The Framework of American Law Flashcards
What are the four primary sources of American law?
There are four primary sources of American law:
1. the common law doctrines developed in cases
2. the U.S. Constitution and the constitutions of various
states;
3. statutory law, including laws passed by Congress, state
legislatures, and local governing bodies;
4. and regulations created by
administrative agencies
Case law
Case law consists of the decisions issued by judges in cases
that come before the court. Case law evolved through the
common law tradition, which originated in England and was
adopted in America during the colonial era
The doctrine of stare decisis
**Stare decisis means “to stand by things decided” **and is the doctrine of precedent, which is a major characteristic of the common law
system. Under this doctrine, judges must follow the earlier decisions of their courts or a higher court within their
jurisdiction if the same points arise again in litigation
primary source of law
In legal research, a document that
establishes the law on a particular
issue, such as a case decision,
legislative act, or administrative rule
secondary source of law
In legal research, any publication
that indexes, summarizes, or
interprets the law, such as a legal
encyclopedia, a treatise, or an article
in a law review.
Common law
A body of law developed from
custom or earlier judicial decisions in
English and U.S. courts and not by a
legislature
precedent
A court decision that furnishes
authority for deciding later cases in
which similar facts are presented
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.
persuasive precedent
A precedent that a court may either
follow or reject. Such precedents
include precedents decided in
similar cases in other jurisdictions,
treatises, scholarly articles, and
other secondary sources
departures from precedent
Sometimes a court will depart from the rule of precedent. If a court decides that a precedent is wrong or that technological or social changes have made the precedent inappropriate, the court might overrule the precedent. These cases often receive a great deal of publicity (ex; Brown v. Board of Education)
case of first impression
A case presenting a legal issue that has not yet been addressed by a court in a particular jurisdiction
public policy
A governmental policy based on widely held societal values
remedy
The means by which a right is enforced or the violation of a right is compensated for
remedy in equity
A remedy allowed by courts in situations where remedies at law are not appropriate. Remedies in equity are based on rules of fairness, justice, and honesty.
remedies at law
Remedies available in a court of law. Monetary damages and property are awarded as remedies at law.
court of law (historical)
A court in which the only remedies
were money and property.
Historically, in England, a court of law
was different from a court of equity
court of equity (historical)
A court that decides controversies
and administers justice according to
the rules, principles, and precedents
of equity.
Equitable principles and maxims
Propositions or general statements
of rules of law that are frequently
involved in equity jurisdiction
ex:
* Whoever seeks equity must do equity. (Anyone who wishes to be treated fairly
must treat others fairly.)
* Equity requires clean hands. (The plaintiff must have acted fairly and honestly.)
* Equity will not suffer a right to exist without a remedy. (Equitable relief will be
awarded when there is a right to relief and there is no adequate legal remedy.)
* Equity values substance over form. (It is more concerned with fairness and
justice than with legal technicalities.)
* Equity aids the vigilant, not those who sleep on their rights. (Individuals who
fail to assert their legal rights within a reasonable time will not be helped.)
laches
An 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
specific performance
An equitable remedy requiring the
performance that was specified in a
contract; usually granted only when
monetary damages would be an
inadequate remedy and the subject
matter of the contract is unique (for
example, real property
injunction
A court decree ordering a person to do
or to refrain from doing a certain act.
citation
A reference that indicates where a
particular constitutional provision,
statute, reported case, or article can
be found.
party
With respect to lawsuits, the plaintiff
or the defendant. Some cases
involve multiple parties (more than
one plaintiff or defendant).
