Judiciary » Glossary

administrative law

Administrative law is concerned with the substance and procedures of executive branch rule making, regulatory enforcement, and adjudication of disputes handled by administrative agencies rather than the courts. An administrative-law judge is a government official with quasi-judicial powers, including the authority to conduct hearings, make findings of fact, and recommend resolution of disputes concerning an executive branch agency's actions.

adversarial system

The adversarial system is a key feature of the Anglo-American common law tradition. The parties on either side of a legal action take the position of opponents or adversaries before the court, which decides the winner of this legal conflict. Unlike the inquisitorial system in which accused parties must exonerate themselves before a judge or judges who function as both judge and prosecutor, in the adversarial system the opposing sides compete to convince an impartial judge or jury of the merits of their legal assertions of guilt, innocence, liability, obligation, and the like.

advice and consent

The Constitution (Article III, Sec. 2) says that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." Thus, a president nominates a judge, but must win the consent of the Senate to confirm the appointment. Senate rules determine what constitutes consent; advice is not readily defined.

amicus curiae

People, groups, or officials who are not official parties in a case may still have a keen interest in the outcome of the case and may wish to communicate their opinions to the court. Sometimes, courts allow amici curiae (plural form of a Latin phrase meaning "friend of the court") to file briefs on a pending case.

appeals courts

The Judiciary Act of 1789 set out the structure of the federal court system, which remains largely intact today. The intermediate appellate level is called the United States Courts of Appeals (also sometimes referred to by an older name, the Circuit Courts). Federal Appeals Courts are organized geographically into 12 regional Circuits and one so-called Federal Circuit located in Washington, D.C. having nationwide jurisdiction to hear appeals in specialized cases. The 94 U.S. judicial districts are organized within these appellate regions. A court of appeals hears appeals from the district courts located within its circuit and from decisions of federal administrative agencies.

appellate jurisdiction

A court's jurisdiction is its authority to hear and decide cases. A court's appellate jurisdiction (if it has such authority) encompasses cases previously heard and decided by other lower courts. Hence appellate jurisdiction entails the power of a court, board, or commission to review, uphold, or overturn decisions made by other authorities. Generally, appellate review is of the lower court's findings of law, not the facts of the case.

bail

To win release from custody prior to trial an accused person may in many cases deposit or pledge some form of capital (money or property) with a court as a promise to return and submit to the court's jurisdiction at a specified time and place. If the accused fails to appear, bail is forfeited and paid over to the court. The amount of bail is determined by a judge but the constitution requires that bail should be reasonable, that is, appropriate to the crime. Bail may not be available in all courts for all crimes, especially the most heinous. As with release to personal recognizance, a grant of bail my rest on a court's judgment of the accused's reputation, potential threat to the community, and flight risk.

brief

A document filed with a court prior to a hearing or trial, detailing the legal arguments to support the position of one party.

capital felony

A capital felony is a crime which may be punishable by execution.

case law

Case law is a record of precedents, the previous decisions of the courts in similar cases. It is used to justify resolution of newly arising disputes according to the patterns established in previous cases. Common law systems in the United States and elsewhere grant the force of law to this record of previous judicial and administrative decisions.

circuit courts

See appeals courts

civil law

In contrast to criminal law which deals with harms against the state or crimes against persons punishable by the state, civil law deals with disputes (usually between private parties) involving issues of private rights. Thus, civil law stipulates codes of behavior related to contractual relationships between groups and/or individuals. In contrast to common law, civil law also refers to the body of law developed from Roman law and used in continental Europe and most former colonies of European nations. The basis of law in civil-law jurisdictions is statute, not custom and precedent.

common law system

A common law system is a legal system founded not on laws made by legislatures but on judge-made laws, which in turn are based on custom, culture, habit, and previous judicial decisions. The United States (except Louisiana) borrowed and built on the English common law system. Though much of what was originally common law has been converted to statutory laws made by legislatures, the common law tradition, based upon precedent and embodied in case law, is still the foundation of the American legal system. Under a common law system, when a court decides and reports its decision concerning a particular case, the case becomes part of the body of law and is used as a precedent in later cases involving similar matters.

concurrent jurisdiction

A court's jurisdiction is its authority to hear and decide cases. When two or more court systems (e.g., state and federal), or two levels of courts both have original jurisdiction in a case, they are said to have concurrent jurisdiction in the case. Ordinarily, the courts or authorities will decide among themselves which shall consider the case or consider it first.

constitutional courts

Those federal courts created by the Constitution or by Congress under power granted to it in Article III of the Constitution (as opposed to statutory or legislative courts).

criminal law

The law of crimes and their punishments defines criminal offenses, regulates the apprehension, charging, and trial of suspected offenders, and fixes punishment for convicted persons. Substantive criminal law defines particular crimes, and procedural law establishes rules for the prosecution of crime.

defendant

The person or entity in a court case that is being prosecuted by the government (criminal law), or sued by a plaintiff (civil law)

discretionary review

Discretionary review is the authority of some appellate courts to decide which cases the court will consider and which it will not consider.

district court

Federal trial courts of original jurisdiction, first established by Congress in the Judiciary Act of 1789 and expanded since then, as constitutional courts.

double jeopardy

The Fifth Amendment to the U.S. Constitution forbids putting a person on trial a second time for an offense of which he or she has previously been convicted or acquitted. But the protection against double jeopardy does not extend to conduct that violates both state and federal law or to multiple prosecutions of a suspect for conduct that constitutes more than one offense.

en banc hearing

En banc is a French term (meaning on the bench) referring to a case heard and decided by all of the judges of a court as opposed to judges acting individually. When all of the judges who preside within the geographic area covered by a court's jurisdiction gather to hear a case or matters related to a case they are said to meet en banc, that is, with the full authority of the court present. The U.S. Supreme Court always sits en banc, but the multi-member Courts of Appeals usually sit in three-judge panels, and only rarely en banc.

felony

A serious criminal offense, such as burglary or theft with a value above $1,500, sexual assault or murder. Usually felonies are identified by degree of seriousness (first, second and third degree).

grand jury

The Fifth Amendment to the U.S. Constitution states that no person shall be held to answer for a felony crime "unless on a presentment or indictment of a grand jury." The practice goes back at least to early England, when the kings began using groups of citizens to determine which charges were worthy of trial, rather than just having individual citizens or the prosecutor bring charges. While charges requested by a federal prosecutor require grand jury action (indictment), states are not required to use grand juries for prosecutions in state courts.

habeas corpus

Habeas corpus is a Latin phrase meaning 'have the body.' Legally it refers to a guarantee against illegal imprisonment, a fundamental right guaranteed citizens in the U.S. Constitution. A writ of habeas corpus is a court order to someone detaining a prisoner to produce him or her in court to determine the lawfulness of the imprisonment. A writ of habeas corpus was originally a pre-trial device whereby someone imprisoned by executive order could challenge the legality of his detention. Today the scope of habeas corpus has expanded to include challenges of imprisonment after conviction as well on the argument that punishment was wrongly imposed.

hearing

A hearing is the formal examination of a civil or criminal cause before a judge according to the laws of a particular jurisdiction.

indictment

In criminal law, an indictment is a formal written accusation submitted to a court by a grand jury alleging that a specific person has committed a specific crime, usually a felony. An indictment is a method of charging someone with the commission of one or more offenses and indicating to the court that there are sufficient grounds to proceed with a trial.

injunction

A writ granted by a court requiring one to do or to refrain from doing a specified act.

judicial review

The power of the judicial branch to review actions of the legislative and executive branches (as well as the state governments) to determine whether those acts are allowed by constitutional law. If the courts determine that the acts violate the constitution, they nullify those acts.

Judiciary Act of 1789

The act in the 1st Congress that set out the basic structure of the federal judiciary (district courts and appellate courts, under the constitutionally created Supreme Court) and provided, under the Constitution's Supremacy Clause, that state court decisions could be appealed into this federal judiciary.

jurisdiction

The power or authority of a court to hear and decide a case.

Jury

A trial, or petit jury, is a group of citizens (usually 12) who hear charges brought by the government against a defendant, or in a civil case, arguments between a plaintiff and defendant, and decide guilt, innocence, and liability.

legislative courts

Those federal courts set up by Congress under its implied or plenary powers, for special purposes. For example, the Court of Military Appeals, the Court of Veterans Appeals, and territorial courts are legislative courts, whose judges serve fixed-length terms. See also constitutional courts.

liability

Legal responsibility. A person is liable for the effects of his or her actions.

misdemeanor

A relatively minor criminal offense, like possession of small amounts of marijuana, assault without bodily injury, and theft of goods and services whose value is small.

opinion

The official, formal decision from a court of law with the legal reasons and principles upon which the legal decision is based.

oral argument

Verbal presentations from attorneys representing both sides, before appellate courts. Courts of Appeals and the Supreme Court use oral arguments, written briefs, and their internal discussions and arguments as material to help them make their decision.

original jurisdiction

A court's jurisdiction is its authority to hear and decide cases. The original jurisdiction of a court encompasses cases that start (are first heard) in that court (usually in a trial) rather than some lower or other court. Trial courts determine the facts of the case and apply the law to those facts.

plaintiff

A person who brings a legal action against another.

precedent

The principle of precedent is a key element of common law systems according to which previous judicial decisions influence current and future judicial decisions unless previous decisions are explicitly overruled. Precedent is a basis for stability in law, built on the expectation that judgments will be consistent with one another over time unless there is reason for change. Specifically, past court decisions in similar cases - the case law dealing with a particular type of dispute - are used to justify a similar approach to resolving current disputes of the same or similar types.

prosecutor

The government's lawyer who brings criminal charges to a grand jury to seek an indictment, then argues before a trial court for conviction of the defendant on the criminal charges.

senatorial courtesy

The practice of senators giving their fellow senators the courtesy of their vote to support or oppose their decision on a judicial nominee in their state. Because of this Senate norm, presidents defer to senators (of their own party) in selection of district court judges.

stare decisis

A Latin phrase (meaning to stand by decided matters) used to describe a court's posture of relying on precedent (past decisions) to formulate decisions on new cases.

statutory law

The body of laws created by a legislature, as opposed to those laws originating from the constitution (constitutional law) or some other source (e.g., judge-made common law, agency-made administrative law). An individual law created by a legislature is referred to as a statute.

Supreme Court

The Constitution vests "the judicial power of the United States" in the Supreme Court. The Constitution stipulates the original jurisdiction for the court and authorizes it to exercise appellate jurisdiction, under Congressional "regulation."

trial

The formal examination before a court or judge of the matter in issue in a civil or criminal cause in order to determine guilt, innocence, or liability.

trial court

A court of original jurisdiction, where cases begin.

writ of certiorari

A written request (Latin for "to be informed") by the Supreme Court for a lower court to send up its records of a case so that the Supreme Court may review the case on appeal. Thus, most appeals from parties to a case take the form a request for the Court to issue a writ of certiorari.