Vocabulary, Doctrine, or Buzz Words

Abatement/nuisance doctrine: justifies police power

Abatement: suspension: an interruption in the intensity or amount of something; the act of abating; "laws enforcing noise
abatement" (mentioned in Churchill)
Actual malice test: A burden of proof imposed on public officials and public figures suing for defamation and falsity, requiring
them to prove with clear and convincing evidence that an offending story was published with knowing falsehood or reckless
disregard for the truth (as discussed in NY Times v. Sullivan)
As applied: a kind of discrimination; includes proxy criterion
Balancing of interests: legal theory in the United States found in decisions by the United States Supreme Court. The principle is
that conflicts of jurisdiction and interests between governmental organizations are decided based on the balance of interests
between them. The party with the more compelling interest in most cases will have its interests upheld.
Beneficial use, test of: Beneficial use is a legal term describing a person's right to enjoy the benefits of specific property,
especially a view or access to light, air, or water, even though title to that property is held by another person. This may also
be termed "beneficial enjoyment". (as discussed in People v. Fajardo)
Benevolent neutrality: Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to
carry out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Religious
freedom is seen as a substantive right and not merely a privilege against discriminatory legislation. With religion looked
upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain
circumstances (Estrada v. Escritor).
Brandeis brief: contained statistical information on working women
Capable of repetition but evading review
Chilling effect: stifling attribute that vague or overbroad laws may have on legitimate speech activity. Recognition of a law that
may permit a loophole for such chilling effect as a vehicle for political libel or vexatious litigation provides a prompt to
allow changes to such defamation laws, and therefore prevent the suppression of free speech and censorship (Wikipedia)
Chimerical: of or pertaining to a chimera; Being a figment of the imagination; fantastic (in the archaic sense); Inherently
fantastic; wildly fanciful
Clear and present danger: evil consequence of the comment or utterance must be "extremely serious and the degree of
imminence extremely high" before the utterance could be punished; The danger to be guarded against is the "substantive
evil" sought to be prevented (Gonzales v. Comelec)
Conscientious objector: Someone who refuses to fight in an armed conflict because of religious or moral principles; used in free
exercise clause of religion; 3 tests (Cassius Clay v. US)
Constitutional democracy: adherence to the ideology of political liberalism. Liberal democracies feature constitutional
protections of individual rights from government power, which were first proposed during the Age of Enlightenment by
social contract theorists such as Hobbes and Locke. At present, there are numerous countries ruled by non-liberal political
parties - parties that uphold conservatism, Christian democracy, social democracy, or some forms of socialism - that are
considered to have liberal democracy as their form of government
Content-based regulation: speech; used in freedom of speech cases
Content-neutral regulation: non-speech; used in freedom of speech cases
Counter-majoritarian difficulty: Perceived problem with judicial review of legislative or popularly created laws. As the term
suggests, some oppose or see a problem with the judicial branch's ability to invalidate, overrule or countermand laws that
reflect the will of the majority.
Dangerous Tendency: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words
are punishable; It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated
(Gonzales v. Comelec)
Deferential test: defer to other brances of government? (Korematsu v. US)
Decisional Privacy: what you choose for yourself
De facto classification: concerning fact
De jure classification: concerning law
Discrimination, kinds: 1) As-applied; 2) On its face
Disparate impact test: like As-applied
Double Nexus Test: There has to be a link between the injury of the party and what they are complaining about
Eminent Domain: there must be just compensation, with fair market value; requirement is public use
Equal Protection clause: “All men are created equal”
Minimum requirements: 1) Based on substantial distinctions; 2) Classification is germane to the purpose of law ; 3) It
applies to present and future conditions; 4) It applies to all members of the same class (Ormoc Sugar)
Exclusionary rule: inadmissible evidence; used in unlawful search and seizure cases
Ex post facto law: law that retroactively changes the legal consequences of acts committed or the legal status of facts and
relationships that existed prior to the enactment of the law (Calder v. Bull)
Expressive association: sometimes you form an association in order to espouse a certain expression (seen in Boy Scouts of
America; equal protection clause)
Expropriation: the government files a case in court, and ask government to expropriate it.
Freedom of speech doctrine: enshrined in Art. III, Sec. 4 of the Constitution
Determine: if something is content-based or content-neutral
Tests: 1) Clear and Present Danger; 2) Injury-Specific Test; 3) Test of Imminence; 4) Dangerous Tendency; 5)
Balancing of interests, 6) Test of Actual Malice
Germane: relevant and appropriate
Graven image: idol: a material effigy that is worshipped; "thou shalt not make unto thee any graven image"; "money was his
god"
Heckler’s veto: when an acting party's right to freedom of speech is curtailed or restricted in order to prevent a reacting party's
behavior. The common example is that of demonstrators (reacting party) causing a speech (given by the acting party) to be
terminated in order to preserve the peace; used in freedom of speech cases(as discussed in Tinker)
Heightened scrutiny: compelling state purpose; means chosen is “tight,” or narrowly tailored (SEE judicial review)
Hohfeldian plaintiff: actual injured party (SEE real party in interest)
Injury in Fact: An event is recognized as an insurable loss (or occurrence) based upon the loss circumstances as reviewed by a
court, with that court having authority to apply whichever trigger theory it decides is appropriate
Imminence test: more libertarian than “dangerous tendency” test (as discussed in Dennis v. US)
Injury-specific test:
Invidious classification: discriminatory classification (used in equal protection cases);
Judicial Review: The power of a court to judge the constitutionality of the laws of a government or the acts of a government
official.
Tiers (highest-lowest): 1) strict scrutiny 2) heightened scrutiny 3) minimum test of rationality/means/purpose test
Just compensation: fair and full equivalent for the value of the property at the time of its taking (EPZA v. Dulay)
Laicite: French for “the secular state”; refers to separation of church and state
Legal formalism: legal formalism appertains to the Judge; that is, formalism does not (as positivists do) suggest that the
substantive justice of a law is irrelevant, but rather, that in a democracy, that is a question for the legislature to address, not
the Judge.
Liberty: atmosphere of freedom where the people do not feel labored under a Big Brother presence as they interact with each
other, their society and nature, in a manner innately understood by them as inherent (Whitelight)
Liberty of contract: Freedom of contract or contractualism is the freedom of individuals to bargain among themselves the terms
of their own contracts, without government interference. Anything more than minimal regulations and taxes may be seen as
infringements. It is the underpinning of the theory of laissez-faire economics.
Locus standi: personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result
of the governmental act that is being challenged. (SEE standing to sue)
Majoritarianism: View that a democracy can be defined by only its procedural aspects. However, the definition of democracy is
contentious. The argument is often made that substantive rights must be protected in a democracy to truly have a democracy,
even when those undermine the majoritarian nature of the democracy. Under this view, when judges enforce such
substantive rights, such as those agreed upon in a constitution, the judges are actually engaged in furthering democracy.
Means-purpose test: deferential to powers; what the Philippines uses in lieu of the US minimum test of rationality; also, Rational
basis standard of review for economic legislation–laws or ordinances are upheld if they rationally further a legitimate
government interest (Whitelight)
Minimum test of rationality: any public purpose; means chosen has a reasonable relationship (SEE judicial review, means-
purpose test)
Mootness: a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the
reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic.
2 exceptions: 1) the test of “capable of repetition but evading review,” and 2) voluntary cessation (De Funis)
Moratorium - postponement of fulfillment of obligations decreed by the state through the medium of the courts or the legislature.
Its essence is the application of the sovereign power"
Non-establishment Test: First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be
one that neither advances nor inhibits religion, Board of Education v. Allen; Finally, the statute must not foster "an excessive
government entanglement with religion.” (Lemon v. Kurtzman); used in establishment (religion) cases
Nuisance: a broad legal concept including anything that disturbs the reasonable use of your property or endangers life and health
or is offensive (mentioned in Churchill)
Obscenity tests: Roth test: “I know it when I see it”: 1) average person, 2) contemporary community standards, 3) dominant
theme of material, and 4) prurient interest; used in unprotected speech cases; Miller test: 1) patently offensive; 2) utterly
lacks any literary, political, scientific, artistic value; 3) lowest standard possible
On its face: a kind of discrimination
Overbreadth doctrine: a government purpose may not be achieved with means which sweep unnecessarily broadly and thereby
invade the area of constitutionally protected freedoms (Estrada v. Sandiganbayan); it offends the constitutional principle
that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved
by means which sweep unnecessarily broadly and thereby invade the area of protected freedom (Adiong v. Comelec)
Used for freedom of speech cases, usually
Overinclusion test: used in equal protection cases
Penumbra: most often used as a metaphor describing a doctrine that refers to implied powers of the federal government
Police Power: purely regulatory; government doesn’t pay anything; requirement is public purpose
Populist democracy:
Procedural due process: procedures that government must follow before it deprives a person of life, liberty or property (White
Light Corporation v. City of Manila)
See: requirements of due process (Palanca), administrative requirements (Ang Tibay)
Prophylactic prohibition
Proselytize: to encourage or induce people to join a religious movement, political party, or other cause or organization; To
convert (someone) to one’s own faith or beliefs; the moment something is characterized as this, it is under the free exercise
clause
Proxy criteria: de jure versus de facto discrimination; part of As-applied doctrine
Prurient interest: Uneasy with desire; itching; especially, having a lascivious anxiety or propensity; lustful; Arousing or
appealing to sexual desire (Roth); used in test of obscenity
Real Party in Interest: whether he is the party benefited or injured by the judgment (COMPARE to locus standi)
Reasonable suspicion standard: legal standard by which a police officer has the right to briefly detain a suspect for investigatory
purposes and frisk the outside of their clothing for weapons, but not drugs. While many factors contribute to a police
officer's level of authority in a given situation, the reasonable suspicion standard requires facts or circumstances that would
lead a reasonable person to believe that a suspect has, is, or will commit a crime
Reification: (German: Verdinglichung, literally: "making [some idea] into a thing" (from Latin "res" meaning "thing") or
Versachlichung, literally "objectification" or regarding something as a business matter) is the consideration of an
abstraction, relation or object as if they had human (pathetic fallacy) or living (reification fallacy) existence and abilities,
when in reality they don't; at the same time it implies the thingification of social relations.
Reliance doctrine: "a certain well-recognized exception that where a statute has received a given construction by a court of
supreme jurisdiction and property or contract rights have been acquired under and in accordance with such construction,
such rights should not be destroyed by giving to a subsequent overruling decision a retrospective operation” (Florida Forest
and Park Service v. Strickland)
Revolutionary Taking: taking is for the future (Association of Small Landowners); related to social justice
Ripeness: readiness of a case for litigation
Scintilla: A glimmer; a spark; the slightest particle or trace; used to describe sufficiency of evidence
Social justice: redistributive takings; you have to identify a vulnerable group
Spatial aspect of privacy: what you do in your own space
Standing to sue: party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy
Strict Scrutiny: for laws dealing with freedom of the mind or restricting the political process; focus is on the presence of
compelling, rather than substantial, government interest and on the absence of less restrictive means for achieving that
interest (Whitelight)
2 ways of triggering (re: equal protection cases): 1) Impacts upon a protected right, and 2) The criterion is suspect (the
tests of overinclusion and underinclusion come in.)
Substantive due process: completes the protection envisioned by the due process clause–it inquires whether the government has
sufficient justification for depriving a person of life, liberty and property (White Light Corporation v. City of Manila)
Suspect classification: see invidious classification (equal protection)
Taking doctrine: 3 ways to regulate property
See police power, eminent domain, social justice
Threshold problem: how to convert a guarantee of process to a guarantee of substance (answer: focus on the right that is being
taken away)
Thumb of the scale element:
Transcendental importance
Underinclusion test: used in equal protection cases
Vagueness/ Void for vagueness doctrine: a statute establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute (Estrada v.
Sandiganbayan); when an act lacks comprehensible standards that men "of common intelligence must necessarily guess at
its meaning and differ as to its application.” (People v. Nazario)
Wall of separation: refers to separation between Church and State; American concept
“Why me?” element: