Harvard's 0L course Flashcards
Public Law
The set of laws that governs the relationship between citizens and their government. This includes constitutional law, administrative law, and much of criminal law.
Private Law
The set of laws that governs the relationship of private citizens with each other. Examples include contract law, tort law, and property law.
State Action Doctrine
The constitutional law principle that the constitution applies only to state action toward individuals, NOT actions between individuals where there is no state involvement.
Substantive Law
The law that governs how people are to behave. This is the “semantics” of law.
Procedural Law
The law that governs how to make use of the legal system, including how to make and enforce laws. This is law’s “grammar”.
Jurisdiction
The power to make legal decisions and judgements. To say that a court “has jurisdiction” refers to its power to pronounce law, especially its power to hear a certain type of case or adjudicate disputes between particular persons. But “Jurisdiction” is sometimes used in other contexts; “this jurisdiction” refers to “this state” or “this nation’s laws”
Civil Law Jurisdiction
A legal system built around comprehensive codes. Examples include France, Germany, and the state of Louisiana, for some reason.
Common Law Jurisdiction
A legal system where law is made largely by court decisions rather than legal codes. Examples include the US and other former British colonies.
Tribal Law
Law created by a tribal government that applies to tribal members and territories. There are over 500 tribal governments recognized in the U.S.
Domestic Law
The law that is made by U.S. sovereigns and governs activities on U.S. soil. In some cases, it may also govern U.S. citizens or others within the jurisdictional power of the U.S. even though they may not be physically present in the US.
International Law
The set of rules that countries follow in dealing with each other. This includes the relationship btwn sovereign states and international entities, such as the ICC, as well as supranational law, such as the law of the European Union that governs its members.
Constitutional Law
The body of law that derives from the U.S. constitution. It defines the role of the branches of the federal gvmnt, divides authority between the fed and the states, and enumerates the basic rights of citizens. States also have constitutional law based on their state constitutions, but usually that’s not what people mean when discussing “con law” unless it is specified.
Statue
A law passed by the legislative branch.
Bicameralism
Two chambers/houses. Federal statues must pass in both before proceeding to the president’s desk.
Presentment
The practice of presenting a federal statue passed by both chambers to the president for signature before it becomes law.
Regulation
A rule issued by a government agency that has the force of law. Sometimes the word “regulation” or “regulate” is also used more informally by lawyers to refer to governance. EG: “How should we regulate autonomous vehicles?”
Sovereign
A person or institution habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.
Legal Positivism
The idea that a rule is a law if, and only if, the rule is the command of the sovereign to its subjects and if the failure to follow that rule is backed up by the threat of punishment.. Associated w John Austin & Jeremy Bentham.
The Rule of Recognition
A social rule that specifies what counts as a law and what does not. Associated with HLA Hart. Hart used the Rule of Recognition to replace the idea of “sovereign” in his formulation of legal positivism.
Natural Law
An opposing picture to legal positivism of the nature of law. This view is committed to the idea that law has a moral core, that moral facts determine legal content.
Liability
Legal responsibility. Someone is liable for a harm suffered by a party when he is legally and financially responsible for that harm.
Federal
Relating to the US Government (as opposed to US state governments)
Federalism
A form of government, such as the US, in which power is divided between a central (federal) gvmnt and regional (state) gvmnts.
Invalid
Not legally binding. In the context of this module, a law could be said to be “invalid” if it violates the constitution.
Consitutional Amendment
A change to the constitution proposed by either the congress (w 2/3 majority in both house + senate) or by a constitutional convention called by 2/3 of the state legislatures.
Duty to Retreat
Also known as a “retreat rule.” A requirement of the criminal law of some states that you may not claim self-defense if you could have safely retreated, but did not, before using deadly force against a deadly attacker.
Article III
The section of the U.S. Constitution that establishes and empowers the judicial branch of the federal government.
District Court
In the federal system, the general trial court (sometimes called a “court of first instance”)
Plea Bargain
Agreement in a criminal case btwn a prosecutor and defendant in which defendant pleads guilty in exchange for limited charge or reduced sentence.
Allegation
A statement that something is true that has not yet been proven. Often it refers to a factual assertion that a party claims can be proven at trial.
Standard of Review
The amount of deference given by an appellate court in reviewing the decision of a lower court. The standard of review that a court applies depends on the context of the case, the nature of the factual or legal issue being appealed, and the judicial body that made the decision.
Legal Issue
A question relating to the law by which a case is to be decided, as opposed to “factual issues.”
Appeal
The review in one court of the proceedings and decisions of another, either as to law or fact, or both.
Appellate
Adjective; ‘relating to courts of appeal’.
En Banc
French for “on the bench”. In the federal system en banc refers to an appeal in which all the qualified judges hear and decide the case, instead of just a subset (as is typical in appeals).
The U.S. Supreme Court
Highest federal court. Has final appellate jurisdiction over all fed court decisions and also hears state court cases that turn on issues of federal law (if it wants to).
Certiorari
The Supreme Court’s discretionary review of an action by a lower court or agency. To request that the Supreme Court hear an appeal, a party must file a petition (pleading) for certiorari. If the Court decides to hear the appeal, it will issue a writ of certiorari, which orders the lower court to provide its files and records for review. Often called “cert.” for short.
Precedent
A decision made in an earlier case that resolves (or at least has bearing on) a legal question in a new case. It may serve as a reason to resolve similar legal questions in the same way. Alternatively, a court or an advocate may try to “Distinguish precedent” and explain why it doesn’t apply in this case.
Appeal As of Right
When an appellate court is required to hear an appeal, as opposed to a “discretionary appeal” which is when an appellate court can decide whether or not to hear an appeal.
Family Court
A court with jurisdiction over affairs of children and families.
Probate Court
A court with jurisdiction over matters relating to guardianships, wills, trusts, and estates.
Juvenile Court
A court with jurisdiction over criminal cases involving minors.
Municipal Court
A court organized within a city, village, or township, with jurisdiction over offenses under local ordinances and certain petty offenses.
Primary
A selective mechanism by which members of a political party express their preference in the selection of the party’s candidates for public office.
Retention Election
A periodic process held at the same time as a general election, in which voters decide whether a state judge will remain in office.
Merit Selection
A process in which a non-partisan judicial nominating committee generates a list of potential judges from which the appointing authority (usually the governor) selects who to appoint.
Caption
The heading of a case. Includes: Name of parties, name of court issuing opinion, date of opinion and sometimes other identifying information.
Citation
Includes the name of a case, the name of the court that decided it, the year it was decided, the reporter, and the page # of the reporter where it can be found.
Shepardizing
Determining what other cases have overruled, distinguished, or otherwise changed out understanding of a case. Term comes from leaflets indicating updates to cases printed in late 1800s by Frank Shepard.
Petitioner
Party seeking to have the supreme court review a case (via a writ of Certiorari). Typically this is the party that lost in the prior stage of the proceeding.
Respondent
Party against whom a petition is filed. In supreme court, usually the person who won and is defending the lower courts’ judgement.
Procedural History and Posture
The story of a case’s encounter with the law up to the present case.
Relief Sought
The remedy parties want in a case.
Money Damages
Money given to a party as a remedy for the harm they have suffered.
Injunctive Relief
A court order for someone to do something or refrain from doing something.
Declaratory Judgement
A remedy that is a mere statement of what the law is.
Disposition
The court’s determination of what should happen in a case. It is an action and is usually found in the last few lines of a majority opinion.
Affirm
A disposition in which a court of appeals (or supreme court) leaves the judgement ruling immediately below intact. However, the reasoning may still be different from the lower court’s.
Reverse
A disposition in which a court of appeals or supreme court overturns the judgement or ruling below, i.e., declares that decision was wrong.
Vacate
Similar to reverse. Nobody can agree on the distinction.
Remand
The case is sent back to the court below for further action.
Holding
The legal rule announced by a case that could be used in future cases.
Obiter Dictum
Latin for “a remark by the way”. Information in an opinion that is not necessary for the opinion and does not have -binding- precedential value. “Dictum” for short, “Dicta” plural.
