Con. Law Terminology

Question 0

List of Ashwander Rules

Answer 0

1. Won’t pass on non-adversarial cases.
2. Won’t anticipate questions of law.
3. Won’t go beyond the case at hand.
4. Won’t pass if there is some way to avoid it.
5. Won’t pass without direct injury.
6. Won’t pass for someone benefiting from statute.
7. If it can be constructed to be constitutional, it is.

Question 1

Ashwander Rules

Answer 1

Set of rules created by Louis Brandeis in Ashwander v. Tennessee Valley Authority that impose judicial self-restraint and pass on constitutional questions for congress.

Question 2

Brandeis Brief

Answer 2

First brief used that relied more on social and scientific data than legal citations.

Question 3

Writ of Certiorari

Answer 3

From Latin, “to be more fully informed.” Allows appellate courts to demand records from lower courts in order to choose cases at their discretion.

Question 4

Delagatus non potest delegare

Answer 4

Latin, “the delegate cannot delegate.” Legal rule prohibiting a power delegated by a higher authority to be reappropriated to another without explicit permission from higher power.

Question 5

Ex Parte

Answer 5

From by/for the party; on behalf of.

Question 6

In Re

Answer 6

Latin, “in the matter of,” or “with regards to.” Judicial proceeding that may not have formally designated parties.

Question 7

Habeas Corpus

Answer 7

Latin, “let us have the body.” Requires a person under arrest to be brought before a judge; safeguard from unlawful detention.

Question 8

Judicial Restraint

Answer 8

Theory that encourages judges to limit the exercise of their own power.

Question 9

Jurisdiction

Answer 9

The official power to make legal decisions and judgments.

Question 10

Justiciability

Answer 10

Limits on legal issues over which a court can adjudicate.

Question 11

Standing to Sue

Answer 11

Ability of a party to show the court sufficient connection to and harm from the law or action challenged. Must be directly subject to sustained harm that can be corrected by the courts or be granted standing by act of law.

Question 12

Political Question

Answer 12

Some questions, by nature, are political; political questions are non-justiciable.

Question 13

Petit Jury

Answer 13

Trial juries composed of 12 peers.

Question 14

Grand Jury

Answer 14

Composed of 16-23 members, they hear the US Attorney’s (prosecution) evidence and determine whether there is “probable cause” for a trial.

Question 15

Sovereign Immunity

Answer 15

Legal privilege which protects American federal, state, and tribal governments from being sued.

Question 16

Ripeness

Answer 16

Readiness of a case for litigation–have all other appropriate avenues been pursued?

Question 17

Mootness

Answer 17

A matter is moot if further proceedings cannot affect the outcome; if it is beyond the scope of legal remedy.

Question 18

Stare Decisis

Answer 18

Latin, “let the decision stand.” Essence of the doctrine of precedent, or adhering to past decisions.

Question 19

Strict Construction

Answer 19

Philosophy of judicial interpretation that requires judges to adhere to the text only as it is written/spoken. Requires only investigation into the clear, literal meaning of the text.

Question 20

Literalism

Answer 20

The literal interpretation of what the law says rather than what it is meant to say.

Question 21

Supremacy Clause

Answer 21

Article 6 Section 2 of the constitution that says the federal constitution, federal statutes, and treaties are the supreme law of the land.

Question 22

Taxing and Spending Clause

Answer 22

Article I, Section 8, Clause 1 provides the federal government with the power of taxation. It authorizes congress to levy taxes only for 1) to pay the debts of the US, and 2) to provide for the common defense and general welfare.

Question 23

Merits

Answer 23

Legal term referring to the inherent right and wrongs of a case, excluding emotional or technical biases; discounting procedural matters.

Question 24

Substantive Rulings

Answer 24

A ruling that affects the merits of a case; defines rights and duties such as crime and punishment–concerned with outcome of case.

Question 25

Procedural Ruling

Answer 25

Ruling applying to questions of due process; deals with the technical proceedings of a case–concerns the way a case was handled.

Question 26

Article III Courts

Answer 26

Federal courts established by or under article 3 of the constitution; includes Supreme Court, courts of appeals, district courts, and others created by congress as necessary.

Question 27

Case and Controversy Clause

Answer 27

Section 2, Clause 1 of the constitution that constitute limitations on judicial review. Prohibits advisory opinions (requires direct injury able to be remedied in court) and limits congress’ ability to confer jurisdiction on federal courts.

Question 28

Judicial Review

Answer 28

The ability of a court to decide if a statute or regulation is unconstitutional or contradicts existing law.

Question 29

Marbury v. Madison

Answer 29

Held that supreme courts have the power to strike down laws as unconstitutional. Justice Marshall says this is a necessary requirement of the oath of office found in Article VI of the Constitution.

Question 30

Exclusionary Rule

Answer 30

Holds that evidence collected in violation of a defendant’s constitutional rights of due process is inadmissible in a court of law.

Question 31

Presumption of Constitutionality

Answer 31

Shifts the burden of proof from the government to the citizen in proving that a statute is unconstitutional. May itself be unconstitutional?

Question 32

Writ of Mandamus

Answer 32

Latin, “we command.” A writ from a superior court ordering a government official or corporation to desist or persist in an action as law stipulates.

Question 33

Police Powers

Answer 33

Power of a government to exercise reasonable control of people and property in the interest of general security, health, safety, morals, and welfare.

Question 34

Bill (also, Writ/Act) of Attainder

Answer 34

A legislative act that singles out an individual or group for punishment without a trial. Article I, Section 9 and 10 of the constitution prohibits the usage of such writs.

Question 35

Ex Post Facto

Answer 35

Latin, “from after the action,” or “after the facts.” Law that retroactively changes the legal consequences or status of actions already committed prior to its enactment. Amnesty laws decriminalizing certain acts and alleviating punishment fall in same category. Article 1, Section 9, Cl. 1 prohibits these, too.

Question 36

Tort

Answer 36

A body of rights and remedies applied by courts in civil proceedings to provide relief for persons harmed by the wrongful acts of others. Requires 1) that the defendant was under a legal duty to act in a particular fashion, 2) that the defendant breached the duty by failing to conform, and 3) that the plaintiff suffered injury or loss as a direct result of the breach.

Question 37

Rule of Four

Answer 37

Practice that permits 4 of the 9 S.CT. Justices to issue a writ of certiorari. Done in order to prevent a majority from controlling the court docket, but is not constitutionally, legally, or internally required- just a custom.