Midterm Definitions: Courts and Social Policy

Primary Rules

Rules of Obligation

Secondary Rules

rules about rules: rules of recognition, change, and adjudication

Policy

The course of action or inaction that governments adopt to address a pubic problem or achieve a public goal

Natural Law

Law is grounded in universal moral principles

Legal Positivism

Law is whatever a valid legal authority has enacted, regardless of moral content

Communitarianism

Emphasizes the importance of community in shaping political life. Connected to Natural Law

Liberalism (legislating morality)

There is no public morality that law must enforce. Connected to Legal Positivism

Procedural justice

The idea of fairness in the process that resolves disputes. Focuses on hearing people before a decision and using fair processes

Retributive justice

A criminal offender receives punishment that is proportional to the crime and is directed at wrongdoing, not personal revenge

Corrective justice

Focuses on rectifying wrongs by restoring fairness between the wrongdoer and the injured party.

Distributive justice

Fairly allocating resources, goods, and opportunities among members of a society.

Civil Law

Law consists of comprehensive written legal codes. Private rights and liabilities. Does not rely on judicial precedent. “top down”n historical roots in Roman Law

Common Law

Law consists of judicial precedents. Law is established by court decisions rather than by statutes enacted by legislators, “bottom-up.” Historical Roots in English feudal courts (precedents are important)

Religious Law

Law consists of rules derived from religious authority

Customary Law

Law consists of rules derived from long-standing community traditions (often unwritten)

Public Law

Governs relations and affairs between legal persons and the government.

Private Law

Private law regulates relationships between private individuals and groups

Federalism

Divides governmental power between a national government and state governments

Enumerated powers

explicit powers are given to national government (Article I, § 8)

Reserved powers

All powers not delegated to the federal government or prohibited to the states (10th Amendment)

Supreme law

Federal law prevails over conflicting state law (Article VI)

Adversarial Systems

Two opposing parties present competing evidence and arguments

Inquisitorial systems

The judge takes active role in directing the case and resolving the dispute

Civil Cases

One private party sues another seeking compensation (“damages”) or to prevent some action (“injunction”)

Criminal case

A government charges a person with violating the criminal law. The defendant has more protections in a criminal case.

Plaintiff

The party that institutes a suit in court

Defendant

The party against which an action is brought

De novo review

A de novo review means a court or agency considers an issue "anew," from the beginning, without relying on prior decisions or assumptions. In legal contexts, it allows a higher court to independently evaluate facts and law as if the case were being heard for the first time.

Precedent

Prior appellate opinions by the same (or higher) court about the same legal question

Stare decisis

Ancient legal doctrine that courts will follow precedent

Judicial restraint

Courts should defer to the elected branches, presume statutes constitutional, and strike laws down only when a violation is clear

Judicial activism

Courts should intervene assertively to interpret the law and to protect individual rights, even overturning precedents and popular laws in the process

Legislative Supremacy

What can the legislative branch do if it disagrees

with the Court’s interpretation of the law?

– Enact new legislation that overrules the Court

• If the Court interprets federal statutory law, Congress can

always change the law

– Amend the Constitution to overrule the Court

• Constitution provides that it can be ratified by

supermajority of Congress (2/3) and states (3/4)