Zero-L Flashcards
(129 cards)
1
Q
Public Law
A
The set of laws that governs the relationship between citizens and their government. This includes constitutional law, administrative law, and much of criminal law.
2
Q
Private Law
A
The set of laws that governs the relationship of private citizens with each other. Examples include contract law, tort law, and property law.
3
Q
State Action Doctrine
A
The constitutional law principle that the Constitution applies only to state action toward individuals, not actions between individuals where there is no state involvement.
4
Q
Substantive Law
A
The law that governs how people are to behave. This is the “semantics” of law.
5
Q
Procedural Law
A
The law that governs how to make use of the legal system, including how to make and enforce laws. This is law’s “grammar.”
6
Q
Jurisdiction
A
The power to make legal decisions and judgments. 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 differently in other contexts. For example, “this jurisdiction” refers to “this state” or “this nation’s laws.”
7
Q
Civil Law Jurisdiction
A
A legal system built around comprehensive codes. Examples include France, Germany, and the state of Louisiana.
8
Q
Common Law Jurisdiction
A
A legal system where law is made largely by court decisions rather than legal codes. Examples include the U.S. and other former British colonies.
9
Q
Tribal Law
A
Law created by a tribal government that applies to tribal members and territories. There are over 500 tribal governments recognized in the U.S.
10
Q
Domestic Law
A
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 U.S.
11
Q
International Law
A
The set of rules that countries follow in dealing with each other. This includes the relationship between sovereign states and international entities, such as the International Criminal Court, as well as supranational law, such as the law of the European Union that governs its members.
12
Q
Constitutional Law
A
The body of law that derives from the U.S. Constitution. It defines the role of the branches of federal government, divides authority between the federal government and the states, and enumerates the basic rights of citizens. States also have constitutional law based on their state constitutions, but when we speak of it we typically specify “state constitutional law.”
13
Q
Statute
A
A law passed by the legislative branch.
14
Q
Bicameralism
A
Refers to the practice of having two “chambers” or “houses” of the legislative branch, each of which must pass a bill before it becomes law. A federal statute must be passed by both the House of Representatives and the Senate before it becomes law.
15
Q
Presentment
A
Refers to the practice of presenting a federal statute passed by both the House and Senate to the President for signature before it becomes law.
16
Q
Regulation
A
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. For example, “how should we regulate autonomous vehicles?”
17
Q
Circuit Court
A
An intermediate appellate federal court one level below the U.S. Supreme Court.
18
Q
Due Process Clause
A
A provision of the U.S. Constitution that, in abbreviated form, states “No person shall be… deprived of life, liberty, or property, without due process of law.”
19
Q
Governing Law
A
The law that applies in a particular situation. For example, the law that will be used to interpret a contract.
20
Q
Remedies
A
The body of law regarding the kinds of relief a litigant seeks from the court. The two most common forms of remedies are damages (when the defendant pays money to the plaintiff) and an injunction (when the defendant does, or refrains from doing, a specific action).
21
Q
Sovereign
A
A person or institution habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.
22
Q
Legal Positivism
A
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 with John Austin and Jeremy Bentham.
23
Q
Rule of Recognition
A
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 the “sovereign” in his formulation of legal positivism.
24
Q
Natural Law
A
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.
25
Liability
Legal responsibility. Someone is liable for a harm suffered by a party when he or she is legally and financially responsible for that harm.
26
Federalism
A form of government, such as in the U.S., in which power is divided between a central (federal) government and regional (state) governments.
27
Constitutional Amendment
A change to the Constitution proposed either by the Congress, with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures.
28
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.
29
Article III
The section of the U.S. Constitution that establishes and empowers the judicial branch of the federal government.
30
District Court
In the federal system, the general trial court (sometimes referred to as a “court of first instance”).
31
Plea Bargain
An agreement in a criminal case between a prosecutor and defendant in which the defendant pleads guilty in exchange for a limited charge or a reduced sentence.
32
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.
33
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.
34
Legal Issue
A question relating to the law by which a case is to be decided, as opposed to “factual issues.”
35
Appeal
The review in one court of the proceedings and decisions of another, either as to law or fact, or both.
36
Appellate
An adjective meaning relating to courts of appeal.
37
En Banc
A French expression, which translates to “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 of the judges (as is typical in appeals).
38
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.
39
Appeal as of Right
When an appellate court is required to hear an appeal, as opposed to a “discretionary appeal,” when an appellate court can decide whether or not to hear an appeal.”
40
Family Court
A court with jurisdiction over affairs of children (e.g., adoption, custody, maintenance, neglect, abuse, and abandonment) and families (e.g., divorce, alimony).
41
Probate Court
A court with jurisdiction over matters relating to guardianships, wills, trusts, and estates.
42
Juvenile Court
A court with jurisdiction over criminal cases involving minors.
43
Municipal Court
A court organized within a city, village, or township, with jurisdiction over offenses under local ordinances and certain petty offenses.
44
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 of the state) selects who to appoint.
45
Tort Law
The branch of law relating to civil (as opposed to criminal) wrongful acts or omissions. Torts give rise to a civil action or private lawsuit.
46
Stare Decisis
A Latin expression meaning, “to stand by things decided.” Stare decisis is a principle that ordinarily requires judges to apply the reasoning from earlier decisions (precedents) so that later cases reach the same result as similar earlier cases decided by the same court or a superior court.
47
Public Policy
An argument appealing to what is right, just, and promotes the public good. Public policy arguments can be made in relation to what goals should be promoted through statutes or regulation, or as a basis for determining when courts should exercise the use of judicial power. One common usage of the phrase is that a contract would not be enforced because it is “contrary to public policy.” (Note that this term’s meaning is more contextual than many others we define here.)
48
Slippery Slope
An argument form where the arguer suggests that if a particular step is taken now, it will inevitably lead to a very bad unwanted consequence later on.
49
Institutional Competence
An argument that a certain kind of institution, most often courts, are ill-equipped to make certain decisions, and that such decisions should be made by another institution (e.g., legislatures or agencies).
50
Consequentialism
A Moral Philosophy in which the rightness or wrongness of an action is judged solely by its consequences.
51
Caption
The heading of a case which includes the names of the parties, the name of the court issuing the opinion, the date of the opinion, and sometimes other identifying information.
52
Citation
Includes the name of a case, the name of the court that decided it, the year the case was decided, the reporter, and the page number on which the case starts in the relevant reporter.
53
Shepardizing
Determining what other cases have overruled, distinguished, or otherwise changed our understanding of a case. The term comes from leaflets indicating updates to cases that were first printed in the late 1800s by Frank Shepard.
54
Petitioner
The party seeking to have the Supreme Court review a case, through a writ of certiorari. Typically, the party that lost in the prior stage of the proceeding.
55
Respondent
The party against whom a petition is filed. In the Supreme Court, this is typically the party who won the case in the court below and seeks to defend the judgment.
56
Procedural History and Posture
The story of a case’s encounter with the law up to the present case.
57
Relief Sought
The remedy the parties want in a case.
58
Money Damages
Money given to a party as a remedy for the harm they have suffered.
59
Injunctive Relief
A court order for someone to do something or refrain from doing something.
60
Declaratory Judgment
A remedy that is a mere statement of what the law is.
61
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.
62
Affirm
A disposition in which a court of appeals or supreme court leaves the judgment or ruling immediately below intact. However, the reasoning the court offers for that result may have changed.
63
Reverse
A disposition in which a court of appeals or supreme court overturns the judgment or ruling below, i.e., declares that the decision below was wrong.
64
Remand
The case is sent back to the court below for further action.
65
Holding
The legal rule announced by a case that could be used in future cases.
66
Obiter Dictum
Latin for “a remark by the way.” It is information in the opinion that is not necessary for the opinion and does not have binding precedential value. Often called “dictum” for short or “dicta” in plural.
67
Libel
A false statement that defames or injures the reputation of a living person that is published in a written, printed, or electronic form in words or images.
68
Mailbox Rule
A rule of contract law providing that an acceptance of an offer becomes effective upon being properly dispatched in the mail.
69
Miranda Warning
The constitutional requirement that a person who is put in police custody must be advised of his right to remain silent and to have an attorney present. The rule was announced by the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966).
70
Ex Ante
A Latin phrase meaning, “before the event.” The ex ante perspective asks how a decision about the law will affect the event in question, if it happens at all. For example, how does the state of the law affect various actors’ incentives to behave in certain ways.
71
Ex Post
A Latin phrase meaning, “after the event.” The ex post perspective asks how the law should respond to an event after it occurs. For example, how should the law best compensate those who have been injured.
72
Bill
A proposed law under consideration by a legislature. A bill does not become a law until it is passed by both the House of Representatives and the Senate and either approved by the President or a Presidential veto is overcome.
73
Joint Resolution
A legislative measure that requires approval by the Senate and House of Representatives and is presented to the President for approval. It is like a Bill except it cannot be used to propose a constitutional amendment.
74
Concurrent Resolution
A legislative measure adopted by the Senate and House of Representatives that does not require the approval of the President. A concurrent resolution does not have the force of law.
75
Simple Resolution
A legislative measure passed by either the Senate or the House of Representatives (but not the other body) and does not require the approval of the President. A simple resolution does not have the force of law.
76
Conference Committee
A committee made up of members from both the Senate and House of Representatives that meets, negotiates, and agrees to a new, compromised version of a particular bill when each house passes a different version.
77
Pocket Veto
A legislative maneuver that allows a president to exercise veto power. When Congress is no longer in session, the president can perform a pocket veto by taking no action on a bill for ten days.
78
Separation of Powers
The division of the three branches of the federal government – the legislative, judicial, and executive powers. The underlying idea of this Constitutional design is that the competition for authority among the three branches will discourage any one from supremacy or tyranny.
79
Seventh Amendment
The amendment of the U.S. Constitution that provides a right in federal court to Civil Jury Trial in some instances.
80
Fourteenth Amendment
The amendment of the U.S. Constitution adopted at the conclusion of the Civil War that extended rights and liberties against encroachment by state governments and contained guarantees of equal treatment of all persons. This amendment, among other things, also prohibits deprivations of life, liberty, or property, without due process of law (the "Due Process Clause").
81
Slip Law
The statute by itself on a single sheet or in pamphlet form before it is included into session laws.
82
Public Law Number
The number assigned to a published slip law; the first number represents the number of the Congress that passed the law and the second represents the chronological order in which the law was passed.
83
Session Laws
The booklet containing published statutes, bound chronologically by Congressional session.
84
Statutes at Large
The official U.S. government compilation of federal session laws; the official record of Acts of Congress and concurrent resolutions passed by the United States Congress.
85
Legislative Supremacy
The doctrine that when Congress passes a statute, a judge in the U.S. constitutional system has a duty to try to figure out Congress’s policy instructions for it.
86
Legislative Intent
Congress’s policy instructions that the judiciary tries to ascertain.
87
Ordinary Meaning
The first step in statutory interpretation which involves giving the words in a statute their ordinary sense; dictionaries are useful starting points.
88
Purpose or Policy of the Statute
What Congress is trying to get at in a Statute. Since Congress uses words to express a policy decision or set of policy instructions, this method of statutory interpretation involves looking at which interpretation better serves the policy of the statute.
89
Canons of Construction
The legal system’s set of rules that judges use to help sort out what a statute means or what to do when a statute is ambiguous or doesn’t make sense.
90
Linguistic Canons
Common-sense presumptions about the way people use language used to help find the meaning of words and phrases in statutes.
91
Expressio Unius Est Exclusio Alterius
A linguistic canon of construction that means that if you specify one thing, you impliedly exclude the things you don’t specify.
92
Substantive Canons
Canons of construction that put a thumb on the scale of one interpretation or another in order to serve some broad, general policy that the legal system wants to promote.
93
Rule of Lenity
A substantive canon that tells us that if a criminal statute is ambiguous – if there are two possible meanings – the judge should pick the one that favors the criminal defendant, that is, the more lenient one.
94
Legislative History
Congressional recordings of its proceedings, such as committee reports and statements on the floor by legislative sponsors. Legislative history can serve as a tool for statutory interpretation.
95
Textualism
One of the two main schools of thought on how to use the canons of construction. Textualists emphasize that Congress picks its words carefully to express its policies and that those words presumptively express what Congress meant to express.
96
Purposivism
The other main school of thought on how to use the canons of construction. Purposivists believe statutory interpretation should seek to achieve the broader purposes of a statute. Purposivists believe the words chosen by Congress are imperfect, and if the precise words chosen don’t align well with the policies, then the words should bend to the policies, not vice versa.
97
Administrative Law
The area of law governing agencies, a core concern of which is protecting against the excesses of agency power.
98
Independent Agencies
Agencies that are somewhat insulated from politics; instead of a single head, they are made of multiple members from different political parties who sit as a panel and vote on agency decisions.
99
Executive Agencies
Agencies that are headed by individual appointees nominated by the President who can be removed by the President for any reason.
100
Title IX
A federal civil rights law enacted as part of the Education Amendments of 1972, to bar sex discrimination in educational institutions that receive federal funds.
101
Administrative Procedure Act
A sort of “uber” statute that governs all federal agencies and establishes the default procedures that every federal agency must follow, unless they are expressly exempted. One of the most important statutes in administrative law.
102
Informal Rulemaking
The more common type of rulemaking, otherwise known as “notice and comment” rulemaking because it allows for participation by interested parties. Governed by Section 553 of the APA.
103
Formal Rulemaking
The less common type of rulemaking governed by sections 556 and 557 of the APA, involving a trial-like process where an agency must present a case for the rule in front of an administrative law judge or other official.
104
Notice
The process of publishing a proposed rule in the federal register.
105
Comment
Statements by the public about a proposed rule, typically in written form.
106
Notice and Comment Rulemaking
Another name for informal rulemaking.
107
Federal Register
The compendium of proposed and finalized rules -- a sort of newspaper for the federal regulatory state.
108
Preamble to the Final Rule
The summary of an agency’s consideration of the comments received on an informal rulemaking, including a concise and general statement of the rule’s basis and purpose, the agency’s response, and any changes made from the proposed rule.
109
Reconstruction Amendments
Three constitutional amendments enacted in the Reconstruction Period after the Civil War. The 13th Amendment: The first Reconstruction Amendment to the Constitution prohibiting slavery. The 14th Amendment: The second Reconstruction Amendment to the Constitution stating that no state in the union could deprive anybody of due process of law or the equal protection of the laws. The 15th Amendment: The third Reconstruction Amendment to the Constitution stating that no state could abridge anybody’s right to vote on the basis of race.
110
Lochner Period
A period of American constitutional history (usually dated from around 1897 to 1937) in which the Supreme Court interpreted the Due Process clause to protect economic rights and struck down several laws meant to improve working conditions, wages or hours as interfering with the liberty to contract. The era is named after a particular case, Lochner v. New York, 198 US 45 (1905), where the Supreme Court struck down as unconstitutional a New York law limiting the number of hours that could be worked in a bakery.
111
Complaint
A document that states the basis of a law suit (often divided into the state of jurisdiction, cause of action, and claim for relief -- see definitions below).
112
Statement of Jurisdiction
A part of the complaint that states the relevant jurisdiction, or the dividing line between various courts.
113
Cause of Action
A claim, a set of facts that entitles one party to obtain a remedy from another party in court.
114
Claim for Relief
A part of the complaint that describes what the plaintiff is seeking in the suit, e.g., money damages, an injunction, etc.
115
Service of Process
The process of providing one’s complaint to the other side, the defendant(s).
116
Motion
A written or oral application made to a court or judge to obtain a ruling or order in one’s favor.
117
Motion to Dismiss
A motion that asks the court to dismiss a case. Essentially the motion is saying “even if you were to assume, judge, that every fact mentioned in the complaint was true, this case should not be heard and instead should be dismissed.”
118
Answer
A pleading by the defendant that addresses the merits of the plaintiff’s case. It typically goes line by line through the complaint and explains whether each fact alleged in the complaint is true, false, or whether the defendant for some justifiable reason cannot say whether it is true or false. It also may introduce its own claims by the defendant against the plaintiff.
119
Movant
The person making a motion.
120
Discovery
The process by which one party makes another party (or in some cases non-party) provide information needed for the case, including asking for documents, requiring an opposing party to answer interrogatories, and depositions.
121
Oral Deposition
A form of discovery wherein a person is asked questions under oath in front of a court officer and a transcript is taken.
122
Interrogatory
A form of discovery wherein a party must answer questions they receive in writing.
123
Motion for Summary Judgment
A motion that essentially says to the court “we don’t need a trial on this case, because there is no genuine issue of material fact that is in dispute.”
124
Burden of Persuasion
The burden on a party to prove its claim to the judge (or jury). It is a kind of threshold one’s claim must cross. Common examples include the usual civil law standard of “preponderance of the evidence,” more likely than not, and the criminal law standard of “beyond a reasonable doubt,” a much higher threshold.
125
Motion for Judgment as a Matter of Law (still known as “directed verdict” in some states)
A motion made during the trial similar to the summary judgment motion saying essentially “given the evidence at trial I should win as a matter of law; no reasonable juror could think I should lose the case, so judge, please enter judgment to that effect right now and let’s not even ask the jury to deliberate.”
126
Post-Trial Motions
Motions after a trial made by the losing party, including giving reasons why the verdict should be set aside and replaced with a judgment that goes in the other direction or why there should be a new trial.
127
Execute the Judgment
Additional steps needed to effectuate the Court’s judgment. For example, if the plaintiff gets money damages from someone they may seek to garnish the defendant’s wages (i.e., deduct a certain amount every month) in order to get paid back over time.
128
Appellant
On appeal, the party who lost the case in the court below.
129
Appellee
On appeal, the party who won the case in the court below.
