Chapter 5. American Law Flashcards
Law
A body of rules of conduct established and enforced by the controlling authority (the government) of society
Constitutional Law
Law based on the U.S. constitution and the constitution of the law.
Primary Sources of law
In legal research, a document that establishes the law on a particular issue
Secondary Sources of law
In legal research, any publication that indexes, summarizes, or interprets the law, such as a legal encyclopedia, a treatise, or an article in a law review.
Case Law
Rules of law announced in court decisions.
Common Law
A body of law developed from custom or judicial decisions in English and U.S. courts and not by a legislature.
Precedent
A court decision that furnishes authority for deciding later cases in which similar facts are presented.
Stare Decisis
The doctrine of precedent, under which a court is obligated to follow earlier decisions of that court or higher courts within the same jurisdiction.
This is a major characteristic of the common law system.
Binding authority
a. Any source of law that a court must follow when deciding a case.
b. 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.
Persuasive Precedents
a. A precedent decided in another jurisdiction that a court may either follow or reject but that is entitled to careful consideration.
Cases of first impression
a. A case presenting a legal issue that has not yet been addressed by a court in a particular jurisdiction.
Public Policy
a. A governmental policy based on widely held societal values.
Remedies
The means by which a right is enforced, or the violation of a right is prevented or compensated for.
Courts of law
a. A court in which the only remedies were things of value, such as money.
b. In England, courts of law were different from courts of equity.
Remedies at law
a. A remedy available in a court of Law.
b. Money damages and items of value are awarded as a remedy at law.
Remedy in equity
a. A remedy allowed by courts in situations where remedies at law are not appropriate.
b. Remedies in equity are based on rules of fairness, justice, and honesty.
Courts of Equity
a. A court that decides controverses and administers justice according to the rules, principles, and precedents of equity.
Equitable Principles and maxims
a. Propositions or general statements of rules of law that are frequently involved in equity jurisdiction.
Laches
a. An 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.
Specific Performance
a. An equitable remedy requiring the performance that was specified in a contract; usually granted only when money damages would be an inadequate remedy and the subject mater of the contract is unique (for example, real property).
Injunction
a. A court decree ordering a person to do or to refrain from doing a certain act.
Citation
a. A reference that indicates where a particular constitutional provision, statute, reported case, or article can be found.
Parties
a. With respect to lawsuits, the plaintiff, or the defendant. Some cases involve multiple parties.
b. A social gathering of invited guests.
c. A group that represents a person’s political view.
Opinion
a. A statement by the court setting forth the applicable law and the reasons for its decision in a case.
b. Someone’s own thoughts that is not backed up with facts.
Adversarial System of Justice
a. A legal system in which the parties to a lawsuit are opponents, or adversaries, and present their cases in light most favorable to themselves.
b. The impartial decision maker (the judge or jury) determines who wins bases on an application of the law to the evidence presented
Supremacy Clause
a. The provision in Article VI of the U.S. Constitution that declares the Constitution, Laws, and treaties of the United States “the supreme Law of the Land.”
Bill of Rights
The first ten amendments to the U.S. Constitution.
Statutes!!!!
A written law enacted by a legislature under its constitutional lawmaking authority.
statutory law
The body of written laws enacted by the legislature.
federal system
The system of government established by the Constitution, in which the national government and the state governments share sovereign power.
checks and balances
A system in which each of the three branches of the national government— executive, legislative, and judicial—exercises a check on the actions of the other two branches.
public law number
An identification number assigned to a statute.
Preemption
A doctrine under which a federal law preempts, or takes precedence over, conflicting state and local laws.
ordinance
An order, rule, or law enacted by a municipal or county government to govern a local matter as allowed by state or federal legislation.
administrative law
A body of law created by administrative agencies in the form of rules, regulations, orders, and decisions in order to carry out their duties and responsibilities.
administrative agency
A federal or state government agency established to perform a specific function. Administrative agencies are authorized by legislative acts to make and enforce rules relating to the purpose for which they were established.
enabling legislation
A statute enacted by a legislature that authorizes the creation of an administrative agency and specifies the name, purpose, composition, and powers of the agency being created.
adjudicate
To resolve a dispute using a neutral decision maker.
rulemaking
The actions undertaken by administrative agencies when formally adopting new regulations or amending old ones.
administrative law judge (ALJ)
One who presides over an administrative agency hearing and who has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.
national law
Law that relates to a particular nation (as opposed to international law).
civil law system
A system of law based on a code rather than case law, often originally from the Roman Empire; the predominant system of law in the nations of continental Europe and the nations that were once their colonies.
International law
The law that governs relations among nations. International customs and treaties are generally considered to be two of the most important sources of international law.
treaty
An agreement, or compact, formed between two independent nations.
Primary Sources of Law Examples:
such as: case decision legislative act administrative rule presidential order.
