Bona fide – Latin term meaning “good faith.” Generally used to note a party’s lack of bad intent or fraudulent purpose.
Class Action Suit – Allows a member of a class to sue as representatives on behalf of the whole class provided that: a) the class is so large that joinder of all parties is impractical; b) there are questions of law or fact common to the class; c) the claims or defenses of the representatives are typical of the claims or defenses of the class; and, d) there is some danger that of inconsistent verdicts or adjudications if the class action were prosecuted as separate actions. Most states allow class action suits under the same or similar circumstances.
Collateral Estoppel – Also known as issue preclusion. The idea that once an issue has been litigated, it may not be retried. Similar to the doctrine of Res Judicata.
Due Process Clause – The clauses of the Fifth and Fourteenth Amendments of the Constitution that guarantee citizens of the United States “due process of law.” The Fifth Amendment applies to the federal government and the Fourteenth applies to the states.
Due Process of Law – The idea of “fair play” in the application of law to citizens. Substantive due process is just plain fairness. Procedural due process applies to adequate procedural safeguards in place and utilized to protect an individual’s liberty or property interests.
Enjoin – (see Injunction).
Equal Protection Clause – The clause within the Fourteenth Amendment that prohibits a state from denying any person within its jurisdiction equal protection of its laws.
Establishment Clause – The clause of the First Amendment that prohibits Congress from making “any law respecting an establishment of religion.” This clause has been interpreted to create a “wall of separation” between church and state. The “Lemon test” asks whether an action in question has a secular purpose, whether its primary effect promotes or inhibits religion, and whether it requires excessive entanglement between church and state.
Ex Post Facto Law – A law that punishes as criminal any action that was not a crime at the time it was performed. Prohibited by Article I, Section 9, of the Constitution.
Exclusionary Rule – Constitutional limitation on the introduction of evidence that states that evidence derived from a constitutional violation must be excluded from trial.
Free Exercise Clause – The clause of the First Amendment that prohibits Congress from interfering with citizens’ rights to the free exercise of their religion. Through the Fourteenth Amendment, it also has been made applicable to the states and their sub-entities. The Supreme Court has held that laws of general applicability that have an incidental effect on persons’ free exercise rights are not violative of the Free Exercise Clause.
Incorporation Doctrine – By its own terms, the Bill of Rights applies only to the federal government. The incorporation Doctrine states that the Fourteenth Amendment makes the bill of rights applicable to the states.
Injunction – A court order that requires a party to do or refrain from doing some particular action.
Issue Preclusion – (see Collateral Estoppel).
Jurisdiction – The power of a court to determine cases and controversies. The Supreme Court’s jurisdiction extends to cases arising under the Constitution and under federal law. Federal courts have the power to hear cases where there is diversity of citizenship or where a federal question is involved.
Negligence per se – Negligence on its face. Violations are considered negligence per se because no careful person would have been guilty of it.
Overbroad – A government action is overbroad if, in an attempt to alleviate a specific evil, it impermissibly prohibits or chills a protected action.
Per Curiam – Latin phrase meaning “by the court.” Typically used in court reports indicating that an opinion was written by the court rather than by a single judge or justice.
Preemptive Doctrine – Doctrine that states that when federal and state law attempt to regulate the same subject matter, federal law prevents the state law from operating. Based on the Supremacy Clause of Article VI, Clause 2, of the Constitution.
Prior Restraint – Restraining a publication before it is distributed. In general, constitutional law doctrine prohibits government from exercising prior restraint.
Pro Se – A party appearing in court, without the benefit of an attorney, is said to be appearing pro se.
Remand – The act of an appellate court in returning a case to the court from which it came for further action.
Remedies – There are two general categories of remedies, or relief: legal remedies, which consist of money damages (compensatory and punitive), and equitable remedies, which consist of a court mandate that a specific action be prohibited or required.
Res Judicata – The judicial notion that a claim or action may not be tried twice or re-litigated, or that all causes of action arising out of the same set of operative facts should be tried at one time. Also known as claim preclusion.
Sovereign Immunity – The idea that the government cannot be sued without its consent. It stems from the English notion that the “King could do no wrong.” This immunity from suit has been abrogated in most states and by the federal government through legislative acts known as “tort claims acts.”
Standing – The judicial doctrine that states that in order to maintain a lawsuit a party must have some real interest at stake in the outcome of the trial.
Statute of Limitations – A statute of limitations provides the time period in which a specific cause of action may be brought.
Summary Judgment – Also referred as pretrial judgment. Similar to a dismissal. Where there is no genuine issue as to any material fact and all that remains is a question of law, a judge can rule in favor of one party or the other.
Supremacy Clause – Clause in Article VI of the Constitution that states that federal legislation is the supreme law of the land. This clause is used to support the Preemption Doctrine (see above).
Tort – a wrong; a private or civil wrong or injury resulting from a breach of a legal duty that exists by virtue of society’s expectations regarding personal conduct (rather than by contract). Essential elements: existence of a legal duty owed by the defendant to a plaintiff; breach of that duty; and causal relationship between the defendant’s breach/conduct and the resulting damage to plaintiff.
Vacate – The act of annulling the judgment of a court either by an appellate court or by the court itself. The Supreme Court generally will vacate a lower court’s judgment without deciding the case itself, and remand the case to the lower court for further consideration in light of some recent controlling decision.
Void-for-Vagueness Doctrine – A judicial doctrine based on the Fourteenth Amendment’s Due Process Clause. In order for a law that regulates speech, or any criminal statute, to past muster under the doctrine, the law must make clear what actions are prohibited or made criminal. Under this principle, individuals of average intelligence should not have to guess at the meaning of a law.
Writ of Certiorari – The device used by the Supreme Court to transfer cases from the appellate court’s docket to its own. Since the Supreme Court’s appellate jurisdiction is largely discretionary, it need only issue such a writ when it desires to rule in the case.