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BLAW Test #1

Ledbetter

Terms

undefined, object
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Statutes
a law passed by a legislative body
Equity
a court's power to fashion a remedy, such as an injunction, which the common law does not provide
Criminal Law
prohibits certain behavior
Civil Law
regulates the rights and duties between parties
Substantive Law
defines the rights of the parties
Procedural Law
establishes the processes for settling disputes
Jurisprudence
philosophy of law
Sovereign
the recognized political power, whom citizens obey
Plaintiff
person who is suing
Defendant
person being sued
affirm
To allow the decision to stand.
affirmed
Permitted to stand.
alternative dispute resolution
Any other formal or informal process used to settle disputes without resorting to a trial.
appeals courts
Generally accept the facts given to them by trial courts and review the trial record to see if the court made errors of law.
appellant
The party filing the appeal.
appellee
The party opposing the appeal.
beyond a reasonable doubt
The governments burden in a criminal prosecution.
briefs
Written arguments on the case.
challenges for cause
A claim that a juror has demonstrated probable bias.
class action
One plaintiff represents the entire group of plaintiffs, including those who are unaware of the lawsuit or even unaware they were harmed.
complaint
A short, plain statement of the facts alleged and the legal claims made.
counter-claim
A second lawsuit by the defendant against the plaintiff.
cross-examine
To ask questions of an opposing witness.
default judgment
A decision that the plaintiff wins without a trial because the defendant failed to answer in time.
deponent
The person being questioned.
direct examination
When a lawyer asks questions of her own witness.
directed verdict
A ruling that the plaintiff has entirely failed to prove some aspect of her case.
discovery
The pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent's case.
diversity jurisdiction
(1) The plaintiff and defendant are citizens of different states and (2) The amount in dispute exceeds $75,000.
error of law
Because of this, the appeals court may require a new trial.
federal question
A case in which the claim is based on the United States Constitution, a federal statute, or a federal treaty.
harmless error
A mistake by the trial judge that was too minor to affect the outcome.
judgment non obstante veredicto
A judgment notwithstanding the jury's verdict.
jurisdiction
A court's power to hear a case.
litigation
The process of filing claims in court and ultimately going to trial.
modify
To affirm the outcome but with changes.
motion
A formal request to the court to take some step or issue an order.
motion for a protective order
A request that the court limit discovery.
peremptory challenges
The right to excuse a juror for virtually any reason.
pleadings
The documents that begin lawsuit, consisting of the complaint, the answer, and sometimes a reply.
precedent
Earlier decisions by the state appellate courts on similar issues.
preponderance of the evidence
The plaintiffs burden in a civil lawsuit.
reply
An answer to a counter-claim.
reverse
To turn the loser into the winner.
reverse and remand
To nullify the lower decision and return the case for reconsideration or retrial.
reversed
Nullified.
summary judgment
A ruling by the court that no trial is necessary because some essential facts are not in dispute.
trial courts
Determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions.
voir dire
The process of selecting a jury.
writ of certiorari
A petition asking the Supreme Court to hear a case.
de novo decision
The power of an appellate court or board to ignore a lower judge's ruling and make its own decision.
Stare Decisis
"Let the decision stand," that is, the ruling from a previous case.
adjudicate
To hold a formal hearing about an issue and then decide it.
administrative law judge
An agency employee who acts as an impartial decision-maker.
bill
A proposed statute, submitted to Congress or a state legislature.
common law
Judge made law.
subpoena
An order to appear at a particular place and time. A subpoena duces tecum requires the person to produce certain documents or things.
veto
The power of the president to reject legislation passed by Congress.
commercial speech
Communication, such as advertisements, that has the dominant theme of proposing a business transaction.
eminent domain
The power of the government to take private property for public use.
Equal Protection Clause
Generally requires the government to treat people equally.
fundamental rights
So basic that any governmental interference with them is suspect and likely to be unconstitutional.
judicial activism
A court's willingness to be involved in major issues.
judicial restraint
A court's attitude that it should leave lawmaking to legislators.
political speech
Is protected unless it is intended and likely to create imminent lawless action.
procedural due process
Ensures that before the government takes liberty or property, the affected person has a fair chance to oppose the action.
substantive due process
Holds that certain rights are so fundamental that the government may not eliminate them.
Takings Clause
Ensures that when any governmental unit takes private property for public use, it must compensate the owner.
The Commerce Clause
Gives Congress the power to regulate commerce with foreign nations and among states.
The Supremacy Clause
Makes the Constitution, and federal statutes and treaties, the supreme law of the land.
Judicial Review
The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch.
Jurisdiction
The authority of a court to hear and decide a specific case.
Long Arm Statute
A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have certain "minimum contacts" with that state for the statute to apply.
Probate Court
A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate.
Bankruptcy Court
A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law.
Federal Question
A question that pertains to the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.
Diversity of Citizenship
A basis for federal district court jurisdiction over a lawsuit between citizens of different states, a foreign country and citizens of a state or of different states, or citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal district court can take jurisdiction in such cases.
Concurrent Jurisdiction
Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in a federal or a state court.
Exclusive Jurisdiction
Jurisdiction that exists when a case can be heard in only a particular court or type of court.
Venue
The geographic district in which a legal action is tried and from which the jury is selected.
Standing to Sue
The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. the plaintiff must demonstrate that he or she has been either injured or threatened with injury.
Justiciable Controversy
A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.
Small Claims Court
A special court in which parties may litigate small claims (such as $5,000 or less). Attorneys are not required in small claims courts and, in some states, are not allowed to represent the parties.
Question of Fact
In a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point. Questions of fact are decided by the jury in a jury trial (by judge if there is no jury).
Question of Law
In a lawsuit, the issue involving the application or interpretation of a law. Only a judge, not a jury, can rule on questions of law.
Writ of Certiorari
A writ from a higher court asking the lower court for the record of a case.
Rule of Four
A rule of the U.S. Supreme Court under which the Court will not issue a writ of Certiorari unless at least four justices approve of the decision to issue the writ.
Litigation
The process of resolving a dispute through the court system.
Pleadings
Statements made by the plaintiff and a defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.
Complaint
The made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.
Summons
A document informing a defendant that a legal action has been commenced against her or him and that defendant must appear in court on a certain date to answer the plaintiff's complaint.
Default Judgement
A judgement entered by a court against a defendant who has failed to appear in a court to answer or defend against the plaintiff's claim.
Answer
Procedurally, a defendant's response to the plaintiff's claim.
Counterclaim
A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.
Reply
Procedurally, a plaintiff's response to a defendant's answer.
Motion to Dismiss
A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action or that there are other grounds on which the suit should be dismissed. Although the defendant normally is the party requesting a dismissal, either the plaintiff or the court can also make a motion to dismiss the case.
Motion for Judgement on the Pleadings
A motion by either party to a lawsuit a the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.
Motion for Summary Judgement
A motion requesting the court to enter a judgement without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.
Discovery
A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to the trial.
Deposition
The testimony of a party to a lawsuit or a witness taken under oath before a trial.
Interrogatories
A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.
E-Evidence
Evidence that consists of computer generated or electronically recorded information, including email, voice mail, spreadsheets, word-processing documents and other data.
Voir Dire
"To speak the Truth" The process in which the attorneys question prospective jurors to learn about their backgrounds, attitudes, biases, and other characteristics that may affect their ability to serve as impartial jurors.
Motion for a Directed Verdict
In a jury trial, a motion for a judge to take the decision out of the hands of the jury and to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support his or her claim.
Award
In litigation, the amount of monetary compensation awarded to a plaintiff in a civil lawsuit as damages. In the context of alternative dispute resolution, the decision rendered by an arbitrator.
Motion for Judgement N.O.V.
A motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury's verdict against him or her was unreasonable and erroneous.
Motion for a New Trial
A motion asserting that the trial was so fundamentally flawed that a new trial is necessary to prevent a miscarriage of justice.
Brief
A formal legal document prepared by a party's attorney for the appellant or appellee and submitted to an appellate court when a case is appealed. The appellant's brief outlines the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the arguments on the client's behalf.
Docket
The list of cases entered on a court's calendar and thus scheduled to be heard by the court.
Alternative Dispute Resolution (ADR)
The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of this.
Negotiation
A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them.
Mediation
A method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement.
Arbitration
The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision that is (most often) legally binding.
Arbitration Clause
A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.
Summary Jury Trial
A method of settling disputes, used in many federal courts, in which a trial is held, but the jury's verdict is not binding. The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow it.
Online Dispute Resolution (ODR)
The resolution of disputes with the assistance of organizations that offer dispute resolution services via the Internet.
Historical School
A school of thought that emphasizes the evolutionary process of law and looks to the past to discover what the principles of contemporary law should be.
Statute of Limitations
A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced.
Legal Positivism
A school of legal thought centered on the assumption that there is no law higher than the laws created by a national government. Laws must be obeyed, even if they are unjust, to prevent anarchy.
defendant
One against whom a lawsuit is brought; the accused person in a criminal proceeding.
natural law
The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. The natural law school is the oldest and one of the most significant schools of legal thought.
equitable principles and maxims
general propositions or principles of law that have to do with fairness (equity)
plaintiff
One who initiates a lawsuit.
jurisprudence
The science or philosophy of law
remedy
The relief given to an innocent party to enforce a right or compensate for the violation of a right.
persuasive authority
Any legal authority or source of law that a court may look to for guidance but on which it need not rely in making its decision. These include cases from other jurisdictions and secondary sources of law.
binding authority
Any source of law that a court must follow when deciding a case. These include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within a jurisdiction.
stare decisis
A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.
precedent
A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.
common law
The body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.
case law
The rules of law announced in court decisions. Case law includes the aggregate of reported cases that interpret judicial precedents, statutes, regulations, and constitutional provisions.
administrative law
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.
uniform law
A model law created by the National conference of Commissioners on uniform State Laws and/or the American Law Institute for the states to consider adopting. Each state has the option of adopting or rejecting all or part of a uniform law. If a state adopts the law, it becomes statutory law in that state.
ordinance
A regulation enacted by a city or county legislative body that becomes part of that state's statutory law.
citation
A reference to a publication in which a legal authority, such as a statute or court decision, or other source can be found.
statutory law
The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).
constitutional law
The body of law derived from the U.S. constitution and the constitutions of various states.
secondary source of law
A publication that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in a law review.
primary source of law
A document that establishes the law on a particular issue, such as a constitution, a statute, an administrative rule, or a court decision.
breach
The failure to perform a legal operation.
law
A body of enforceable rules governing relationships among individuals and between individuals and their society.
international law
The law that governs relations among nations. National laws, customs, treaties, and international conferences and organizations are generally considered to be the most important sources of this type of law.
national law
Law that pertains to a particular nation (as opposed to international law).
criminal law
Law that defines and governs actions that constitute crimes. Generally it has to do with wrongful actions committed against society for which society demands redress.
civil law system
A system of law derived from that of the Roman Empire and based on a code rather than case law; the predominant system of law in the nations of continental Europe and the nations that were once their colonies. In the United States, Louisiana, because of its historical ties to France has, in part, this type of law system.
cyberlaw
An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.
substantive law
Law that defines, describes, regulates, and creates legal rights and obligations.
sociological school
A school of legal thought that views the law as a tool for promoting justice in society.
procedural law
Law that establishes the methods of enforcing the rights established by substantive law.
legal realism
A school of legal thought of the 1920s and 1930s that generally advocated a less abstract and more realistic approach to the law, an approach that takes into account customary practices and the circumstances in which transactions take place. This school left a lasting imprint on American jurisprudence.

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