Clancy's Outlaws Legal Writing

Front 1

Law:

Back 1

Law is comprised of a body of rules governing action or conduct prescribed by controlling authority
with binding legal force. The law may be derived from constitutional, statutory, or case law sources.
Administrative agencies may also promulgate regulations or orders which may have the force and effect of
law.
Key Words or Phrases:
1. law
2. body of rules governing action or conduct
3. controlling authority
4. binding legal force
5. constitutional
6. statutory
7. case law
8. administrative regulations

Front 2

American Law Institute:

Back 2

An organization of American legal scholars
responsible for developing “Restatements” of the law for numerous legal disciplines. The American Law
Institute, in conjunction with the National Conference of commissioners, also assists with the development
of uniform state laws.
Key Words or Phrases:
1. American Law Institute
2. American legal scholars
3. Restatements of the Law
4. Uniform State Laws

Front 3

Restatements of Law:

Back 3

The American Law Institute has authored a series of legal volumes which explain
existing law in a general area, such as torts and contracts, and also explain how the law in this area is
changing, as well as scholarly opinions regarding how the law should be developed in the future. The
Restatements have had significant impact on shaping the disciplines of the law covered.
Key Words or Phrases:
1. American Law Institute authored series of legal volumes
2. existing law
3. current trends changing in law
4. scholarly opinions regarding how law should develop

Front 4

Jurisprudence:

Back 4

The science of law which functions to ascertain principles on which legal rules are based.
Jurisprudence is not concerned with morality or politics; instead, jurisprudence is concerned with the
ultimate effects produced when legal rules are applied to society's members collectively. Jurisprudence
has also been referred to as the philosophy of law.
Key Words or Phrases
1. science of law
2. functions to ascertain principles on which legal rules are based
3. not concerned with morality or politics
4. concerned with ultimate effects upon society from application of legal rules5. philosophy of law

Front 5

Constitution of the United States:

Back 5

the fundamental law of the
nation which establishes the character, conception, and power of our federal government. Constitutional
law is the supreme law of the land.
Key Words or Phrases:
1. fundamental law of the nation
2. establishes character, conception and power of federal government
3. supreme law of the land

Front 6

Advocacy:

Back 6

The active espousal of a legal cause.
Key Words or Phrases:
1. active espousal
3. legal cause

Front 7

Case Method of Law Study:

Back 7

Requires that the student carefully examine
individual cases to develop an understanding of legal processes and the relationship between judicial
theories and practical legal problems. The student must have a precise understanding of the case's
material facts, holding, legal reasoning, authorities cited, and legal process utilized to benefit from this
method of study. Merely understanding the gist of a case is insufficient.
Key Words or Phrases:
1. examine individual cases
2. develop understanding of legal process
3. understand relationship between judicial theory and practical legal problems
4. material facts
5. holding
6. legal reasoning
7. authorities cited
8. legal process
9. merely understanding the gist of the case is insufficient

Front 8

Casebook:

Back 8

the text which is used with the case method of law study. A casebook contains
a collection of cases ordinarily organized to illustrate discrete legal principles.
Key Words or Phrases:
1. casebook
2. text used for case method of law study
3. collection of cases
4. organized around discrete legal principles

Front 9

Outlines:

Back 9

Key Words or Phrases:
1. student's organized thought
2. legal principles and processes
3. outline format
4. study aid
5. commercial outlines

Front 10

Bar Examination:

Back 10

A bar examination is one component of the requirements which must be successfully
completed in order to become licensed to practice before courts of a particular state or jurisdiction.
Key Words or Phrases:
1. bar examination
2. one of several components to complete in order to become a licensed attorney

Front 11

Case Brief:

Back 11

generic term for a short, organized document created and utilized by the
student or attorney, which summarizes key aspects of a case. A brief should contain parts of the case
selected as important and organized for the purpose at hand, which may not necessarily be the haphazard
order in which the parts may have been reported.
Key Words or Phrases:
1. case brief
2. short, organized document
3. summarizes key aspects of case

Front 12

utilize "FIRAC"

Back 12

Generally speaking, a case brief usually contains the material facts of
case, the issue presented to the court, the rule of law, the analysis, and the conclusion or resolution of the
issue. A case brief may also include the case citation, procedural steps, and a summary of the dissent.
Key Words or Phrases:
1. facts
2. issue
3. rule of law
4. analysis
5. conclusion
6. may also include citation, procedural steps, summary of dissent where present

Front 13

Material Fact:

Back 13

facts which have legal consequences. Summarizing material facts
for a case brief does not require reciting all the details which can be learned, but rather selecting events
that are relevant to the court's decision.
Key Words or Phrases:
1. material fact
2. fact with legal consequence
3. summarize material facts for case brief
4. select events relevant to decision

Front 14

Issue

Back 14

is the question which the parties to litigation present to
the court for decision.
Key Words or Phrases:
1. issue is a question
2. presented by parties to litigation
3. court resolves or decides the issue presented

Front 15

Elements of a Crime:

Back 15

In order to prevail in a criminal case, the prosecution is required to prove beyond a
reasonable doubt the constituent parts of the crime which the defendant is accused. Under the Model Penal Code, the component parts of
a crime include the actus reus, causation, mens rea, mitigating factors and defenses.

Key Words or Phrases:
1. prosecution must establish the constituent parts of a crime
2. Model Penal Code components
3. actus reus
4. causation
5. mens rea
6. mitigating factors
7. defenses

Front 16

Rules applicable to the case:

Back 16

To resolve a case, rules of law are ordinarily applied to the unique facts of
the issue before the court. Constitutional, statutory, case law, or administrative regulations are among the
rules of law which a judge may rely upon to decide the case.
Key Words or Phrases:
1. rule of law
2. apply to facts
3. resolve dispute
4. constitutional, statutory, case law, or administrative regulations

Front 17

Analysis:

Back 17

Judges apply legal principles to unique factual situations before the court and test the
application by weighing potential legal consequences.Key Words or Phrases:
1. applying legal principles to unique factual situations
2. test application by weighing potential legal consequences
3. official explanations for case result.

Front 18

Holding of a case:

Back 18

answers the issue or question presented in the case. answers the issue or question presented in the case.
1. Answers the issue
2.may be a single sentence
3. generally includes facts important to the rule of law applied to the case

Front 19

Authorities:

Back 19

Citations to constitutions, statutes, precedents, judicial decisions, rules, regulations,
textbooks, articles, and the like made to support a legal argument before the court.
Key Words or Phrases:
1. citations
2. constitutions
3. statutes
4. precedents
5. judicial decisions,
6. regulations
7. textbooks
8. articles
9. to support a legal argument

Front 20

Case heading:

Back 20

Page 25
Preceding each published court decision which includes: 1) names of the
parties to the suit, 2) citation of the case including the volume and page number where the case can be
found, 3) name of the court which decided the dispute, and 4) the date the decision was reached.
Key Words or Phrases:
1. precedes each published court decision
2. citation, including volume and page number
3. name of the court which decided the dispute
4. date decision was reached

Front 21

Headnote

Back 21

summarizes all key points discussed and issues decided in a case. Head notes
follow the heading of the case and precede the text of the judicial opinion.
Key Words or Phrases:
1. summarizes key points and issues of a case
2. follows case heading
3. precedes text of judicial opinion

Front 22

Procedure

Back 22

The method of proceeding to enforce a legal right.
distinguished from
substantive law which gives or defines the right which one is attempting to enforce.
Key Words or Phrases:
1. method of proceeding to enforce a legal right
2. distinguish from substantive law

Front 23

Analysis

Back 23

he process of examining the individual parts of a decision to either: 1) render one's own
decision or interpretation based on the law and facts presented, or 2) critically review another's decision or
interpretation based on then existing law and facts.
Key Words or Phrases:
1. process of examining individual parts
2. render own decision or interpretation
3. critically review another's decision or interpretation

Front 24

Interpretation

Back 24

method of construing the language of either a statute, contract, or
other written document to illicit its true, intended meaning.
Key Words or Phrases:
1. construing language
2. statute or written document
3. illicit true, intended meaning

Front 25

Reasoning

Back 25

act of thinking logically.
Key Words or Phrases:
1. thinking logically

Front 26

analogy

Back 26

an inference that if two situations or principles are alike in some respects, then
they must be alike in other respects as well.
Key Words or Phrases:
1. inference
2. if similar in some respects, then similar in other respects

Front 27

Syllogism

Back 27

The full logical form
of a single argument and it consists of two premises and a conclusion for a total of three propositions.
Each of the two premises contain a unique term which are related together in the conclusion.
Key Words or Phrases:
1. a logic term
2. three propositions
3. two premises with unique terms brought together in conclusion

Front 28

Legal Research:

Back 28

The process of using resources to find the law as it has been delineated by courts,
legislatures, and other governmental agencies, for the purpose of learning the law or answering a legal
problem.
Key Words or Phrases:
1. using resources to find the law
2. academic purpose
3. solve a legal problem

Front 29

Common Law

Back 29

a body of principles and rules of action which derive power solely from
customary usage through history or from judicial decisions. Common law is distinct from statutory law.
Key Words or Phrases:
1. common law
2. body of principles and rules
3. power from customary usage throughout time
3. power from judicial decisions
4. distinct from statutory law

Front 30

Common Law Action

Back 30

One which will lie without a governing statute.
Key Words or Phrases:

2. no governing statute

Front 31

Forms of Actions

Back 31

were the procedural devices used at common law to give meaning to
the theories of liability which the common law recognized. According to the type of relief sought, actions
were strictly divided into discrete categories. Failure to properly analyze the cause of action and select the
appropriate theory of liability or procedural form of action may have resulted in being thrown out of court all
together.
Key Words or Phrases:
1. procedural devices at common law
2. improper form of action may result in being thrown out of court

Front 32

Forms of Action compared to civil action:

Back 32

Modernly, under the Rules of Civil Procedure either at the
state or federal level, there is only one form of action, the "civil action" for all theories of liability.
Key Words or Phrases:
1. Rules of Civil Procedure
2. civil action

Front 33

English Common Law

Back 33

he ancient, unwritten law of England

Front 34

Federal Common Law

Back 34

law which is based on federal court decisions. Its
application is limited by the Erie Doctrine.
Key Words or Phrases:
1. federal common law
2. federal court decisions
3. limited by the Erie Doctrine

Front 35

Erie Doctrine

Back 35

egal doctrine derived from a case by the same name which states
that, except for cases governed by the federal constitution, U.S. treaties, or federal statutory law, federal
courts must apply state substantive law and federal procedural law in cases decided by the federal courts.
Key Words or Phrases:
1. federal courts apply state substantive law
2. federal courts apply federal procedural law

Front 36

Equity

Back 36

form of justice administered according to precepts of fairness. Equity denotes a spirit of
doing justice between parties according to what is fair under all circumstances in a particular case.
Key Words or Phrases:
1. form of justice
2. fairness in a particular situation between individual parties

Front 37

Equity contrasted by common law

Back 37

Equity principles developed in England as a response to the
perceived unfair harshness which common law rules rigidly imposed upon parties to an action.
Key Words or Phrases:
1. equity principles
2. developed in England
3. response to harshness of common law

Front 38

Merger of Law and Equity

Back 38

Modernly, federal courts and most state courts have merged the procedural
aspects of law and equity under the term "civil suit." Substantive concepts of equity and law still exist
separately today.
Key Words or Phrases:
1. federal and most state courts
2. merger of procedural aspects of law and equity
3. separate substantive law and equity concepts

Front 39

Judicial Decisions

Back 39

a judgement, decree, or order pronounced by a court in
settlement of a controversy submitted to it, providing an authoritative answer to the question presented.

Key Words or Phrases:
1. judgement, decree or order
2. settlement of a controversy
3. authoritative answer to question presented

Front 40

Actions:

Back 40

a lawsuit which is filed in court.
Key Words or Phrases:
1. action
2. lawsuit
3. court

Front 41

Cause of Action

Back 41

he circumstance or state of facts enabling a party to sustain an
action and gives the right to seek a judicial remedy.
Key Words or Phrases:
1. circumstance or state of facts
2. sustain an action
3. seek judicial redress

Front 42

Remedies

Back 42

the means used to enforce a right or redress a legal injury.
Key Words or Phrases:
1. means to enforce right

Front 43

Justice

Back 43

The the title given to judges
in the higher levels of state and federal court.Proper administration of
societal laws.
Key Words or Phrases:
1. two definitions for justice
2. first, title for judge in higher state or federal court
3. second, proper administration of societal laws

Front 44

Question of Fact:

Back 44

an issue involving the resolution of a factual dispute. Questions of
fact are always within the province of the jury, unless the judge is acting as the trier of fact in place of a
jury.
Key Words or Phrases:
1. issue involving resolution of a factual dispute
2. jury question, unless judge substitutes for jury as trier of fact

Front 45

Question of Law

Back 45

an issue which entails the application or interpretation of a law and
is always solely within the province of the judge.
Key Words or Phrases:
1. entails application or interpretation of law
2. judge question

Front 46

Legal Fiction

Back 46

a situation contrived by the law or a circumstance assumed by a court to
support the resolution of legal question.
Key Words or Phrases:
1. situation contrived by law
2. circumstance assumed by a court
3. supports resolution of a legal question

Front 47

Conclusions of Law

Back 47

nder the Federal Rules of Civil Procedure, a judicial determination, without the
assistance of a jury resolution, that particular facts have been established with such a degree of certainty
that they may be deemed conclusions of law. The judge must state conclusions of law in a separate
writing.
Key Words or Phrases:
1. Federal Rules of Civil Procedure
2. judicial determination
3. facts established a degree of certainty
4. must be in separate writing

Front 48

Ratio Decidendi

Back 48

Page 29
a Latin term meaning the point in a case which determines the
outcome in judgement.
Key Words or Phrases:
1. point in case which determines outcome

Front 49

Role of Judge and Jury

Back 49

The general rule is that the judge determines questions of law and the jury
determines question of fact in litigation. Where there is no jury, the judge decides both questions of law
and questions of fact.

Key Words or Phrases:
1. judge decides questions of law
2. jury decides questions of fact
3. if no jury, judge decides both questions of law and of fact

Front 50

Precedent

Back 50

a case which has been decided earlier in time to a later case and both
cases turn on the same or substantially similar legal issues and/or facts.
Key Words or Phrases:
1. case decided earlier in time and turned on same or similar issues of fact

Front 51

Dictum

Back 51

language or concept in a judge's opinion which is not necessary to
the resolution of the issues in the case or goes beyond the scope of the facts or issues in the case. Dictum
is not binding in subsequent cases under the precedence doctrine.
Key Words or Phrases:
1. language or concept which is unnecessary to resolution of case
2. language or concept which goes beyond the facts or issues of the case
3. not binding on subsequent judicial opinions

Front 52

Stare Decisis

Back 52

A Latin term which means to adhere to previously decided cases or that precedent cases
should be followed. This doctrine is limited to actual determinations by the court regarding litigated matters
and necessarily decided questions.
adherence to previously decided cases
2. precedents should be followed
3. limited to actual, necessary judicial determinations
4. dictum does not come under

Front 53

Prospective Overurling

Back 53

A judicial decision prospectively overrules when its decision will be applied only
to future cases.
Key Words or Phrases:
1. judicial overruling
2. applied only to future cases

Front 54

Retroactive Effect of Judicial Decisions

Back 54

where a decision is
intended to act on past rights, obligations or duties.
Key Words or Phrases:
1. intended to act on past rights, obligations or duties

Front 55

Civil Procedure

Back 55

Page 30
he body of law concerned with procedural aspects of civil litigation. At
the federal level, these rules of procedure are called the Federal Rules of Civil Procedure.
Key Words or Phrases:
1. body of law concerned with procedure in civil litigation
2. Federal Rules of Civil Procedure

Front 56

Diversity Jurisdiction of the Federal Courts

Back 56

rticle III, Section 2 of the United States Constitution states
that federal court jurisdiction extends to all cases and controversies between citizens of different states. In
order for the federal court to have jurisdiction, the amount in controversy requirement must also be
satisfied.
Key Words or Phrases:
1. Article III, Section 2 of the U.S. Constitution
2. federal court jurisdiction
3. case and controversy between citizens of different states
4. amount in controversy requirement

Front 57

Federal question jurisdiction

Back 57

Federal courts are also authorized under Article III, Section 2 of the
United States Constitution to hear cases arising under the Constitution of the United States, congressional
acts, or treaties.
Key Words or Phrases:
1. Article III, Section 2 of the U.S. Constitution
2. federal court jurisdiction
3. cases "arising under"
4. U.S. Constitution
5. Congressional acts
6. treaties

Front 58

Writ of Certiorari

Back 58

An order prepared by an appellate court, when that court may exercise discretion
regarding whether or not to hear an appeal from a lower court, is called a “Writ of Certiorari.” Specifically
regarding the U.S. Supreme Court, a review by the Writ of Certiorari may prevail only when there are
special and important reasons to hear the case.
Key Words or Phrases:
1. order prepared by appellate court
2. when appellate court has discretion to hear appeal from lower court
3. on writ of certiorari, U.S. Supreme Court hears where special and important reasons exist

Front 59

Alternative Dispute Process

Back 59

The term “alternative dispute process” or “alternative dispute resolution,”
refers to a method of settling legal disputes other than litigation. Common examples of alternative dispute
processes include arbitration and mediation.

Key Words or Phrases:
1. alternative dispute process
2. alternative dispute resolution
3. method of settling legal dispute other than litigation
4. arbitration
5. mediation
Arbitration: Arbitration is a form of alternative disp

Front 60

Arbitration:

Back 60

Form of alternative dispute resolution which requires that a neutral third party,
called an arbitrator, render a decision after hearing both parties to a dispute present their respective sides
of the dispute. Arbitration can be either voluntary or involuntary.
Key Words or Phrases:
1. form of alternative dispute resolution
2. arbitrator renders decision after hearing

Front 61

Mediation

Back 61

a form of alternative dispute resolution, which requires that a neutral third
party, called a mediator, assist both parties to a dispute agree to a mutually acceptable resolution.
Mediation differs from arbitration in that the mediator has no power to render a decision; an arbitrator has
the power to render a decision resolving the dispute.
Key Words or Phrases:
1. form of alternative dispute resolution
2. mediator assists both parties to resolve their dispute by agreement
3. mediator has no power to render a decision

Front 62

Legislature:

Back 62

The legislature is one of the three branches of government which exist at both the state and
federal levels. Each body of legislators is responsible for promulgating state and federal statutory law,
respectively.
Key Words or Phrases:
1. federal legislature responsible for promulgating federal statute
2. state legislature responsible for promulgating state statute

Front 63

Statute

Back 63

merely the formal, written enactment of a legislative body which can be either the
federal, state or local level of government.
Key Words or Phrases:
1. formal, written enactment
2. legislative body
3. federal, state or local level of government

Front 64

Uniform Commercial Code

Back 64

governs a variety of commercial
transactions. The UCC was intended to be adopted in some form by the individual states, thereby creating
a degree of similarity between different state laws regarding commercial transactions. All states have
adopted the UCC in some form.
Key Words or Phrases:
1. UCC
2. governs commercial transactions
3. intended to create uniformity among differing state commercial laws
4. all states have adopted in some form

Front 65

Administrative agency

Back 65

a governmental agency organized under
constitutional or statutory authority, which is responsible for administering and supervising an area of
public interest designated in the law which created it. An administrative agency may have authority to
promulgate regulations, or make administrative determinations which potentially have the force and effect
of law.
Key Words or Phrases:
1. governmental agency
2. constitutional or statutory
3. administers and supervises designated area of public interest
4. may promulgate regulations with force and effect of law

Front 66

Adminstrative Law

Back 66

Page 32A regulation or order passed by an administrative agency having the force and effect
of law.

Key Words or Phrases:
1. regulation or order
2. administrative agency
3. force and effect of law

Front 67

Canons of Construction:

Back 67

a body of rules or maxims which indicate the
appropriate meaning or interpretation of statutes or written instruments.
Key Words or Phrases:
1. body of rules or maxims
2. indicate appropriate meaning or interpretation
3. statutes or written instruments

Front 68

Plain meaning rule

Back 68

a rule of construction which states that words should be
interpreted using their ordinary or plain meaning.
Key Words or Phrases:
1. rule of construction
2. interpret words using ordinary meaning

Front 69

Statutes in Pari Materia:

Back 69

Two or more statutes which must be construed together because they relate to
the same subject
Key Words or Phrases:
1. construe two or more statutes together
2. relate to same subject matter

Front 70

Legislative History:

Back 70

The process or result of research in the documentary records of the legislature as
they relate to the drafting, analysis and passage of law or rejection of a proposed law is called the
“legislative history.”
Key Words or Phrases:
1. process or result of research
2. documentary records of the legislature
3. relating to drafting, analysis and passage or defeat of statute

Front 71

Legislative ibtent

Back 71

After analyzing the legislative history of a particular statute, a court attempts to
determine the intent of the legislature for passing the statute in question, so that the judge may apply the
statute to the case at hand as intended by the legislators.
Key Words or Phrases:
1. intent determined from legislative history
2. intent used by court to further intent of the legislators in passing the statute