Terms in this set (161)

  • What do judges do?
    Judges apply the law to the facts
  • What do jurors do?
    Jurors find or determine the facts from conflicting evidence
  • Where do we enforce our laws in a property-based legal system?
    The courts
  • trial court persons are called
    judges
  • reviewing court person are called
    justices
  • What is the function of the trial judge?
    To determine the applicable rules of law to be used to decide the case
  • What is the judge responsible for as well if there is not a jury?
    Finding the facts
  • Trial judges are the main link between ______ and the ______ it serves
    the law; citizens it serves
  • When are justices concerned with issues of the law?
    When reviewing appeals
  • When are justices concerned with issue of fact?
    At the trial court level
  • What is the petit jury?
    The trial jury that returns a verdict in both situations
  • How many jurors are there usually today?
    6, but if can be anywhere from 6 - 12
  • What is the job of the lawyers?
    They present the evidence, the points of law, and the arguments that are weighed by juries and judges in making their decisions.
  • What is a lawyers first duty?
    Is to the administration of justice
  • What three capacities does a lawyer serve?
    Counselor, advocate, and public servant
  • So again, what do trial judges do?
    They determine the applicable law and, in cases without a jury, they also are responsible for finding the facts
  • What is the petit jury?
    It is the trial jury that returns a verdict
  • What are the two major court systems in the US?
    The federal courts and the 50 state courts
  • What are the three levels of the court systems?
    Trial courts, courts of appeals, and supreme courts.
  • Where do lawsuits begin?
    The trail courts
  • Where are the results from the trial courts reviewed?
    One or more of the other two appellate court levels
  • Define appellate
    It's a court concerned with or dealing with applications for decisions to be reversed.
  • Courts are the foundation of what?
    A property-based legal system
  • What does jurisdiction refer to?
    The power of a court, at the state or federal level, to hear a case.
  • What is subject matter jurisdiction?
    the power over the issues involved in the case.
  • For any court to hear and decide a case at any level it must have ______
    subject matter jurisdiction
  • There are some courts with limited jurisdiction. What do probate courts deal with?
    Wills and the estates of deceased persons.
  • What do criminal and police courts deal with?
    Violators of state laws and municipal ordinances.
  • True or False: Courts accept cases involving trivial matters.
    False
  • What are state court systems created and governed by?
    1. The state constitutions, which provide the general framework for the court system 2. The state legislature enacts statues that add body to the framework. 3. The legislation established their jurisdiction, and regulates the tenure, selection, and duties of judges.
  • What are some other names for trial courts?
    superior court, circuit court, or the district court
  • What happens in the trial courts?
    Parties file their lawsuits or complaints seeking to protect their property rights or redress a wrongdoing.
  • What does the complaint do?
    Describes the parties, the facts and law giving rise to a cause of action, the authority of the court to decide the case, and the relief requested from the court.
  • Who is responsible for determining both the facts and the law in the case
    The trial court
  • What is an appeal?
    When the parties to litigation are entitled as a matter of right to a review of their case by a higher court
  • Is there always only one appellate court?
    No. Sometimes there is just one, which is usually called the supreme court of the state. But in more populous states, there often are two levels of reviewing courts - an intermediate level and a court of final resort.
  • What are the intermediate level courts called?
    The courts of appeal
  • What are the highest courts called?
    The supreme court
  • What is a petition for leave to appeal?
    The procedure for requesting a second review
  • What is a writ of certiorari?
    The same thing as a petition for leave to appeal. Its the procedure for requesting a second review
  • The judicial power of the federal courts has been limited by Congress. What are these limitations?
    1. Questions of federal law (federal question cases) 2. The United States as a party 3. Controversies among the states 4. Certain suits between citizens of different states (diversity of citizenship).
  • Federal question cases may be based on issues arising out of what?
    The U.S. constitution or out of federal statues.
  • What percent of complaints are settled or fully resolved at the trail court level?
    95 to 98 percent
  • True or False: Many cases are appealed
    False. Very few
  • Courts of different scope and subject matter jurisdiction help create _____ and ______
    order and efficiency
  • Courts of a different what help create order and efficiency?
    of a different scope
  • What court is concerned with questions of law?
    reviewing courts
  • How many trials and appeals is a party entitled to?
    One trial and one appeal
  • How can a party obtain a second review?
    They can obtain a second review through a write of certiorari, only if they agree to such a review.
  • True or False: Many of the requests are granted.
    False only about 5 percent
  • What article of the constitution provides that judicial power be vested in the SC and such lower courts as Congress may create.
    Article 3
  • Define common law. Give an example regarding marriage.
    It derives from old English common law. It's a group of legal practices and traditions originating in judges' decisions in earlier cases and in social customs and having the same force in most of the U.S. as if passed into law by a legislative body. It derives from judicial decisions as opposed to legislatively enacted statutes and administrative regulations.
  • Give an example of common law regarding marriage.
    Common law marriages. In some states if a couple lives together for a certain number of years they're considered married by common law even though they haven't have a civil ceremony, etc.
  • define natural law
    A philosophy of law that says certain legal rules can be reasoned out from nature itself and always hold true
  • Define equity
    In its broadest sense, equity is fairness. As a legal system, it is a body of law that addresses concerns that fall outside the jurisdiction of Common Law
  • Whats the difference between equity and common law?
    Common law is law developed by judges through the precedent of court decisions. Equity law supplements common law and allows courts to apply justice according to natural law.
  • What's the most important remaining distinction between law and equity?
    The right to a jury trial in a civil case. Where the plaintiff seeks a remedy of money damages, the plaintiff is entitled to a jury trial, provided the amount sought exceeds an amount specified by statute. Where the plaintiff seeks a remedy that is something other than money, the plaintiff is not entitled to a jury trial. Instead, the case is decided by one judge
  • In a court, if a case or issue is referred to as equitable, what does this mean?
    It means that the relief requested by the plaintiff is not a money award, i.e. restraining order
  • In states with two levels of reviewing courts, where are most appeals taken?
    To the lower of the two courts, and the highest court of the state will review only very important cases.
  • How many judges do intermediate courts usually have?
    3 to 5 justices
  • How many judges does a state supreme court usually have?
    7 to 9 justices
  • Courts of a different scope and subject matter help create what?
    order and efficiency
  • True or False: Sometimes after a trial court, there can be a direct appeal to the supreme court, rather than the intermediate reviewing courts.
    True
  • How many circuits does the US courts of appeals have?
    12
  • How many justices does the SC of the US have?
    9
  • Federal courts have what over federal question cases and diversity of citizenship cases?
    subject matter jurisdiction
  • Define subject matter jurisdiction
    The authority of a court to hear cases involving specific issues of law
  • True or False: any amount of money can be involved in a federal questions case
    True, and it need not be a suit for damages
  • The rights guaranteed by the BOR of the Constitution may also be the basis for what kind of case?
    Federal questions case
  • Diversity of citizenship requires what?
    That all plaintiffs be citizens of different states from all defendants.
  • What's an example of when there would be no diversity of citizenship. What does this mean regarding federal jurisdiction?
    If a case involves a party on one side that is a citizen of the same state as a party on the other, there will be no diversity of citizenship and thus no federal jurisdiction
  • If there are three parties in a lawsuit, how does diversity of jurisdiction exist?
    All three parties have to be from different states
  • For purposes of diversity jurisdiction, is a person a citizen of the state of incorporation, a citizen of the state in which is has its principal place of business, or both? Give an example
    They are both. For example, a Delaware corporation with its principal place of business in Illinois is a citizen of both Delaware and Illinois for the purposes of diversity.
  • What would happen if the party on the other side of the lawsuit was from Delaware? From california?
    If the party was from delaware there is no diversity, and therefore no federal jurisdiction. If they were from california there would be diversity and federal jurisdiction
  • Questions arise regarding the state in which a corporation has its primary place of business. The total activity of the corporation is examined to determine its principal place of business. What two things does the test incorporate?
    It incorporates both the place of activities and the nerve center tests.
  • What does the nerve center tests apply to?
    It places general emphasis on the locus of the managerial and policy-making functions of the corporations.
  • What does the place of activities test focus on?
    It focuses on production or sales activities.
  • In diversity of citizenship cases, the federal courts have a jurisdictional amount of more than how much?
    75,000
  • True or False: If there are multiple plaintiffs with separate and distinct claims, the jurisdictional amount remains 75,000
    False. Each claim must satisfy the amount. Therefore, in a class-action suit, the claim of each plaintiff must be greater than the 75,000 jurisdictional amount.
  • Why does congress provide for diversity of citizenship jurisdiction? To guard against what?
    To guard against state court bias against the nonresident party in a lawsuit. It preserves the sense of fairness
  • What are the trial courts of the federal judicial system?
    The federal district courts
  • How many federal district courts are there in every state?
    At least one, and the district of columbia
  • True or False: The federal district courts have subject matter jurisdiction over diversity of citizenship and federal question cases
    True
  • The most significant federal litigation begin in what court?
    The federal district courts
  • Define the federal rules of civil procedure
    A law passed by congress that provides procedural steps to be followed by the federal courts when handling civil litigation. (procedures to be followed in federal court litigation)
  • What is an appellate court?
    A court having jurisdiction to review decisions of a trial-level or other lower court.
  • How many courts of appeal has Congress created? Under what authorization?
    12 US Courts of Appeal under its constitutional authorization
  • What else did congress create as an intermediate appellate court in the federal system?
    A special court of appeals for the federal circuit.
  • Where is the special court of appeals located? What kinds of places does it hear appeals from?
    It is located in DC and hears appeals from special courts such as the US Claims Court and Contract Appeals as well as from administrative decisions such as those made by the Patent and Trademark Office.
  • Other courts like the court of appeals for armed forces have been created to handle what?
    special subject matter.
  • In addition to the court of appeals, the federal court system provides for a ____ _____
    Supreme Court
  • Litigants are entitled to one review or appeal, so how would one get a review by the US Supreme Court?
    Through a petition for a writ of certiorari
  • What is a petition for a writ of certiorari?
    Its a request by the losing party in the court of appeals for permission to file an appeal with the US SC
  • An adverse decision from a federal district court in Atlanta may be appealed to what?
    The 11th circuit court of appeals
  • When are writs of certiorari granted?
    In cases of substantial federal importance or where there is an obvious conflict between two or more US Circuit Courts of Appeal in an important area of the law that needs clarification
  • Whose decision becomes the law of the land?
    The SC's decision
  • True or False: The SC's decision reconciles the division of opinion between the lower courts.
    True
  • How is the writ granted?
    If four of the nine justices agree to take the case
  • What court normally resolves issues involving major constitutional issues or interpretation of federal law?
    The SC
  • How many US Supreme Court decisions were heard from 06 - 07
    Only 75
  • What is judicial restraint?
    It describes a type of judicial interpretation that emphasizes the limited nature of the court's power. Judicial restraint asks judges to base their judicial decisions solely on the concept of stare decisis.
  • Define stare decisis
    The doctrine that traditionally indicates that a court should follow prior decisions in all cases based on substantially similar facts. (precedent)
  • What circuit court of appeals is the SC more likely to review and reverse the decision? Why?
    the 9th circuit because they are different in their judicial activism. It is often at odds with the philosophy of judicial restraint found in the SC in the recent years.
  • What do decisions rendered by the 4th circuit court of appeals tend to be?
    They tend to be more conservative or consistent with the philosophy of judicial restraint.
  • True or false: the federal district courts an the courts of appeal can review, retry, or correct judicial errors charged against a state court.
    False. They can NOT review, retry...
  • What is higher, federal district courts or state courts?
    State courts. State courts are also referred to as the federal court of appeals
  • State cases reviewed by the US SC must concern what?
    It must concern questions involving the validity of state action on the grounds that the statute under review is in conflict with (repugnant) the constitution, treaties, or laws of the US.
  • True or False: If the case doesn't involve a federal question, the decision of the highest state court is not subject to review by the SC
    True
  • What courts create case law or precedent in the process of deciding cases?
    Reviewing courts
  • Opinions may be written in the name of the author of the opinion or they may be written ___ _____
    per curiam, by the court without identifying the author
  • How many US SC justices need to agree to decide a case?
    5 out of the 9
  • Define jurisprudence
    the theory or philosophy of law
  • True or False: Dissenting opinions of the court can also be important. Explain.
    True. They often provide the foundation for changes in public policy and they often provide guidance to legislative bodies on issues under consideration. They make a contribution to our jurisprudence and to the public debate on important social and public policy issues.
  • Whats the difference between trial courts and reviewing courts?
    Trial courts focus on the law and facts while reviewing courts focus only on the law. (courts of appeal are reviewing courts)
  • What must exist for a court to hear a case?
    subject matter jurisdiction
  • The most significant power of the courts, or "judiciary," is what? Explain.
    It's judicial review, which is the power to review laws passed by the legislative body and to declare them to be unconstitutional and void.
  • What does judicial review allow the courts to do regarding the executive branch?
    It allows the courts to review actions taken by the executive branch and to declare them unconstitutional
  • As individual jurists exercise the power of judicial review, they do so with what?
    Varying political attitudes and philosophies
  • People who believe that the power should not be used except in unusual cases are said to believe in what?
    Judicial restraint
  • Define judicial activism
    People who think the power should be used whenever the needs of society justify its use
  • True or False: All members of the judiciary believe in only judicial activism.
    False. All members believe in judicial restraint and all are activists to some extent.
  • What two things describe attitudes or tendencies by matters of degree, and describe general attitudes toward the exercise of the power of judicial review
    Judicial restraint and judicial activism
  • True or False: Judicial restraint is associated with liberal judges
    False. It's associated with republican, conservative judges.
  • Judicial activism is linked primarily to who?
    Liberal judges generally appointed by democrats.
  • A federal judge presides over what?
    the lower courts, such as the district courts
  • The president has the power to appoint ___ _____ and supreme court _____, subject to the advice and consent of the ___ ____
    federal judges; justices; US Senate
  • What committee plays a part in deciding who will be a US SC justice?
    The Senate Judiciary Committee. They question the nominee and hear testimony from others about the nominee's qualifications and judicial philosophy.
  • What happens once the senate judiciary committee approves the nominee?
    The person is forwarded to the senate for debate before a vote is taken.
  • Judicial review is the ultimate power to do what?
    to invalidate actions by the president or the congress
  • Those who believe in judicial restraint think that many constitutional issues are what, regarding the courts?
    Too important to be decided by courts unless absolutely necessary and are to be avoided if there is another legal basis for a decision.
  • Who believes that the courts should refrain from determining the constitutionality of an act of Congress unless it is necessary to a decision of a case.
    People who believe in Judicial restraint
  • What modest view of the role of the judiciary is based on the belief that litigation is not the appropriate technique for bringing about social, political, and economic change?
    JUDICIAL RESTRAINT
  • _____ ______ is sometimes referred to as what two things?
    Judicial restraint; strict constructionism and judicial abstention.
  • Strict constructionism people believe the constitution should be interpreted differently from what the founding fathers intended.
    False. They believe it should be interpreted in light of what the founding fathers intended.
  • Those who promote judicial abstention believe what?
    That the courts should decide only those matters they must to resolve actual cases and controversies, and that doubts about the constitutionality of legislation should be resolved in favor of the statue.
  • True or False: those who believe in judicial restraint believe that social, political, and economic change in society should result from court action rather than the political process.
    False. They believe it should result from the political process rather than court action.
  • True or False: people who believe in judicial restraint think that the federal courts should overrule the actions of the states.
    False. They think that federal courts should defer to the actions of the state
  • To whom do people who believe in judicial restraint give wide latitude in finding solutions to the nation's problems?
    The states and the federal legislative and executive branch
  • What are some things that judicial restraint jurists do?
    1. They overrule cases only when the prior decision is clearly wrong 2. They try to refrain from writing their personal convictions in the law 3. They don't view the lawyer and the practice of law as that of social reform
  • Who thinks that reform is the function of the political process?
    People who believe in judicial restraint
  • What will reviewing courts who exercise judicial restraint do regarding the trial courts?
    They will accept the trail court decision unless they are clearly wrong on the facts or the law.
  • True or False: followers of judicial restraint have a pragmatic approach to litigation; decisions are based on facts rather than the principle of law.
    True. If there is any reasonable basis for lower court decisions, it will not be reversed
  • Justices who engage in judicial restraint weigh competing interests. Explain regarding a person accused of a crime and the victim
    They would weigh the rights of the person accused of the crime with the interests of the victim and of society in determining the extent of the rights of the accused in criminal cases.
  • What has been the dominant philosophy throughout our history?
    judicial restraint
  • What type of judicial decision are the following: 1. states can regulate nuclear power 2. seniority has preference over affirmative action layoffs. 3. states can tax the foreign income of multinational corporations 4. male-only draft is not a denial of equal protection of the law
    Judicial restraint
  • People who belief in judicial activism believe the courts have a major role in correcting wrongs in our society. They believe that the courts must provide what because the political system can't do what?
    The courts must provide leadership in bringing about social, political, and economic change because the political system is too slow or unable to bring about the necessary changes needed to improve society.
  • True or False: activist jurists are dependent on precedent for their decisions
    False. They are more innovative
  • True or False: activists believe that constitutional issues must be decided within the context of contemporary society
    True. The meaning of the constitution is relative to the times in which it is being interpreted
  • Activists believe that the courts, especially the SC, sit as continuing what?
    The constitutional convention to meet the needs of today
  • Did activism or restraint have a part in desegregation and other civil rights changes in legislation?
    Activism
  • Who believes that we are governed by the dead if we do, what? And what should we do about that?
    Activists believe that if we don't examine the huge issues facing society today and then decide these issues in light of contemporary standards, that we are then allowing ourselves to be governed by the dead.
  • What type of decisions are the following: 1. no prayer is permitted in school 2. there shall be equal pay for comparable worth 3. statues outlawing abortion are unconstitutional 4. the miranda warning shall be given to all criminal suspects prior to investigation
    Typical judicial activist decisions
  • What justices are activists?
    Stevens, Souter, Ginsburg, Breyer
  • What justice is a moderate?
    Kennedy
  • What justices are restraints?
    Roberts, Scalia, Thomas, Alito
  • What is habeas corpus?
    It is the legal doctrine that gives prisoners the right to challenge their confinement and requires the government to offer valid reasons for imprisonment.
  • Justice Cardozo discussed the sources of info judges utilize in deciding cases. What did he say?
    He stated if the answer were not clearly established by statue or by unquestioned precent, the problem was twofold. He said the judge must first extract from the precedents the underlying principle and then must determine the path or direction along which the principle is to work and develop, if it is not to wither or die.
  • All judicial decisions are somewhat directed by the judge's viewpoint on what?
    The welfare of society.
  • What are Cardozo's five forces that shape a judge's work?
    logic, history, custom, utility, and accepted standards of right conduct.
  • What does Cardozo compare a judge's job to?
    That of a legislator and the end served by law must dictate the administration of justice and ethical considerations
  • What keeps judges consistent with one another?
    The subconscious forces?