Environmental Law

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Legal Terms Frequently Used in Environmental Litigation

The terms that follow, and others, can also be checked in a number of legal dictionaries. My own library contains a copy of Black's Legal Dictionary, 5th ed. (1979), which is a widely used hard copy reference.

There are also a number of good online legal dictionaries. See, e.g. the one at FindLaw. There is another at Jurist, the online presence of the law school at the University of Pittsburgh. And you should also look at the OneL dictionary for first year Harvard law students. This last includes terms used in the study of law, as well as legal terms per se.

The online dictionaries need to be used with care and intelligence. A query in the Jurist online dictionary about per curiam leads, for example, to a definition of the word opinion, in the course of which one learns what a per curiam opinion is. The term per curiam itself is not, however, in the Jurist dictionary.

Absolutely basic terms, like plaintiff and defendant, are left out of the list. The following terms are those experience shows are usually most troublesome for students coming to environmental law for the first time.

Declaratory judgment: A judgment made by a court based solely on its determination of the legal rights of the parties to a lawsuit, who may, thus, feel advantaged by the court's decision, even though this form of judgment does not lead to the actual award of damages.

Discretion: A word which describes the decision making behavior of a public official and denotes a decision the official may properly make on the basis of what she thinks is best, provided the decision maker is acting in her official capacity, provided the decision made is just and proper under the circumstances, and provided it is made in accordance with the law that confers the discretion. Discretionary decisions are decisions officials make "according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others."

Injunction: A form of relief or a remedy that a court may provide to the complaining party in a lawsuit by forbidding (enjoining) the performance by the other party of an act that is imminent or threatened. Injunctions are court orders that originate from the equity jurisdiction of the courts, the power they have to do the right thing for the parties to the suit, even if it stops short of a material settlement of the merits of a case. Injunctions may be either temporary or permanent.

Jurisdiction: The power and authority of a court to hear a case. Questions about jurisdiction are raised by the parties to a lawsuit for strategic reasons, to argue, for example, that a court should not decide a particular case because it lacks "subject matter jurisdiction," has no power to decide certain kinds of cases, or perhaps because it lacks the power to decide cases between particular kinds of people.

Motion for summary judgment: A motion made in the course of a lawsuit to dismiss a case on the grounds that there is no dispute (no issue) between the parties with respect to any material fact. The party to the lawsuit making this motion is essentially saying that, if the opposing party cannot prove anything more than they have claimed until now, then, even if the facts already alleged to be true are in fact true, there is no legal issue for the court to decide.

Per curiam: A decision by a court to resolve a dispute that is taken "by the court" as a whole and is not, therefore, issued in the name of or explicitly associated with the name(s) of any particular members of the court. The decision by the U.S. Supreme Court that effectively decided the outcome of the 2000 presidential election was a per curiam decision. Sometimes per curiam decisions are accompanied by long, published opinions. Sometimes they are issued together with nothing more than a short paragraph or two.

Petitioner: A term often confused with respondent (see infra.) The petitioner is, literally, the party who presents a petition to an appellate court and asks this court to act. Thus, the petitioner is always the party to a lawsuit who lost the outcome in the court at the level below that of the court being petitioned.

Remand: An order issued by a court to "send back" a case to some previous decision making forum. An appellate court, for example, can remand a case to the court below for reconsideration and further action in the light of the appellate court's decision. A court of law may also remand a case to an administrative agency, for similar reconsideration and further action "consistent with the court's opinion."

Respondent: The party to an appellate lawsuit who is answering the petitioner and, therefore, the party who won the outcome in the court immediately below the court in which the appeal is being taken.

Tort: A form of private or civil (rather than criminal) wrong or injury suffered by one person who has a common law right to expect that the other person causing the injury should have behaved differently and better. So, the right to be protected from a tort arises from an expectation about proper behavior between persons in a civilized society, an expectation that has grown up over many hundreds of years and has been respected and enforced by common law courts. This right can, thus, be distinguished from a right conferred by statute. The right you have not to be murdered is established in California's criminal code, or statutes. The right you have not to have someone else treat you or your property negligently is, by contrast, a common law right. Violation of that common law right constitutes a tort, or tortious act. If the person suffering injury as a result of a tort files a common law suit in a state court against the other party, the court can provide a remedy in the form of an action for damages, which may be nominal or material (involve actual money compensation). Person in this context is defined to mean a corporate entity, as well as an individual. So, in "Erin Brokovich," the movie I recommended that you watch, as well as in the movie "A Civil Action," the central legal problem involves a tort.

Vacate: to annul, rescind, and set aside. If an opinion is vacated, it means in plain English that the judgment of the court has never existed. A situation exists as if the judgment of the court had never been rendered.

Venue: This is a term that deals with the locality in which a case may be heard. Often, cases may properly be heard in more than one place, and so the plaintiff gets some say in the matter. Struggles over venue are, therefore, critical aspects of litigation strategy, and may be undertaken to try to ensure that a case is heard before a court likely to be sympathetic. NOTICE that venue is not the same as jurisdiction. Jurisdiction goes to the question of whether a court has the power to hear a particular case involving a particular defendant. Venue refers to the city or county in which a court has jurisdiction to hear a case.

Copyright © Geoffrey Wandesforde-Smith, 2000, 2001, 2002. All federal and state copyrights reserved for all original material presented in this course through any medium, including lecture or print. Graphic design by Teri Lovell, Heidi Antonio, Maureen Coulson and Alix Wandesforde-Smith. Web development also assisted in part by a grant to UC Davis by the Mellon Foundation.

Last updated
March 27, 2003

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