LW 121: Important Terms and Concepts for Exam 1 (Ch.

s 1, 2, 5, 6) (in no certain order)

1. Theories of Jurisprudence:
Natural Law theory
Laws can be challenged based on grounds laws are unfair or unjust
Legal Positivism
The legal philosophy holding that law is what the sovereign says it is,
regardless of its moral content.
Legal Realism
The legal philosophy holding that what really influences law is who
makes and enforces it.
The realistic belief that who your judge is, and who the jury are affect
the outcome of a case (nobody truly is unbiased).
2. Philosophies of Ethics:
Utilitarian Ethics
The ethical belief that the ends justify the means. i.e Nothing is ethical
or unethical until the outcome is received (Good outcome = ethical)
Wrote by Englishman John Stuart Mills
Utilitarian business practices; Risk management, cost-benefit analysis
Deontological (Kantian) Ethics
Something is ethical or unethical in its original use no matter the
outcome. i.e could cause thousands of people to lose jobs but its still
ethical
Best known proponent was German philosopher Immanuel Kant
Kant believed that no decision that treated humans as commodities could
be just, also believed in categorical imperative.
Rawlstian justice
The circumstances people are born into affect their outcomes
Written by John Rawls
3. Personal Jurisdiction, including service of complaint & summons, and long-arm statutes
Personal Jurisdiction- the legal authority to require the defendant to stand trial,
pay judgments, etc.
Summons- Served on the defendant. A courts written notice that a lawsuit has
been filed against the defendant. Requiring the person to go to trial (can only be
distributed if the defendant is in the state).
Long-arm statues- Only applies if all else fails. The defendant does not reside in
the state, does not defend the lawsuit, and rarely resides in the state so has not
been served with a summons. Usually are aggressively, hauling defendants into
their courtrooms, however the constitution requires fairness and the LONG ARM
STATUE cannot be applied if the defendant has no contact with the state.

4. Subject matter jurisdiction, including federal question and diversity

A courts authority to hear a type of case
Federal Question
A claim based on the U.S Constitution, a federal statue, or a treaty.
Diversity Cases
When the plaintiff and defendant are citizens of two different states
AND the amount in dispute is greater than $75,000
5. Statute approval process
Idea is approved in congress as a bill, house and senate vote, bill must win simple
majority in each chamber
6. Treaty approval process
Treaties can only pass with 2/3 of the Senates approval (67 senators)
7. Constitutional Amendment approval process

8. Executives implied powers

The president has supreme powers above all, in manners that exclude decisions
from congress (Treaties, going to war, relief funds, defense systems etc)
9. 2015 Iranian nuclear arms agreement
The Senate could not agree on the terms of the agreement, thus 2/3 was not
achieved. But the president used implied powers and went forth with the treaty
John Kerry wrote that getting treaties passed is physically impossible
Its an agreement not a treaty
10. Common Law System v. Civil Law System
Common Law- Judge-made law, that is, the body of all decisions made by
appellate courts over the years.
Civil Law- The large body of law concerning the rights and duties between
parties. It is distinguished from criminal law, which concerns behavior outlawed
by a govt.
11. Conflicts among four sources of law in Common Law System, including judicial review

12. Criminal Law v. Civil Law

In criminal law the government is the plaintiff, the end result is jail, fine,
probation, etc., they need guilt beyond a reasonable doubt
In civil law the individual victim is the plaintiff, monetary damages (court
ordered), proof by a preponderance of the evidence.
13. Bill of Rights and its original application until 1922

th
14. 14 Amendment
Added the equal protection clause and due process against the state (and local)
No state shall deny to any person within its jusidic tion the equal protection of
the laws.
Prodecural due process- advance notice, and a right to a hearing required.

Substantive due process- Laws can be challenged based on grounds laws are
unfair or unjust. Natural Law theory basis.
15. Doctrine of incorporation into 14th Amendment since 1923

16. Protection of free speech

17. Mediation v. Arbitration

Mediation- A Neutral person (mediator) tries to get both parties to reach a
voluntary settlement
Mediator does not render a decision
Arbitration- Neutral person (arbitrator) is involved
Arbitration may be mandatory, if chosen in advance as the method for
dispute resolution. Appeal to court is difficult to win.
Arbitrator does render a binding decision.
18. Discovery
A stage in litigation, after all pleadings have been served, in which each party
seeks as much relevant information as possible about the opposing partys case.
A Pre-trial opportunity for both parties to learn the strengths and weaknesses of
the opponents case.ease
19. Counterclaim
Sometimes the defendant will initiate his own suit against his plaintiff. This must
be done in the answer if it arises out of same facts as complaint.
20. Binding precedent v. persuasive precedent

21. Appeal v. Trial

A trial is where there is a Prosecutor (suing) the Defendant going against each
other in a case.
An appeal is after the case that the loser of the case (Prosecutor or Defendant)
appeals the case to try to get another trial. Note; roles are switched in the appeal
process. 3 or more judges hear the case.
22. National Federation of Independent Business v. Sibelius

23. Kelso v. New London

A 5-4 2005 supreme court decision confirming that minimal scrutiny applies to
govt taking of private property, and holding that rehabilitating or changing the
make up of a city area meets this test, and the govt may take private property and
then transfer property to a private developer.
Justice Kennedy joined the 4 liberals in the majority
24. Citizens United v. Federal Election Commission
2010 Supreme court decision holding that corporations have a right to free
speech, and that strict scrutiny applies to political speech by corporations.
Reviled by Democrats, applauded by republicans
25. Commerce Clause: Original meaning, and history since 1937

Congress can regulate: interstate commerce (+international commerce +

commerce with indian tribes.) Restricted:1738-1937
Vast expansion of meaning of interstate commerce. 1937-1995 (federal govt
wins all cases)
Roosevelt 1936 court packing proposal
o From commercial transaction crossing state lines to people
crossing state lines, to use of telephones and internet.
U.S vs Lopez (1995)
26. Tax & spending power of Congress
1789-1937: Federal govt may tax and spend for the general welfare, but only
based on other enumerated power (i.e commerce clause)
1937-present: Tax and spending power for the general welfare is separate power
and (almost) unlimited
Madison and Jefferson v. Hamilton
Roosevelt 1936 court packing
Regulation through taxation and spending i.e No child left behind
27. Police power of state legislatures

28. Intermediate Scrutiny v. Strict Scrutiny v. Minimal Scrutiny (Supreme courts case goes
through one of these
tests)
Strict Scrutiny- Freedom of speech, religion, press, basic natural rights that the
government cannot take away. Government actions are never upheld.
Exceptions: Time, Place, and Manner: Fighting words
Not Protected: obscenities, criminal speech (extortion, bribery,
conspiracy), fighting words, hate words (politically incorrect)
Intermediate Scrutiny- Substantial Relationship Test. Gender. Legitimacy of Birth.
Government actions are sometimes upheld
Minimal Scrutiny-Rational Basis Test. Most laws are based on economics.
Government actions are always upheld.