Affidavit
A written statement of facts, made under oath (that is, with a formal promise of truth, enforceable by criminal penalty of perjury) administered by a person authorized to administer oaths, such as a judge or a notary public.
Bill of Rights
The U.S. Constitution’s first ten amendments. These rights were added to the Constitution shortly after its adoption as a means of protecting individuals against the threat of the newly powerful federal government. Courts have since held that these guarantees apply against state and local governments as well. Highlights include:
- First Amendment: Freedom of religion, speech, press, peaceable assembly, petition the government for a redress of grievances.
- Fourth Amendment: Freedom from unreasonable searches and seizures.
- Fifth Amendment: Rights against compelled self-incrimination and to fair governmental procedures
- Eighth Amendment: Rights against excessive bail, excessive fines, and cruel and unusual punishments.
Cause of Action
The basis of a lawsuit.
Note: Sometimes the difference between a “cause of action” and a “right” matters. When a government or a private individual or corporation harms someone by violating a federal statute, often the statute itself allows that victim to bring a lawsuit. In that case, the statute provides both the “cause of action” and also the “right” being enforced. But other times there’s a distinction. For example, when it’s the Constitution that tells a state or local government entity what to do or what not to do, federal lawsuits to enforce that command are technically brought under a post-Civil War statute, the Civil Rights Act of 1871, often referred to as 42 U.S.C. § 1983, or “Section 1983.” In this circumstance, the “right” is the constitutional right allegedly violated (equal protection, due process, etc.), but the cause of action” is Section 1983.
Civil
In civil suits, plaintiffs sues individuals or entities the plaintiffs believe have harmed them. Civil suits include matters in family court (like a divorce or custody hearing), evictions, bankruptcies, contract actions, personal injury actions, and so on.
Civil Liberties
If you are being precise, current practice is to use the phrase “civil liberties” to refer to protections against government actions and abuses that are not related to discrimination. The core civil liberties are protected by the U.S. Constitution’s First Amendment—freedom of speech, press, and assembly, and freedom of religion, but the term is used more broadly to cover the rest of the Bill of Rights, as well.
Civil Rights
“Civil rights” is a phrase whose definition has changed a great deal over time. In the 19th century, “civil rights” was used to mean rights relating to property and the court system—the right to inherit and own property, sign an enforceable contract, testify under oath, and the like. In our era, civil rights means something very different. The phrase has become inextricably linked to the Civil Rights Movement of the 1950s and 1960s, and the kinds of claims of equality and anti-discrimination that participants in that movement made. Today, anti-discrimination—that is, civil rights—claims can be made against the government or private individuals, organizations, or corporations. Claims against the government may arise under the U.S. Constitution’s 14th Amendment’s Equal Protection Clause which forbids states to “deny to any person within [their] jurisdiction the equal protection of the laws.” There are also a large number of federal and state civil rights statutes that prohibit employment discrimination, housing discrimination, discrimination in contracting and service at stores, voting policies and practices, and more. Each has slightly different coverage, but they enforce many types of equality, including race, gender, disability, and age. Because federal law is, under the Constitution’s Supremacy Clause the “supreme law of the land,” state or local laws cannot reduce the equality protections provided under federal law, but they can be more protective.
Civil Rights and (or vs.) Civil Liberties
The definitions of these two phrases have shifted over time, but in current usage, civil liberties involve constitutional claims against the government for basic rights. Civil rights involve constitutional and statutory anti-discrimination claims against the government, individuals, groups, or corporations.
Nothing legal turns on the distinction, however: violations of both civil rights and civil liberties are equally illegal.
Civil Rights Statutes
There are many civil rights statutes, some emerging from the civil rights era of the 1950s and 1960s:
- The Civil Rights Act of 1964: prevents discrimination in public places on the basis of race, color, religion and national origin.
- The Voting Rights Act of 1965: prohibits racial discrimination in voting by regulating election administration.
- The Fair Housing Act of 1968: prohibits discrimination in sale, rental and financing of housing based on race, religion, national origin and sex.
Other statutes have also added important protections:
- The Age Discrimination in Employment Act (1967): prohibits employment discrimination against people 40 years of age or older.
- Title IX of the Education Amendments of 1972: forbids educational institutes to discriminate based on gender.
- The Rehabilitation Act of 1973: forbids discrimination on the basis of disability by recipients of federal funding.
- The Individuals with Disabilities Education Act (1975): requires public schools to provide a free and appropriate public education to kids with disabilities.
- The Pregnancy Discrimination Act (1978): prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.
- The American with Disabilities Act (1990): forbids discrimination on the basis of disability and requires reasonable accommodations of disability by employers, governments, and others.
- The Religious Land Use and Institutionalized Persons Act (2000): requires accommodation of religious practice in land use and jails and prisons.
Civil War Amendments
The Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution, which abolish slavery; ensure voting rights to all men; guarantee equal protection under the law; extend due process requirements to the states.
Class Action
A lawsuit enabling a large number of people with a common interest to sue in one proceeding.
Constitutional Clause
A passage in a Constitution that guarantees a right, grants a power to the government, etc. Examples in the U.S. Constitution include the Equal Protection Clause (“nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws”), the Cruel and Unusual Punishments Clause (“nor cruel and unusual punishments inflicted”), and the Constitution’s two Due Process Clauses (14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law”; 5th Amendment: “nor shall any person . . . be deprived of life, liberty, or property, without due process of law”.)
Criminal (as opposed to Civil)
Criminal litigation is the legal system’s process for resolving accusations made by the government that an individual (or, occasionally, a corporation) has committed a crime—a behavior that is harmful to society and is for that reason prohibited by the government under criminal law. Criminal suits are brought by a prosecutor, a lawyer representing the government (or, as it is sometimes expressed, the people) who initiates litigation, against the defendant, whom the prosecutor alleges committed the crime. In criminal litigation, the prosecutor asks the judge or jury to find the defendant guilty and punish him/her in someway, often by imprisonment.
Declaration
A written statement, usually made under oath, confirmed by signature. It substitutes in many situations for an affidavit.
Declaratory Relief
A court-endorsed statement that a party’s rights have been violated.
Defendant
The party against whom recovery is sought in a lawsuit.
Deposition
Interviews of witnesses, recorded and taken under oath, before a trial.
Docket
A court document that lists the parties, attorneys, judges, hearing dates, and documents filed in a case.
Due Process
The phrase “due process of law” appeared first in an English statute in 1354, which codified the 1215 Magna Carta. That first text stated: “No man of what[ever] state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.” In those early days, “due process” meant most crucially that rules should be established in advance, and that court procedures should be fair. In the United States, the Constitution’s Fifth Amendment recognizes numerous more specific guarantees against unfair treatment for criminal defendants, and then dictates more generally that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” This first Due Process Clause, in the Bill of Rights, was originally applicable only against the federal government. It was joined in 1868 by the Fourteenth Amendment’s similar requirement, applicable against the states: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” While many procedural protections are, in different circumstances, considered “due,” the core of due process is that individuals must be provided notice of the government’s claim against them and an opportunity to be heard by a fair decision-maker at a meaningful time and in a meaningful way.
Equality
As a matter of theory, the claim of equality is not that everyone is equally strong, smart, or talented. It is that governments, to be just, must value all people equally and give them equal respect. As the Universal Declaration of Human Rights puts the idea, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” A government acts unjustly if it protects the rights of some of its people while denying the same protection to others, because all people share a common humanity and value. Equality claims have been vital and often persuasive over the course of American history. A claim of equal humanity and worth motivated the movement to abolish slavery in the nineteenth century and the movement to abolish Jim Crow segregation in the 1960s. Similar claims have been pressed by women seeking the vote and more recently seeking equal treatment in employment, education, and other endeavors. Gay and lesbian people, people with disabilities, and members of religious minorities have all founded often-successful civil rights movements on the shared democratic value of equality.
Only after the Civil War and end of American slavery did the Constitution centrally and plainly embrace equality, with the Fourteenth Amendment’s Equal Protection Clause. It reads, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” (The Supreme Court has made clear that this requirement applies to the federal government as well.) Ratification of the Fourteenth Amendment was, however, just one step in our nation’s hesitant expansion of who is considered part of “We the People” and our still in-progress task of bolstering equality.
Evidence
Documents, objects, witness testimony, and any other means of showing a judge or jury the facts of a case. In federal court, the Federal Rules of Evidence govern how and when evidence may be used at trial.
Injunction or Injunctive Relief
A court order requiring a party to do something or to stop doing something, used as a remedy for a violation of the plaintiff’s rights.
Judge
A public officer appointed or elected to control the proceedings in a courtroom and to decide questions of law.
Jury
A group of between 6 and 12 people (depending on the state) that adjudicates questions of fact, and application of law to fact, based on the evidence presented at trial.
Justice
Justice is a vital goal of our Constitution, stated as such in its Preamble:
Political, philosophical, and legal thinkers agree that the idea of justice combines “desert” (deservingness), procedural fairness, and distributional fairness.
Some philosophers emphasize “
desert”—justice, they say, requires that people be treated in accordance with the praiseworthiness or blameworthiness of their conduct. The Roman legal thinker Cicero, for example, wrote that “Justice renders to every one their due.” This idea was a key part of Martin Luther King, Jr.’s famous I Have a Dream speech, when he described his “dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
Procedural justice is a different aspect of justice, encompassing procedural fairness not just in court but in all dealings between individuals and their government. Ideas about procedural justice may be quite a bit broader than Due Process. For example, some scholars have identified the key dimensions of procedural justice to include not just the right to a hearing but to decisional transparency and procedural respect for the dignity of participants. Procedural justice helps ensure that societal conflicts are settled in an orderly, non-arbitrary, and respectful manner.
Distributive justice addresses the distribution of good—money, resources, benefits—among people. Public programs that provide medical care, housing, food, money, etc. for people who need them implement an idea of distributive justice. But of course members of any democracy can and do debate how much resource redistribution justice requires.
Lawsuit or Litigation
The process of resolving a dispute through the public court system.
Money Damages, or Monetary Relief
A court order requiring a defendant to pay a sum of money to a plaintiff, to remedy a violation of the plaintiff’s rights (or to settle a lawsuit).
Nature of Relief
The type of legal remedy a plaintiff seeks. The three main types of relief are declaratory, injunctive, and monetary.
Plaintiff
The party who files a civil lawsuit, alleging a violation of rights.
Preliminary Injunction
A temporary court order requiring that a defendant do something or stop doing something until the case is completed. For the court to enter a preliminary injunction, the plaintiff must show that he/she is likely to win the lawsuit, and that if the judge does not order the defendant to do or stop doing something, there is a substantial chance that the plaintiff will suffer irreparable harm.
Prevailing Party
The party that wins a lawsuit.
Public Interest Lawyer
A lawyer who represents clients in order to further any of a multitude of objectives seen to be in the public interest, including civil rights, consumer rights, environmental protection, anti-poverty.
Recusal
The act of a judge being removed or voluntarily removing him/herself from a case because of a conflict of interest.
Rule of Law
When John Adams, the United States’ second President, drafted the Massachusetts Constitution, in 1780, he included a phrase that soon became famous: the state, he wrote, should have “a government of laws and not of men.” In Marbury v. Madison, the 1803 Supreme Court case establishing judicial review of the constitutionality of legislation, Chief Justice John Marshall borrowed the phrase and applied it to the whole of the United States. The phrase encapsulates the core democratic value of rule of law—as English theorist John Locke put it in 1690, people should “not be subject to the inconstant, uncertain, unknown, and arbitrary will of others,” but are, rather entitled to laws and rules that are:
- Developed and adapted under fair procedures.
- Announced in advance.
- Applicable to everyone, including the government.
- Binding and enforced.
Settlement Agreement
A compromise negotiated by the parties to a lawsuit, usually to end the case before a trial occurs. Settlement agreements are sometimes disclosed to the court (and the public), and other times are secret. They may or may not be subject to court approval.
Verdict
The formal decision or findings made by a judge or jury after a trial.
