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| a formal social force, meaning that laws come from the state and are usually written down and accessible so that those who need to understand and obey them can |
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| under this, laws that are made are generally and equally applicable |
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| the legal right that allows you to exclude others from your resources |
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| Public Property, Private Property, Common Property |
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Definition
| 3 ways to apply exclusionary property |
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| law contains universal moral principles that are observable in nature |
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| law is simply the commands of the state backed p by force and punishments |
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| contemporary law should focus on legal principles that have withstood the test of time in a nation |
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| Sociological Jurisprudence |
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| the idea that law can and should change to meet new developments in society |
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| tries to go beyond the words of law to examine what police, administrators, prosecutors, and judges are actually doing as they enforce, interpret, and apply laws |
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| emphasizes the role of judges in determining the meaning of laws and how they apply |
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| relies more on legislation than judicial decisions to determine what the law is |
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| includes those matters that involve the regulation of society as opposed to individuals interacting; gov’t official represents society & official is responsible for seeking justice |
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| Constitutional Law, Administrative Law, Criminal Law |
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Definition
| 3 types of law regarding public law |
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| involves the interpretation and application of either the federal or state constitutions |
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| covers the legal principles that apply to government agencies, bureaus, boards, or commissions |
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| specifies various offenses against the proper order of the state |
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| covers those legal problems and issues that concern your private resource relationships with other people |
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| Property Law, Contract Law, Tort Law |
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| 3 types of law regarding private law |
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involves the recognition of exclusive right in both tangible and intangible resources
o Land, goods, copyrights, trademarks, patents, trade secrets |
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covers the rules of how owners transfer resources by exchanging them
o Involve enforceable promises to exchange resources in the future |
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establishes rules for compensation when an owner’s legal boundaries are wrongfully crossed by another
o Often requires actual injury to the owner’s resources |
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defines the legal relationship of people with other people or between them and the state
• Define rights and duties |
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deals with the method and means by which substantive law is made and administered
• Provide the machinery for enforcing those rights and duties |
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| most significant source of law |
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| legislation adopted by Congress or a state legislature |
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| laws passed by local governments |
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| compilations of legislation at all levels of government |
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| most significant uniform law for business; collects in one body of law that “deals with all the phases which may ordinarily arise in the handling of commercial transactions from start to finish.” |
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concerns how courts interpret and apply the meaning of legislation
• Considering the legislative history of statutes, applying rules for interpreting specific types of legislation, & using rules for interpreting various kinds of statutory words |
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| judicial decisions that apply to a legal problem; these decisions interpret the relevant constitutional, legislative, and regulatory laws |
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| decisions that judges who decide appeals from trial courts make |
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| past case opinions that are collected and published in book volumes known as “reporters” that are used for future cases involving similar facts and legal issues |
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| what case opinions are labeled as so they can be easily located |
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| the doctrine of prior precedents; under this, judges in current cases follow whenever possible the interpretation of law determinied by judges in prior cases |
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| precisely what was necessary to the decision reached |
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| whatever else the court said |
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| Constitutional Relativity |
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Definition
| the idea that courts should understand the meaning of the Constitution relative to the times in which they interpret it |
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Term
• US Constitution and Amendments
• Statutes [a.k.a. “acts” or “legislation”] of Congress
• Federal administration regulation
• State constitutions [apply only in individual states]
• State statutes [apply only in individual states]
• State administration regulation [applies only in individual states]
• Local ordinances [apply only in cities, towns, etc]
• Case law [court cases, as they interpret all of the other sources, may or may not void sources lower than the source being interpreted] |
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Definition
| Hierarchy of sources of law from highest to lowest |
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Definition
methods law enforcement officials and the courts use to encourage or to force compliance with the obedience to the law
• May be used against a person who has failed to comply with the law
• A form of punishment for violating the law |
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| the right of an individual to take another person’s resources (ex. money) because that person has failed to meet the requirements of the law |
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1) for the benefit of society generally, as when land is taken through eminent domain
2) to punish someone, as with a traffic fine
3) for the benefit of another person, as an award of damages |
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Definition
| The taking of an owner's resources may be: (3) |
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| occurs when one party to a contract fails to do what he or she agreed to do |
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| awarded for breach of contract in an attempt to make a plaintiff “whole,” as though in an economic sense the defendant had not breached the contract |
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| an order by the court commanding the other party actually to perform a bargain as agreed |
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| a civil wrong other than a breach of contract; involve improper crossing of property boundaries usually causing injury to a person or something they own |
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Definition
| require the plaintiff to prove the defendant intended to cross the boundaries protecting the plaintiff |
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| Assault, Battery, Conversion, Trespass |
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Definition
| 4 types of intentional torts |
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Definition
| intentionally placing someone in apprehension of his physical safety |
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Definition
| intentionally making offensive, unconsented to physical contact with someone |
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Definition
| intentionally depriving someone of goods owned |
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| intentionally crossing someone else’s land boundaries without permission |
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| requires the plaintiff to show that the defendant injured what was proper to the plaintiff through unreasonable behavior |
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Definition
| require the plaintiff to prove only that the defendant has injured something proper to the plaintiff |
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| Punitive damages [exemplary damages] |
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Definition
| a civil punishment for when the tort is intentional or the unreasonable conduct is extremely severe |
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| a business chartered by the state to do business as a legal person in a certain form of organization |
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| refers to the legal rules that structure, empower, and regulate the agents of corporations and define their relationship to the owners (shareholders) |
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Term
| to determine the applicable rules of law to be used to decide the case |
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Definition
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| other than decide an appeal – often give reasoned decisions that become precedent |
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| the trial jury that returns the verdict in criminal and civil cases |
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serve as the representative advocates in our court system
• Present the evidence, points of law, & arguments that are weighted by juries and judges in making their decisions
• First duty: to the administration of justice
• Serves in 3 capacities: counselor, advocate, & public servant |
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| where results from trial court may be reviewed |
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| Subject matter jurisdiction |
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Definition
| the power over the issues involved in the case |
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Term
1) Questions of federal law
2) The US as a party
3) Controversies among states
4) Certain suits between citizens of different states [diversity of citizenship] |
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Definition
| Judicial power of federal courts has been limited by Congress extending to matters involving: |
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Definition
may be based on issues arising out of the US Constitution or out of federal statutes
o Any amount of money may be involved
o Need not be a suit for damages |
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Definition
requires that all plaintiffs be citizens of different states from all defendants
o A corporation is a citizen of the state of incorporation and also a citizen of the state in which it has its principal place of businesses |
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Definition
trial courts of federal judicial system
o At least one in every state and D.C.
o Have subject matter over all cases mentioned above & authority to review lawsuits, receive evidence, evaluate testimony, impanel juries, resolve disputes
o Most significant federal litigation begins here |
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Term
| Federal rules of civil procedure |
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Definition
| provide the details concerning procedures to be followed in federal court litigation |
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| a request by the losing party in the court of appeals for permission to file an appeal with the US Supreme Court |
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Definition
the most significant power of the courts; the power to review laws passed by legislative body and to declare them to be unconstitutional and void
o Allows the courts to review actions taken by the executive branch and to declare them unconstitutional |
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Definition
belief that the power judges hold should not be used except in unusual cases
o Believe that many constitutional issues are too important to be decided by courts unless absolutely necessary and are to be avoided if there is another legal basis fro a decision
o Also referred to as strict constructionism, or judicial absention
o Give great deference to the political process & have deep commitment to precedent |
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Definition
believe that the power judges hold should be used whenever the needs of society justify its use
o Favor a more expansive role for the courts
o Courts must provide leadership in bringing about social, political, and economic change because the political system is often too slow or unable to bring about those changes necessary to improve society
o Constitutional issues must be decided w/in the context of contemporary society |
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| a legal doctrine that gives prisoners the right to challenge their confinement and requires the government to offer valid reason for imprisonment |
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| party who initiates [files] a civil action |
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Definition
| party involved in lawsuit that is sued; also used to describe the person against whom a criminal charge is filed by the prosecuting state or federal government |
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Term
| Counterplaintiff / Counterdefendant |
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Definition
| any claim filed by the defendant in a lawsuit against the plaintiff in the same suit |
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Definition
brought in if a defendant alleges that there cannot be a complete determination of a controversy without the presence of other parties
o Usually followed when there is someone who may have liability to a defendant if the defendant has liability to the plaintiff |
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Definition
| the requirement that plaintiff must satisfy by demonstrating a personal interest in the outcome of litigation or an administrative hearing |
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Term
1) Plaintiff must allege that the litigation involves a case or controversy
o Must have connection to the law
2) Plaintiff must allege a personal stake in the resolution of the controversy |
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Definition
| To establish required standing plaintiff must allege two things: |
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Definition
| the power of a court over he parties involved in the litigation process [obtained when plaintiff files the suit] |
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Definition
| notice to appear in court; service of this is how personal jurisdiction over the defendant is usually obtained |
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Definition
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Term
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| state statutes that give extraterritorial effect to process [summon] in specified cases; allows state courts to obtain jurisdiction in civil actions over defendants who are beyond the border of the state provided the defendants have minimum contact with the state sufficient to satisfy due process |
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1) defendant has committed a tort w/in the state
2) defendant owns property w/in state that is subject matter of lawsuit
3) defendant has entered into a contract w/in the state or transacted the business that is the subject matter of the lawsuit w/in the state |
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Definition
| Typical statute allows court to obtain jurisdiction over defendant [even if process is served beyond borders] if: |
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Term
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Definition
process that one state uses to have another state transfer to the jurisdiction of the first state a person accused of criminal activities
o In criminal suits, crime must have been committed w/in the state for court to have jurisdiction
o In event of arrest in a state other than that in which crime was committed, prisoner must be transported back to state where crime occurred
o Done by governor of state of arrest voluntarily turning prisoner over |
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Definition
| method of litigation that allows one or more plaintiffs to file a lawsuit on behalf of a much larger group of persons, all of whom have a common interest in the claims being litigated |
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Definition
| the legal documents that are filed with a court to begin the litigation process |
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Definition
the first written statement of the plaintiff’s position and allegations, which initiates the lawsuit
o Contains allegations by plaintiff & statement/request of relief sought |
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Definition
the responsive pleading filed by a defendant
o Will either admit or deny each allegation of the plaintiff’s complaint and may contain affirmative defenses that will defeat plaintiff’s claim
o May also contain causes of action the defendant has against plaintiff [counterclaims] |
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Definition
| the failure of a defendant to answer a plaintiff’s complaint within the tie period allowed by the court |
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Definition
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Definition
written questions submitted by one party to another in a lawsuit; type of discovery procedure
o Least expensive method; must be answered by the party receiving them |
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Term
| Request for production of documents |
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Definition
a method of discovery whereby one party asks the other to provide documents for the requesting party’s review after answers to interrogatories are received
o In a personal injury action, defendant can require plaintiff to submit to a physical examination |
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Definition
a discovery process outside court’s supervision that involves the sworn questioning of a potential witness; this oral questioning is reduced to a written form so that a record is established
o Most expensive method of discovery & most revealing; b/c of this, lawyers seldom need to ask a question during trial to which they do not already know the answer |
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Definition
| a method of discovery used to narrow the issues to be litigated by having a party request that the other party admit the facts that are not in dispute |
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Definition
the process by which the parties make written or oral requests that the judge issue an order or ruling
o How parties can seek a pretrial determination of their rights; critical part of litigation process
o Can be made at any point in litigation process |
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Definition
| legislation that states that certain contracts will not be enforced unless there is a signed writing evidencing the agreement |
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Term
| Judgment on the pleadings |
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Definition
a principle of litigation, in the form of a motion, whereby one party tests the validity of the allegations contained in the complaint and answer
o Upon this motion a judge might determine that the pleadings contain no issues of fact or law and thus grant a judgment prior to a trial
o Judge decides solely on complaint & answer |
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Definition
a judicial determination that no genuine factual dispute exists and that one party to the lawsuit is entitled to judgment as a matter of law
o Judge decides based on pleadings and evidence |
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Definition
a sworn written statement made before an officer authorized by law to administer oaths
o Evidence presented for summary judgment is presented in this way [sworn statements] |
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Definition
| the preliminary examination of prospective jurors for the purpose of ascertaining bias or interest in the lawsuit |
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Definition
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Definition
| requests that the judge direct the jury to bring in a particular verdict if reasonable mines could not differ on the correct outcome of the lawsuit |
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Definition
| statements made by the judge to the jury informing them of the law applicable to the case the jury is bound to accept and apply |
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Term
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Definition
| may describe the party at a trial with the burden of coming forward with evidence to establish a fact; also describes party with burden of persuasion in which this party much convince judge or jury of disputed facts in issue or else lose that issue |
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Term
| Beyond a reasonable doubt |
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Definition
| burden of proof required in criminal case; prosecution in a criminal case has the burden of proving the defendant is guilty, & jury must have no reasonable doubt about the defendant’s guilt |
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| Preponderance of evidence |
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Definition
| in the judgment of the jurors, evidence that has greater weight and overcomes the opposing evidence and presumptions |
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Term
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Definition
| burden of proof that requires party w/ burden to establish clearly the existence of the alleged facts; requires more proof than merely having a preponderance of evidence on one’s side |
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| findings of fact by the jury |
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| official adjudication of a court of law |
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| Judgment notwithstanding the verdict |
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Definition
| decision of a court that sets aside the verdict of a jury and reaches the opposite result |
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| the party seeking review of a lower court decision |
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Definition
| the party responding to an appeal; the winner in the trial court |
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Definition
| the party filing either a case in equity or a petition for a writ of certiorari before a supreme court |
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Definition
| the party answering a petition for a writ of certiorari in the Supreme Court |
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Definition
a written document produced by a party for a reviewing court that contains the facts, propositions of law, and argument of a party
• It is in this document that the party argues the desired application of the law and any contentions as to the rulings of the lower court |
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Definition
| attorneys appear in person before the appellate court to explain orally to the court their position in the case and answer the court’s questions about the case |
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Definition
to carry out some action to completion
o With respect to enforcing a court’s judgment, an execution involves the seizure of the debtor’s property, a sale of the property, and the payment of proceeds to the creditor |
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Definition
| a legal proceeding whereby a creditor may collect directly from a third party who is obligated to the debtor |
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Definition
| the doctrine that deems a former adjudication conclusive and prevents a retrial of matters decided in the earlier lawsuit |
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Definition
| the common occurrence in life when two or more point of view exist |
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Definition
| the process used to persuade or coerce someone to do or to stop doing something |
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Definition
a method of negotiation that focuses on the parties exchanging offers, with concessions being made so that parties find a middle ground
o Seller refers to the law offer made as its bottom line, and the buyer refers to the last offer made as its top dollar |
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Term
| Principled, interest-based negotiations |
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Definition
a method of negotiation that focuses on the parties’ interests as opposed to positions; the language used to describe this bargaining includes:
• Communication
• Relationship
• Interests
• Options
• Legitimacy
• Alternatives
• Commitment |
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Definition
| groups acting as a mock jury; attorneys present cases to such a group to get the members’ feedback on the merits of the various arguments presented |
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Definition
| submission of a dispute to an extrajudicial authority for decision |
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Definition
| the individual or panel members authorized by disputing parties to resolve a dispute through the arbitration process |
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Definition
| the act or process of referring an issue to arbitration |
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Definition
| the act or process of referring an issue to arbitration |
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Definition
| a method of resolving a dispute, as an alternative to litigation, that the parties agree to utilize; this agreement may be made before or after a dispute arises |
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Definition
| a form of resolving a dispute, as an alternative to litigation, that is required by a statute |
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Definition
| the decision announced by an arbitrator |
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Term
| Predispute arbitration clause |
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Definition
| applicable to ADR systems agreed to by contracting parties prior to a dispute arising; usually this clause is a part of the original contract between parties |
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Term
| Postdispute arbitration agreement |
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Definition
| can be applicable to arbitration, mediation, or other methods of ADR; such a clause is signed by parties that are already in dispute |
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Definition
| a proceeding wherein the judge or hearing officer hears the case as if it had not been heard before |
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Definition
an alternative to litigation whereby a third party attempts to assist the disputing parties in reaching a settlement
o The third-party mediator lacks authority to impose on the parties a binding solution to the dispute |
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Definition
an individual who assists disputing parties in their efforts to resolve their differences
o Must rely on their persuasive abilities since they have no authority to settle the dispute |
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Definition
| the name used for a private meeting between a mediator and one of the parties involved in a mediation |
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Term
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Definition
an abbreviation for an alternative dispute resolution system that involves parties going through mediation and agreeing to resolve as many issues as possible
o These parties agree that any matters not resolved in the mediation process will then be arbitrated |
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Definition
| the doctrine that holds that the legislative, executive, and judicial branches of government function independently of one another and that each branch serves as a check on the others |
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Definition
| a term used to describe the vertical aspect of the separation of powers; the coexistence of a federal gov’t and the various state gov’ts, with each having responsibilities and authorities that are distinct but overlap |
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Definition
| Article vi of the US Constitution, which states that the Constitution, laws, and treaties of the US shall be the “supreme law of the land” and shall take precedence over conflicting state laws |
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Definition
| a condition when a federal statute or administrative rule governs an issue to the extent that a state or local government is prohibited from regulating that are of law |
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Definition
the constitutional provision that prohibits states from enacting laws that interfere with existing contracts
o Supreme Court has refused to interpret this clause in an absolute manner |
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Definition
| a provision in the First Amendment that prohibits the federal gov’t from establishing and gov’t-supported religion or church |
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Definition
| a provision in the First Amendment that allows all citizens the freedom to follow or believe any religious teaching |
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Definition
| a principle applicable under the freedom of press & speech clauses of the First Amendment; courts have announced decisions that encourage gov’ts to allow the publication or expression of thoughts rather than to restrain such thoughts in advance of their publication or expression |
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Definition
| the publication of anything injurious to the good name or reputation of another |
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Definition
| a defamatory written statement communicated to a third party |
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Definition
a principle used by courts to invalidate legislation that is broader in scope than is necessary to regulate an activity
o May be utilized to protect constitutional rights, such as freedom of speech, against a wide sweep of some governmental action |
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Definition
speech that has a business-oriented purpose
o Protected under the first amendment, but this protection is not as great as that afforded to noncommercial speech |
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Definition
| a provision found in the 5th & 14th Amendments; assures all citizens of fundamental fairness in their relationship with the gov’t |
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Term
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Definition
| a provision in the 14th Amendment that require all citizens to be treated in a similar manner by the gov’t unless there is a sufficient justification for the unequal treatment |
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Definition
| the process or procedure ensuring fundamental fairness that all citizens are entitled to under the US Constitution |
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Definition
a legal test used by courts to test the validity of governmental action, such as legislation, under the equal protection cause
o To satisfy this test, the gov’t needs to demonstrate that there is a good reason for the gov’t’s action |
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Term
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Definition
a legal test used by courts to test the validity of governmental action, such as legislation, under the equal protection clause
o To satisfy this test, the gov’t needs to demonstrate that there is a compelling state interest justifying the gov’t’s action |
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Term
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Definition
a legal test used by courts to test the validity of governmental action, such as legislation, under the equal protection clause
o To satisfy this test, the gov’t needs to demonstrate that the purpose of the action is substantially related to an important governmental objective |
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Term
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Definition
| a provision in Article 1, Section 8, of the US Constitution that grants the federal government the power to regulate business transactions |
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Definition
| the authority a state of local gov’t has to protect the public’s health, safety, morals, and general welfare |
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Term
| Dormant commerce clause concept |
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Definition
| the impact of the commerce clause as a means of limiting state and local government’s powers to regulate business activities |
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Definition
when a state or local law requires something different than a federal law or regulation and both laws cannot be satisfied
Under Commerce Clause analysis, the state or local law is declared invalid and void |
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Definition
| under the Civil Rights Act of 1964 and the Americans with Disabilities Act, an employer need not take action that is excessively costly or creates excessive inefficiency in order to accommodate an employee’s religious beliefs or disability |
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| Prohibiting discrimination |
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Definition
a standard of review under the Commerce Clause that can invalidate state or local laws
When state or local laws discriminate against or negatively impact interstate commerce, such laws are invalid and void |
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Definition
| the concept used by states to divide a company’s taxable income so that no one state burdens a company with an unfair tax bill |
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Term
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Definition
organizations, usually a part of the executive branch of gov’t, that are created to serve a specific purpose as authorized by the legislative branch
o An agency’s function is usually characterized as quasi-legislative or quasi-judicial |
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Definition
| describes the rule-making functions of administrative agencies |
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Definition
| administrative actions involving factual determinations and the discretionary application of rules and regulations |
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Definition
| a concept used in administrative law that requires any part to an administrative proceeding to give the administrative agency every opportunity to resolve the dispute before appealing to the court system |
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Definition
| a doctrine used by reviewing courts to determine whether a case is property before the courts or whether it should be heard by an administrative agency first since such an agency might have expertise superior to the courts’ |
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