SDO 501 Final Exam Flashcards
Legal Analysis
The process of applying the law to specific facts. Also known as legal reasoning.
Fact bound
When even a minor change in the facts can change the outcome.
Cause of action
A claim that based on the law and the facts, is sufficient to support a lawsuit.
Enacted law
constitutions, statutes, ordinances, and regulations
Constitutions
Documents ratified by the citizens of a state or nation that establish the organizational structure and the powers granted to different governmental units.
Statutes
Laws that are enacted by a state legislature or by congress.
Ordinances
Laws that are similar to statutes but enacted by local governments.
Regulations
Laws promulgated by administrative agencies
Mandatory Authority
Court decisions from a higher court in the same jurisdiction involving similar facts and laws.
Persuasive Authority
Court decisions from an equal or a lower court from the same jurisdiction or from a court in a different jurisdiction.
Precedent
One or more prior court decisions that involve the same legal issue
Stare decisis
literally meaning “the decision stands”. The doctrine stating that normally once a court has decided one way on a particular issue, it and other courts in the same jurisdiction, given similar facts, will decide the same way on the issue in future cases, unless the court can be convinced of the need for change.
Substantive Facts
Things that happened to the parties before the litigation began and that are relevant to their claims
Procedural Facts
Facts that relate to what happened procedurally in the lower courts or administrative agencies before the case reached the court issuing the opinion.
Legal Issues
Questions about the interpretation and application of the law
Disposition
The result reached in a particular case
Affirm
A decision is affirmed when the litigants appeal the trial court decision and the higher court agrees with what the lower court has done.
Reverse
A decision is reversed when the litigants appeal the trial court decision and the higher court disagrees with the decision of the lower court.
Remand
when an appellate court sends a case back to the trial court for a new trial or other action.
Majority opinion
An opinion in which the majority of the court joins.
Concurring opinion
an opinion that agrees with the majority’s result but disagrees with it’s reasoning
Dissenting opinion
An opinion that disagrees with the majority’s opinion and reasoning.
Case briefing
A method for summarizing court opinions.
Appellate brief
A formal written argument to an appellate court, in which a lawyer argues why that court should affirm or reverse a lower court’s decision.
Rule
the general legal principle in existence before the case began.
Issue
The rule of law applied to the case’s specific facts
Holding
The court’s answer to the issue presented to it; the new legal principles established by a court’s opinions.
Narrow holding
A statement of the court’s decision that contains many of the case’s specific facts, thereby limiting its future applicability to a narrow range of cases.
Broad holding
A statement of the court’s decision in which the facts are either omitted or given in very general terms so that it will apply to a wider range of cases.
Ratio Decidendi
The court’s reasoning for it’s decision
Dictum
also “dicta” is a statement in a judicial opinion not necessary for the decision of the case.
Analogous
Similar
Distinguishable
Different
Laws
Rules of conduct promulgated and enforced by the government
Jurisprudence
A philosophical approach to the study of the law.
Natural Law
A legal philosophy whose proponents think there are ideal laws that can be discovered through careful thought and humanity’s innate sense of right and wrong.
Legal positivism
A legal theory whose proponents believe that the validity of a law is determined by the process through which it is made rather than by the degree to which it reflects natural law principles.
Legal Formalism
A legal theory that views the law as a complete and autonomous system of logically consistent principles within which the judges find the correct result by simply making logical deductions
Legal Realism
A legal philosophy whose proponents think that the judges decide cases based on factors other than logic and pre-existing rules, such as economic and sociological factors.
Originalism
An approach to constitutional interpretation that narrowly interprets the text of the constitution in a manner that is consistent with what most people understood those words to mean at the time they were written.
Evolutionary approach
An approach to constitutional interpretation in which judges seek to determine the underlying purpose that the drafters had in mind at the time they wrote the law and the modern-day option that best advances the purpose
Constitutional Law
A body of principles and rules either explicitly stated in, or inferred from, the U.S. Constitution and those of the individual states.
Confederation
A form of government in which independent units form an alliance but retain most of their power, delegating only a limited amount of power to a central authority.
Sovereign Powers
The power of a government to do the things that are traditionally considered necessary to govern, such as making and executing laws, collecting taxes, signing treaties, and making war.
Separation of Powers
The division of governmental power among the legislative, executive, and judicial branches.
Checks and Balances
Division among governmental branches so that each branch acts as a check on the power of the other two.
Power of Judicial Review
A court’s power to review statutes to decide if they conform to the U.S. or state constitutions.
Federalism
A system of government in which the authority to govern is split between a single, nationwide central government and several regional governments that control specific geographical areas.
Bill of Rights
The first ten amendments to the U.S. Constitution
Doctrine of Incorporation
The application of the fourteenth amendment’s due process protections to incorporate the provisions of the Bill of Rights and make them applicable to the states.
State Action Requirement
A defendant cannot be charged with violating a constitutional right unless acting as an agent of a governmental entity. ALSO: a court-imposed requirement that most constitutional protections apply only if a government entity is involved.
Statute
A law enacted by a state legislature or by congress
Ordinance
A law enacted by a local government; a subcategory of statutory law
Administrative Law
Rules and regulations created by administrative agencies.
Regulation
A law promulgated by an administrative agency.
Enabling Act
A statute establishing and setting out the powers of an administrative agency
“Fourth Branch of Government”
Administrative agencies such as the IRS & EPA
Executive Order
An official policy directive issues by the president, or by the governor of a state, which directs government employees as to how they should implement the law
Common Law
Law created by the courts
Codification of the Common Law
The process of legislative enactment of areas of the law previously governed solely by the common law
Derogation of the Common Law
Used to describe legislation that changes the common law.
Equity
Fairness; a court’s power to do justice. Equity powers allow judges to take action when the law would otherwise limit their decisions to monetary awards. Equity powers include a judge’s ability to issue an injunction and to order specific performances.
Injunction
A court order requiring a party to perform a specific act or to cease doing a specific act.
Specific Performance
A requirement that a party fulfill his or her contractual obligations
Jurisdiction
Limits the ability of a court to exercise it’s authority. restricts the power of a court to resolve legal issues in two ways: geographically and by the subject matter
Authority
Refers to any cited sources courts and attorneys use to oppose or support a legal proposition.
Primary Authority
any source of law ex: case law, statutes, or constitutions
Secondary authority
any source that comments on or editorializes about the law. Ex: law reviews, legal treatises, newspapers, and legal encyclopedias.
Primary binding authority
Any source of law that the court must follow
Primary persuasive authority
law that is not binding on a court
Doctrine of Implied Powers
Powers not stated in the constitution but that are necessary for Congress to carry out other, expressly granted powerd
Preemption
The power of the federal government to prevent the states from passing conflicting laws, and sometimes even to prohibit states from passing any laws on a particular subject.
Double Jeopardy
A constitutional protection against being tried twice for the same crime
Res Judicata
When a civil case has a final judgment and is no longer subject to appeal; it cannot be litigated between the original parties
Civil Law
Law that deals with harm to an individual
Criminal Law
Law that deals with harm to a society as a whole
Plaintiff
A person who initiates a lawsuit
Defendant
In a lawsuit the person who is sued; in a criminal case the person who is being charged with a crime
Beyond a reasonable doubt
The standard of proof used in criminal trials. The evidence presented must be so conclusive and complete that there are no reasonable doubts regarding the guilt of the accused.
Preponderance of the evidence
The standard of proof used in civil trials. The evidence presented must prove that is more likely than not the defendant committed the wrongful act.
Clear and convincing
The standard of proof used in some civil trials. The evidence presented must be greater than a preponderance of the evidence but less than beyond a reasonable doubt.
Damages
Monetary compensation, including compensatory, punitive and nominal damages.
Felony
A serious crime, usually carrying a prison sentence of one or more years
Misdeameanor
A minor crime not amounting to a felony, usually punishable by a fine or a jail sentence of less than a year.
Mens rea
Bad intent
Actus Rea
Bad act
Prima Facie Case
What the prosecution or plaintiff must be able to prove in order for the case to go to the jury - that is, the elements of the prosecution’s case or the plaintiff’s cause of action
Defense
A fact or legal argument that would relieve the defendant of liability in a civil case or guilt in a criminal case
Cause of action
A claim that based on the law and the facts is sufficient to support a lawsuit. If the plaintiff does not state a valid cause of action in the complaint, the court will dismiss it
Affirmative Defense
A defense whereby the defendant offers new evidence to avoid judgment
Sovereign Immunity
The prohibition against the suing the government without the government’s consent
Compensatory Damages
Money awarded to a plaintiff in payment for his or her actual losses
Punitive Damages
Money awarded to a plaintiff in cases of intentional torts in order to punish the defendant and serve as a warning to others.
Tortfeasor
The person who committed the tort
Nominal damages
A token sum awarded when liability has been found but monetary damages cannot be shown
Contract
An agreement supported by consideration
Consideration
Something of value exchanged to form the basis of a contract
Property Law
Law dealing with ownership
Real property
Land and objects permanently attached to land
Personal property
All property that is not “real property”
Constructive
Not factually true, but accepted by the courts as being legally true
Legal Fiction
An assumption that something that is not real is real. For example, saying that a corporation is a person for purposes of it’s being able to sue and be sued
Tort law
Law that deals with harm to a person or a person’s property
Intentional tort
A tort committed by one who intends to do the act that creates the harm
Negligence
The failure to act reasonably under the circumstances
Contributory Negligence
Negligence by the plaintiff that contributed to his or her injury. Normally, any finding of contributory negligence acts a complete bar to a plaintiff’s recovery.
Assumption of the risk
Voluntarily and knowingly subjecting oneself to danger
Comparative negligence
A method of measuring the relative negligence of the plaintiff and the defendant, with a commensurate decrease in the compensation for the injuries
Strict liability
Liability without having to prove fault
Substantive Law
Law that creates rights and duties
Procedural Law
law that regulates how the legal system operates
Statute of limitations
The law that sets the length of time from when something happens to when a lawsuit must be filed before the right to bring it is lost
Court
A unit of the judicial branch of the government that has authority to decide legal disputes
Trial courts
Courts that determine the facts and apply the law to the facts
Original Jurisdiction
The authority of a court to hear a case when it is initiated, as opposed to appellate jurisdiction
Questions of fact
Questions relating to what happened: who, what, when, where, and how
Questions of law
Questions relating to the interpretation or application of the law
Entrapment
A defense requiring proof that the defendant would not have committed the crime but for police trickery.
Jury trial
Questions of fact are determined by the jury, while questions of law are determined by the judge
Bench trial
A trial conducted without a jury. In these cases, the judge will decide the factual questions as well as the legal ones
Appellate Courts
Courts that determine whether lower courts have made errors of law
Appellant or Petitioner
The party in a case against whom an appeal has been filed
Affirm
When the appellate court agrees with what the lower court has done
Harmless error
A trial court error that is not sufficient to warrant reversing the decision
Reverse
A decision is reversed when the litigants appeal the trial court decision and the higher court disagrees with the decision of a lower court
Remand
When an appellate court sends a case back to the trial court for a new trial or other action
Inferior Courts
In the federal system, all courts other than the U.S. Supreme Court (District Courts and Court of Appeals)
Constitutional Courts
A court established by Article 3 of the U.S. Constitution
U.S. Courts of Appeals
The intermediate appellate courts in the federal system
U.S. Supreme Court
The highest federal appellate court, consisting of nine appointed members
Subpoena
A court order requiring a person to testify at a trial or deposition
En Banc
When an appellate court that usually sits in panel sits in whole
Writ of Certiorari
A means of gaining appellate review; in the U.S. Supreme Court the writ is discretionary and will be issued to another court to review a federal question if four of the nine justices vote to hear the case
Legislative Courts
Courts created under Congress’s Article 1 powers. Ex: U.S. Court of Military Appeals, U.S. Tax Court, Bankruptcy Courts
General Jurisdiction
A court’s power to hear any type of case arising within its geographical area
Limited Jurisdiction
A court’s power to hear any type of case arising within it’s geographical area
Federal Question Jurisdiction
The power of the federal courts to hear matters of the federal law
Diversity of Citizenship
A situation where the opposing parties are from different states and the amount in controversy exceeds $75,000
Exclusive Jurisdiction
When only one court has the power to hear a case
Concurrent Jurisdiction
When more than one court has jurisdiction to hear a case
Removal
the transfer of a case from one state court to another or from a state court to a federal court
Case of first impression
A type of case that the court has never faced before
Plain meaning approach
A method for interpreting enacted law in which the key terms are interpreted in light of their dictionary definitions and use in ordinary conversations.
