Term
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Definition
| A system of universal moral and ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children). |
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Term
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Definition
| The conventional, or written, law of a particular society at a particular point in time (e.g., the U.S. Constitution, the Texas Securities Act, the Internal Revenue Code, and published judicial decisions). |
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Term
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Definition
| A body of enforceable rules governing relationships among individuals and between individuals and their society. |
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Term
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Definition
| The study of different schools of legal philosophy and how each can affect judicial decisionmaking. |
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Term
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Definition
| presupposes that positive law derives its legitimacy from natural law and holds that, to the extent that natural law and positive law differ, natural law must prevail. |
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Term
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Definition
| holds that there is no higher law than that created by legitimate governments and that such laws must be obeyed, even if they appear unjust or otherwise at odds with natural law. |
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Term
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Definition
| emphasizes the evolutionary process of law by concentrating on the origin and history of a legal system and holds that law derives its legitimacy and authority through the test of time. |
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Term
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Definition
| contends that positive law cannot be applied in the abstract; rather, judges should take into account the specific circumstances of each case, as well as economic and social realities. |
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Term
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Definition
| views law as a tool for promoting social justice. |
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Term
| Four primary sources of domestic law |
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Definition
| Constitutions, Statutes, Administrative Rules and Regulations, Common law |
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Term
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Definition
| setting forth the fundamental rights of the people living within the United States or a given state, describing and empowering the various branches of government, and prescribing limitations on that power; |
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Term
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Definition
enacted by Congress or the legislature of a given state and ordinances adopted by a given locality;
* A given state statute may be based on a uniform law (e.g., the Uniform Commercial Code) or on a model act (e.g., the Model Business Corporations Act). However, each state is free to depart from the uniform law or model act as it sees fit. |
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Term
| Administrative Rules and Regulations |
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Definition
| promulgated by federal, state, and local regulatory agencies; and |
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Term
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Definition
| which is the body of judicial decisions that interpret and enforce any of the foregoing as well as those relationships among individuals or between individuals and their society which are not subject to constitutional, statutory, or administrative law. |
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Term
HIERARCHY AMONG PRIMARY
SOURCES OF AMERICAN LAW |
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Definition
United States Constitution
federal statutory law
state constitution
state statutory law
a local ordinance
administrative rules and rulings
common law. |
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Term
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Definition
| empowered only to award wronged parties money or other valuable compensation for their injuries or other losses. |
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Term
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Definition
| empowered to award any manner of non-monetary relief, such as ordering a person to do something (a.k.a. “specific performance”) or to cease doing something (a.k.a. “injunction”). |
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Term
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Definition
| The means given to a party to enforce a right or to compensate for another’s violation of a right. |
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Term
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Definition
| The doctrine by which judges are obligated to follow precedents established within a particular jurisdiction. |
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Term
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Definition
| The authority afforded to a prior judicial decision by judges deciding subsequent disputes involving the same or similar facts and the same jurisdiction’s substantive law. |
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Term
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Definition
| Any primary source of law a court must follow when deciding a dispute. This includes all constitutional provisions, statutes, treaties, regulations, or ordinances that govern the issue being decided, as well as prior court decisions that constitute controlling precedent in the court’s jurisdiction. |
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Term
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Definition
| Any primary or secondary source of law which a court may, but which the court is not bound to, rely upon for guidance in resolving a dispute. |
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Term
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Definition
| The process used by judges in deciding what law applies to a given dispute and then applying that law to the facts or circumstances of the dispute. |
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Term
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Definition
| Reasoning which uses the device of syllogism, involving a major premise, a minor premise, and a conclusion. |
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Term
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Definition
| Reasoning which proceeds from one point to another, ultimately reaching a conclusion which “ties” those points together. |
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Term
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Definition
| Reasoning by comparing the facts of the case at hand to the facts in other, previously-decided cases and, to the extent that the fact patterns are similar, applying the same rule(s) of law to the dispute at hand as was applied in the prior cases. |
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Term
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Definition
| all laws that define, describe, regulate, and create legal rights and obligations. |
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Term
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Definition
| all laws that establish and regulate the manner of enforcing or vindicating the rights established by substantive law. |
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Term
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Definition
| defines and enforces the duties or obligations of persons to one another. |
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Term
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Definition
| defines and enforces the obligations of persons to society as a whole. |
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Term
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Definition
| Shortly after a law is passed either by Congress or by a state legislature, it is reported in the form in which it passed. These uncodified statutes are typically reported in the order in which they are passed by the relevant legislative body, regardless of subject matter. |
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Term
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Definition
| Statutes are also typically collected and reported by subject matter. |
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Term
| Federal Administrative Law |
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Definition
| Rules and regulations adopted by federal agencies appear first in the Federal Register, which is published daily (except for weekends and holidays). Items appear in the Register as they are promulgated, and are only sorted as to the contents of a single issue of the Register. |
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Term
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Definition
| The manner in which state administrative law is reported varies from state to state. Consult with your local law librarian or government documents reference librarian for help with a particular state’s administrative law. |
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Term
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Definition
| Every state other than Alaska at one time published the decisions of its highest court – and, in many cases, its intermediate appellate court(s) and even trial courts – in one or more official reporters (e.g., Connecticut Reports, Illinois Appellate Court Reports, New York Miscellaneous Reports). Official reporters are published for each state that uses them and counsel may be required to cite them in papers filed in the courts of a particular state. |
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Term
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Definition
| The most widely-used unofficial reporters – and, in many states, the only reporters currently being published – are the regional reporters that are part of West’s National Reporter System |
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Term
| United States District Courts |
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Definition
| Published opinions of federal district courts in the 50 states, the District of Columbia, and certain U.S. possessions and territories can be found primarily in the Federal Supplement (“F. Supp.”) and Federal Supplement (Second) (“F. Supp. 2d”). Old district court opinions may also be found in Federal Cases (“F. Cas.”) and the first series of the Federal Reporter (“F.”). |
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Term
| United States Courts of Appeals |
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Definition
| Published opinions of the federal courts of appeals can be found in Federal Cases (“F. Cas.”), the Federal Reporter (“F.”), Federal Reporter (Second) (“F.2d”), and Federal Reporter (Third) (“F.3d”). |
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Term
| United States Supreme Court |
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Definition
| All opinions of the United States Supreme Court are published in United States Reports (“U.S.”), the official reporter of the Court. In addition, unofficial reports of Supreme Court decisions can be found in the Supreme Court Reporter (“S. Ct.”) and the United States Reports: Lawyers Edition (“L. Ed.” & “L. Ed. 2d”). The latter two sources, while “unofficial,” are more current and provide useful research and analysis aids not found in United States Reports. |
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Term
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Definition
| The party who filed a court action |
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Term
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Definition
| The party against whom the plaintiff filed its action. |
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Term
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Definition
| The party challenging the trial court’s disposition of the action. |
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Term
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Definition
| The other party to a disposition that has been appealed. |
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Term
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Definition
| The court’s disposition of an action. |
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Term
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Definition
| The court’s reasons for its judgment. |
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Term
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Definition
| An opinion joined by all of the judges who heard a case. |
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Term
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Definition
| A unanimous opinion that does not indicate which judge wrote it. |
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Term
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Definition
| An opinion joined by the majority (but not all) of the judges who heard a case. |
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Term
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Definition
| An opinion joined by the largest number (but less than a majority) of the judges who heard a case. |
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Term
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Definition
| An opinion by one or more judges who agree with the majority’s judgment, but not necessarily with its reasoning. |
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Term
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Definition
| An opinion by one or more judges who disagree with the judgment of the majority. |
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Term
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Definition
| The process by which a court decides the constitutionality of legislative enactments and actions by the executive branch. |
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Term
| Marbury v. Madison (1803) |
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Definition
arguably the most significant case in American constitutional law, the U.S. Supreme Court opined:
It is emphatically the province and duty of the [courts] to say what the law is…. So if the law be in opposition to the Constitution … [t]he Court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. |
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Term
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Definition
| The authority of a court to hear and decide a specific action. |
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Term
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Definition
| The authority of a court to hear and decide a dispute involving the particular parties before it. |
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Term
| Subject Matter Jurisdiction |
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Definition
| The authority of a court to hear and decide the particular dispute before it. |
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Term
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Definition
| The authority of a court to hear and decide a dispute in the first instance. Generally speaking, trial courts are courts of original jurisdiction, although the Supreme Court of the United States and the highest courts of many of the states have original jurisdiction over a few types of disputes. |
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Term
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Definition
| The authority of a court to review a prior decision in the same case made by another court. |
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Term
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Definition
| Courts have jurisdiction over persons or entities residing or doing business within a particular county, district, state, or in some cases, anywhere within the United States. |
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Term
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Definition
| dictate under what terms a nonresident person or entity, who would otherwise not be subject to the court’s jurisdiction, may nonetheless be required to appear before the court. |
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Term
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Definition
| Courts also have personal jurisdiction over disputed property located within the county, district, or state. |
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Term
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Definition
| When two or more courts have subject matter jurisdiction over the same dispute, those courts are said to have concurrent jurisdiction. When a case may be tried only in state court or only in federal court, then the court in which jurisdiction lies is said to have exclusive jurisdiction. |
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Term
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Definition
| A court whose jurisdiction is limited by one or more of these factors is considered to have limited jurisdiction; otherwise, a court has general jurisdiction. |
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Term
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Definition
| State courts that handle matters relating to the transfer of a person’s assets and obligations after her death, as well as, in some jurisdictions, the affairs of minors and of persons lacking legally sufficient mental capacity |
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Term
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Definition
| Federal courts that hear and decide matters relating to a person’s or entity’s bankruptcy. |
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Term
| Federal Question Jurisdiction |
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Definition
| arises if a case involves an alleged violation of the U.S. Constitution, federal statute or regulation, or a treaty between the U.S. and one or more foreign countries. |
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Term
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Definition
the amount in controversy exceeds $75,000; and
(2) the lawsuit is between
(a) citizens of different states,
For purposes of diversity jurisdiction, a corporation is a citizen of both: (1) its state of incorporation, and (2) the state of its principal place of business, if the two are not the same.
(b) a foreign country and citizens of one or more states, or
(c) citizens of a state and citizens or subjects of a foreign country. |
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Term
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Definition
| Within a particular jurisdiction, the most appropriate location for a trial to be held and from which a jury will be selected. |
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Term
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Definition
| An individual or entity must have a sufficient stake in the controversy before he, she, or it may bring suit. |
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Term
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Definition
| a real and substantial controversy, not one that is moot, hypothetical, or academic. |
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Term
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Definition
| Trial courts are where all litigation (other than that conducted through administrative agencies) begins. Trial courts have either general jurisdiction – meaning that they are empowered to consider any matter before them – or limited jurisdiction – meaning that they are only empowered to hear certain types of cases or cases in which the amount in controversy is above, below, or between, specified bounds. |
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Term
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Definition
| : Every state has at least one appellate court, to which a litigant who was unsuccessful at the trial court may appeal for relief. Some states have intermediate appellate courts (akin to the U.S. Courts of Appeals) which are subject to review by the state’s supreme court or “court of last resort.” Other states have only a supreme court. |
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Term
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Definition
| decide whether or not to consider the merits of a particular case |
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Term
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Definition
| Trial courts of general jurisdiction, each state (as well as the District of Columbia and certain other U.S. territories and possessions) has at least one “district,” and some states have as many as four, with each district divided administratively among one to several judges. |
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Term
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Definition
| : Appellate courts to which litigants in the U.S. District Courts have an automatic right to appeal (i.e., the court of appeal must consider each appeal on its merits). These courts also hear appeals from U.S. Bankruptcy Courts and other specialized courts and, in the case of the D.C. Circuit, from federal administrative agency decisions. These courts cover twelve geographic regions, with a thirteenth court, the Federal Circuit, empowered to hear appeals from any district court involving patent law, cases in which the United States is a defendant, and other specified types of cases. |
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Term
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Definition
| The “highest court in the land,” the U.S. Supreme Court exercises discretionary review over all federal appellate courts, as well as, in some circumstances, state supreme and appellate courts. |
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Term
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Definition
| which requires that at least four justices agree the case merits the Court’s review. |
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Term
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Definition
| Informal settlement talks between the parties, with or without counsel. |
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Term
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Definition
| Non-binding procedure utilizing the services of a neutral third party to assist negotiations and recommend a resolution of the parties’ dispute. Mediation is non-adversarial and tends to reduce antagonism. |
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Term
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Definition
| Dispute resolution utilizing either a neutral third party or a panel of three persons chosen by the court or agreed to by the parties (or both). |
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Term
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Definition
| which provides that any dispute arising out the contract will be submitted first (in the case of nonbinding arbitration) or finally (in the case of binding arbitration) to arbitration, rather than to a court. |
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Term
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Definition
Despite the fact that a contract contains an arbitration clause, a party to the contract may claim that he is not bound by the arbitration clause, in which case a court will be asked to decide:
whether the clause is enforceable; and, if so,
whether the issue is covered by the clause. |
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Term
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Definition
| A third party agreed to by the parties evaluates each side’s position and informs the parties of their strengths and weaknesses. |
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Term
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Definition
| A short-form trial presented to a “judge” whose decision is not legally binding, but may assist the parties in evaluating their claims or defenses. |
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Term
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Definition
| A short-form trial presented to a “jury” whose decision is not legally binding, but may assist the parties in evaluating their claims or defenses. |
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Term
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Definition
| Settlement discussions moderated by a neutral third party. |
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Term
| Online Dispute Resolution |
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Definition
| An increasing number of companies and organizations offer dispute-resolution services online. |
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Term
| Consulting with an Attorney |
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Definition
| The first step to take when contemplating a lawsuit, as well as when facing a lawsuit, is to consult with a qualified attorney. |
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Term
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Definition
| The anticipated expenses of investigating and prosecuting or defending the case, if necessary through an appeal, and the manner in which those fees will be paid. |
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Term
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Definition
| A flat rate for the attorney’s time and effort, typically excluding expenses for expert witnesses, depositions, etc. |
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Term
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Definition
| A fee based on the attorney’s time expended on the matter, sometimes varying depending on whether that time is spent researching, engaging in discovery, or before the court. |
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Term
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Definition
| Typically set as a percentage (or a declining percentage) of the damages recovered in the event of a successful outcome. |
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Term
| Settlement Considerations |
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Definition
| The limited time and money a client has to invest in a lawsuit, particularly when the remedy the client might recover is also limited, may suggest trying to resolve the dispute without filing suit or early in the litigation process. |
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Term
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Definition
| Written documents that inform each of the parties of one another’s claims and defenses and specify the issues involved in the lawsuit. |
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Term
| Plaintiff’s Complaint/Petition |
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Definition
| which sets forth the claims asserted by the party seeking affirmative relief. |
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Term
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Definition
(a) responds to the claims set forth in the Complaint or Petition and, where appropriate,
(b) asserts affirmative defenses (reasons why the plaintiff’s claims fail or are limited as a matter of law or equity), and, where appropriate,
(c) asserts counterclaims (claims for affirmative relief asserted by the defendant). |
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Term
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Definition
| informing each defendant of his obligation to answer or otherwise appear within a specified time or risk default. |
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Term
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Definition
| typically, a copy of the complaint |
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Term
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Definition
| may be served at his residence or at his principal place of business; |
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Term
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Definition
| may be served by serving an officer or registered agent, designated for the purpose of receiving service |
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Term
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Definition
| may be served by serving any (general) partner. |
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Term
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Definition
| A request for relief from the court prior to the ultimate disposition of a lawsuit. |
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Term
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Definition
| A motion seeking to terminate the lawsuit due to Plaintiff’s failure to comply with proper procedure or failure to state a justiciable claim – this must also generally be filed with or prior to Defendant’s Answer. |
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Term
| Motion for Judgment on the Pleadings |
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Definition
| A motion by either party requesting the court to decide the case solely on the pleadings. This motion may be granted only if there are no fact issues in dispute. |
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Term
| Motion for Summary Judgment |
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Definition
| A motion requesting the court to enter judgment, based on the pleadings and discovery to date. This motion may be granted only if there are no fact issues in dispute. |
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Term
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Definition
| The process, subject to applicable rules of procedure, of obtaining factual information from an opposing party or a non-party by means of: |
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Term
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Definition
| Sworn testimony, recorded by a court reporter and often by videotape, of the parties and other key witnesses. Depositions are taken prior to trial, and are often used to obtain the testimony of witnesses who cannot be compelled to attend and testify at trial. |
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Term
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Definition
| Written questions related to the subject matter of the lawsuit that must be answered under oath. |
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Term
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Definition
| Questions to the responding party phrased in an “admit” or “deny” format, giving no opportunity for explanation, and binding the responding party to its admissions. |
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Term
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Definition
| Written requests detailing the types of documents and other things that the requesting party considers relevant to the lawsuit. |
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Term
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Definition
| When the physical or mental condition of a party is in question, the opposing party may ask the court to order a third-party physical or mental examination. |
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Term
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Definition
| Prior to trial, a court will typically schedule one or more pretrial conferences or hearings to resolve procedural matters and to narrow the issues for trial. |
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Term
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Definition
| A trial without a jury , the trial judge is the arbiter of all questions of fact and of law. |
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Term
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Definition
| the judge decides questions of law, but the jury decides all questions of fact (including the amount of damages, if any, due the plaintiff). |
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Term
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Definition
| In the case of a jury trial, the trial judge or the attorneys for the parties ask a panel (or venire) of prospective jurors to answer a series of questions (a.k.a. voir dire) – most of which may not have any apparent relationship to the lawsuit. The judge and attorneys will then remove certain members from the panel until a group of six or twelve jurors (depending on the court), and usually one or more alternate jurors (to serve in the event of illness or other emergency), is chosen to serve as the jury. |
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Term
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Definition
| Much of the trial is directed toward proving or disproving facts, and facts are gleaned from the evidence |
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Term
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Definition
Evidence is relevant if it tends to prove or disprove a disputed fact or to establish the likelihood of a disputed fact.
Even highly relevant evidence may be disallowed by the court if its probative value is outweighed by the prejudice it would likely cause to the opposing party’s case. |
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Term
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Definition
: Any oral or written testimony given in court about a statement made by someone else.
Courts recognize numerous exceptions to the rule against hearsay – indeed, most law students spend the better part of a semester on that one subject. |
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Term
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Definition
| Following jury selection, the trial proceeds (unless cut short by a mistrial or some dispositive motion) |
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Term
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Definition
| Counsel are permitted to present to the jury an overview of their case and the reasons they believe their client should prevail. In some instances – and in most instances in criminal trials – the defendant’s counsel may reserve her opening statement until immediately before presenting her first witness. |
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Term
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Definition
| : The plaintiff (or, in a criminal case, the State), who has the burden of proving her (its) case, presents her witnesses first. |
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Term
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Definition
| Questioning of a witness by counsel for the party who called the witness. |
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Term
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Definition
| Questioning of a witness by counsel for the opposing party. |
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Term
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Definition
| More of the same Questioning of a witness by counsel for the opposing party., typically limited in scope to issues raised by opposing counsel’s questioning. |
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Term
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Definition
| : After both sides have presented all of their witnesses, counsel for each party is permitted to summarize the evidence for the jury and argue why the evidence proves or disproves the plaintiff’s case. |
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Term
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Definition
| The judge instructs the jury on the issues they must decide and the law governing the case. Counsel for all parties are permitted to submit proposed issues and instructions and to object to incorrect or inappropriate matters. |
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Term
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Definition
| After deliberating the judge’s instructions and the evidence, the jury renders a ___ setting forth its findings and the amount of damages, etc., if any. |
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Term
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Definition
| Motions asking the trial court to dispose of a party’s claims for affirmative relief, to alter or disregard the jury’s verdict, or to order a new trial. |
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Term
| Motion for Directed Verdict |
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Definition
| A motion for the judge to take the decision out of the jury’s hands and direct a verdict for the moving party because the non-moving party has failed to provide sufficient evidence to prevail on its claims. |
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Term
| Motion for Judgment Notwithstanding the Verdict |
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Definition
| A motion asking the court to enter judgment in favor of the moving party, despite the jury’s verdict in favor of the non-moving party. This Motion and the Motion for Directed Verdict have been merged under the Federal Rules into a Motion for Judgment as a Matter of Law. |
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Term
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Definition
| A motion asserting that the trial was so fundamentally flawed – because of error by the trial judge, newly discovered evidence, prejudice, or other reason(s) – that a new trial is required to prevent a miscarriage of justice |
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Term
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Definition
| , asking a court with appellate jurisdiction over the trial court to review and set aside the judgment. |
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Term
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Definition
| evidencing the appellant’s intent to appeal the judgment or one or more rulings of the trial court; |
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Term
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Definition
| civil wrong, not arising from a breach of contract or other agreement. A breach of a legal duty that proximately causes another person harm or injury. |
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Term
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Definition
| A tort is a “civil” wrong, punishable by compensating, or paying damages to, the injured party, rather than a “criminal wrong,” punishable by paying a fine to the government or being imprisoned. Some torts may also serve as the basis for separate criminal prosecution by the state. |
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Term
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Definition
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Term
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Definition
| Wrongful interference with another’s business rights. |
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Term
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Definition
| A wrongful act committed knowingly and with the intent to commit the act (not necessarily with the intent to do harm). |
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Term
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Definition
| A wrongful act committed without knowledge of its wrongfulness or without the intent to commit the act. |
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Term
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Definition
| An intentional, unexcused act creating in another person a reasonable apprehension or fear of immediate harmful or offensive contact (e.g., pointing a gun at someone). |
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Term
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Definition
| Intentional, unexcused and harmful or offensive contact (e.g., firing the gun). |
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Term
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Definition
| The intentional confinement of another person or restraint of another person’s activities without justification. The confinement may occur through the use of physical barriers, physical restraint, or threats of physical force. |
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Term
| Infliction of Emotional Distress |
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Definition
| An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. |
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Term
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Definition
| When a plaintiff consents to the act that damages him or her, the alleged tortfeasor generally is not liable for any damage done. |
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Term
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Definition
| An individual defending his or her life or physical well-being, either from real or apparent danger, may use reasonably necessary force, or resort to reasonably necessary action, to prevent harmful contact. |
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Term
| Defending or Assisting Others |
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Definition
| An individual can act in a reasonable manner to protect or assist others who are in real or apparent danger. |
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Term
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Definition
| An individual may use reasonable force to remove an intruder from the individual’s home or to restrain the intruder for a reasonable time. Force that is likely to cause death or serious bodily injury (i.e., deadly force) normally may not be used solely to protect property. |
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Term
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Definition
| An otherwise tortious act may be excused if the tortfeasor acted in accordance with law or the public good. |
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Term
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Definition
| Anything published or publicly spoken that injures another’s character, reputation, or good name. |
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Term
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Definition
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Term
|
Definition
| Defamation in written form. |
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Term
| The Publication Requirement |
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Definition
| The speaker must have communicated the statement to persons other than the defamed party. |
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Term
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Definition
claims of:
*loathsome communicable disease
*improprieties while engaging in a profession or trade
*serious crime
*serious sexual misconduct. |
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Term
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Definition
| Truth is normally an absolute defense. In other words, if the allegedly defamatory words were objectively true, the defendant cannot be held liable for publishing them. |
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Term
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Definition
| The ability to act contrary to another person’s right without giving legal redress for such acts. |
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Term
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Definition
| : Statements made or actions taken in judicial and certain legislative proceedings (e.g., statements made by attorneys during trial, statements made by legislators during floor debate) are privileged against any claim of wrongful conduct. |
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Term
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Definition
| In other situations, statements or actions made in good faith and, in the case of statements, made only to those who have a legitimate interest in the statement, are privileged. |
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Term
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Definition
| Generally speaking, otherwise false and defamatory statements made about public figures are privileged unless they are made with actual malice – that is, with either knowledge of falsity or reckless disregard of the truth or falsity. |
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Definition
*Appropriation
*violation of reasonable expectation of privacy
*Placing in bad light
*private, objectionable facts |
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Definition
| Intentional deceit, usually for personal gain. Actionable fraud consists of the following elements: |
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Definition
| “seller’s talk,” will not give rise to a cause of action for fraud, because such claims involve opinions, not facts, and therefore cannot be justifiably relied upon by a reasonable person. |
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Term
| Interference with Contract |
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Definition
The tort of interference with contract requires proof of the following:
(1) a valid contract exists between parties X and Y;
(2) a third party, Z, knows that said contract exists; and
(3) Z intentionally causes X or Y to breach the contract. |
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