Mc 4301 Exam 1

Front 1

rule of law

Back 1

the framework of a society in which pre-established norms and procedures provide for consistent, neutral decision making

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vague laws

Back 2

laws that either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish

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discretion

Back 3

the authority to determine the proper outcome

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overbroad law

Back 4

violates the principles of precision and specificity in legislation

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stare decisis

Back 5

literally, "stand by the previous decision."

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precedent

Back 6

case judgment that establishes binding authority and guiding principles for cases to follow on closely analogous questions of law within the court's jurisdiction.

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facial challenges

Back 7

a broad legal claim based on the argument that the challenged law or government policy can never operate in compliance with the constitution

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jurisdiction

Back 8

the geographic or topical area of responsibility and authority of court, refers to a court's authority to hear a case

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forum shopping

Back 9

A plaintiff choosing a court in which to sue because he or she believes the court will rule in the plaintiff's favor

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due process

Back 10

fair legal proceedings. Due process is guaranteed by the 5th and 14th amendments

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de novo

Back 11

literally, "anew" or "over again." On appeal, the court may review the fats de novo rather than simply reviewing the legal posture and process of the case

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amicus brief

Back 12

a submission to the court from an amicus curiae ("friend of the court") an interested individual or organization who is not a party in the case

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en banc

Back 13

literally, "on the bench" but now meaning "in full court." The judges of a circuit court of appeals will sit en banc to decide important or controversial cases

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affirm

Back 14

to ratify, uphold or approve a lower court ruling

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overrule

Back 15

to reverse the ruling of a lower court

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concurring opinion

Back 16

a separate opinion of a minority of the court or a single justice agreeing with the majority opinion but applying different reasoning or legal principles

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dissenting opinion

Back 17

a separate opinion of a minority of the court or a single justice disagreeing with the result reached by the majority and challenging the majority's reasoning or the legal basis of the decision

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original jurisdiction

Back 18

the authority to consider a case at its inception, as contrasted with appellate jurisdiction

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writ of certiorari

Back 19

a petition for review by the supreme court of the United States; certiorari means "to be informed of"

Front 20

moot

Back 20

Word used to describe a case in which the issues presented are no longer "live" or in which the matter in dispute has already been resolved; a case is not moot if it is susceptible to repetition but evading review

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originalists

Back 21

Supreme Court who interpret the Constitution according to the perceived intent of its framers

Front 22

textualists

Back 22

judges- in particular, Supreme Court justices- who rely exclusively on a careful reading of legal texts to determine the meaning of the law

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constitutional law

Back 23

set of laws that establish the nature, functions and limits of government

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statutory law

Back 24

written law formally enacted by city, county, state and federal legislative bodies

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black-letter law

Back 25

formally enacted, written law that is available in legal reporters or other documents

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equity law

Back 26

law created by judges to apply general principles of ethics and fairness, rather than specific legal rules, to determine the proper remedy for legal harm

Front 27

common law

Back 27

unwritten, judge-made law consisting of rules and principles developed through custom and precedent

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doctrines

Back 28

Principles or theories of law (ex: the doctrine of content neutrality)

Front 29

administrative law

Back 29

the orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties

Front 30

executive orders

Back 30

orders from a government executive, such as the president, a governor or a mayor, that have the force of law

Front 31

political questions

Back 31

questions that the courts will not review because they are either outside the jurisdiction of the court or they are not capable of judicial resolution; an issue that can and should be handled more appropriately by another branch of government

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federalism

Back 32

a principle according to which the states are related to yet independent of each other, and related to yet independent of the federal government

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modify precedent

Back 33

to change or revise rather than follow or reject precedent

Front 34

distinguish from precedent

Back 34

to justify an outcome in a case by asserting that differences between that case and preceding cases outweigh any similarities

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overturn precedent

Back 35

to reject the fundamental premise of a precedent

Front 36

deference

Back 36

an act in which courts give weight to the judgment of expert administrative agencies or legislative policies and strategies

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probable cause

Back 37

the standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed.

Front 38

grand jury

Back 38

a group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and whether charges should be filed; grand juries do not determine guilt. A grand jury may be convened on the county, state or federal level; with 12 to 23 members, grand juries are usually larger than trial juries

Front 39

plaintiff

Back 39

the party who files a complaint, the one who sues

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defendant

Back 40

the party accused of violating a law, or the party being sued in a civil lawsuit

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tort

Back 41

a private or civil wrong for which a court can provide remedy in the form of damages

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strict liability

Back 42

liability without fault; liability for any and all harms, foreseeable or unforeseen, which result from a product or an action

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motion to dismiss

Back 43

a request to a court for a complaint to be rejected because it does not state a claim that can be remedied by law or because it is legally lacking in some other way

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demurrer

Back 44

a request that a court dismiss a case on the grounds that although the claims are true they are insufficient to warrant a judgment against the defendant

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discovery

Back 45

the pretrial process of gathering evidence and facts. the word also may refer to the specific items of evidence that are uncovered

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subpoena

Back 46

a command for someone to testify in court

Front 47

venue

Back 47

the locality of a lawsuit and of the court hearing the suit. Thus, a change of venue means a relocation of a trial

Front 48

venire

Back 48

Literally, "to come" or "to appear;" the term used for the location from which a court draws its pool of potential jurors, who must then appear in court for a voir dire; a change of the location from which potential jurors are drawn.

Front 49

voir dire

Back 49

Literally, "to speak the truth;" the questioning of prospective jurors to asses their suitability

Front 50

peremptory challenge

Back 50

during jury selection, a challenge in which an attorney rejects a juror without showing a reason. Attorneys have the right to eliminate a limited number of jurors through peremptory challenges

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appellant

Back 51

the party making the appeal; also called the petitioner

Front 52

summary judgment

Back 52

the quick resolution of a legal dispute in which a judge summarily decides certain points and issues a judgment dismissing the case

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holding

Back 53

the decision or ruling of a court

Front 54

original intent

Back 54

the perceived intent of the framers of the first amendment. the concept of the original intent guides contemporary first amendment application and interpretation

Front 55

ad hoc balancing

Back 55

making decisions according to the specific facts of the case under review rather than more general principles

Front 56

categorical balancing

Back 56

a judge's or court's practice of developing rules by weighing different broad categories, such as political speech, against other categories of interests, such as privacy. The rules may be applied in later cases with similar facts

Front 57

prior restraint

Back 57

action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication

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defamation

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a false communication that harms another's reputation and subjects him or her to ridicule and scorn; incorporates both libel and slander

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seditious libel

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communication meant to incite people to change the government; criticism of the government

Front 60

injunction

Back 60

a court order prohibiting a person or organization from doing some specified act

Front 61

content-neutral laws

Back 61

laws that incidentally and unintentionally affect speech as they advance other important government interests

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rational review

Back 62

a standard of judicial review that assumes the wisdom of reasonable legislative or administrative enactments and applies minimum scrutiny to their review

Front 63

content-based laws

Back 63

laws enacted because of the message, the subject matter or the ideas expressed in the regulated speech

Front 64

strict scrutiny

Back 64

a test for determining the constitutionality of laws restricting speech, under which the government must show it has a compelling interest at stake that is advanced by the least restrictive means available

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compelling interest

Back 65

a government interest of the highest order, an interest the government is required to protect

Front 66

time/place/manner laws (TPM laws)

Back 66

a first amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content; also, the laws that regulate these conditions

Front 67

symbolic expression

Back 67

action that warrants first amendment protection because its primary purpose is to express ideas

Front 68

intermediate scrutiny

Back 68

a standard applied by the courts to the review of laws that implicate core constitutional values; also called heightened review

Front 69

O'Brien test

Back 69

a 3 part test used to determine whether a content-neutral law is constitutional

Front 70

important government interest

Back 70

an interest of the government that is substantial or significant (ex more than merely convenient or reasonable) but not compelling

Front 71

public forum

Back 71

government property held for use by the public, usually for purposes of exercising rights of speech and assembly

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traditional public forum

Back 72

lands designed for public use and historically used for public gathering, discussion and association (ex public streets, sidewalks and parks) free speech is protected in these areas

Front 73

designated public forum

Back 73

government spaces or buildings that are available for public use (within limits)

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nonpublic forum

Back 74

government-held property that is not available for public speech and assembly purposes

Front 75

laws of general application

Back 75

laws such as tax and equal employment laws that fall within the express power of government. Laws of general application are generally reviewed under minimum scrutiny

Front 76

categorical balancing

Back 76

the process through which courts reach judgments by weighing different broad categories, such as political speech, against other categories of interests, such as privacy

Front 77

USA Patriot Act

Back 77

the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2011. Passed in the wake of the Sept. 11, 2001, attacks, the act was designed to give law enforcement agencies greater authority to combat terrorism

Front 78

chilling effect

Back 78

the discouragement of a constitutional right, especially free speech, by any practice that creates uncertainty about the proper exercise of that right

Front 79

clear and present danger

Back 79

Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm

Front 80

incorporation

Back 80

the 14th amendment concept that most of the Bill of Rights applies equally to the states

Front 81

hate speech

Back 81

a category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like

Front 82

underinclusive

Back 82

a first amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment

Front 83

viewpoint-based discrimination

Back 83

government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally

Front 84

true threat

Back 84

speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety

Front 85

establishment cause

Back 85

the portion of the first amendment that prohibits government from setting up an official religion or passing laws that favor a specific religious doctrine