All legal studies terms

Establishment Clause

Part of the First Amendment to the US Constitution that prohibits government from establishing a church or referring one religion over another

Free exercise clause

part of the First Amendment to the US Constitution that protects individuals right to worship as they choose

Parochial schools

Private school supported by or affiliated with a religious organization

Procedural due process

Generally a right to fair treatment when government action affects a person's interest

Substantive due process

used by courts to protect basic freedoms by making sure that government does not violate a fundamental right without good reason

Unenumerated rights

Rights that are not listed specifically in the Constitution

Answer

the defendant's first pleading that addresses the merits of the case, usually by denying the plaintiff's allegations; an answer usually sets forth the defendant's defenses and counterclaims

Appellant

the party who has filed an appeal requesting that a higher court review the actions of the lower court—note that the appellant can be either the plaintiff or the defendant

Appellee

the party against whom an appeal is taken (usually the prevailing party in the lower court) note that the appellee can be either the plaintiff or the defendant

Complaint

the initial pleading that starts a civil action and states the basis for the court's jurisdiction, the basis for the plaintiff's claim, and the demand for relief; this is sometimes called a petition; in criminal law, this is a formal charge accusing a person of an offense

Concurring opinion

a separate opinion explaining a judge's decision to vote in favor of the judgment reached, but on grounds differing from those expressed in the majority opinion

Counterclaim

a claim for relief asserted against an opposing party after an original claim has been made; it is usually a defendant's claim in opposition to or as a setoff against the plaintiffs claim

Defendant

the party against whom a complaint is filed in a civil action or against whom an indictment or information is brought in a criminal action

Dicta or Obiter Dictum

language that is not critical to a court's decision in that it goes beyond the actual facts presented

Discovery

compulsory disclosure, at a party's request, of information that relates to the litigation; the pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted

Dissenting opinion an opinion by one or more judges who disagree with the decision reached by the majority

Holding

the conclusion of law (the rule) reached by the court pivotal to its decision based on the actual facts presented

Judgment

a court's final determination of the rights and obligations of the parties in a case; this can include an equitable decree and any order from which an appeal lies

Majority opinion

an opinion joined in by more than half of the judges deciding a particular case

Motion to dismiss

a request that the court dismiss the case because of settlement, voluntary withdrawal, or a procedural defect

Overrule the court disavows its interpretation of the law in a later, different case

Per curiam

an opinion written "by the court" rather than by one particular judge or justice; it is usually a short opinion on a well-established rule of law

Plaintiff

the party who initiates a civil action against another party (the defendant)

Petitioner

the one who starts an equity proceeding or the one who takes an appeal from a judgment

Plurality opinion

an opinion without enough votes to constitute a majority, but receiving more votes than any other opinion

Respondent

the party who is defending the petition in an equity proceeding-similar to a defendant in a civil action

Reverse

a higher court decides that the lower court made the wrong decision in the same case

Stare decisis

the doctrine providing that courts will decide cases based on prior binding authority or precedent

Summary Judgment

a judgment granted on a claim or defense about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law; the court considers the contents of the pleadings, the motions, and additional evidence adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law; this procedural device allows the speedy disposition of a controversy without the need for trial

Commercial Speech

speech that is directed at buying or selling of goods and services. Treated differently from political speech and other forms of expression. Limited protection by the constitution

Obscenity

a general term applying to anything that is immoral, indecent, or lewd

Defamation

written or spoken expression about a person that is false and damages that person's reputation

Slander

spoken expression about a person that is false and damages that person's reputation. Spoken defamation

Libel

a written expression about a person that is false and damages that person’s reputation. Written defamation

Fighting words

a legal term applying words spoken face to face that are so abusive that they are likely to cause an imminent fight between the speaker and the person spoken to. Such words are not usually entitled to the first amendment protection.

Clear and present danger test

A test formerly used by courts to restrict speech when the government though the speech would create an immediate danger of serious harm

Incitement test

a method used by courts to determine whether to restrict or punish expression based on its potential to cause immediate unlawful behavior

Hate speech

bigoted speech attacking or disparaging a social or ethnic group or a member of such a group

Public forum

any place, such as a park or street, where first amendment expression rights are traditionally exercised

Symbolic speech

conduct that expresses and idea for example wearing a black armband to protest a war

Vagueness

indefiniteness, uncertainty, imprecision; not clear or specific

Overinclusive

too broad or general. As a legal term this usually refers to a law that punishes speech that should be protected

Censorship

1. The denial of freedom of speech or freedom of the press; 2. The process of examining publications of films for materials that the government considers harmful or objectionable

Gag order

a court order prohibiting public reporting on a case currently before the court

Prior restraint

any effort to censor a publication before it goes to press

Public forum

any place, such as a park or street, where first amendment expression rights are traditionally exercised

Penological

of or relating to the criminal corrections process