Terms Flashcards
Sources of Law (3)
Constitution of the US
Legislative Law
Judicial decisions
Writ of Certiorari
order lower court to give higher court record of case for review
only case they have to take is when appeal was won of criminal defendant found guilty
Steps to a lawsuit
file complaint
discovery
mediate or arbitration or trial before jury
vague laws
fail to define terms on or use general language that citizens and judges don’t know what laws permit or punish
discretion
authority to determine proper outcome
overbroad law
directs courts to find laws unconstitutional if they restrict more legal activity than necessary
precedent
outcome of previous case to determine future cases
Marbury V. Madison
SCOTUS establishes court’s power to interpret laws
constitutional law
establishes nature and function and limits of gov’t
statutory law
written law formally enacted by city, county, state, federal legislative bodies
equity law
decide cases based on fairness and ethics to determine proper remedy
black letter law
formally enacted written law available in legal reporters or other documents
administrative law
orders, rules, regulations, promulgated by exec. branch administrative agencies to carry out delegated duties
federalism
states are related to and independent of each other and related/independent of federal gov’t
branches of gov’t
legislative
judicial
executive
statutory construction
process by which courts determine proper meaning/application of statutes
strict construction
literal meaning is applied (right to bear arms, etc.)
facial meaning
plain, straightforward meaning
deference
court relies heavily on judgements and intentions of administrative experts that enacted law
facial challenge
no situation where law can be interpreted as constitutional
judicial review
meaning of constitution, determination of violation of constitution
modify precedent
change, don’t follow previous outcome of a case
jurisdiction
geographic area of responsibility/authority of court
forum shopping
choosing a court to rule in plaintiff’s favor
de novo
“over again”
amicus curiae
“friends of the court”
amicus brief
submission to court from friends of court
en banc
“on the bench”
remand
send back to lower court for further action
per curiam opinion
unsigned opinion by the court as a whole
memorandum order
announcing vote of SCOTUS without providing opinon
originalists
interpret Constitution according to intent
textualists
careful reading of legal text to determine meaning
tort
private/civil wrong for which court can provide remedy in form of damages
demurrer
court dismisses case –> claims are true but insufficient to warrant judgement against defendant
venire
“to come”, location where potential jurors are from
voir dire
“to speak the truth”
holding
decision/ruling of court
peremptory challenge
releasing juror without reason (limited #)
appellant
party making appeal (petitioner)
appellee
party against whom an appeal is made
strict liability
liability without fault for any/all harms which result from product or action
why we need first ammendment
1) to determine what is true (can’t access what you can’t see)
2) we govern ourselves (hire people to do it with recalls and impeachments)
3) allowing for change with stability (vote every 4 years, keeping public in the know)
prior restraint
telling someone in advance they can’t say a specific thing
compelling state’s interest
national security concerns (child porn, etc.)
bad tendency
bad insult to a group = bad response
clear and present danger analysis
objective, imminent harm, doesn’t include hate speech
content-neutral regulation
1) time – no 3am advertising
2) places – parade permit, let EMT know streets are closed
3) manner – can’t deface gated community with flyers or burn draft cards
Citizens United Case
money is considered speech
original intent
perceived intent of framers of first amendment that guides contemporary application
ad hoc balancing
decision made based on facts instead of general principles
categorical balancing
weighing of different broad categories (political speech v. privacy) applied to later cases
defamation
false communication to harm reputation (libel and slander)
libel
oral publication of defamation
slander
written publication of defamation
injunction
court order prohibiting person/group from doing something (must be specific)
strict scrutiny
court test for constitutionality of laws with speech content
content neutral laws
incidentally and unintentionally affect speech as they advance other gov’t interests
laws of general application
taxes, equal employment, reviewed under minimum scrutiny
rational review
standard of judicial reviewq
content-based laws
enacted because message, subject or ideas expressed in speech
symbolic expression
action warrants first amendment protection because primary purpose is to express ideas
O’Brien test
used to determine neutral law is constitutional
chilling effect
discouragement of constitutional right by free speech, creates uncertainty about exercise of right
as applied
interpretation of statute on basis of actual effects on parties in present case
incorporation doctrine
14th amendment, most of bill of rights applies to states equally
proximate cause
legal determination of reasonability to conclude defendants actions led to plaintiff injury
hate speech
name calling, pointed criticism, that demeans others on a basis
underinclusive
disfavors narrow laws that target subset of unrecognized category for discriminatory treatment
damages
monetary compensation recovered in court
sedition act of 1798
crime to write false statements against president or member of congress
burden of proof
required for party to demonstrate one or more claims by presentation of evidence
libel per se
statement whose injurious nature is apparent and requires no further proof
libel per quod
statement whose injurious nature requires proof
actual malice
knowing the statement is false and not caring
deposition
testimony by witness conducted outside courtroom
types of damages
special
general (compensatory)
punitive
special damages
out of pocket expenses incurred because of what someone did (quantifiable receipts)
general damages
I was hurt this much (doesn’t have to be physical)
punitive damages
punishment for bad conduct, publishing defamation
7 things to prove
false and defamatory statement must be published ID actual harm negligence or fault lack of privilege actual malice
negligence
circumstances call for response but the person does something else
NYT V. Sullivan
no public official can win monetary damages because of defamatory statement about conduct in office
