CS 498 Law & Policy Midterm 1

democracy

Rule by the people

Republic

a system of government with the supreme power in the people, exercised by representatives chosen through the votes of qualified voters

Rule of Law

Principle that decisions should be made by the application of established laws without the intervention of individual discretion

Federalism

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

Constitutionalism

The principles of constitutional government; adherence to them, including, notably, restrictions and limitations on government power

Liberalism

Political philosophy of individual rights, democracy, free enterprise, and rule of law

Natural law

higher law above and beyond humanity's power to change

Positive law

actual law written by people (as opposed to natural law)

Tyranny

cruel or oppressive rule

Despotism

absolute power

Legislative branch

Enacts laws

Executive branch

Enforce Laws

Judicial Branch

Interprets the laws

Common Law

A framework of English principles (customs and statutes) brought to the United States by settlers

Case or controversy

a requirement that courts decide only cases where there is an actual conflict.

stare decisis

common law doctrine that binds inferior courts 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

historically based reference to court or judge made law

case law

all reported judicial decisions, the law that comes from judges' opinions in lawsuits

Judicial review

The U.S. Supreme Court has the power to declare any act of Congress, any order by the president, or any state law unconstitutional

Separation of powers

The powers of government are divided among the three branches, with the intent that each branch checks the other two

No bills of attainder

no laws can be passed punishing a specific individual

No ex post facto laws

no law can retroactively make previous conduct illegal

Supremacy doctrine

all state and federal laws inconsistent with the Constitution are null and void

Prior restraint

Censorship of speech; restrictions before the act of speaking

Viewpoint restrictions

Regulating speech based on views expressed

Content restrictions

regulating speech based on idea or message

Incidental restrictions

speech regulated as part of regulating other behavior

Commercial speech

speech proposing a commercial transaction

strict scrutiny test

1. There must be a "compelling interest". Speech must be actively harmful in some way without any offsetting benefits.

2. The restriction must be "narrowly tailored" to the speech it prohibits

3. There must be no "less restrictive alternatives" for preventing the speech

rational basis review

a law is valid if it is rationally related to a government interest

Adversarial system

parties of legal disputes are opponents and attorneys advocate legal theories to benefit for their client's cause

Inquisitorial system

The judge investigates the dispute and questions witnesses

trial court vs. appellate court

initial court that hears evidence and applies the law vs court that reviews decisions of prior courts for substantive and procedural correctness

Judge

public official who presides over court proceedings

Jury

a group of men and women sworn to declare the truth based on evidence presented

Plaintiff

Person trying to recover monetary damages or other relief from defendant

Defendant

In civil trial, the person from whom damages are sought; in criminal trial, the person accused of a crime

Jurisdiction

The power of a court to decide a controversy and award proper relief

Concurrent jurisdiction

More than one court has jurisdiction

Venue

the local place where the case is most appropriately tried

Long-arm statute

a state law authorizing a court to hear cases brought against nonresidents in certain circumstances

In personam jurisdiction

Power of the court over a person

In rem jurisdiction

The power of a court to declare rights against the world rather than solely against the named defendant; jurisdiction over property rather than a person

Small claims court

courts with limited jurisdiction over small controversies

Writ of certiorari

A procedural document whereby an appellate court exercises its discretionary power to accept jurisdiction of a pending case

Complaint

document stating the facts constituting an alleged cause of action

Cause of action

existing right to seek and to receive judicial relief, assuming the factual allegations of the plaintiff are true

Summons

Document issued by a clerk of the court inviting the defendant to respond to a complaint

Process server

Person who serves a copy of the summons and complaint, or other legal document, upon a party or witness at the request of the opposing party to civil litigation

Answer

Document containing a defendant's denials, admissions or allegations of fact in response to a complaint

Motion to dismiss

a motion filed by a defendant in response to a summons and complaint alleging the complaint, even if true, is insufficient to state a cause of action

Motion

A formal request by counsel addressed to a court or other tribunal for a particular decision or act.

Sustained

the judge agrees with the motion

Statute of limitation

A statute that bars civil or criminal proceedings unless brought within a specified period of time after the act occurred

Ex parte trial

A legal action where only one side of dispute is heard

Default judgement

Court awarded judgement based on failure to answer summons

District attorney

chief prosecuting attorney for an area

Accusation

Formal commencement of a criminal case - by a DA or by a grand jury

Information

An accusation initiated by a DA after a preliminary hearing

Indictment

an accusation initiated by a grand jury for a felony

Felony

a serious crime punishable by a least one year in jail

Discovery

methods used to gather facts before trial of a lawsuit (often expensive and lengthy)

Deposition

Questioning of a witness or adverse party before trial

Interrogatories

form of discovery consisting of written questions directed to party or witness, expected to reply with written answers under oath

Motion to produce

request to judge to compel opposing party to provide evidence to court

Subpoena

an order directing a person to appear at a certain time and place for the purpose of giving testimony as a witness

Subpoena duces tecum

an order to produce specified documents or physical evidence

Pretrial hearing

Hearing occurring before a trial (e.g. plan trial, find disputes)

Motion for summary judgement

Request to award judgement because no significant questions of fact exist in lawsuit (if granted, no trial)

Settle out of court

Agree to resolve dispute without trial

Plea bargain

binding agreement in which accused agrees to plead guilty if court agrees to specified charge and punishment in advance

Questions of fact

Circumstances or matters surrounding and involved in a case that is being tried ("What happened?")

Trier of fact

Judge or jury acting as the finder of issues of fact

Questions of law

Principles and rules of human conduct determined by the judge to be applicable in a case being tried ("What are the rules?")

Voir dire

Process of questioning prospective jurrors to ascertain if they have any bias that would make it difficult or unlikely that they could be impartial determining questions of fact during a trial

challenge for cause

To exclude a juror if bias or prejudice is indicated

Preemptory challenge

to exclude a juror for any reason other than race or gender

Action in Equity

non-monetary relief

Specific performance

an equitable remedy allowing a buyer to get possession and title to real property and to goods that are unique when the seller refuses to deliver under a valid sales contract

Rescission

An equitable remedy that annuls a contract and returns the parties to the relationship they had before the contract was made

Injunction

An order of a court of equity to someone to do or not do some act

Equitable maxims

general rules applied by judge to cases in equity

Contempt of court

willful defiance of the authority of a court, affront to its dignity, or willful disobedience of its lawful orders

Burden of proof

Duty to produce evidence as a trial progresses

Preponderance of evidence

standard of evidence for determining civil liability; the weight of the evidence offered to prove a matter is more probable than not

Beyond reasonable doubt

Standard of evidence for determining criminal guilt; not explicitly defined except for this phrase

Opening statement

Summaries by counsel of plaintiff and offendant indicating what they expect to prove in the ensuing trial

Case-in-chief

the case presented by each party in a trial

Evidence

everything presented by the disputing parties that the finder of fact is entitled to consider in arriving at a determination of the facts

Objection

a formal protest over procedural issues (testimony, evidence, questioning)

Overruled

Judge disagrees

Sustained

Judge agrees

Summation

Review of the evidence presented to the court by each lawyer in oral argument at the close of the trial (closing argument)

Attorney-at-law

A person licensed to practice law (a.k.a. lawyer, attorney, counselor)

Fiduciary relationship

relationship wherein one person has an obligation to perform services with scrupulous good-faith and honesty

In pro se

The person represents themselves (no attorney)

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 in which the attorney is under a duty to keep the information secret

Retainer fee

money paid for promise of consultation and future representation