Midterm Book Vocab Flashcards
stare decisis
(pronounced ster-ay dih-si-ses) A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.
administrative agency
A federal, state, or local government agency established to perform a specific function. Administrative agencies are authorized by legislative acts to make and enforce rules to administer and enforce the acts.
administrative law
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.
allege
To state, recite, assert, or charge.
analogy
In logical reasoning, an assumption that if two things are similar in some respects, they will be similar in other respects also. Often used in legal reasoning to infer the appropriate application of legal principles in a case being decided by referring to previous cases involving different facts but considered to come within the policy underlying the rule.
appellant
The party who takes an appeal from one court to another.
appellee
The party against whom an appeal is taken-that is, the party who opposes setting aside or reversing the judgment.
binding authority
Any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.
breach
To violate a law, by an act or an omission, or to break a legal obligation that one owes to another person or to society.
case law
The rules of law announced in court decisions. Case law includes the aggregate of reported cases that interpret judicial precedents, statutes, regulations, and constitutional provisions.
case on point
A previous case involving factual circumstances and issues that are similar to the case before the court.
chancellor
An adviser to the king at the time of the early king’s courts of England. Individuals petitioned the king for relief when they could not obtain an adequate remedy in a court of law, and these petitions were decided by the chancellor.
citation
A reference to a publication in which a legal authority-such as a statute or a court decision-or other source can be found.
civil law
The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters.
common law
That body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.
constitutional law
Law that is based on the U.S. Constitution and the constitutions of the various states.
court of equity
A court that decides controversies and administers justice according to the rules, principles, and precedents of equity.
court of law
A court in which the only remedies that could be granted were things of value, such as money damages. In the early English king’s courts, courts of law were distinct from courts of equity.
criminal law
Law that defines and governs actions that constitute crimes. Generally, criminal law has to do with wrongful actions committed against society for which society demands redress.
cyberlaw
An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.
cybernotary
A legally recognized authority that can certify the validity of digital signatures.
damages
Money sought as a remedy for a breach of contract or for a tortious act.
defendant
One against whom a lawsuit is brought; the accused person in a criminal proceeding.
defense
Reasons that a defendant offers in an action or suit as to why the plaintiff should not obtain what he or she is seeking.
equitable maxims
General propositions or principles of law that have to do with fairness (equity).
executive agency
An administrative agency within the executive branch of government. At the federal level, executive agencies are those within the cabinet departments.
historical school
A school of legal thought that emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should be.
independent regulatory agency
An administrative agency that is not considered part of the government’s executive branch and is not subject to the authority of the president. Independent agency officials cannot be removed without cause.
jurisprudence
The science or philosophy of law.
laches
The equitable doctrine that bars a party’s right to legal action if the party has neglected for an unreasonable length of time to act on his or her rights.
law
A body of enforceable rules governing relationships among individuals and between individuals and their society.
legal realism
A school of legal thought that was popular in the 1920s and 1930s and that challenged many existing jurisprudential assumptions, particularly the assumption that subjective elements play no part in judicial reasoning. Legal realists generally advocated a less abstract and more pragmatic approach to the law, an approach that would take into account customary practices and the circumstances in which transactions take place. The school left a lasting imprint on American jurisprudence.
legal reasoning
The process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases.
natural law
The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. The natural law school is the oldest and one of the most significant schools of legal thought.
opinion
A statement by the court expressing the reasons for its decision in a case.
ordinance
A law passed by a local governing unit, such as a municipality or a county.
petitioner
In equity practice, a party that initiates a lawsuit.
plaintiff
One who initiates a lawsuit.
positive law
The body of conventional, or written, law of a particular society at a particular point in time.
positivist school
A school of legal thought whose adherents believe that there can be no higher law than a nation’s positive law the body of conventional, or written, law of a particular society at a particular time.
precedent
A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.
procedural law
Rules that define the manner in which the rights and duties of individuals may be enforced.
public policy
A government policy based on widely held societal values and (usually) expressed or implied in laws or regulations.
remedy
The relief given to an innocent party to enforce a right or compensate for the violation of a right.
remedy at law
A remedy available in a court of law. Money damages are awarded as a remedy at law
remedy in equity
A remedy allowed by courts in situations where remedies at law are not appropriate. Remedies in equity are based on settled rules of fairness, justice, and honesty, and include injunction, specific performance, rescission and restitution, and reformation.
reporter
A publication in which court cases are published, or reported.
respondent
In equity practice, the party who answers a bill or other proceeding.
sociological school
A school of legal thought that views the law as a tool for promoting justice in society.
statute of limitations
A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced.
statutory law
The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).
substantive law
Law that defines the rights and duties of individuals with respect to each other, as opposed to procedural law, which defines the manner in which these rights and duties may be enforced.
syllogism
A form of deductive reasoning consisting of a major premise, a minor premise, and a conclusion.
uniform law
A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting. If the state adopts the law, it becomes statutory law in that state. Each state has the option of adopting or rejecting all or part of a uniform law.
voir dire
(pronounced vwahr deehr) A French phrase meaning, literally, “to see, to speak.” In jury trials, the phrase refers to the process in which the attorneys question prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness.
affidavit
A written or printed voluntary statement of facts, confirmed by the oath or affirmation of the party making it and made before a person having the authority to administer the oath or affirmation.
affirmative defense
A response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action. An example is the running of the statute of limitations.
answer
Procedurally, a defendant’s response to the plaintiff’s complaint.
brief
A formal legal document submitted by the attorney for the appellant—or the appellee (in answer to the appellant’s brief)—to an appellate court when a case is appealed. The appellant’s brief outlines the facts and issues of the case, the judge’s rulings or jury’s findings that should be reversed or modified, the applicable law, and the arguments on the client’s behalf.
closing argument
An argument made after the plaintiff and defendant have rested their cases. Closing arguments are made prior to the jury charges.
complaint
The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.
counterclaim
A claim made by a defendant in a civil lawsuit that in effect sues the plaintiff.
cross–examination
The questioning of an opposing witness during a trial.
default judgment
A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff’s claim.
deposition
The testimony of a party to a lawsuit or a witness taken under oath before a trial.
direct examination
The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney’s client.
discovery
A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.
e–evidence
A type of evidence that consists of computer–generated or electronically recorded information, including e–mail, voice mail, spreadsheets, word–processing documents, and other data.
Federal Rules of Civil Procedure (FRCP)
The rules controlling procedural matters in civil trials brought before the federal district courts.
hearsay
An oral or written statement made out of court that is later offered in court by a witness (not the person who made the statement) to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible as evidence.
interrogatories
A series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney.
motion
A procedural request or application presented by an attorney to the court on behalf of a client.
motion for a directed verdict
In a state court, a party’s request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The federal courts refer to this request as a motion for judgment as a matter of law.
motion for a judgment as a matter of law
In a federal court, a party’s request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The state courts refer to this request as a motion for a directed verdict.
motion for a new trial
A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or other reason) that a new trial is necessary to prevent a miscarriage of justice.
motion for judgment n.o.v.
A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.
motion for judgment on the pleadings
A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.
motion for summary judgment
A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.
motion to dismiss
A pleading in which a defendant asserts that the plaintiff’s claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.
opening statement
A statement made to the jury at the beginning of a trial by a party’s attorney, prior to the presentation of evidence. The attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.
pleadings
Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation; the complaint and answer are part of the pleadings.
pretrial conference
A conference, scheduled before the trial begins, between the judge and the attorneys litigating the suit. The parties may settle the dispute, clarify the issues, schedule discovery, and so on during the conference.
pretrial motion
A written or oral application to a court for a ruling or order, made before trial.
rebuttal
The refutation of evidence introduced by an adverse party’s attorney.
rejoinder
The defendant’s answer to the plaintiff’s rebuttal.
relevant evidence
Evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence. Only relevant evidence is admissible in court.
rules of evidence
Rules governing the admissibility of evidence in trial courts.
service of process
The delivery of the complaint and summons to a defendant.
summons
A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff’s complaint. The document is delivered by a sheriff or any other person so authorized.
verdict
A formal decision made by a jury.
writ of execution
A court’s order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor’s nonexempt real or personal property. The proceeds of the sale are used to pay off the judgment, accrued interest, and costs of the sale; any surplus is paid to the debtor.
Bill of Rights
The first ten amendments to the U.S. Constitution.
checks and balances
The national government is composed of three separate branches: the executive, the legislative, and the judicial branches. Each branch of the government exercises a check on the actions of the others.
commerce clause
The provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce.
due process clause
The provisions of the Fifth and Fourteenth Amendments to the Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions.
equal protection clause
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establishment clause
The provision in the First Amendment to the U.S. Constitution that prohibits Congress from creating any law “respecting an establishment of religion.”
federal form of government
A system of government in which the states form a union and the sovereign power is divided between a central government and the member states.
filtering software
A computer program that includes a pattern through which data are passed. When designed to block access to certain Web sites, the pattern blocks the retrieval of a site whose URL or key words are on a list within the program.
free exercise clause
The provision in the First Amendment to the U.S. Constitution that prohibits Congress from making any law “prohibiting the free exercise” of religion.
full faith and credit clause
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meta tags
Words inserted into a Web site’s key-words field to increase the site’s appearance in search engine results.
police powers
Powers possessed by states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.
preemption
A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.
privileges and immunities clause
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probable cause
Reasonable grounds to believe the existence of facts warranting certain actions, such as the search or arrest of a person.
search warrant
An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.
supremacy clause
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symbolic speech
Nonverbal conduct that expresses opinions or thoughts about a subject. Symbolic speech is protected under the First Amendment’s guarantee of freedom of speech.
business ethics
Ethics in a business context; a consensus of what constitutes right or wrong behavior in the world of business and the application of moral principles to situations that arise in a business setting.
categorical imperative
A concept developed by the philosopher Immanuel Kant as an ethical guideline for behavior. In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way.
corporate social responsibility
The concept that corporations can and should act ethically and be accountable to society for their actions.
cost–benefit analysis
A decision–making technique that involves weighing the costs of a given action against the benefits of the action.
ethical reasoning
A reasoning process in which an individual links his or her moral convictions or ethical standards to the particular situation at hand.
ethics
Moral principles and values applied to social behavior.
moral minimum
The minimum degree of ethical behavior expected of a business firm, which is usually defined as compliance with the law.
principle of rights
The principle that human beings have certain fundamental rights (to life, freedom, and the pursuit of happiness, for example). Those who adhere to this “rights theory” believe that a key factor in determining whether a business decision is ethical is how that decision affects the rights of others. These others include the firm’s owners, its employees, the consumers of its products or services, its suppliers, the community in which it does business, and society as a whole.
stock buyback
Sometimes, publicly held companies use funds from their own treasuries to repurchase their own stock, with the result being that the price of the stock usually goes up.
stock options
A certificate that grants the owner the option to buy a given number of shares of stock, usually within a set time period.
utilitarianism
An approach to ethical reasoning in which ethically correct behavior is not related to any absolute ethical or moral values but to an evaluation of the consequences of a given action on those who will be affected by it. In utilitarian reasoning, a “good” decision is one that results in the greatest good for the greatest number of people affected by the decision.
actionable
Capable of serving as the basis of a lawsuit.
actual malice
A condition that exists when a person makes a statement with either knowledge of its falsity or a reckless disregard for the truth. In a defamation suit, a statement made about a public figure normally must be made with actual malice for liability to be incurred.
appropriation
In tort law, the use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user.
assault
Any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat.
battery
The unprivileged, intentional touching of another.
business tort
Wrongful interference with the business rights of another.
compensatory damages
A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.
conversion
The wrongful taking, using, or retaining possession of personal property that belongs to another.
cyber tort
A tort committed via the Internet.
defamation
Any published or publicly spoken false statement that causes injury to another’s good name, reputation, or character.
disparagement of property
An economically injurious false statement made about another’s product or property. A general term for torts that are more specifically referred to as slander of quality or slander of title.
