C. Law

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Actual Damages

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Actual damages are calculable damages awarded to the victim of a tortfeasor. In cases of libel or slander, a private person need not prove actual malice to collect for this, but must for punisitive damages. Public figure must prove actual malice for both actual and punitive damages.

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Actual malice

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Actual malice is a deliberate intention to cause harm or injury. This may be shown that libel or slander was propogated by a tortfeasor with (1) knowledge of its falsity, or (2) reckless disregard for its truth or falsity.

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Affirmative Prior Restraints

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Affirmative Prior Restraints are prior restraints on free speech or press which require speaking or publiching certain material

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Alienage

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Alienage is a legal status with regard to citienship. "Aliens" are by definition non-citizens. "Alienage is also a suspect classification with respect to the application of equal protection

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American Booksellers v. Hudnut (1987)

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Definitions of pornography in state prohibitions must accord with Miller standards

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amicus curiae

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An individual or organization allowed to take part in a judicial proceeding, not as one of the adversaries, but as a party interested in the outcome. Usually files a brief in support of one side or the other, but occassionally takes a more active part in the argument.

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miscegenation

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"Mixing of races," interracial marriage or sexual relations. In Pace v. Alabam (1883), the Court upheld an Alabama law that punished interracial fornication more severaly than when both partners were of the same race.

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appeal by right

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an appeal brought to a higher court as a matter of right under federal law

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Ashwander Rules

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Rules for deciding the constitutionality of an issue, developed by Justice Brandeis in Ashwander v. Tva (1936)

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Ashwander Rules #2

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1. Court will not pass on constitutionality in a non-adversarial proceeding

2. The court will not "anticipate a question of constitutional law in advance of the necessity of deciding it"

3. The court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."

4. The court will not pass pon a constitutional question, if there is some other grounds by which the case may be decided.

5. The court will not pass pon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

6. The court will not pass pon the constitutionality of a statute at the instance of one who has availed himself of its benefit

7. When the validity of an act of the Congress is drawn in question . . . it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

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Bad Tendency test

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restrictive interpretation of First Amendment under which government may prohibit expression having a tendency to cause people to break the law

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Benevolent Neutrality

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Neutral to politic position, but still benevolent in some respect such as economic or social

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Brandeis brief

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In Muller v Oregon, brief submitted by Lous Brandeis, presenting extensive sociological and medical data, and arguing form this basis, rather than from legal theory

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Case or controversy

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Article III extends federal judicial power to actual cases or controversies, not to hypothetical or abstract questions of law

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chilling effect

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effect of a law, sometimes because of vagueness, which causes people to avoid legal behavior due to uncertaintly about what is proscribed

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clear and present danger test

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Schenkc v. US (1919) whether the words used in the circumstances are of sch a nature as to present a clear and present danger that they will bring about substantive evils Congress has a right to prevent. Requires courts in each case to assess "whether the gravity of the evil, discounted by its improability, justifies such invasion of free speech as is necessary to avoid the danger"

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Compelling interest

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an interest or justification of the highest order -- used sometimes to restrict govt action basic rights cases

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criminal syndicalism

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former crime of advocating political or economic change to be accomplished through revolution, sabotage, terrorism, or other violent means -- important in free speech cases and standards

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decision on the merits

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a judicial decision that reaches the subject matter of the case

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delegare non potest delegatum

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"One cannot delegate a power which has been delegated to one," a crucial principle of constitutional law, aiding in maintaing the separation of powers.

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diversity jurisdiction

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the authority of a federal court to entertain a civil suit in which the parties are citizens of different states and the amount in controversy exceeds $50,000. The other way a case may be heard in federal court is when it presents a "federal question"

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Doctrine of original intent

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Constitutional interpretation doctrine which holds that the courts should try to figure out, generally through historical and linguistic analysis, just what the authors of the Constitution had in mind when they said what they said, and should bind their own decisions by these interpretations.

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Doctrine of saving construction

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When more than one reasonable construction of a legislative or executive act is possible, the court will generally choose the one which permits it to be constitutional.

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Eminent domain

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power of government, or of individuals and corportations authorized to perform public functions, to take private property for public use

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Employment Division v. Smith (199)

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divided court upheld firing of two drug-rehab workers who used peyote as part of the sacred ceremonies of the Native American Church, as being "job-related misconduct." When the prevention of free exercise is only incidental result of general prohibition which the state has interest in, it is not forbidden.

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equal discrimination

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see miscegenation

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Excessive Entanglement

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Part of the Lemon test: if a government action, secular on its face, involves it excessively in the operations of religion, it is considered in violation of the Establishment Clause

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Lemon Test

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From Lemon v Kurtzman (1971), in which challenged policy must meet (1) secular purpose" (2) no primary effect of inhibiting or advancing religion (3) avoid excessive entanglement.

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executive agreement

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An agreement between the US and the chief executive of one or more foreign countries entered into by the president without ratification by the Senate. Held by the court to have the legal status of treaties.

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Expressio unius, exclusio alterius

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"The expression of one indicates the exclusion of others." A doctrine of judicial interpretation of law, holding that if the Constitution explicitly grants a particular power to a government organ, it silence on other powers indicates an unwillingness to grant them.

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federal question jurisdiction

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the authority of federal courts to decide questions arising under the U.S. Constitution, federal laws and actions, or treaties. The other way federal courts may hear cases is under "diversity jurisdiction"