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Flashcards in The Judiciary Deck (39)
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statutory law

Statutory law is law as established by a statute passed by legislature.

For instance, there is a statute that makes it illegal to kill the American bald eagle. One who kills an American bald eagle is guilty of violating the statute.


common law

Common law refers to law made through judicial decisions, as opposed to law made by statute. In common law jurisdictions, great deference is given to previous judicial decisions that interpreted the same or similar matters.

As an example, common law may establish whether a party has breached a contract, because there is no statute governing the issue. If there is a statute governing the issue before the court, the statute trumps common law.


civil law

Civil law refers to a legal system in which the primary tenets are established and codified to which judges can then refer. Louisiana is the only state that has a civil law system.

Civil law is distinct from common law, because in common law jurisdictions the court looks towards previous court decisions, rather than codified tenets.


What is meant by the Latin term "stare decisis"?

Stare decisis means "let the decision stand."  It is the principle that judges should decide current cases by referencing past judicial decisions that dealt with similar facts, known as precedents.

Trial courts, state and federal appellate courts, state supreme courts, and the United States Supreme Court generally respect the principle of stare decisis


What is meant by the legal concept of standing?

Standing refers to the power of a party to file suit, and requires that the plaintiff before the court must have suffered a harm or be under threat of imminent harm. If a plaintiff does not have standing, the case must be dismissed, as there is no live case or controversy before the court.

As an example, if A's friend B is hit by a car, B can file suit, but not A, because A has not suffered a harm.


What is an appeal?

An appeal is a request for a higher court to review a decision of a lower court to determine whether the decision was correct. Importantly, an appellate court cannot review a factual determination by a jury or judge, but only a decision upon a judge's legal reasoning.



Jurisdiction is the right and power to apply the law. Before a court can hear a case, it must have jurisdiction over it.

In Article III, the Constitution established both the original and appellate jurisdiction of the Supreme Court.


How are the federal courts organized?

The Judiciary Act of 1789 basically established three levels of courts:

  1. district courts: lowest federal courts where cases are filed and trials are held
  2. circuit courts: intermediate courts between the district courts and the U.S. Supreme Court that review appeals from the decisions of the district courts
  3. Supreme Court: exercises appellate jurisdiction over all federal courts, in addition to having original jurisdiction over some matters


How are state courts organized?

Each state court system is different. Generally, each state has trial courts in each county, an intermediate appellate court, and a supreme court, that serves as the highest appellate court.

State trial courts are often divided into divisions, such as family court, probate court, and criminal court.


What type of state legal decisions may the U.S. Supreme Court review?

Under principles of federalism, state courts are responsible for interpreting state law, and federal courts are responsible for federal law. The U.S. Supreme Court may choose to review a decision of a state's highest court if a federal law or the Constitution is at issue.   


exclusive jurisdiction

Exclusive jurisdiction refers to the types of cases that only the federal courts can hear. 

As an example, the Sherman Antitrust Act provides that the federal courts have exclusive jurisdiction to decide cases alleging violations of the Act. Thus, no case alleging a violation of the Act can be brought in a state court.


concurrent jurisdiction

Concurrent jurisdiction refers to cases in which both state and federal courts may hear the same case.  In some cases, both a federal and state court have the power to hear a case.

As an example, both state courts and federal courts may hear cases regarding trademark infringement, and the plaintiff may determine in which court he seeks to file suit.


What is diversity jurisdiction?

To protect out-of-state defendants, U.S. law establishes diversity jurisdiction. The basic rule states that if none of the plaintiffs are from the same state as the defendants, the claim may be heard in federal, rather than state, court.

In addition, the federal courts may only exercise jurisdiction when the amount in controversy exceeds $75,000.


Who has the power to create the lower federal courts, such as the district courts and circuit courts?

Article III grants Congress the power to create inferior federal courts. Congress has used this power to establish the 13 circuit courts and the 94 district courts.


What determines which of the Federal Circuit Courts of Appeals have jurisdiction over a case?

Geographic location is the basis for jurisdiction of the Federal Circuit Courts of Appeals.  For instance, the Second Circuit has jurisdiction over appeals arising from district courts in New York, Connecticut, and Vermont, while the Seventh Circuit is responsible for Illinois, Indiana, and Wisconsin.


The Constitution provides original jurisdiction to the Supreme Court in what matters?

Original jurisdiction refers to the power to hear a case for the first time. The Supreme Court's original jurisdication is confined to cases involving ambassadors, ministers, and counsels, and cases in which the United States has a controversy with a state, or two states have disputes with each other.


Generally speaking, how does a party commence an appeal to the U.S. Supreme Court?

With rare execptions, the Supreme Court is not compelled to hear appeals. To request that the Supreme Court do so, a party petitions the Court for a writ of certiorari. If granted, the writ compels a lower court to send the case's record for review, and the appeal commences.


How does the Supreme Court determine whether or not to grant a writ of certiorari?

Each petition for a writ of certiorari is voted on by the nine Supreme Court Justices. If four justices vote to grant certiorari, the Court hears the case, hence the Rule of Four.

Only rarely do four justices vote in the affirmative, and only 1.1% of petitions are granted.


How many justices sit on the Supreme Court?

The Supreme Court has nine justices. 

Three justices are women (Ginsburg, Sotomayor, Kagen); one is hispanic (Sotomayor); and one is black (Thomas). Justice Scalia is the longest serving justice, having been on the Court since 1986. All of the justices attended either Harvard, Yale, or Columbia.

The justices have distinct courtroom personalities. For instance, Justice Scalia makes jokes from the bench, while Justice Thomas did not make a single open court statement between 2006 and 2013.


What are the three types of appellate court opinions?

The three types of appellate court opinions are:

  1. majority opinions: written opinion of the majority of the court, setting out the reasons for the majority's decision
  2. dissenting opinions: written opinion of those disagreeing with the majority, and their reasons for so doing
  3. concurrent opinions: opinion of any judge or justice agreeing with the majority or minority opinions, but for different reasons than cited by those opinions


What role does the Chief Justice of the United States play?

Other than presiding over impeachment hearings in the Senate, the Constitution does not establish any special powers in the office of the Chief Justice.

By tradition, if the Chief Justice is in the majority in any case before the Court, he assigns the writing of the majority opinion. The Chief Justice also organizes hearings and guides discussion. 

Non-judicial roles for the Chief Justice include administering the Presidential Oath of Office and serving as the Chancellor of the Smithsonian Institution.


How long do federal judges serve once appointed by the president and confirmed by the Senate?

Once confirmed, judges have lifetime tenure, and serve as long as they wish. Like other federal officials, judges can only be removed through a formal impeachment process.

Acquitted by the Senate in 1805, Samuel Chase was the only Supreme Court justice ever impeached.  Eight lower-court judges have been impeached and removed, including for reasons of drunkenness and perjury.


What is an amicus brief?

An amicus brief is a legal brief filed by someone not part of either party but who has information on a case. As an example, in a case involving the Environmental Protection Agency, the environmental group Greenpeace may file an amicus brief.

The term amicus brief comes from the Latin term amicus curiae translated as "friend of the court."


What is an advisory opinion?

An advisory opinion is an opinion of a court interpreting a law, but without an actual case before it requiring it to do so. The federal courts do not issue advisory opinions, deeming them to violate Article III's "case or controversy" requirement. Some state courts do so.

The federal tradition dates to the first Chief Justice, John Jay, who denied George Washington's request for an advisory opinion.


How are judges appointed to the federal bench?

The president nominates individuals to serve as federal court judges, with the advice and consent of the Senate. In the case of Supreme Court justices, the confirmation procedure can be lengthy and contentious, but lower-court justices often have less difficult times.


litmus test

A litmus test is a question asked of nominees to political or judicial office, to determine a nominee's political ideology. In judicial confirmation proceedings, common litmus tests regard abortion, the death penalty, or strict constructionism.


What is senatorial courtesy?

Senatorial courtesy refers to the customary practice of nominating district court judges who meet the approval of the senior senator of the president's political party from the state containing the district court.  In the event that the president and both senators from within that circuit are from differing political parties, the courtesy is not typically extended.

Since the circuit courts cover multiple states, the approval of individual senators is of less importance.


What principle was codified by the 11th Amendment?

The 11th Amendment codified the principle of sovereign immunity. Under the 11th Amendment, states may not be sued in federal court without their consent.


What is the judicial philosophy of textualism?

Textualists, such as Justice Scalia, contend that it is the role of the judiciary to apply the statute as written. According to a prominent judge, the textualists looks "at the statutory structure and hear[s] the words as they would sound in the mind of a skilled, objectively reasonable user of words."

In opposition to textualists, some judges review legislative histories or signing statements to determine the legislators' intent and then apply the statute to conform with that intent.



Originalism is a form of textualism, which requires a judge to determine what the words of the Constitution or other law meant to those who enacted them.

Originalism arises most often in constitutional jurisprudence, where judges scrutinize historical records to determine what the words meant to the people of the time.