Civil Rights & Civil Liberties (POSC 3210) Legal Terms Glossary

These flashcards cover essential legal terms and concepts from the Civil Rights & Civil Liberties course, focusing on definitions and understanding key terminology.

Civil Rights

Legally enforceable rights or privileges that allow individuals to seek remedies for harms resulting from interference.

A legally “enforceable right or privilege, which interfered with by another gives rise to an action for
injury” – in other words, the basis for a legal action that seeks some remedy for harms resulting from that
interference. A civil right allows someone to sue individuals, businesses, or the government itself for
relief, with the backing of government enforcement. Examples include non-discrimination protections
based on what is referred to as an individual’s “protected class” (such as race, sex/gender, religion, and
so on), as well as other legal protections embedded in other areas of law, like voting rights, the right to an
equal public education, and so on. Very generally, civil rights are “legal provisions that stem from notions
of equality,” and so their legal codification tries to make equality under law reality

Civil Liberties

Personal freedoms protected from government intrusion, focusing on prohibiting certain government actions.

A civil liberty, in contrast, “refers to personal freedoms protected from government intrusion,”
specifically. That is, civil liberties—unlike civil rights as defined above—only concern the prohibition of
certain government actions, but generally do not concern private individuals, businesses, or others’
actions. The rights and freedoms provided in the Bill of Rights (Amendments 1 through 10 to the U.S.
Constitution) provide quintessential examples of civil liberties.

Common Law

Law established through custom and judicial precedents in the English legal system, contrasted with statutory law.

A core part of the English legal system inherited by the United States, the “common law” refers to law that
is established through custom and judicial precedents – customary behaviors and norms of legal practice,
plus past decisions of courts. In the modern U.S., “common law” stands in contrast to “statutory law,” the
latter referring to laws passed through regular legislative procedures (i.e., passage of bills through
Congress that are then signed into law by the President).

Federalism

An approach to government organizing that divides powers between a central government and smaller, sub-national governments.

An approach toward organizing government, federalism combines a central or “federal” government with
smaller, sub-national governments (i.e., the various states in the U.S.), among which governmental
powers are divided. In the U.S. system, federalism includes a combination of powers reserved to each
level of government alone—national versus states—along with powers shared by and overlapping among
the two

Judicial Review

The authority of the federal judiciary to review actions of governmental actors for consistency with the Constitution.

“Judicial review” is a doctrine of American law where the federal judicial branch has authority to review
actions of other governmental actors, including executive, administrative, and legislative acts, policies,
regulations, laws, etc. The judiciary’s review role entails judges’ assessments of whether those actions
taken by other governmental actors are consistent with the Constitution and existing legal precedents
(i.e., the common law). If actions are determined to violate one or more constitutional principles or other
legal precedents, then the courts have authority to declare them unconstitutional, in whole or in part,
under this doctrine. The federal judiciary, including the U.S. Supreme Court, can make such declarations
with respect to both state-level and federal actors’ decisions and actions

Jurisdiction

Official authority to make binding decisions about the law, including the authority to hear and decide cases.

In a general sense, “jurisdiction” refers to the official authority to make binding decisions about the law.
For federal courts of the United States, “jurisdiction” includes a second, slightly narrower meaning: the
authority of a court to hear and decide outcomes of cases, as defined by the Constitution and other
federal laws. Put simply, most federal courts cannot hear any case one might imagine, but rather only
hears cases that “fall under its jurisdiction.” Below are some ways of looking at how we know when a
court has jurisdiction over particular cases.

Subject-Matter Jurisdiction

A court's authority to decide cases based on the subject or content of a case.

“Subject-matter jurisdiction” refers to a court’s authority to decide cases on the basis of the
subject or content of the case being brought before that court. In practice, many states have
different courts for different legal issues: Civil court systems (for lawsuits between individuals,
businesses, etc.); criminal court systems (for criminal cases prosecuted by the state); family-law
courts (for cases involving marriage, divorce, child welfare, custody, etc.); probate courts (for
cases involving wills and estates); and so on.
Divisions of the U.S. federal courts reflect the varied landscape of subject-matter jurisdiction as
well, with specialized courts hearing cases involving patents, trademarks, and other intellectual
property-related disputes; cases involving personal or corporate bankruptcies (which may only be
heard by federal bankruptcy courts); and cases involving international trade disputes, among
many others.

Diversity Jurisdiction

Federal court's authority to hear cases involving parties from different U.S. states and a monetary claim exceeding $75,000.

means a federal court has authority to hear a case based on
requirements under federal law (28 U.S.C. § 1332(a)). To meet the requirements of
“diversity jurisdiction” under that law, the case must (a) feature “complete diversity” of
parties involved in the case (no plaintiff and defendant are from the same U.S. state)
and (b) involve at least $75,000 in monetary claims (i.e., the “jurisdictional amount” or
“amount in controversy” claimed by a plaintiff filing suit must meet this threshold)

Original Jurisdiction

Authority of a court to hear and decide a case for the first time.

For either state or federal courts, “original jurisdiction” means that a court has authority to hear
and decide a case for the first time. Courts with original jurisdiction—such as state trial courts—
hear cases in full, including review of evidence and testimony, and decide the outcome of a case for
the first time.

Appellate Jurisdiction

The authority of higher courts to review decisions made by lower courts.

Conversely, “appellate jurisdiction” refers to higher courts’ authority to review lower courts’
decisions after one or more parties have sought appeal. Appellate courts have what’s called
“discretionary jurisdiction” over reviews of lower-courts’ decisions – they can reject an appeal
claim and, in the case of the U.S. Supreme Court, may accept only a very small number of appeals.
When an appellate court does accept an appeal, it may review questions of fact (did the lower court
reach “clearly erroneous” conclusions about a fact in the case?) and/or questions of law (did the
lower court misstate, misinterpret, incorrectly apply the relevant law(s)?). Whether an appeal is
based on factual questions or legal questions determines which standard of review the appellate
court applies to the lower courts’ decision (see below).

Justiciability

The question of whether a federal court has the authority to hear a particular case.

For U.S. federal courts, the term “justiciability” refers to the question of whether a federal court
has authority to hear a particular case brought to them. It includes the previous principles of
jurisdiction along with several other considerations, including constitutional principles and
“prudential concerns.” Constitutional principles limiting justiciability include the “actual
controversy” requirement (the parties to the case are seeking different and at least somewhat
opposed/conflicting outcomes); the requirement that the case’s timing be “ripe” (see Mootness
and Ripeness, below); and the “political question doctrine” (which forbids federal courts from
hearing cases involving “political questions” that fall under the purview of the political branches,
i.e., the executive and/or legislative branches).
“Prudential concerns” mainly refers to those cases in which contextual factors make it
inappropriate for the courts to intervene, in which granting access to the courts would overwhelm

Mootness/ Ripeness

A case brought too late, where the claimed harm has ceased or been remedied.

Both these terms get at the timing of a case being brought to a court. A case is “unripe”—
essentially, it’s being brought too early to the courts—if (a) parties cannot demonstrate that an
actual harm has occurred or is imminent, and/or (b) non-judicial alternatives for resolving a
conflict have not been exhausted. A “non-judicial alternative” may include, for example, parties in
a lawsuit reaching an out-of-court settlement, going to mediation/arbitration, or other paths to
resolving a legal dispute not in a U.S. court.
Alternatively, a case is “moot”— brought too late—when at least one of the parties already has
lost their claim because (among other possible reasons) their claimed injury has ceased or already
been remedied, or when the cause of their injury no longer exists. Consider, for instance, someone
who is suing the State of New York because a new state law negatively affects one of their civil
rights. If, during the course of legal proceedings in the courts, New York then changes the law and
thus removes the harms claimed by the individual suing, then the legal harm no longer exists.

Reliance

The notion of using court decisions and precedents to shape future expectations about legal rights.

In U.S. law, the term “reliance” broadly refers to the notion of “reliance interests,” or the use of court
decisions and precedents by everyday people in making decisions. As Professor Nina Varsava recently
explained, precedents “enables and encourages people to rely on judicial decisions to form expectations
about their legal rights and duties into the future, and to structure their lives and mentalities based on
those expectations.” This reliance is an “interest” in the legal sense: If a court suddenly reverses a rule
that many people have relied upon, then that court typically must consider the adverse consequences of
that reversal and heavily weigh them against alternative courses of action. The idea is that the
government ought not punish people for depending on prior official statements.

Standard of Review

The guidelines for how appellate courts review decisions of lower courts, varying based on questions of fact or law.

Very generally, a “standard of review” refers to how appellate courts review decisions of lower courts.
There are many different, separate “standards of review” used by federal appellate courts, only some of
which will come up in this course or merit more than passing attention. In brief, different standards may
apply depending, e.g., on (a) whether the appeal is based on questions of fact or questions of law, (b)
whether (and if so, which) constitutional principles are involved in a dispute, and (c) whether the case
addresses private conduct (as in a lawsuit between two individuals) or challenges state actors/actions
(as in enforcement actions of the executive branch or Congress-drafted laws).
Put simply, whichever standard of review applies to a given appeal determines how much deference the
appellate court will give to the lower court(s) that first heard the case. Standards of review on appeal can
be extremely deferential, meaning appellate courts may be very reluctant to upend a lower court’s
decision. An appellate court may, for example, only overturn a lower court’s decision upon finding there
was “no substantial evidence” in support of the outcome in the lower court (meaning almost literally no
evidence exists on the basis of which the conclusion could reasonably be reached). Similarly, an appellate
court may find a lower court’s decision “clearly erroneous” when evidence is provided for the
conclusion, but that evidence is specious or contradicted and heavily outweighed by other evidence, and
so is an objectively unreasonable basis for the case’s outcome.

Stare Decisis

The legal principle that judges should respect established precedent unless there are compelling reasons to overturn it.

The term “stare decisis” (from the longer Latin phrase stare decisis et non quieta movere, “to stand by
decisions and not disturb them”) is the general legal principle that judges should respect established
precedent. This does not mean earlier cases or decisions should never be overturned, just that doing so
is (heavily) disfavored absent extremely important reasons to do so, e.g., necessity or practicality

Statute

A federal law passed by Congress and codified in the U.S. Code.

A “statute” refers to a federal law passed by Congress and codified in the Code of Laws of the United
States of America (“U.S. Code” or “U.S.C.”). The U.S. Code is divided into 53 main components (called
“titles”) that usually cover one broad area of law and often include numerous subtitles, chapters,
subchapters, and other subdivisions. Title X (Title “ten”), for example, includes all federal laws on family
planning and related preventive health care, and was first enacted under the Public Service Act of 1970

Writ of Certiorari

A legal recognition granted by the U.S. Supreme Court to accept a case on appeal.

A “writ of certiorari” (sometimes called a “cert writ” or simply “cert”) is a legal recognition granted by the
U.S. Supreme Court (“Court”) when it decides to accept a petition on appeal. In practice, when a party or
parties dissatisfied with lower court decisions makes an appeal to the Court, they are asking for the
Justices to grant such a writ of certiorari; at least four Justices must vote to accept the case and, thus,
grant cert.

Ferderal Question Jurisdiction

means a federal court has authority to hear cases
arising under the U.S. Constitution, federal laws, or both. Some such “federal question”
must be presented in a case for a federal court to hear it and render judgment

De novo review

means that an appellate court hears and reviews a lower court’s decision as
though the key question(s) in the case were being addressed for the first time. In practice, this
means the appellate court gives no deference to the lower court’s decision at all. De novo review is
almost always used in appellate cases addressing questions of law

Abuse of discretion

refers to a standard of review in an appeals case where a lower court judge’s
discretionary decision or ruling is at issue. Discretionary rulings refer to the many decisions made
by trial court judges on the basis of their own judgment, the interest of fairness, etc. Discretionary
rulings may include a judge’s decision to admit or exclude evidence presented during trial, grant
extensions to filing deadlines, and waive fees or deadlines for a party experiencing some hardship,
among many other examples. A trial court judge’s discretionary ruling will only be reversed on
appeal if it was done in “plain error,” meaning it was “patently obviously” wrongly decided and
the decision affected a party’s substantial rights (such as core civil rights and liberties, or some
other right or interest they might claim under federal, state, the common law, etc.)

Rational basis review

(by far) the most deferential standard: executive action or legislation will
not be overturned if it has any “reasonable relationship” to any “legitimate government interest.”
Note the use of italicized “any” in both parts of this definition. In practice, rational basis review
means that if any legislator drafting a law believed or could have believed that its requirements or
restrictions had any relationship to some legitimate aim, then the Court must uphold that law. A
“legitimate government interest” has not been explicitly defined or given a single, general
standard of its own by the Court, but it has been viewed very broadly. A “legitimate” interest can
be any claim put forward by the government as to the goal served by a law, regardless of whether
it’s a demonstrably “real” claim or not, or even in cases where it’s entirely hypothetical.
As long as a law or executive action does not involve suspect or quasi-suspect classifications (see
the next two standards of scrutiny, below), then rational basis review is the default standard for
the Court’s reviewing of constitutional questions

Strict scrutiny review

s the least deferential standard: executive action or legislation is
presumptively unconstitutional and therefore forbidden unless the government proves (a) the
challenged law is necessary to achieve (b) a “compelling state interest,” and (c) the mechanism
for achieving that compelling interest is “narrowly tailored” so as to minimally affect individuals’
constitutional rights and liberties. In plain language, a “compelling” government goal is one so
important that it may override core constitutional rights and liberties, as in some cases involving
national security, public health and safety, military affairs, and a narrow range of other federal
policy areas. Even still, the government may only pursue such “compelling” interests through
precise, targeted action – a law that is both necessary to achieve the goal and carefully crafted to
ensure rights are minimally affected. “Narrowly tailored” laws must avoid (a) overbreadth (the
law affects persons or conduct, or it broadly infringes constitutional rights, far beyond the scope
needed to achieve whatever “compelling state interest”) and (b) vagueness (the law is unclear
about what conduct is permissible, in what situation or context, etc., such that it may be applied
arbitrarily or have the effect of “chilling” the lawful exercise of rights by citizens

Applying Strict Strunity

(1) When the challenged enforcement or legislation infringes a “fundamental constitutional
right” (i.e., one in the Bill of Rights, or one established in precedent as “fundamental” and
protected by the Fifth and/or Fourteenth Amendments); and
(2) When the government action defines, singles out, and applies a “suspect classification”
(“suspect class”) that has been established to require this type of review

intermediate scrunity

finally, lies somewhere between the other two in terms of deference and is
applied to laws discriminating on the basis of “quasi-suspect” classifications (see below) and a
handful of other issues. The intermediate scrutiny standard requires the government prove that
the challenged law (a) furthers an “important government interest” and that the law (b) uses
means “substantially related” to the important government interest.
Although the Court has used inconsistent language in applying this tier of scrutiny (sometimes
calling it “intermediate” review, other times “heightened”), recent decades’ cases have generated a
rough set of “quasi-suspect classifications” which trigger this standard. These classifications
include those based on sex/gender and illegitimacy. In addition, this standard has been used in
cases involving a few (very limited) free speech contexts and in a few older cases challenging gun-
control laws under the Second Amendment.
Notably, laws discriminating on the basis of sexual orientation and/or gender identity have been
subject to intermediate scrutiny by various federal courts and seem to imply these are “quasi-
suspect” classes. As of 2023, however, the U.S. Supreme Court has not announced which standard
explicitly applies to LGBTQ+ Americans