Terms and Concepts Flashcards
(93 cards)
1
Q
sources of law
A
legislative, judiciary, and executive branches of government
2
Q
primary vs secondary sources
A
primary: sources of law, including cases, statutes, acts, codes, executive orders, regulations, treaties; secondary: commentary to explain the law but not binding; treatises, legislative history, law journals, legal encyclopedias, restatements
3
Q
constitutions
A
document that organizes government, ensures basic rights, all later laws are judged against that document; US Constitution also states have Constitutions, state cons cannot conflict with fed but it can afford more rights
4
Q
common law v enacted law
A
common law: law that came from cases; enacted law comes from legislature
5
Q
statutes v regulations
A
both are primary law. statutes come from legislature; regulations are created by executive agencies; statutes overrule regulations
6
Q
functions of statutes
A
Clarify the law for the public, put the public on notice, more general and accessible to public; change the common law; can address broader situations where cases just focus on facts in front of court; codify patchwork of common law
7
Q
relationship between statutes and cases
A
cases can interpret statutes; statutes overrule cases; judicial review - power of courts to review statutes for constitutionality
8
Q
hierarchy of authority between federal and state
A
each system is separate, but state courts may hear federal law and vice versa
9
Q
federal v state law
A
federal statutes and state statutes are separate bodies of law; may run into federal law in state courts and vice versa
10
Q
jurisdiction
A
which court has the right to hear a case; subject matter jurisdiction - the substance of the case; personal jurisdiction - whether the court has power to bind a person with a ruling; venue - geography
11
Q
Basis for federal court jurisdiction
A
- diversity jurisdiction 2. question of federal law 3. if US is a party
12
Q
WI court names
A
circuit court; court of appeals (unified court, 4 districts); WI Supreme Court
13
Q
Federal court names
A
District Court (District Court for the Western District of WI); Circuit Court of Appeals (7th Circuit); Supreme Court
14
Q
co-equal vs unified courts of appeals
A
co-equal: sister courts do not have to follow each other’s rulings; unified: all court of appeals districts are binding on all trial courts and court of appeals cannot contradict each other
15
Q
Federal Circuit Courts
A
13 federal courts of appeals; 12 regional courts; 11 numbered courts based on geography; 12th is DC court also based on geography; Federal Circuit - subject matter jurisdiction over specialized cases such as patent law
16
Q
stages of a civil case
A
complaint, answer, discovery, trial, post-trial
17
Q
bench trial
A
trial before a judge instead of a jury; judge decides law and facts
18
Q
fact-finding
A
typical role of the jury; what happened in a case
19
Q
motion
A
request the court to do something
20
Q
affirmative defense
A
saying I didn’t do it, but if I did do it, here’s why I should not be held liable or found guilty
21
Q
precedent and stare decisis
A
a court must follow their own previous decisions - promotes fairness, efficiency, and predictability
22
Q
binding v persuasive authority
A
binding - a court must follow it; persuasive - a court may choose to follow it; a binding decision is a decision from a court in your appeals chain
23
Q
case of first impression
A
a case that has not been seen by a court before
24
Q
standards of review
A
lens through which the appeals court will review a case; measuring stick of how they will judge an appeal regardless of the underlying subject matter
25
de novo review
higher court reviewing a lower court decision; they look at the questions of law with no deference to the lower court;'s decision
26
concurring opinion
a judge reaches the same conclusion as the majority, but for different or additional reasons
27
dissenting opinion
a judge disagrees with the majority
28
holding v dicta
holding: binding decision by the court; dicta: not binding in theory, but judges have different views, commentary that is not necessary to resolving the issue of the case
29
per curiam opinion
opinion by the court as a whole, anonymous, usually for very routine and noncontroversial cases
30
reverse and render v reverse and remand
Reverse and render: higher court reverses the decision as matter of law; reverse and remand: higher court reverses the decision but there are facts to be decided so it has to be retried by the lower court
31
reverse v overrule
reverse is when a higher court changes the ruling of the lower court in a case; overrule is when a court changes its mind later, could be ten years later; WI Supreme Court has said that WI Court of Appeals is not allowed to overrule its own decisions
32
appeal by right v discretionary review
appeal by right: intermediate appellate courts have to take an appeal; discretionary review: highest court does not have to hear an appeal; you have to talk them into taking the case
33
petition for certiorari
Request for discretionary review; have to convince the high court 1. to take your case and 2. why court of appeals erred; Note: High court decision to deny review is not a comment on the merits, nothing substantive.
34
en banc
All the judges of the intermediate court of appeals hear a case. Appeals are typically heard by 3-judge panels
35
state, regional and federal reporters
Federal District Reporter: F. Supp.; Federal Circuit Court of Appeals: F. F.2d. F.3d. (Federal Reporter Third Series); SCOTUS: U.S., S Court, Lawyer's Edition; State reporters are less frequent these days: WI official reporter is Wis. 2d.; Regional reporter: commercially published, unofficial reporter for state appellate cases N.W.2d. (N.W. includes WI, Iowa, Mich, Minn, Neb, ND, SD)
36
Citation spacing rule
No space between adjacent single capital letters. In all other situations, put a space between abbreviations. Ex: Wis. 2d (space), N.W.2d (no space)
37
stages of a case publication
slip opinion, advance sheets, bound volume
38
slip opinion
a single opinion issued first out of a court and not yet published
39
advance sheet
second stage of publishing cases; paperback pamphlet containing recent decisions by a court
40
components of a case
caption/style, headnotes, syllabus, judge, opinion, holding, disposition
41
functions of a headnote
summary of different points in the opinion, heading classifies topic/subtopic that you can use in a digest function
42
headnote number v. topic and key number
headnote number is where the headnote appears in the opinion; topic is the high level topic of the law ("Constitutional Law" - does not change case to case) and key number is the number of the digest subtopic; topic and key numbers are the same across all jurisdictions
43
Westlaw headnotes v Lexis headnotes
Westlaw: written by editors; Lexis: direct quotes from the opinion
44
digests
collection of headnotes in a particular jurisdiction
45
citators
Shepherd's and Keycite. Citators list cases that have cited the case you are looking at; can use to verify good law, but the algorithm will not catch a later ruling in which the court overrules all cases to the contrary; only catches cases that specifically cite your case
46
natural language v Boolean and Boolean examples
natural language search uses normal language key words; Boolean search uses connectors to narrow the search (/s, /#, "and", /p, !)
47
ways to filter online search results
jurisdiction, date, type of source, narrow search terms, etc.
48
types and uses of secondary sources
use to get a broad understanding of a topic, learn key terms of art, find primary sources; types: encyclopedias, treatises, ALRs, law journals, etc.
49
legal encyclopedias (names on national versions)
The two most popular general legal encyclopedias are American Jurisprudence, 2d (Am. Jur.) and Corpus Juris Secundum (C.J.S.)
50
ALR annotations
American Law Reports; narrow reports on specific legal issues; provide a snapshot of how each jurisdiction is handling the issue
51
law review v bar journal
Law review: narrow, theoretical articles written by professors of law schools; bar journal: broad, more practical-focused trade magazine published by bar association
52
treatise
a book that goes into more depth than a casebook to explain an area of law
53
Restatements
organized by area of law; restate how most jurisdictions treat issues; a non-binding treatise
54
State CLE or practice materials
continuing legal education and practice guides
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Books Unbound
subscription-based online library of State Bar of WI; treatise for WI lawyers
56
official v annotated statutes (names and features)
FED: official codes (United States Code - published every 6 years) only have the statute text and the date section was added; annotated statutes (US Code Annotated - Westlaw and US Code Services - Lexis) reference related cases, secondary sources, etc. WI: published in official code Wisconsin Statutes (Wis. Stat.) and unofficial code (Wis. Stat. Ann.) always cite to official statutes unless the statute is so new that it does not appear in the official code; in that case cite to unofficial code or to session law
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stages of statute publication
slip law, session law, codification into U.S.C. or Wis. Stat.
58
slip laws - public law number
single law; Pub.L initial id number for a single new statute/ legislative equivalent of a docket number
59
session laws
collection of laws that were passed during a legislative session, in chronological order; Statutes at Large are the official, federal session laws from US Congress
60
codes
collection of enacted statutes organized by subject (Fed called titles; WI called chapters)
61
plain language rule
statutes are to be interpreted using the ordinary meaning of the language of the statute. Ordinary words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable
62
red flag words
signal words in statutory interpretation (i.e., and, or, shall, may, unless, except, if)
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tools of statutory interpretation
legislative history, canon of construction (expressio unius est exclusio alterius), plain language, parallel statutes, binding court interpretation (Stare Decisis)
64
uniform or model laws
secondary sources, they can be adopted by the states and then those statutes are primary
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citation purpose
prove your work, helps the reader find the source, give credit where credit is due, show the strength of your statement
66
basic components of a federal district court citation
name of case, volume of Federal Supplement, abbreviated name of reporter (F. Supp.), first page of case, name of the court, year case was decided; City of Millville v. Rock, 683 F. Supp. 2d 319 (D.N.J. 2010)
67
basic components of a federal district court citation
name of case, volume of Federal Supplement, abbreviated name of reporter (F. Supp.), first page of case, pincite, name of the court, year case was decided; City of Millville v. Rock, 683 F. Supp. 2d 319 (D.N.J. 2010)
68
basic components of a federal circuit court citation
name of case, volume of Federal Reporter, abbreviated name of reporter (F.2d), first page of case, pincite, name of the court, year case was decided; Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001)
69
basic components of a federal Supreme Court citation
name of case, volume of United States Reports, abbreviated name of reporter (U.S.), first page of case, pincite, year case was decided; Roe v. Wade, 410 U.S. 113 (1973)
70
pinpoint citations for federal cases
Roe v. Wade, 410 U.S. 113, 164 (1973); short form pincite: Corley, 273 F.3d at 435 OR 273 F.3d at 435 OR Id. at 435
71
basic components of WI Supreme Court case citation before 2000 (traditional format)
name of case, volume of Wisconsin reporter, abbreviated name of state reporter (Wis. 2d), first page of case, volume of regional reporter, abbreviated name of regional reporter (N.W.2d), first page of case, year case was decided; Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995).
72
basic components of WI Court of Appeals case citation before 2000 (traditional format)
name of case, volume of Wisconsin reporter, abbreviated name of state reporter (Wis. 2d), first page of case, volume of regional reporter, abbreviated name of regional reporter (N.W.2d), first page of case, court level (Ct. App.) and year case was decided; Jones v. Poole, 217 Wis. 2d 116, 579 N.W.2d 739 (Ct. App. 1998).
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pinpoint citations for WI cases before 2000
you may pincite to Wisconsin's reporter, or North West reporter, or both, but be consistent throughout the document with which parallel citation you pincite; Kellner v. Christian, 197 Wis. 2d 183, xxx, 539 N.W.2d 685, xxx (1995).
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basic components of WI Supreme Court case citation after 1/1/2000 (public domain format per rule SCR ch. 80)
case name, year decided, SC abbreviation (WI), sequential number, volume of Wisconsin reporter, abbreviated name of state reporter (Wis. 2d), first page of case, volume of regional reporter, abbreviated name of regional reporter (N.W.2d), first page of case; State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859.
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basic components of WI Court of Appeals case citation after 1/1/2000 (public domain format per rule SCR ch. 80)
case name, year decided, abbreviation (WI App), sequential number, volume of Wisconsin reporter, abbreviated name of state reporter (Wis. 2d), first page of case, volume of regional reporter, abbreviated name of regional reporter (N.W.2d), first page of case; Hart v. Bennet, 2003 WI App 231, 267 Wis. 2d 919, 672 N.W.2d 306.
76
pincite for WI cases after 2000 (public domain format per rule SCR ch 80)
all paragraphs are numbered; pincite to a paragraph number instead of a page number; must pincite after public domain parallel citation (do not include pincite page numbers in citation to state reporter or citation to regional reporter); State v. Meeks, 2003 WI 104, ¶ 16, 263 Wis. 2d 794, 666 N.W.2d 859
77
traditional format short form
Kubrick, 581 F.2d at 1099. or 581 F.2d at 1099. or ld. at 1099. or Id.
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public domain format short form
SF 1: Kitten, 2001 WI App 218, ¶ 17. OR Kitten, 247 Wis. 2d 661, ¶ 17. OR Kitten, 634 N.W.2d 583, ¶ 17. SF 2: 2001 WI App 218, ¶ 17. OR 247 Wis. 2d 661, ¶ 17. OR
634 N.W.2d 583, ¶ 17. SF 3: ld. ¶ 9. SF 4: Id.
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parallel citations
when the case is in multiple reporters; WI public domain will have 3 parallel citations; WI traditional format citation will have 2 parallel citations
80
citing rule for unpublished cases in WI
Unpublished opinions on or after July 1, 2009 are okay to cite if they are authored by a judge. If they are per curiam (by the court) then you cannot cite it.
81
cert. denied citation rule
do not need include in subsequent history if the case is more than two years old
82
case name abbreviation rule
Table 6 in bluebook
83
citing official federal statutes
42 U.S.C. § 1983 (2012).
84
citing official Wisconsin Statutes
Wis. Stat. § 21.36(2) (2017-18). (leave off year in short cite)
85
passive verbs
hiding the actor of the sentence. May render the sentence ambiguous and wordy. Look for the verb “to be” or add the phrase “by someone” to the end. Ex. The defendant was approached by a police officer.
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nominalizations
expressing an action using a noun instead of a verb. Ex. Contained a requirement (instead of required)
To Fix: Identify the main action in the sentence and rewrite the nominalization to the corresponding verb
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Grammar: commas
(1) introductory clauses,
(2) before the conjunction between two independent clauses,
(3) oxford comma
88
Grammar: apostrophes: plurals v possessives
do not use an apostrophe to create a plural name (correct: Joneses; incorrect: Jones's);
plural possessive ex. Joneses’
89
Grammar: subject-verb agreement
1. subject should match the verb 2. A sentence with a compound subject has two separately named subjects that should be treated as one, plural subject. (he and she are...) 3. When presented with two possible subjects, choose the verb form that agrees with the subject closest to the verb. (table and chairs are...)
Ex. I write. She writes. You write. They write. Ex. The jury finds for the plaintiff. (also an example of a collective noun)
Ex. Joe and Mary have filed for divorce. Ex. Either Joe’s Sister or Mary’s family members get the mountain cabin in the divorce. Ex. The review committee, a group of educators, was prepared to review the curriculum.
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Grammar: subject-pronoun agreement
pronouns must agree to the words they refer to and refer to other nouns to gain their meaning; Clarity is key; Collective nouns should be treated as singular nouns for the purposes of verb conjugation and pronoun agreement (the board of directors decides...)
Note: Indefinite Pronouns are singular (Nothing; Anything; Nobody; Anything; Everyone)
Object (acted upon): Him-Whom
Ownership (Possession): His-Whose
Subject: He-Who
That: introduces information essential to the main idea of the sentence
Which: provides non-essential information and is separated by commas
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Grammar: Modifiers
1. A modifier gives information about another word or phrase in a sentence. 2. Prepositional phrases, phrases that begin with the preposition. 3. Place a modifying phrase adjacent to the phrase it modifies to avoid confusion. 4. Place a modifying adverb adjacent to the verb it modifies to avoid confusion.
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Common rule structures in a memo
a rule with elements, a rule with exceptions, a factors test, a balancing test
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WI Citation important dates
July 1, 2009 - unpublished opinion
| January 1, 2000 - public domain
