Introduction to Law; The Relationship Between Law and Ethics

Introduction to Law; The Relationship Between Law and Ethics

Law

A body of rules of conduct prescribed by controlling authority and having binding legal force.

Common Law: as a system of law

The total system of law that originated in medieval England and was adopted by the United States at the time of the American Revolution. Expressed originally in opinions and judgements of the courts, it is judge-made law that reflects the customs and usages of the people. It's found throughout the English speaking world-sometimes called Unwritten Law.

Action in Equity

A civil trial held without a jury when relief sought by the plaintiff is equitable in nature, such as an injunction or a divorce or dissolution of a marriage

Federalism

A government consisting of a union of more or less self-governing states under an umbrella of federal government

Stare Decisis (Doctrine of Precedents)

The common law doctrine that binds an inferior (subordinate) court to follow and apply decisions and interpretations of higher courts when similar cases arise

Precedent

A court decision on a question of law that gives authority or direction on a similar question of law in a later case with similar facts

Unwritten Law

A historically based reference to court-or-judge-made law

Case Law (Court Law)

All reported judicial decisions; the law that comes from judges' opinions in lawsuits

Statutes

Laws enacted by congress or by state legislatures

Ordinance

A written law enacted by a city or county. An example is a zoning ordinance that governs the use of land

Written Law

An old-fashioned reference to the statutes and ordinances of federal, state, and local governments and the published rules of administrative agencies

Codes

Compilations of statues that are grouped together by subject matter

Judicial Activists

Judges whose judicial philosophy includes treating the law as a vibrant and active source of rules. When faced with new issues, judges are likely to see the Constitution as a flexible document and stare decis as challenge-able when they believe important social needs must be addressed

Strict Constructionists

Judges whose reading of the law narrowly interprets legal words and who subscribe to interpreting the law consistent w/ the believed meaning given it by the drafters

Dicta

Any part of a court opinion that is unnecessary to the resolution of dispute before the Court. Such digression by a judge is not binding on later courts.

Initiative

An electoral process for making new statues or changing the constitution by filing appropriate formal petitions to be voted on by legislative or by the people. The initiative is not available in all states.

Civil Law

The branch of law dealing with individual rights and duties and their enforcement; a system of law with origins in the roman Empire; the most common legal system in the world.

Criminal Law

The branch of law dealing with crimes and their punishment

Private Law

The body of law regulating the rights and duties that exists between private persons (including private corps). Contract law is an example of private law.

Public Law

The body of law directly concerned with public rights and obligations, such as constitutional, administrative, criminal, and international law.

International Law

The branch of law governing relations between and among sovereign nations.

Procedural Law

General principles and detailed rules that define the methods of administering substantive law

Substantive Law

General principles and detailed rules that define legal rights and duties

Ethics

Standards of fair and honest conduct applied to social behavior

Morals

Values concerning right and wrong

Moral Problem Solving

Conflict-resolution process aimed at solving conflicts involving moral dilemmas was through communication, education, and negotiation. The broad term describes interrelational rather than individual process.

Code of Ethics

A systematic statement of agreed on moral rules for a profession, business, or group

Moral Reasoning

A rational thought process directed at testing whether action is right or wrong. The conclusion is a determination of moral responsibility or culpability

Duty-based Ethics

The doctrine that actions are morally correct if they comply with existing obligations owed another or ourselves

Utilitarianism

An ethical doctrine holding that determining right conduct is based on consequences; that the purpose of behavior should be the greatest happiness of the greatest number

Situational Ethics

The term used disparagingly to describe an "end-justifies-the-means" maxims supplanting duty or obligation

Syllogism

A pattern of deductive logic that contains a major or general premise, a minor or specific premise, and a conclusion always in that order. The conclusion follows from the premises but is not a premise itself.

Non-normative Statements

Statements that reflect no value judgement

Normative Statements

Statements that reflect what should be or how one should act

Positive Law

The rules members of a society are obligated to obey to avoid punishment or penalty imposed by the government

Culpability

Behavior that is sufficiently wrongful to be at fault or be responsible for proscribed conduct

Citation, legal

Abbreviated reference to a variety of legal authorities, including court cases

Unanimous Opinion

A judicial decision with complete agreement by all judges

Majority Opinion

A written opinion by a judge outlining the views of the majority of the judges of the court deciding the case

Concurring Opinion

A written opinion wherein a judge agrees with the result reached by another judge, but for different reasons from those stated by the other judge

Dissenting Opinion

A written opinion by a judge or judges who votes contrary to the majority opinion and holding of the court

Appellant

Petitioner; The party who appeals to a higher court for review of a lower court ruling

Appellee

Respondent; The party who an appeal defends the earlier court determination

Common Law: as a type of law

That law that comes from the common courts as opposed to a legislature or court of equity.

Reporter

A set of books that contains the written opinions of justices of specified appellate courts. These volumes contain the decisions, or unwritten, law. Volumes in the reporters and the cases they contain are arranged in chronological order and accessible by case name or subject matter index.

Case or controversy

A requirement that courts may decide only cases in which an actual conflict between persons exist.

Deductive logic

A method of logical reasoning from two or more propositions to a conclusion. Inferences are drawn from a general premise to a specific premise. The conclusion is valid if the propositions on which the conclusion is based are true.

Adversarial System

The jurisprudential system in which the parties to a legal dispute are opponents. Their attorneys advocate a great variety of theories of benefit to the cause of their clients both before and during the trial, and on any appeal.

Inquisitorial System

A legal system used in some countries that allows the judge to investigate, question witnesses, and seek out evidence before a trial.

Attorney-at-law

A person licensed to practice law, and usually called a lawyer, attorney, counsel, or counselor.

Legal Assistant

Someone with specialized training who assists an attorney. Also called a "paralegal."

Fiduciary Relationship

A relationship between two persons wherein one has an obligation to perform services with scrupulous good faith and honesty.

In propria persona (in pro se)

Term meaning the person represents herself or himself in a legal action with out the appearance of an attorney.

Contingency fee

A fixed percentage of the monetary recovery obtained by a lawyer for a client. It is agreed on in advance and accepted in full payment for services rendered.

Legal Services Corporation (LSC)

A federally funded corporation that distributes federal tax dollars to state programs that provide legal assistance in noncriminal proceedings to persons financially unable to afford such services.

Pro bono publico

When an attorney provides legal services free of charge to poor but worthy client causes.

Legal service plans

Insurance plans designed to make legal services available to members of unions or other organizations, such as business firms.

Public interest law firm

A nonprofit law firm that offers assistance in areas such as employment, minority rights, civil rights, political rights, family law, and environmental law.

Professional ethics

Written rules of conduct that are adopted by and binding upon members of a professional group.

Legal ethics

Rules promulgated by lawyer-governing bodies to proscribe standards of professional behavior and regulate lawyer and judicial conduct.

Attorney-client privilege

The right of clients to keep communications with their attorneys confidential and free from disclosure.

Confidentiality

A private communication with an attorney-at-law in which the attorney is under a duty to keep the information secret.

Conflict of interest

When a client's interests are at odds with another's because the attorney serves, might serve, or is tempted to serve the other.

Public defender

A lawyer provided by the community for a person who is accused of a serious crime (felony) and cannot afford to hire counsel.

Retainer fee

(a) A sum of money paid to an attorney for a promise to remain available to the client for the consultation when needed and requested. (b) Fees paid in advance that are held in a trust account to be drawn down (taken) by the attorney as work progresses.

Class actions

When all members of a group of persons who have suffered the same or similar injury join together in a single lawsuit against the alleged wrongdoer. The group must be so numerous that it is impractical to bring all members before the court individually.

Maintenance

Assisting a party to a lawsuit with money or otherwise, to prosecute or defend the lawsuit.

Champerty

An illegal agreement with a party to a suit for a portion of any recovery in exchange for paying the litigant's lawsuit expenses.

Legal malpractice

Violation of a duty of due care by a professional person.

Alternative Dispute Resolution (ADR)

Various methods of resolving disputes through means other than the judicial process.

Negotiation

Communication between disputing parties for the purposes of persuasion and settlement or resolution.

Mediation

The use of a neutral third party to assist parties in voluntarily resolving their dispute(s).

Conciliation

Use of a third party to lower tensions, improve communications, and explore possible solutions to a conflict.

Caucus

A private confidential meeting between disputants and a third-party neutral.

American Arbitration Association (AAA)

A private nonprofit organization with the purpose of providing education, training, and administrative assistance to parties who use nonjudicial methods - that is, alternative dispute resolution (ADR) - for resolving disputes.

Arbitration

An alternative to litigation whereby conflicting parties select a neutral third party (or parties) to hear and decide their dispute. Arbitration can be binding or nonbinding.

Award

The final decision of an arbitrator or other nonjudicial officer in the resolution of a dispute.

Court-annexed arbitration

A type of nonbinding arbitration required by some courts before the parties may proceed to trial. It is a mandatory process.

Med-arb

An alternative dispute resolution (ADR) process that combines mediation and arbitration.

Private Judging (rent-a-judge)

The use of a legally trained arbitrator who follows formal judicial procedures in hearing a case outside a court.

Ombudsperson

A proactive neutral party who investigates and determines facts and suggests resolutions to disputes.

Expert fact-finding

A nonbinding process in which an appointed expert investigates or hears facts on selected issues. At the conclusion, he or she makes findings of fact.

Early neutral evaluation

An ADR process providing disputing parties with an early and candid evaluation by an objective observer of the merits of a case.

Mini-trial

A private, voluntary, informal form of dispute resolution in which attorneys for each disputant make a brief presentation of their best case before officials for each side who have authority to settle.

Summary jury trial

A nonbinding alternative dispute resolution (ADR) process in which parties present their cases to a private mock jury, which then gives the parties an advisory verdict.

Mock Jury

A panel of lay citizens selected and paid to mirror the role of an actual jury.

Collaborative law practice

A method whereby the parties agree to resolve their disputes without court intervention using interest-based negotiation practices.

Partnering

A team-building process designed to improve contract performance and reduce or eliminate contract litigation through common understanding of goals and improved communication. The process is used n large, complicated, and expensive contracts and has its roots in the construction industry.

Court

(a) A government body that administers justice by applying laws to civil controversies and criminal offenses. (b) The place where trials are held.

Trial Court

The initial court that hears evidence and applies the law to decided facts.

Plaintiff

In trial, the person trying to recover money damages or other relief from a defendant.

Damages

Money awarded by a court to a plaintiff for injury or economic loss caused by the defendant.

Defendant

(a) In a civil trial, the person from whom money damages or other relief is sought by the plaintiff. (b) In criminal trial, the accused.

Lawsuit or litigation

A court process at law or in equity to determine the legal merits of a controversy.

Civil dispute

A lawsuit commenced for the purpose of resolving a civil conflict.

Appeal

Formal request to a higher court to review any action of a lower court.

Briefs

Written arguments addressed to the appellate court.

Jurisdiction

The power of a court to decide a controversy and to award appropriate relief.

Concurrent jurisdiction

Power of more than one court to hear a case.

Subject matter jurisdiction

The power of a court to hear and decide cases of the general type to which the subject in question belongs.