Transcript Judicial Vocabulary

Judicial Vocabulary
Morgan Sanders
Activist approach
• The view that judges should discern the
general principles underlying the
Constitution and its often vague language
and assess how best to apply them in
contemporary circumstances, in some
cases with the guidance of moral or
economic philosophy
Amicus curiae
• A Latin term meaning “a friend of the
court”. Refers to interested groups or
individuals, not directly involved in a suit,
who may file legal briefs or make oral
arguments in support of one side.
Brief
• A legal document prepared by an attorney
representing a party before a court. The
document sets forth the facts of the case,
summarizes the law, gives the arguments
for its side, and discusses other relevant
cases.
Civil law
• The body of rules defining relationships
among private citizens. It consists of both
statutes and the accumulated customary
law embodied in judicial decisions (“the
common law”)
Class action suit
• A case brought into court by a person on
behalf of not only himself but all other
persons in the country under similar
circumstances. For example, in Brown v.
Board of Education of Topeka, Kansas,
the Supreme Court decided that not only
Linda Brown but all others similarly
situated had the right to attend a local
public school of their choice without regard
to race.
Concurring opinion
• A Supreme Court opinion by one or more
justices who agree with the majority’s
conclusion but for different reasons.
Constitutional court
• A federal court exercising the judicial powers
found in Article III of the Constitution and whose
judges are given constitutional protection: they
may not be fired (they serve during “good
behavior”), nor may their salaries be reduced
while they are in office. The most important
constitutional courts are the Supreme Court, the
94 district courts, and the courts of appeals (one
in each of 11 regions plus one in the District of
Columbia).
Court of appeals
• The federal courts with authority to review
decisions by federal district courts,
regulatory commissions, and certain other
federal courts. Such courts have no
original jurisdiction; they can hear only
appeals. There are a total of 12 courts of
appeals in the United States and its
territories.
Criminal law
• The body of rules defining offenses that,
though they harm an individual (such as a
murder, rape, and robbery), are
considered to be offenses against society
as a whole and as a consequence warrant
punishment by and in the name of society.
Dissenting opinion
• A Supreme Court opinion by one or more
justices in the minority to explain the
minority’s disagreement with the Court’s
ruling.
District courts
• The lowest federal courts where federal
cases begin. They are the only federal
courts where trials are held. There are a
total of 94 district courts in the United
States and its territories.
Diversity cases
• Cases involving citizens of different states
over which the federal courts have
jurisdiction as described in the
Constitution.
Dual sovereignty doctrine
• State and federal authorities can
prosecute the same person for the same
conduct. The Supreme court has upheld
this doctrine because:
– Each level of government has the right to
enact laws serving its own purposes
– Neither level of the government wants the
other to be able to block prosecution of an
accused person who has the sympathy of the
authorities at one level
Federal-question cases
• Cases concerning the Constitution, federal
law, or treaties over which the federal
courts have jurisdiction as described in the
Constitution.
Fee shifting
• A law or rule that allows the plaintiff (the
part that initiates the law suit) to collect its
legal costs from the defendant if the
defendant loses.
In forma pauperis
• A Latin term meaning “in the form of a
pauper”. Someone who is without the
funds to pursue the normal costs of a
lawsuit or criminal defense. Upon the
court's granting of this status the person is
entitled to waiver of normal costs and/or
appointment of counsel (but seldom in
other than a criminal case).
Judicial review
• The power of the courts to declare acts of
the legislature and of the executive to be
unconstitutional and hence null and void.
Legislative court
• A court that is created by Congress for
some specialized purpose and staffed with
judges who do not enjoy the protection of
Article III of the Constitution. Legislative
courts include the Court of Military
Appeals and the territorial courts.
Litmus test
• In chemistry a way of finding out if a liquid
is acid or alkaline. The term is used in
politics to mean a test of ideological purity,
a way of finding out if a person is a dyedin-the-wool liberal or conservative or what
his or her views are on a controversial
question.
Marbury vs. Madison
• Background: The case began on March 2, 1801, when an obscure
Federalist, William Marbury, was designated as a justice of the
peace in the District of Columbia. Marbury and several others were
appointed to government posts created by Congress in the last days
of John Adams's presidency, but these last-minute appointments
were never fully finalized. The disgruntled appointees invoked an act
of Congress and sued for their jobs in the Supreme Court.
• Questions: Is Marbury entitled to his appointment? Is his lawsuit the
correct way to get it? And, is the Supreme Court the place for
Marbury to get the relief he requests?
• Decision: Yes; yes; and it depends. The justices held, through
Marshall's forceful argument, that on the last issue the Constitution
was "the fundamental and paramount law of the nation" and that "an
act of the legislature repugnant to the constitution is void." In other
words, when the Constitution--the nation's highest law--conflicts with
an act of the legislature, that act is invalid. This case establishes the
Supreme Court's power of judicial review.
McCulloch vs. Maryland
• Background: In 1816, Congress chartered The Second Bank of the
United States. In 1818, the state of Maryland passed legislation to
impose taxes on the bank. James W. McCulloch, the cashier of the
Baltimore branch of the bank, refused to pay the tax.
• Questions: The case presented two questions: Did Congress have
the authority to establish the bank? Did the Maryland law
unconstitutionally interfere with congressional powers?
• Decision: In a unanimous decision, the Court held that Congress
had the power to incorporate the bank and that Maryland could not
tax instruments of the national government employed in the
execution of constitutional powers. Writing for the Court, Chief
Justice Marshall noted that Congress possessed unenumerated
powers not explicitly outlined in the Constitution. Marshall also held
that while the states retained the power of taxation, "the constitution
and the laws made in pursuance thereof are supreme. . .they control
the constitution and laws of the respective states, and cannot be
controlled by them."
Opinion of the court
• A Supreme Court opinion written by one or
more justices in the majority to explain the
decision in a case.
Per curiam opinion
• A brief, unsigned opinion issued by the
Supreme Court to explain its ruling.
Plaintiff
• The party that initiates a lawsuit to obtain a
remedy for an injury to his or her rights.
Political question
• An issue that the Supreme Court refuses to
consider because it believes the Constitution
has left it entirely to another branch to decide. Its
view of such issues may change over time,
however. For example, until the 1960s the Court
refused to hear cases about the size of
congressional districts, no matter how unequal
their populations. In 1962, however, it was
decided that it was authorized to review the
constitutional implications of this issue.
Remedy
• A judicial order preventing or redressing a
wrong or enforcing a right.
Section 1983 case
• Section 1983 of Chapter 42 of the United
States Code allows a citizen to sue a state
or government official who has deprived
the citizen of some constitutional right or
withheld some benefit to which the citizen
is entitled.
Senatorial courtesy
• The custom in the U.S. Senate of refusing
to confirm a presidential appointment to
office opposed by both senators from the
state of the appointee or by the senior
senator of the President's party.
Solicitor general
• The solicitor general is the third-ranking
officer of the Department of Justice, right
after the attorney general and the deputy
attorney general. The solicitor general
what cases the government will appeal
from lower courts and personally approves
every case the government presents to the
Supreme Court.
Sovereign immunity
• A doctrine that a citizen cannot sue the
government without its consent. By
statute, Congress has given its consent for
the government to be sued in many cases
involving a dispute over a contract or
damage done as a result of negligence.
Standing
• A legal concept establishing who is
entitled to bring a lawsuit to court. For
example, an individual must ordinarily
show personal harm in order to acquire
standing and be heard in court.
Stare decisis
• A latin term meaning “let the decision
stand”. The practice of basing judicial
decisions on precedence established in
similar cases decided in the past.
Strict constructionalist approach
• The view that judges should decide cases
on the basis of the language of the
Constitution.
Supreme court of the United States
• America's highest court, which has the final power to
decide cases involving the interpretation of the U.S.
Constitution, certain legal areas set forth in the
Constitution (called federal questions) and federal laws.
It can also make final decisions in certain lawsuits
between parties in different states. The U.S. Supreme
Court has nine justices -- one of whom is the Chief
Justice -- who are appointed for life by the President and
must be confirmed by the U.S. Senate. Most states also
have a supreme court, which is the final arbiter of the
state's constitution and state laws. However, in several
states -- most notably New York and Maryland, where it's
called the "Court of Appeals," and Massachusetts, where
it's called the "Supreme Judicial Court" -- the highest
state court uses a different name.
Writ of certiorari
• A latin term meaning “made more certain”.
An order issued by a higher court to a
lower court to send up the record of a case
for review. Most cases reach the Supreme
Court through the writ of certiorari, issued
when at least 4 of the 9 justices feel the
case should be reviewed.