Term
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Definition
| Laws that come from the courts (judicial branch) as opposed to law which derives from legislature |
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| A government consisting of states or provinces under an umbrella of government. |
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| Once a rule of law is determined to ne applicable to a particular set of facts in a case, it will be applied to all future cases that have similar facts. |
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| A ruling from a previous case which gives the court authority and direction on a similar case |
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| The law that is the direct result of a court ruling |
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| Laws enacted by both state and federal government |
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| Laws enacted by local government |
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| The combination of statutes and ordinances |
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| A series of statutes written by the legislative branch |
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| The power or authority given the federal government is given to enact statutes |
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| Applies whenever the United States and a state government enact conflicting laws on the same subject |
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| Courts decide if there is an actual conflict between the parties |
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| Judges who exercise their power to expand the law (O'Hara) |
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| Judicial Constructionists |
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Definition
| Judges who follow stare decisis and interpret the law strictly (Scalia) |
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| Any part of a court opinion that is unnecessary to the resolution of dispute between the court |
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| Electoral process for making a new statute or changing the constitution |
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| Judicial decision with complete agreement between all judges |
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| One judge makes a point not brought about in the unanimous or majority opinion and other judges concur with the point for various reasons |
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| One judge disagrees with the majority |
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Party who appeals a case to another court.
Sometimes called a petitioner |
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The party against whom the appeal is made.
Sometimes called the respondent |
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Definition
| Federal regulation of business |
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Term
| Necessary and Proper Clause |
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Definition
Make all laws necessary and proper to execute the foregoing powers vested by the constitution
Congress' regulatory power |
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Definition
| Federal Government overrides laws of other governments |
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| Gave congress right to impose federal income tax |
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Term
| What are the 4 Purposes of Law? |
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Definition
Influencing the behavior of the members of a society
Resolving disputes within society
Maintaining important social values
Assistance for social change |
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Definition
| President's laws created by signing legislature and requiring agencies to do certain things within the executive scope of authority |
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| Tells administrative agencies what they can and can’t do and how they are supposed to do it |
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Definition
| The laws and rules governing how agencies can or must conduct themselves. |
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| Rules promulgated by an administrative agency under authority given to the agency by the entire abling statute |
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| The laws and regulations enforced by the SEC (US securities and exchange commission) to allow or limit behavior |
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Definition
| Sub branch of the executive branch and may possess legislative, executive, and judicial powers |
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| Administrative bodies headed by single person who have to answer to the chief executive |
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| Independent Administrative Agency |
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Definition
| An agency empowered to regulate some policy area led by officials who cannot be dismissed by the resident except for good cause |
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Definition
| When the government came in to downsize the bureaucracy |
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Definition
| Creates an administrative agency and authorizes the agency to perform specific actions |
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| Administrative Procedure Act (APA) 1946 |
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Definition
Enacted in response to the reckless procedures and inconsistent standards of the federal agencies.
Mandated procedures for administrative agencies |
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| Federal Trade Commission (FTC) |
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Definition
Created to prohibit unfair and deceptive trade practices
Prevents against antitrust |
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Term
| Security and Exchange Commission (SEC) |
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Definition
Secures companies that require security for financial purposes
Regulates information by regulated companies
Prosecutes violations of securities laws and regulations |
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Definition
Supervises and regulates most of the nation’s banks
Helps ensure a stable money currency to prevent inflation and regulate the flow of money |
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Term
| Equal Employment Opportunity Commission (EEOC) |
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Definition
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| Environment Regulations (EPA) |
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Definition
Restricts what individuals can and cant do to affect the health of the environment
Endangered Species Act, Clean Air Act, Clean Water Act |
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Term
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Definition
Notice of intended rule to be made
Allow for public comments
Publish the regulation in the Code of Federal Regulations
Respond to comments
Maintain a rulemaking record |
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Term
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Definition
| An order to produce a witness or a thing |
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Term
| Administrative law judge (ALJ) |
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Definition
| Government employee appointed to hear and decide matters in administrative agency hearings |
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Term
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Definition
| Administrative agency that the subject party refrain from specified activities |
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Term
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Definition
Person cannot be prosecuted without the due process of the law
Due process is:
1. violated when the state infringes on fundamental liberty interests
2. violated when a state action shocks the conscience or offends judicial notions of fairness and human dignity |
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Term
| 11 steps to a fair hearing |
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Definition
1. unbiased tribunal (neutral court)
2. Notice of the proposed action and the grounds for the action
3. An opportunity to present reasons why the proposed action should no be taken
4. The right to call a witness
5. The right to know the evidence against you
6. A decision based on evidence presented at the hearing
7. The right to counsel
8. Making of a record
9. Statement of reasons for the decision
10. Public attendance
11. Judicial review |
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Term
| Freedom of Information act (FOIA) |
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Definition
| Government must disclose records to any person upon request |
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Term
| Government in the sunshine act |
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Definition
| Prohibits secret agency meetings |
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Term
| Regulatory flexibility act |
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Definition
| Requires the agency conduct a “flexibility analysis” to estimate and disclose the costs of the rule on small business |
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Term
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Definition
| Power of the courts to review administrative agency action. |
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Term
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Definition
| A complete reevaluation of an issue, finding or case as if the original decision had never been made. |
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Term
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Definition
| A person’s right or capacity to bring a lawsuit because of having legally protected interest at stake |
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Term
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Definition
| A form explaining all other actions were taken before taking a claim to court |
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Definition
Protects our freedom of speech, separates church and state
Free speech would not protect a man who falsely shouts “fire” in a movie theater causing a panic
freedom of speech means you can discuss public matters without the fear of punishment or constraint.”
Does not protect against misleading and unlawful speech |
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Definition
| Right against unreasonable search and seizure |
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Definition
| Evidence collected without a warrant is improperly obtained and cannot be used in court |
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Definition
| No person she be compelled into self-incrimination |
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Definition
| Right to a trial by jury in criminal cases |
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| Right to a trial by jury in common law cases |
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Definition
restriction from cruel and unusual punishment
no excessive fines may be imposed |
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Definition
| Decisions should be made by the established laws without the intervention of individual discretion |
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Term
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Definition
| Preconceived belief affecting neutrality and fairness |
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Term
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Definition
| Place where legal disputes are heard and decided by laws to civil controversies and criminal offenses |
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Term
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Definition
| The initial court that hears evidence and applies the law based on the facts |
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Definition
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Term
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Definition
| Person whom the lawsuit of against |
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Definition
| The money the plaintiff is trying to recover |
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Definition
| The process for resolving the conflict |
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Definition
Purpose of resolving civil conflict
Person responsible is liable |
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Definition
Government prosecutes a person charged with a crime
Person responsible is guilty |
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Term
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Definition
| A court hearing that lacks proper procedure and fairness and outcome is predetermined |
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Term
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Definition
| Formal request for a higher court to review the action of the lower court |
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Term
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Definition
| Court that reviews decisions from prior courts procedural correctness |
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Term
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Definition
| Written legal arguments addressed to the appellate court from lawyers |
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Term
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Definition
| Power for more than 1 court to hear a case |
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Term
| Subject Matter Jurisdiction |
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Definition
| Determines which cases a court can hear |
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Term
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Definition
| Courts that can only hear limited cases |
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Term
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Definition
| Court that can hear almost any case |
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Term
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Definition
| The place relative to where the case is appropriately tied with |
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Term
| Motion for change of Venue |
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Definition
| Request to change location of the hearing based on prejudice and the person’s right to a fair trial |
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Term
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Definition
| The power of court over a person from different states |
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Term
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Definition
| Courts can hear cases brought against nonresidents under specified circumstances |
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Term
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Definition
| The power of courts to declare rights against the property of an rather than a person |
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Term
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Definition
| Court with jurisdiction to decide civil controversies of a relatively minor nature |
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Term
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Definition
| new trial that takes place as if the first one had not been heard |
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Term
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Definition
| Requires the plaintiff and defendant be involved in the actual controversy, citizens are from different states and seek $75,000 or more in damages |
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Term
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Definition
Cases tried solely in state or federal court
Ex. Filing for bankruptcy occurs only at the federal court |
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Term
| Writ of Certiorari “to be informed of” |
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Definition
| Document stating which cases are to be heard |
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Term
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Definition
| Document stating the facts constituting an alleged cause of action |
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Term
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Definition
| Right to seek and receive judicial relief |
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Term
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Definition
| Document inviting the defendant to respond to the complaint within a given time |
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Definition
| The person who delivers the summons |
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Term
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Definition
| document containing the defendants denials and allegations |
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Term
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Definition
| The complaint & the answer |
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Term
| Demurrer (motion to dismiss) |
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Definition
| Used to dismiss complaint, even if true, because it insufficiently provides and answer |
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Term
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Definition
| Formal request to go to court to see a judge |
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Term
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Definition
| Judge agrees to the request by the attorney |
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Term
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Definition
Requires particular legal action be commenced within a stated period of time
Prevents late claims because over time memories fade and evidence becomes scarce |
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Definition
| Court’s judgment based on the defendants failure to answer to summons or appear at trial. Common for small court trial |
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Term
| Ex Parte Trial "with one party" |
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Definition
| Legal action where only one side of the dispute is heard |
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Term
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Definition
| Formally charges someone of committing a crime |
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Term
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Definition
| Accusation of a criminal offense following a preliminary hearing |
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Definition
| Citizens to investigate government and issue penalties against those suspected of criminal conduct |
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Definition
| An accusation of a felony filed by a grand jury |
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Term
| Alternative Dispute Resolution |
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Definition
| Any method to resolve the dispute without the judicial process |
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Term
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Definition
| Llearning about the facts of the dispute |
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Term
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Definition
| Questioning a witness by the opposing attorney |
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Term
| Written questions/interrogations |
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Definition
| Given to a party that must reply under oath with written answers |
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Term
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Definition
| To discredit, dispute disparage or contradict a witness' testimony |
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Term
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Definition
| Request to compel the opposing party to provide specified evidence to the court |
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Term
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Definition
| Order telling a person to appear to give a testimony as a witness |
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Term
| Subpoena duces tecum “under penalty bring with you” |
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Definition
| Requires that physical evidence be brought to court |
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Term
| Privilege Against Self-Incrimination |
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Definition
| Right for any person to remain silent when their speech may indicate they committed the crime |
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Term
| Motion for Summary Judgment |
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Definition
| Request to award judgment because there is no significant questions of fact in the lawsuit |
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Term
| Pre-Trial Hearing or Conference |
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Definition
| Purpose is to identify matters in the dispute and plan a course of the trial |
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Term
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Definition
| Group of people selected to ensure lack of bias and declare the truth based on the evidence presented |
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Term
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Definition
| Agreement where the accused agrees to plead guilty if the court agrees to a specified punishment in advance |
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Term
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Definition
| Determining the constitutionality of a statute or executive action |
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Term
| Jury Nullification (Criminal Case) |
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Definition
If jury ignores law:
Judge CAN declare defendant not guilty if jury decides to convict the defendant
Judge CANNOT declare the defendant guilty if they believe jury is wrong |
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Term
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Definition
| Historical events of the case |
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Term
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Definition
| Jury or judge acting as the finder of issues of fact |
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Term
| Voir Dire “to speak the truth” |
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Definition
| Process of questioning jurors to find out if they have any bias |
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Term
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Definition
| Ability to exclude a prospective trial juror if bias is indicated |
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Term
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Definition
Dismissal of a juror for an undisclosed personal reason
In superior court, allowed up to excuse up to 6 jurors |
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Definition
| Allows a buyer to get possession and title to real property when a seller refuses to deliver a valid sales contract |
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Definition
| Cancels a contract and returns the parties to the relationship before the contract was made |
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Term
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Definition
| Order for someone to do or not do and act |
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Term
| Equitable Maxims – rules applied in equity cases |
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Definition
To be treated fairly you must treat others fairly
Law will determine the outcome
Plaintiffs must have acted fairly and honestly
Relief will be awarded when there is no adequate remedy
Equity is related to fairness rather than the legality
Equity will help those who understand their rights |
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Definition
Purposely disobeying an order of the court
Subject to arrest and imprisonment |
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Term
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Definition
| The duty to produce evidence as a trial progresses |
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Term
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Definition
| Evidence to convince the jury in a criminal trial that the defendant is guilty as charged |
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Definition
| Being tried for the same offense is unconstitutional at the same court level but reasonable at different levels of court |
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Term
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Definition
| A summary of what the plaintiff is expecting to prove. Used to inform jury of what they should expect to hear |
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Term
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Definition
| The evidence of the case presented by each party |
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Term
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Definition
| Specialized individual with knowledge or training in a field to testify about a topic |
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Term
| Prima Facie “at first sight” |
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Definition
| Legal facts unless disapproved by evidence |
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Term
| Motion for a Directed Verdict |
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Definition
| A request for the judge to make a verdict because the jury cannot do it based on the facts |
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Term
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Definition
| A speech made by the attorney to persuade the jury |
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Term
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Definition
| The judge informs the jury of the law that must be applied based on the facts |
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Definition
| Jury to review and weight the evidence as presented |
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Term
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Definition
| The Jury’s decision based on the facts |
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| Judgment non obstante veredicto “notwithstanding the verdict” |
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Definition
| Decision by the judge that overrules the jury's verdict |
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Term
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Definition
| The final determination of the court as to the rights and duties of the parties in a lawsuit |
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Term
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Definition
| Person who lost the case and has to pay but has not yet made the payment |
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Term
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Definition
| Person who won judgment but remain unpaid |
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Term
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Definition
| Document telling sheriff to confiscate property |
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Term
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Definition
| Judgment creditor gets court order for a 3rd party to pay for the debtor |
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Definition
| Authorized inquiry of the debtor’s assets |
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Term
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Definition
| confirming a lower court's judgement as to the assets of a judgement debtor |
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Term
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Definition
| Lower court's ruling is reversed |
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Term
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Definition
| appellate court alters the decision of the lower court |
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Term
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Definition
| Resend the case back to the lower court with specific instructions for the trial court judge |
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Term
| Judgment non obstante veredicto “notwithstanding the verdict” |
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Definition
| Decision by the judge that overrules the jury's verdict |
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Term
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Definition
| The final determination of the court as to the rights and duties of the parties in a lawsuit |
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Term
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Definition
| Person who lost the case and has to pay but has not yet made the payment |
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Term
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Definition
| Person who won judgment but remain unpaid |
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Term
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Definition
| Document telling sheriff to confiscate property |
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Definition
| Judgment creditor gets court order for a 3rd party to pay for the debtor |
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Definition
| Authorized inquiry of the debtor’s assets |
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Term
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Definition
| confirming a lower court's judgement as to the assets of a judgement debtor |
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Term
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Definition
| Lower court's ruling is reversed |
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Term
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Definition
| appellate court alters the decision of the lower court |
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Term
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Definition
| Resend the case back to the lower court with specific instructions for the trial court judge |
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Term
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Definition
| Communication for the purposes of persuasion and settlement or resolution |
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Term
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Definition
| The use of a third party to assist parties in voluntarily resolving their disputes |
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Term
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Definition
| Use of third party to lower tensions, improve communication and explore possible solutions to a conflict |
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Term
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Definition
| Private confidential meeting between disputants and a third-party neutral |
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Term
| American Arbitration Association |
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Definition
| Private nonprofit organization with the purpose of providing education, training and administrative assistance to parties who use ADR |
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Term
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Definition
| Conflicting parties select a neutral third party to hear and decide their dispute |
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Term
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Definition
| final decision of the arbitrator |
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Term
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Definition
| When parties agree to abide by the decision of an arbitrator. Typically bound by contracts |
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Term
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Definition
| Parties agree to the procedure once a dispute arises |
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Term
| Court Annexed Arbitration |
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Definition
| Mandatory process required by some courts prior to trial |
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Term
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Definition
| Combination of mediation and arbitration |
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Term
| Private Judging “rent a judge” |
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Definition
| Using a legally trained arbitrator who follows formal judicial procedure in hearing a case outside of court |
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Term
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Definition
| Consultant to resolve conflicts that arise within the organization |
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Term
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Definition
| Hired expert investigates hears facts on selected issues |
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Term
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Definition
| Gives the parties an early evaluation of the merits of the case |
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Term
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Definition
| Informal form of dispute where attorneys make presentations before officials settle |
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Term
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Definition
| Parties present their cases to a private mock just which gives the parties advisory verdict |
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Term
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Definition
| Panel of citizens selected and paid to mirror role of an actual jury |
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Term
| Collaborative Law Practice |
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Definition
| Method where the parties agree to resolve their disputes without court intervention using interest-based negotiation |
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Term
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Definition
| Improve contract performance and eliminate contract litigation through common understanding of goals |
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Term
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Definition
Parties are opponents and their attorneys advocate the theories to benefit the clients.
The American Law System |
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Term
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Definition
| Allows the judge to investigate, question and seek out evidence before a trail |
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Term
| Attorneys At Law (lawyer) |
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Definition
| Person licensed to practice law |
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Term
| Legal Assistant (paralegal) |
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Definition
| Helps perform legal services under the supervision of an attorney |
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Term
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Definition
| Attorneys relationship with the client to exercise good faith, honesty and fairness |
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Term
| Pro Hac Vice “for this occasion” |
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Definition
| Right for an out of state attorney to represent clients from another state |
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Term
| In Propria Persona or In Pro Se |
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Definition
| Person represents themselves in legal action without an attorney |
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Term
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Definition
| A fixed percentage of money obtained by the lawyer for the client. Fees to be paid only if the client wins |
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Term
| Legal Services Corporation (LSC) |
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Definition
| Helps states provide legal assistance to the poor through grants in noncriminal cases |
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Term
| Pro Bono Publico “for the public good” |
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Definition
| Some associations who provide legal assistance for free |
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Term
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Definition
| Insurance plans designed to provide legal services at a reduced cost to the members of associations. Kind of like health insurance |
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Term
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Definition
| Assist in specific areas like employment, minority rights, civil rights, political rights, family law, environmental law. They are non-profit |
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Term
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Definition
| Written rules of conduct of a professional group |
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Term
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Definition
| Set of rules to make standards of professional behavior to regulate judicial conduct |
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Term
| Attorney-Client Privilege |
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Definition
| Clients right to keep communication between them and their attorney confidential |
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Term
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Definition
| Lawyer’s ethical obligation to protect an info learned about a client when they represented them |
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Term
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Definition
| When client’s interest are at risk, because the attorney is tempted to serve the other party |
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Term
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Definition
| Claims without legal justification intended to retaliate at the opposing party. They are a waste of money and time consuming |
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Term
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Definition
| Lawyer Provided by the community for a person who is accused of a serious crime and cannot afford to fire counsel |
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Term
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Definition
| Continuing fees paid to attorney (usually placed in a trust account) to ensure they represent the specific client when requested |
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Term
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Definition
| When members of a group have suffered similar injury and join together in a single lawsuit against the wrongdoer |
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Term
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Definition
Promoting the litigation of party to sue the party at fault
It is unethical and illegal |
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Term
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Definition
| Illegal agreement for a portion of the gains in exchange for paying the litigant’s lawsuit expenses |
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Term
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Definition
| Brought to the civil court by the client seeking compensation for the attorneys negligence or intentional wrongdoing |
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Term
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Definition
| A business where a person runs it themselves |
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Term
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Definition
| An association of two or more persons to carry on a business as co-owners for a profit |
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Term
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Definition
| Partners share control over the business operations and profits |
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Term
| fiduciary duty of a partnership |
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Definition
| Thus personal interests of the partners come after the interests of the partnership |
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Term
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Definition
| Occurs when an event takes place that preludes the partners from engaging in any new business |
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Term
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Definition
| Involves completing any unfinished business and then collecting and distributing the partnership’s assets |
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Term
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Definition
| Business organization made of two or more people who agree to carry on a business venture for a profit |
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Term
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Definition
| People that invest in a company and thus become a partner, they have no managing capabilities |
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Term
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Definition
| A legal entity created under state law. Fundamental duty is to make money for stockholders/owners |
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Term
| Certificate of Incorporation |
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Definition
| Document stating that state approves the corporation |
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Term
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Definition
| “rules” that regulate and govern the internal operations of the corporation |
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Term
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Definition
rights and responsibilities are separate from the owners.
Ex. A corporation |
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Term
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Definition
Own the corporation
Have the right to inspect the books and records
Can sell stock to someone else unless restricted in the bylaws
Elect the board of directors
Vote on matters that change the corporations structure |
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Term
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Definition
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Term
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Definition
| Written authorization for a third party to cast a shareholder's vote |
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Term
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Definition
Governing committee of a corporation
Chosen by the incorporators at the first corporate meeting
Board is the principal of the corporation |
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Term
| Principal (in a corporation) |
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Definition
| Sets the corporate policy and decides corporate business |
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Term
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Definition
| Makes directors and managers immune from liability when problems results from honest mistakes in judgment |
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Term
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Definition
| Requires that directors place the interests of the corporation before their own interests |
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Term
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Definition
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Term
| Professional Corporations |
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Definition
| Reason for these is to allow liability of the members of the group to be limited to what is invested |
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Term
| Double taxation (disadvantage) |
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Definition
| Corporation and shareholders are taxed |
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Term
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Definition
| Shareholders only lose what they have invested in a company |
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Term
| Limited Liability Corporation (LLC) |
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Definition
| Treated like a corporation for liability purposes but like a partnership for federal tax purposes |
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Term
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Definition
| Those interested in forming the LLC |
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Term
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Definition
| Gives rules about the operation of the company and the relationships of the members |
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Term
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Definition
| The death or retirement of a shareholder does not bring termination to a corporation. Usually has minimal effect |
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