Legal Environment Midterm 1

Constitution

creates government and defines the parameters in which it functions

Statutes

laws enacted through the legislative process

Case Law/Common Law

law created through the judicial process

Ordinances

law created by local government

Regulation

a set of requirements issued by a federal government agency to implement laws passed by Congress

Executive Order

law created by the president of a governor of a state

Originalism/Enduring Constitution

The Constitution should be interpreted according to the original meaning as ratified

Living Constitution

The Constitution should be interpreted according to today’s values by the Supreme Court Justices

Major Premise

the law

Minor Premise

the facts

Public law

laws enacted by some authorized governmental body

Private law

developed between two individuals. Ex: tenants and landlords

Criminal Law

wrong against society

Civil Law

wrong against another person or persons

Restitution

whoever violates a civil law must compensate the harmed party

Substantive Laws

those that give rights and responsibilities

Procedural Laws

provide means for enforcing substantive rights

Stare Decisis

“Let the decision stand” the courts use the judicial decisions of the past in making their new judgements to maintain consistency

Common Law

a set of laws developed historically and by judicial precedent

Statutory Law

a set of formally written laws, enacted by a legislative body

Equity

body of law that attempts to do justice when the law does not provide a remedy, or when the remedy is inadequate or unfair

Writ of Certiorari

comes from Law Latin, “to be more fully informed”; an appellee’s formal request to the Supreme Court to review a case for error or violation in the lower courts

Precedent

a prior decision by an appellate court creating a new rule

Jurisdiction

the authority to make legal decisions and judgements

General Rule

every court must have subject matter jurisdiction and either in personam or in rem jurisdiction to hear and decide a case

Long Arm Statute

allows a court to obtain personal jurisdiction over an out-of-state defendant

Subject Matter

jurisdiction over the kind or type of case being brought into the course (civil, criminal, etc.)

In Personam

jurisdiction over the person

In Rem

jurisdiction involving the ownership of a specific piece of property

Trial Court

place in the judicial system where the facts of a case are presented

Appellate Court

an additional court that reviews the conduct during the trial of the judge, lawyers, witnesses, and jury

Brief

a summary of the case and the legal issues being challenged

Appellate Brief

each side’s summary of why the trial court decision or procedures were correct or incorrect. It is extremely detailed and differs from the brief presented by each party

Oral Argument

a timed summary by each party’s attorney of the points that have been made in each party’s brief. Permitted by the appellate court

Dissenting Opinion

a justice who is not in the majorities' explanation for a vote different from that of the majority in the case of a split vote

Reversible Error

one that might have affected the outcome of the case or influenced the decision made such as refusal of valid evidence, refusal of a valid witness, misapplication of the law

Remand

appellate court sends the case back to the lower court for further proceedings

Dicta

full discussion of reasoning and precedent which includes case precedent of benefit to each party

Plaintiff

parties who initiate a lawsuit and are seeking some type of recovery

Defendant

those that the plaintiffs are seeking recovery from, having committed some violation of the law or the rights of the plaintiff

Attorney-Client Privilege

ensures that the relationship is confidential and assures that others have limited access to lawyer-client conversations

Appellant

the party who seeks a higher court to reverse a lower court’s decision

Petitioner

the party who appeals the lower court’s decision

Appeal

an opportunity for the defendant to try to raise specific errors that might have occurred at trial

Appellee

the party who has won the trial and against whom an appeal is filed by the petitioner

Concurrent Jurisdiction

two courts have the authority to hear a case

Exclusive Jurisdiction

only one court has the authority to hear the case

Federal Supplement

a reporter series which reprints most opinions issued by federal district judges in every federal district

Limited Jurisdiction

restricts a court’s power to certain types of cases such as bankruptcy and probate

Justice of the Peace Courts

lesser state courts that allow the participation of lawyers but limit the amount

Venue

a concept that addresses the issue of the geographic location of the court in the system

International Court of Justice

a judicial branch of the UN with consensual jurisdiction

Alternative Dispute Resolution (ADR)

offers parties alternative means to resolving their differences outside the courtroom litigation as well as the costly preparation for it

Binding Arbitration

the decision of the arbitrators is final; appeals are limited

Nonbinding Arbitration

preliminary step to litigation; if one of the parties is not satisfied with the result of the arbitration, the case may be litigated

Mandatory Arbitration

parties cannot choose court action first

Litigated

to be a party to a lawsuit

Subpoena Power

the power to require the production of documents or to have a witness testify

Mediation

process in which both parties meet with a neutral mediator who listens to each side explain it’s position

Medarb (Mediation Arbitration)

an arbitrator begins by attempting to negotiate between the two parties.If the arbitrator is unable to reach a settlement, the case proceeds to arbitration with the same party serving as arbitrator

Minitrial

parties have their lawyers present the strongest aspects of their cases to senior officials from both companies in the presence of a neutral advisor or a judge with experience in the field

Summary Jury Trial

a mock trial where jurors give an advisory verdict after hearing the summaries of evidence presented by parties; occurs late in the litigation process

Peer Review

a review by coworkers of the action taken against an employee (demotion, termination, discipline) by providing testimonies, reviewing documents, and making decisions including an award of the damages

International Chamber of Commerce (ICC)

a private organization that handles arbitration cases from parties in 139 countries

International Center for Settlement of Investment Disputes (ISCID)

an arbitral organization created specifically to hear disputes between investors and the nations in which they made investments

International Centre for Dispute Resolution (ICDR)

provides international AAA service for global U.S based companies that face contract and other types of disputes in their international operations

Statutes of Limitations

time limits for filing complaints directed by individual states

Complaint

a general statement of the plaintiff’s claim of rights (ex for contract: description, when it began, and what the defendant did that the plaintiff claims is breach

Class Action Suit

complaint is filed by a group of plaintiffs who have the same cause of action against one defendant

Derivative Suit

form of class action in which shareholder sue a corporation to recover damages for actions taken by the corporation

Legal Remedy

a dollar amount is specified

Equitable Remedy

specific performance in the case of an action for breach of contract

Specific Performance

an order of the court requiring a defendant to perform on a contract

Injunctions

court orders requiring the defendant to stop doing the act complained of

Summons

a legal document that tells the defendant of the suit and explains the defendants rights under the law, including the opportunity of a limited amount of time to respond

Motions

requests to the court that it take certain action

Motion for Judgement on the Pleadings

plaintiff has no cause of action even if everything the plaintiff alleges is true (ex: plaintiff could file suit claiming the defendant is an annoying person; unless the defendant is annoying to the extent of invading privacy or not honoring contracts, the plaintiff has no right of recovery

Motion to Dismiss

based on the court’s lack of subject matter or in personam jurisdiction; can be filed any time during the proceedings but usually is part of the defendant’s answer; if case is not dismissed, it does not mean the plaintiff wins, it means the case will proceed to the next steps and possibly trial

Motion for Summary Judgement

asking the court to examine the pleadings and proof to determine if a trial is necessary

Request for Admissions

asks the other party to admit a certain fact

Interrogatories

ask questions about facts

Depositions

oral testimony of parties or witnesses that are taken under oath but outside the courtroom before the trial

Request for Production

requires the others due to produce requested documents

Burden of Proof

controls who has the responsibility for proving what facts

Opening Statement

summary of what the party hopes to prove and how it will be proved

Directed Verdict

judge ruling after determining there is no legally sufficient evidence for a reasonable jury to reach a conclusion

Hearsay

evidence offered by a witness who does not have personal knowledge of the information being given but just heard it from someone else

Closing Arguments

reviews the presented evidence, highlights the important points for the jurors, and point out the defects in the other side’s case

Instructions

given to jurors after cases and closing arguments that present the law and how to apply it to the facts at hand

Hung Jury

jury who cannot come to a decision, in which the case will be retired

Verdict

result of jury deliberations

Judgement NOV

non onstante verdicto “not withstanding the verdict” the moving attorney is asking the trial judge to reverse the decision of the

Legislative Branch

Congress - House of Representatives and the Senate

Commerce Clause

Article 1, Section 8, Part 3 gives Congress broad power to regulate interstate commerce and restrict states from impairing interstate commerce

Interstate Commerce

transporting goods across state lines

Intrastate Commerce

transportation that occurs entirely inside one state

Police Powers

the power of the states to regulate the health, safety, morals, and general welfare of the citizens of the state

Nexus

connection usually within interstate commerce

Supremacy Clause

established that the federal constitution and generally federal laws take precedence over state laws

Preemption

a legal doctrine that allows a higher branch of government to limit or eliminate the power of a lower branch in order to regulate a situation