurred under a contract
specific performance
“The stand by matters decided.” The principle that past decisions should stand as precedents for future decisions. This principle, which stands for the proposition that precedents are binding on later decisions, is said the be followed less rigorously in constitutional law than in other branches of law.
stare decisis
A generally applicable law enacted by a legislature
statute
The official interpretation of a statute rendered by a court of law
statutory construction
Doctrine that Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content as well as application
substantive due process
The belief that the government or legal system is enacting rules and policies that are fair, reasonable and just
substantive legitimacy
A wrong or injury other than a breach of contract for which the remedy is a civil suit for damages
tort
A legally binding agreement between two or more countries. In the US, treaties are negotiated by the President but must be ratified by the Senate.
treaty
Courts whose primary function is the conduct of civil and/or criminal trials
trial courts
A collection of laws designed to be uniformly adopted by various cases, such as the Uniform Commercial Code
uniform codes
The supreme law of the United States, this document adopted in 1787 replaced the Confederation of Articles and lays out the structures and powers of government as well as basic rights of individuals.
United States Constitution
An order issued by a court of law requiring or prohibiting the performance of some specific act
writ
Lecture : At the start of the Constitution, states and the fed were separate entities with separate powers, per (1). As state powers eroded, this developed into (2) and even (3), or “blackmail.”
- dual federalism
- cooperative federalism
- coercive federalism
Lecture: The Supremacy Clause–stating the US Constitution reigns supreme–applies to the (1) and it is up to the (2) to make conflicting laws consistent.
- Circuit of Appeals
- Supreme Court
Lecture: The (1) is the last enumerated power of Congress and allows for its implied powers.
- Necessary and Proper Clause
Lecture: The Commerce Clause often pops up when there is a feling of (1). During the 1950s the Great Depression saw the case (2) in which wheat grown for chickens was placed under the same limits–imposed to drive up prices–imposed on sellers of wheat. The problem was not that he was selling it, but that he was not buying it. The limit was upheld and a testament to (3).
- social injustice
- Wickard v. Filbern
- the federal government’s increased power to regulate economic activity
Lecture: The actual original purpose of the Commerce Clause was to prevent states from putting (1) on products from other states. The (2) were written to help secure ratification, and they helped explain the Constitution.
- tariffs
- Federalist Papers
Lecture: The US is a (1), not a (2). The former is a (3), whereas the latter is a (4) and carries the threat of mob rule as well as questions of what consitutes a majority. It has also been said that a democracy cannot (5) and will fold once citizens realize they can vote themselves gifts.
- representative republic
- democracy
- constitutionally-limited government of representation
- rule by an omnipotent majority
- exist indefinitely
Lecture: The collapse of a government does not lead to a (1). One example of this is the Roman Empire’s fall and the succeeding (2).
- better government
- Dark Ages
Lecture: Positive law is the (1). To be law, it must (2). To be accepted as legitimate, it must be perceived as (3). This discussion comes up when talking about topics like fair taxes, Dred Scott, and “loopholes” like morgage tax deductions.
- command of the sovereign
- apply with equal force to everyone
- rational, fair and just
Lecture: The (1) and (2) are examples of the application of natural law.
- Declaration of Independence
- Bill of Rights
Lecture: The key part of civil disobedience–and the part that brings attention to the unfairness of the law opposed–is (1). (2) seemingly failed at this, having no apparent cause and effecting no change, because there was no leader prosecuted. (3) agued for better and inactive government, but not for “no” government.
- willingly accepting the penalties
- Occupy Wall Street
- Henry David Thoreau
Lecture: Substantive law is the (1) and (2) the lawyer is arguing. Procedural law is (3) and (4) the lawyer is arguing.
- content
- what
- how the law is enacted and applies
- how
Lecture: Law protect (1) and their (2), and promote (3). But how far into the latter shoud they go? Before (4), laws were based on norms, morals and religion. Laws change as (5) change. (gay rights, strip clubs, airport security) (6) is not synonymous to equal justice, and often pops up during trying times. (“right to own a home”)
- people
- property
- social order
- codes
- values
- Social justice
Lecture: (1) have the most developed legal systems, especially in protecitng (2), e.g., eminent domain.
- Capitalistic
- property rights
Lecture: Many statutes were enacted to counteract aggressive church maneuvers when (1) prevailed. One of these was (2), which allowed a person to will no more than 25% of their land to their land to the church.
- canon law
- Mort main statutes
Lecture: Common law brings (1) to the modern era, and is based on (2). It helped to unify various (3). In courts of law, people sue for (4); in courts of equity, parties are looking for (5), or injuctions/specific performances. The (6) was the precursor to this, and examples are dissolution of marriage or probate.
- Roman Law
- custom and usage
- fiefdoms
- money
- fairness or justice
- Court of Chancery
Lecture: A writ is a (1). A (2) attaches a debt to a certain bank account. A (3) seeks the return of property. The writ of habeas corpus was suspended during the (4) so Lincoln could try rebels in military court instead of civil court.
- court order
- writ of attachment
- writ of replevin
- Civil War
