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36 Cards in this Set
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Dictum
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In legal terminology, dictum (plural dicta) is a statement of opinion or belief considered authoritative because of the dignity of the person making it.
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dictum proprium
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dictum proprium: A personal or individual dictum that is given by the judge who delivers an opinion but that is not necessarily concurred in by the whole court and is not essential to the disposition.
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gratis dictum
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gratis dictum: an assertion that a person makes without being obligated to do so, or also a court's discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar
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judicial dictum
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judicial dictum: an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision
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obiter dictum
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obiter dictum in Latin means "something said in passing" and is a comment made while delivering a judicial opinion, but it is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).
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Stare decisis
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Stare decisis is the legal principle under which judges are obliged to follow the precedents established in prior decisions.
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Jurisprudence constante
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Jurisprudence constante is a legal doctrine according to which a long series of previous decisions applying a particular rule of law carries great weight and may be determinative in subsequent cases.
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ratio decidendi
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The ratio decidendi is:
"[t]he point in a case which determines the judgment"[1] or "the principle which the case establishes."[2] |
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ex post facto law
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An ex post facto law (from the Latin for "after the fact") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law
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precedent or authority
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precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts.
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Precedent can be binding (higher courts) or persuasive (from lower courts)
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Nullum crimen, nulla poena sine praevia lege poenali
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(Latin, lit. "No crime, no punishment without a previous penal law") is a basic maxim in continental European legal thinking. It was written by Paul Johann Anselm Ritter von Feuerbach as part of the Bavarian Criminal Code in 1813.
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Distinguish
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In law, to distinguish a case means to compare the facts of the case before the court from the facts of a case of precedent where there is an apparent similarity. By successfully distinguishing a case, the holding or legal reasoning of the earlier case will either not apply or will be limited.
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An analogy taught in law school is that of a case involving black and white spotted cows. A lawyer in a subsequent case involving brown spotted cows might distinguish the facts on the color of the spots.
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primae impressionis or case of first impressions
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no binding authority
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Bill of Particulars
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In law, a Bill of Particulars is a list of written statements made by a party to a court proceeding, upon demand of another party, that sets forth details of a claim or defense. A bill of particulars may be used in either criminal defense or in civil litigation.
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In criminal law, defense attorneys may file a motion requesting a bills of particulars from prosecuting attorneys. However, prosecuting attorneys can not request the same of the defense. This request may be part of an omnibus motion, motion in limine, or similar motion.
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Bright-line rule
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A bright-line rule, or bright-line test, is a term generally used in law which describes a clearly defined rule or standard, composed of objective factors, which leaves little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application.
Bright-line rules are usually standards established by courts in legal precedent or by legislatures in statutory provisions. |
Bright-line rules are often contrasted with "squishy" balancing tests, where a result is dependent on weighing several factors, which could lead to inconsistent application of law or reduce objectivity.
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Balancing Test
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A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright-line rule can allow. But critics say that such tests can be used to justify any conclusion which the judge might decide upon.
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Chilling Effect
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A chilling effect is a term in law and communication which describes a situation where speech or conduct is suppressed by fear of penalization at the interests of an individual or group. It may prompt self-censorship and therefore hamper free speech.
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Since many attacks rely on libel law, the term libel chill is also often used
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Strategic Lawsuit Against Public Participation ("SLAPP")
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is a lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
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Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.
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Clear and Present Danger
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Clear and present danger is a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States,[1] concerning the ability of the government to regulate speech against the draft during World War I.
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Following Schenck v. United States, "clear and present danger" became both a public metaphor for First Amendment speech[2][3] and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a "clear and present danger". However, the "clear and present danger" criterion of the Schenck decision was later modified by Brandenburg v. Ohio,[4] and the test refined to determining whether the speech would provoke an imminent lawless action.
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Imminent lawless action
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The doctrine states that speech that will cause, or has as its purpose, "imminent lawless action" (such as a riot) does not have constitutional protection. As of 2009, "imminent lawless action" continues to be the test applied in free speech cases.
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See also: shouting fire in a crowded theater
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Color of Law
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Color of is a legal term meaning "pretense or appearance of" some right; in other words, 'color of', as in 'color of law', means the thing colors (or adjusts) the law; however the adjustment made may either be lawful or it may merely appear to be lawful.
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Also color of office or color of title.
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Depraved Heart Murder
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Depraved-heart murder is an American legal term for an action that demonstrates a "callous disregard for human life" and results in death. In most states, depraved heart killings constitute either second-degree murder or first-degree manslaughter.
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Speeding in a car to the right of a school bus that is unloading children.
Shooting a gun into a thicket, not knowing or caring if anyone is in the thicket. Falsely accusing an innocent person of a crime that sentences him or her to life in jail, and results in that person committing suicide. |
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direct estoppel
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The doctrine of direct estoppel prevents a party to a litigation from relitigating an issue that was decided against that party in that litigation, under certain circumstances. Specifically, direct estoppel applies where the issue was decided as part of a larger claim which was finally decided, and stops the issue from being redecided in another claim of the same lawsuit.
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Contrast collateral estoppel, which stops a claim from being redecided in another lawsuit
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Res Judicata
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Res judicata or res judicata (RJ) is the Latin term for "a matter [already] judged", and may refer to two things: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal.[1]; and the term is also used to refer to the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties, which is different between the two legal systems. In this latter usage, the term is synonymous with "preclusion".
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Res judicata does not restrict the appeals process. In addition, in matters involving due process, cases that appear to be res iudicata may be re-litigated.
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Due Diligence
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Due Diligence is a term used for a number of concepts involving either the performance of an investigation of a business or person, or the performance of an act with a certain standard of care. It can be a legal obligation, but the term will more commonly apply to voluntary investigations.
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Due diligence in civil litigation is the effort made by an ordinarily prudent or reasonable party to avoid harm to another party. Failure to make this effort may be considered negligence
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Public liability
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Public liability is part of the law of tort which focuses on civil wrongs. An applicant (the injured party) usually sues the respondent (the owner or occupier) under common law based on negligence and/or damages. Claims are usually successful when it can be shown that the owner/occupier was responsible for an injury, therefore they breached their duty of care.
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Duty of Care
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In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others
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t is the first element that must be established to proceed with an action in negligence. The plaintiff must be able to articulate a duty of care imposed by law which the defendant has breached.
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Negligence
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a legal concept in the common law legal systems usually used to achieve compensation for injuries (not accidents). Negligence is a type of tort or delict (also known as a civil wrong). However, the concept is sometimes used in criminal law as well. "Negligence" is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them.
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It is the opposite of "diligence". It falls short of what a reasonable person would do o protect another individual from foreseeable risks of harm.
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Prima facie
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Prima facie (pronounced /ˈpraɪmə ˈfeɪʃiː/, from Latin prīmā faciē) is a Latin expression meaning on its first appearance, or by first instance; at first sight.
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Res ipsa loquitur
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Res ipsa loquitur is a legal term from Latin meaning, "the thing itself speaks" but is more often translated "the thing speaks for itself." It signifies that further details are unnecessary; the facts of the case are self-evident. The doctrine is applied to tort claims which, as a matter of law, do not have to be explained beyond the point where liability is established
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Disgorgement
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A repayment of ill-gotten gains that is imposed on wrong-doers by the courts. Funds that were received through illegal or unethical business transactions are disgorged, or paid back, with interest to those affected by the action. Disgorgement is a remedial civil action, rather than a punitive civil action.
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foro conscientiae
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Before the tribunal of conscience; conscientiously. This term is applied in opposition, to the obligations which the law enforces.
2. In the sale of property, for example, the concealment of facts by the vendee which may enhance the price, is wrong in foro conscientiae, but there is no legal obligation on the part of the vendee to disclose them, and the contract will be good if not vitiated by fraud. |
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Assumpsit
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Contract
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Covenant
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Seal, or now a signature. Early days of English Common Law, this was a contract.
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Evidentiary
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Providing trustworthy evidence
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Misfeasance
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Performing a legal action in an improper way. This term is frequently used when a professional or public official does his job in a way that is not technically illegal, but is nevertheless mistaken or wrong. Here are some examples of misfeasance in a professional context: a lawyer who is mistaken about a deadline and files an important legal document too late, an accountant who makes unintentional errors on a client's tax return or a doctor who writes a prescription and accidentally includes the wrong dosage.
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