Chapter 1 - Development of American Law - Terminology Flashcards Preview

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Flashcards in Chapter 1 - Development of American Law - Terminology Deck (85):
1

a system of justice involving conflicting parties where the role of the judge is to remain neutral

adversarial system of justice

2

judicial tribunals that review decisions from lower tribunals

appellate courts

3

The Constitution under which the United States was governed between 1781 and 1789

Articles of Confederation

4

The first ten amendments to the US Constitution, ratified in 1791, concerned primarily with individual rights and liberties

Bill of Rights

5

A codification of principles of the English Common Law published in 1769 by Sir William Blackstone, an author and professor

Blackstone's Commentaries

6

The violation of a provisions in a legally enforceable agreement that gives the damaged party the right to recourse in a court of law

breach of contract

7

The laws of a church

canon law

8

Purposeful, peaceful lawmaking to dramatize one's opposition to the law

civil disobediance

9

The law relating to rights and obligations of parties

civil law

10

Code of laws compiled by Roman Emperor Justinian c. 535 AD

Code of Justinian

11

Collection of laws usually indexed by subject matter

codification

12

A nation's fundamental law

constitution

13

An offense against society punishable under the criminal law

crime

14

The law defining crimes and punishments

criminal law

15

The process by which a person is charged with a criminal offense

criminal prosecutions

16

Law declared by appellate courts in their written decisions and opinions

decisional law

17

Formal document of July 4, 1776, establishing the United States of America as an independent nation

Declaration of Independence

18

A person charged with a crime or against whom a civil action has been initiated

defendant

19

Articles I, II and III of the US Constitution, delineating the powers and functions of the legislative, executive, and judicial branches, respectively of the national government

distributive articles

20

In constitutional law, the doctrine that the 14th Amendment incorporates the provisions of the Bill of Rights and thus makes them applicable to the states

doctrine of incorporation

21

Procedural and substantive rights of the citizens against government actions that threaten the denial of life, liberty or property

due process of law

22

A system of legal rules and principles recognized by English judges prior to the colonization of America and accepted as a basic aspect of the American legal system

English common law

23

Historically, a system of rules, remedies, customs, and principles developed in England to supplement the harsh common law by emphasizing the concept of fairness. In addition, because common law served only to recompense after injury, this was devised to prevent injuries that could not be repaired or recompensed after the fact. In modern America, these are administered by the same courts.

equity

24

The function of appellate courts in correcting errors committed by lower tribunals in their interpretation and application of law, evidence and procedure

error correction function

25

An order by a president or governor directing some particular action to be taken

executive order

26

A hearing in a court of law that conforms to standards of procedural justice

fair hearing

27

The requirement stemming from due process that government provide adequate notice to a person before it deprives that person of life, liberty or property

fair notice

28

The collective term for the myriad departments, agencies and bureaus of the federal government

federal bureaucracy

29

The constitutional distribution of government power and responsibility between the national government and the states

federalism

30

A serious crime for which a person may be incarcerated for more than one year

felony

31

Ratified in 1868, prohibiting states from depriving persons in their jurisdictions of due process and equal protection

Fourteenth Amendment

32

"You have the body." A judicial order issued to an official holding someone in custody, requiring the official to bring the prisoner to court for the purpose of allowing the court to determine whether that person is being held legally.

habeas corpus

33

A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury

injunction

34

English institutions founded in the 14th century where judges and experienced barristers served as teachers and mentors to those aspiring to become barristers

Inns of Court

35

a decision by a court of law

judicial decision

36

generally, the review of any issue by a court of law. In American constitutional law, refers to the authority of a court to invalidate acts of government on constitutional grounds

judicial review

37

One of the principal functions of an appellate court, often referred to as the law development function, in which the appellate court makes law by interpreting or reinterpreting a constitutional or statutory provision

lawmaking function

38

Compilations of statutory laws usually indexed by subject matter

legal codes

39

An elected lawmaking body such as Congress or a state assembly

legislature

40

The ancient law of retaliation, commonly referred to as "an eye for an eye"

lex talionis

41

The idea that law should protect people from one another but not protect the individual from his or her unfortunate choices

libertarian view of law

42

The "Great Charter" signed by King John in 1215 guaranteeing the legal rights of English subjects. Generally considered the foundation of Anglo-American constitutionalism

Magna Carta

43

A minor offense usually punishable by fine or imprisonment for less than one year

misdemeanor

44

The codification of the civil and criminal laws of France promulgated under Napoleon Bonaparte in 1804

Napoleonic Code

45

Principles of human conduct believed to be ordained by God or nature, existing prior to and superseding human law

natural law

46

An enactment of a local governing body such as a city council or commission

ordinance

47

The party initiating legal action; the complaining party

plaintiff

48

The power of government to legislate to protect public health, safety, welfare and mortality

police power

49

The written law enforced by the government

positive law

50

Judicial decisions cited as authority controlling or influencing the outcome of a similar case

precedents

51

Set of procedures designed to ensure fairness in a judicial or administrative proceeding

procedural due process

52

Popular acceptance of an institution based on the perception that it operates by valid procedures

procedural legitimacy

53

A legally binding rule or order prescribed by a controlling authority. The term is generally with respect to the rules promulgated by administrative and regulatory agencies

regulation

54

Laws that prevailed among the Romans first codified in the Twelve Tables; basis of the modern civil law in most European countries

Roman Law

55

The idea that law, not the discretion of officials, should govern public affairs

rule of law

56

Formal process by which regulatory agencies make rules that carry the force of law

rulemaking

57

The authority of an independent nation or state to govern within its territorial limits

sovereignty

58

a court-imposed requirement that a party perform obligations incurred under a contract

specific performance

59

"The stand by matters decided." The principle that past decisions should stand as precedents for future decisions. This principle, which stands for the proposition that precedents are binding on later decisions, is said the be followed less rigorously in constitutional law than in other branches of law.

stare decisis

60

A generally applicable law enacted by a legislature

statute

61

The official interpretation of a statute rendered by a court of law

statutory construction

62

Doctrine that Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content as well as application

substantive due process

63

The belief that the government or legal system is enacting rules and policies that are fair, reasonable and just

substantive legitimacy

64

A wrong or injury other than a breach of contract for which the remedy is a civil suit for damages

tort

65

A legally binding agreement between two or more countries. In the US, treaties are negotiated by the President but must be ratified by the Senate.

treaty

66

Courts whose primary function is the conduct of civil and/or criminal trials

trial courts

67

A collection of laws designed to be uniformly adopted by various cases, such as the Uniform Commercial Code

uniform codes

68

The supreme law of the United States, this document adopted in 1787 replaced the Confederation of Articles and lays out the structures and powers of government as well as basic rights of individuals.

United States Constitution

69

An order issued by a court of law requiring or prohibiting the performance of some specific act

writ

70

Lecture : At the start of the Constitution, states and the fed were separate entities with separate powers, per (1).  As state powers eroded, this developed into (2) and even (3), or "blackmail."


1.  dual federalism

2.  cooperative federalism

3.  coercive federalism

71

Lecture: The Supremacy Clause--stating the US Constitution reigns supreme--applies to the (1) and it is up to the (2) to make conflicting laws consistent.


1.  Circuit of Appeals

2. Supreme Court

72


Lecture: The (1) is the last enumerated power of Congress and allows for its implied powers.


1.  Necessary and Proper Clause

73


Lecture: The Commerce Clause often pops up when there is a feling of (1).  During the 1950s the Great Depression saw the case (2) in which wheat grown for chickens was placed under the same limits--imposed to drive up prices--imposed on sellers of wheat.  The problem was not that he was selling it, but that he was not buying it.  The limit was upheld and a testament to (3).

1.  social injustice

2.  Wickard v. Filbern

3.  the federal government's increased power to regulate economic activity

74


Lecture: The actual original purpose of the Commerce Clause was to prevent states from putting (1) on products from other states.  The (2) were written to help secure ratification, and they helped explain the Constitution.


1.  tariffs

2.  Federalist Papers

75


Lecture: The US is a (1), not a (2).  The former is a (3), whereas the latter is a (4) and carries the threat of mob rule as well as questions of what consitutes a majority.  It has also been said that a democracy cannot (5) and will fold once citizens realize they can vote themselves gifts.

1.  representative republic

2.  democracy

3.  constitutionally-limited government of representation

4.  rule by an omnipotent majority

5.  exist indefinitely

76


Lecture: The collapse of a government does not lead to a (1).  One example of this is the Roman Empire's fall and the succeeding (2).


1.  better government

2.  Dark Ages

77

Lecture:  Positive law is the (1).  To be law, it must (2).  To be accepted as legitimate, it must be perceived as (3).  This discussion comes up when talking about topics like fair taxes, Dred Scott, and "loopholes" like morgage tax deductions.


1.  command of the sovereign

2.  apply with equal force to everyone

3.  rational, fair and just

78


Lecture:  The (1) and (2) are examples of the application of natural law.


1.  Declaration of Independence

2.  Bill of Rights

79


Lecture:  The key part of civil disobedience--and the part that brings attention to the unfairness of the law opposed--is (1).  (2) seemingly failed at this, having no apparent cause and effecting no change, because there was no leader prosecuted.  (3) agued for better and inactive government, but not for "no" government.

1.  willingly accepting the penalties

2.  Occupy Wall Street

3.  Henry David Thoreau

80


Lecture: Substantive law is the (1) and (2) the lawyer is arguing.  Procedural law is (3) and (4) the lawyer is arguing.

1.  content

2.  what

3.  how the law is enacted and applies

3.  how

81


Lecture:  Law protect (1) and their (2), and promote (3).  But how far into the latter shoud they go?  Before (4), laws were based on norms, morals and religion.  Laws change as (5) change.  (gay rights, strip clubs, airport security)  (6) is not synonymous to equal justice, and often pops up during trying times.  ("right to own a home")

1.  people

2.  property

3.  social order

4.  codes

5.  values

6.  Social justice

82


Lecture: (1) have the most developed legal systems, especially in protecitng (2), e.g., eminent domain. 

1.  Capitalistic

2.  property rights

 

83


Lecture:  Many statutes were enacted to counteract aggressive church maneuvers when (1) prevailed.  One of these was (2), which allowed a person to will no more than 25% of their land to their land to the church.

1.  canon law

2.  Mort main statutes

84

Lecture:  Common law brings (1) to the modern era, and is based on (2).  It helped to unify various (3).  In courts of law, people sue for (4); in courts of equity, parties are looking for (5), or injuctions/specific performances.  The (6) was the precursor to this, and examples are dissolution of marriage or probate.

1.  Roman Law

2.  custom and usage

3.  fiefdoms

4.  money

5.  fairness or justice

6.   Court of Chancery

85

Lecture:  A writ is a (1).  A (2) attaches a debt to a certain bank account.  A (3)  seeks the return of property.  The writ of habeas corpus was suspended during the (4) so Lincoln could try rebels in military court instead of civil court.

1.  court order

2.  writ of attachment

3.  writ of replevin

4.  Civil War