Chapter 9 Flashcards
Amincus curiae
someone who is not a party to a case and may or may not have been solicited by a party and who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case; and is typically presented in the form of a brief.
Amincus curiae originates from the Roman Law
apellate court
someone who is not a party to a case and may or may not have been solicited by a party and who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case; and is typically presented in the form of a brief.
The authority of appellate courts to review the decisions of lower courts varies widely from one jurisdiction to another.
apellate jurisdiction
the power of an appellate court to review, amend and overrule decisions of a trial court or other lower tribunal.
The appellate court reviews issues of law de novo
brief
a written legal document used in various legal adversarial systems that is presented to a court arguing why one party to a particular case should prevail.
Trial briefs are presented at trial to resolve a disputed point of evidence.
constitutional courts
a high court that deals primarily with constitutional law.
The list in this article is of countries that have a separate constitutional court
Dissenting Opinions
A dissenting opinion is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment.
Dissenting opinions are normally written at the same time as the majority opinion and any concurring opinions
Chrisholm v. Georgia
considered the first United States Supreme Court case of significance and impact. Given its date, there was little available legal precedent.
At that time, there was no opinion of the court or majority opinion; the justices delivered their opinions seriatim, that is, individually, and in ascending order of seniority
Concurring Opinions
certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for his or her decision.
the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion.
Elena Kagan
an Associate Justice of the Supreme Court of the United States
After attending Princeton University, the University of Oxford, and Harvard Law School, she clerked for a federal Court of Appeals judge and for Supreme Court Justice Thurgood Marshall.
Eleventh Amendment
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State
The Eleventh Amendment was adopted to overrule the U.S. Supreme Court’s decision in Chisholm v. Georgia
Federalist No. 78
an essay by Alexander Hamilton, the seventy-eighth of The Federalist Papers. Like all of The Federalist papers, it was published under the pseudonym Publius
Federalist No. 78 was published May 28, 1788 and first appeared in a newspaper on June 14 of the same year.
John Jay
an American statesman, Patriot, diplomat, one of the Founding Fathers of the United States, negotiator and signatory of the Treaty of Paris of 1783, second Governor of New York, and the first Chief Justice of the United States.
He became a lawyer and joined the New York Committee of Correspondence, organizing opposition to British policies in the time preceding the American Revolution.
John Marshall
was an American politician who served as the fourth Chief Justice of the United States from 1801 to 1835.
Marshall was born in Fauquier County, Virginia in 1755
judicial activism
judicial rulings that are suspected of being based on personal opinion, rather than on existing law.
The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.
judicial implementation
process by which a court’s decision is enforced
Different countries deal with the idea of judicial implementation through different means of judicial selection, or choosing judges.
judicial restraint
a theory of judicial interpretation that encourages judges to limit the exercise of their own power.
Judicially restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges
judicial review
review by the US Supreme Court of the constitutional validity of a legislative act.
Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.
Judiciary Act of 1789
signed into law by President George Washington on September 24, 1789. Article III of the Constitution established a Supreme Court, but left to Congress the authority to create lower federal courts as needed.
It established the federal judiciary of the United States.
jurisdiction
the official power to make legal decisions and judgments
Jurisdiction draws its substance from international law, conflict of laws, constitutional law, and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of society.
Lame Duck
an elected official whose successor has already been elected. The official is often seen as having less influence with other politicians due to their limited time left in office.
a lame duck is free to make decisions that exercise their standard powers with little fear of consequence, such as issuing executive orders, pardons, or other controversial edicts.
Legislative Courts
Courts created by Congress for specialized purposes whose judges do not enjoy the protection of Article III of the Constitution
They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States.
Marbury vs. Madison
Upheld judicial review of congressional acts
Marbury filed a lawsuit in the Supreme Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.
original jurisdiction
he power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court’s decision. Original jurisdiction refers to the right of the Supreme court to hear a case for the first time.
Original jurisdiction refers to the right of the Supreme court to hear a case for the first time.
precedents
a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.
Case law, in common-law jurisdictions, is the set of decisions of adjudicatory tribunals or other rulings that can be cited as precedent.
Plurality Opinions
is in certain legal systems the opinion from a group of judges, often in an appellate court, in which no single opinion supports a majority of the court.
The plurality opinion did not receive the support of more than half the justices, but received more support than any other opinion, excluding those dissenting from the holding of the court.
Rule of Four
a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the Court from controlling the Court’s docket
The rule of four is not required by the Constitution, any law, or even the Supreme Court’s own published rules.
Sandra Day O’Connor
a retired Associate Justice of the Supreme Court of the United States, who served from her appointment in 1981 by President Ronald Reagan until her retirement in 2006.
O’Connor was a judge and an elected official in Arizona serving as the first female Majority Leader of a state senate as the Republican leader in the Arizona Senate.
Senatorial Courtesy
a custom whereby presidential appointments are confirmed only if there is no objection to them by the senators from the appointee’s state, especially from the senior senator of the president’s party from that state.
The precedent that developed into senatorial courtesy began with the August 9, 1789, nomination by President George Washington of Benjamin Fishbourn to the post of naval officer for the port of Savannah, Georgia.
Solicitor general
the law officer directly below the attorney general in the US Department of Justice, responsible for arguing cases before the US Supreme Court.
The extent to which a solicitor general actually provides legal advice to or represents the government in court varies from jurisdiction to jurisdiction, and sometimes between individual office holders in the same jurisdiction.
Stare decisis
“Let the decision stand,” or allowing prior rulings to control the current case
The principle by which judges are bound to precedents is known as stare decisis.
strict constructionist
refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.
Strict constructionist is also used in American political discourse as an umbrella term for conservative legal philosophies such as originalism and textualism, which emphasize judicial restraint and fidelity to the original meaning of constitutions and laws.
trial court
a court of law where cases are tried in the first place, as opposed to an appeals court.
Not all cases are heard in trial courts of general jurisdiction.
Whiskey Rebellion
a tax protest in the United States beginning in 1791 and ending in 1794 during the presidency of George Washington, ultimately under the command of American Revolutionary war veteran Major James McFarlane.
The Whiskey Rebellion demonstrated that the new national government had the will and ability to suppress violent resistance to its laws, though the whiskey excise remained difficult to collect.
Writ of certiorari
An order by a higher court directing a lower court to send up a case for review
A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it.
