法律英语课后问题整理

第一单元：LEGAL SYSYTEM主课文：1.The common law tradition originated in England. The decisions of theroyal courts became the law common to the whole kingdom, the common law.2.Both law and equity are part of what is called the common law.3.Louisiana: civil law, the others: common law4.The expression “civil law”, in Latin jus civilis, literally means the law ofthe citizens of Rome. Now the civilian jurists refer to what we call private law simply as “the civil law”( persons, property and obligations)5.In common law countries ,cases are usually considered to be theprimary source of law. In civil law countries, cases are not a source of law.6.Civil law jurists will consider the civil code as an all encompassingdocument. On the contrary in common law jurisdictions legislation tends to be considered as an exception to the case law.7.American legal education is very original and in many respects unique.The case method or Socratic method is peculiar to this country.8.No, only through the postgraduate degree.9.The case method is important in America, in other countries, theteaching style is magisterial—the professor express the law to his orher students, who take notes and do not intervene in class.10.The professors play an important role in defining the law in civil lawsystem, while the judges in the common law system.副课文：1．The decisions of judges ,or of other officials empowered by the constitution or laws of a political entity to hear and decide controversies ,create case law. As the name “case law”suggests, a particular decision ,or a collection of particular decisions ,generate law-that is ,rules of general application.2．From the point of view of parties to a lawsuit or other contested controversy , what matters is the immediate outcome ,the result the tribual reaches in their case .The decision has immediate and special significance. In the view of judges ,lawyers and law students ,however ,the decision takes on broader perspective .The decision becomes a possible source of general applicable case law. 3. In any judicial system rules of law arise sooner or later out of such decisions of cases , as rules of action arise out of the solution of particular problems .These generalizations contained in , or built upon, past decisions ,when taken as normative for future disputes ,create a legal system of precedent……..4.A court that follows precedent mechanically or too strictly will at timesperpetuate legal rules and concepts that have outlived their usefulness.5.The problem is how to maintain an acceptable accommodation of the competing values of stability in a law ,served by adherence to precedent ,and responsiveness to social change ,which may call for the abandonment of an outworn legal doctrine. this problem of stability versus change will be a recurring theme in the casebook6.stare decisis:doctrine of precedent ,as a precedent ,or potential precedent ,for future cases.Res judicata:as an authoritative settlement of a particular controversy then before the court.7.res judicata8.A court of last resort in one state does not consider itself bound to follow another state’s case law rules ,but it will carefully consider the outstate decisions and ,if it finds their reasoning persuasive ,make use of them as sources of guidance and justification.9.However hospitable a court of last resort may be to persuasive authority from other jurisdictions ,an outstate case is not as authoritative and should not be assigned the same force as a true “precedent”.10. The difference in degree of influence is much like the difference between the holding of a case and dictum in a judicial opinion, the“holding”being fully authoritative and generally binding and the “dictum” only ,again ,persuasive authority.第二单元COURT SYSYTEM主课文：1.limited to civil suits involving relatively small amounts of money andto minor violations of the criminal law.2.A court empowered to try all kinds of cases ,without monetary orsubject matter limitation.3.To review the action of the lower judicial tribunals of the state. This isthe exercise of appellate jurisdiction.4.（1）a vast increase in appellate litigation which , particularly in themore populous states , soon led to hopeless congestion of the dockets of the state courts of last resort.(2) empowered to strain out and finally dispose of the bulk ofappellate litigation-cases.5. The landmark statute in the evolution of the federal judicial system.6 .Normally presided over by a single judge , although there are a few situations ,chiefly cases in which injunctions are sought on federal constitutional grounds against the enforcement of state or federal statutes, in which a three-judge court must be convened.7.(1)the jurisdiction of a District Court of the United States must be based either on the character of the controversy or on the character ofparties to the controversy.(2)within one or another of three categories: cases to which the United States is a party, which includes both civil cases in which the United States is plaintiff or defendant and all prosecutions for violation of federal criminal statutes: cases involving a “federal question” ,which means a question involving the interpretation or effect of a provision of the Constitution or of a federal statute or regulation: cases involving “diversity of citizenship”, that is ,suits between citizens of different states of United States.8.federal court: The historical origins of “diversity of citizenship”jurisdiction derive from a concern of former times that a citizen of one state might not be fairly treated in the courts of the state of his adversary’s residence ,and even this old concern is inapplicable when the defendant is ,so to speak, sued on his own home grounds.9.can be secured only by a :petition for a writ of certiorari ”.As a matter of Supreme Court practice ,if four or more of the nine justices vote to take the case, that is , to hear and decide it on its merits, the Court will “grant certiorari.”10. If appeals to the supreme court were available in all cases ,the court would be swamped with ordinary appeals and unable to give full and deliberate consideration to the great cases it must decide with finality as umpire of the federal system, authoritative guardian of theconstitutional liberties and final overseer of the consistency and substantial justice of the general law administered in the courts of the United States.第三单元：CONSTITUTIONAL LAW副课文：1.（1）every court ,federal and state(2)The USA Supreme Court has the final say2.NO. these provisions are organizational and jurisdictional. They create the Supreme Court ,but “supreme” means only “highest”, designating a place ih the hierarchy but not the Court’s authority.3.The power of judicial of review was established by the Court’s decision in the 1803 case of Marbuary v. Madison.4.The constitution is law , Courts interpret law. Therefore courts interpret the Constitution.5.In adopting the Constitution the states had ceded some of their sovereignty to the federal government.第四单元：CRIMINAL LAW主课文：1.Typical forms of punishment include death ,imprisonment , fine ,removal from public office or disqualification from holding public office ,probation ,and restitution.2.(1)Civil violations are often referred to as torts. A society isconsidered to be a wrong against all of society ,whereas a tort is considered to be a private matter between the parties directly involved.(2)The second distinction involves the persons who actually prosecutethe case. A specially designated state prosecutor or federal official directs the proceedings when crimes are involved .However, in tort action the individual against whom the wrong has been commited generally hires an attorney to process the claim.(3)Third, although one who commits a crime may be required toprovide some forms of monetary restitution to society or to the victim, additional punishments are also available. Only fines are available in tort law. Rather, tort restitution relies primarily on monetary compensation.(4)Finally，compensation paid individuals who have sued others incivil courts is called damages.3.Civil damages are categorized as general , special ,and punitive.General damages compensate for any specific and demonstrable harm that has been caused .Special damages involve compensationfor “conscious pain and suffering.”Finally, punitive damages are awarded at the discretion of the jury, or as required by statute, if it is found that the behavior of the actor was the result of an intentional disregarded for the safety or well-being of others.4.Substantive criminal law defines crimes and established publishments. Criminal procedural law outlines the procedures that must be followed. Thus, substantive law informs society as to what behavior is acceptable or unacceptable ,whereas procedural law directs the state as to the proper methods for apprehension and adjudication.5.Miranda warnings. Until the Miranda warnings have been given, however , an individual cannot be lawfully arrested unless the police have probable cause to believe a crime has been or is being commited: That is ,a particular substantive law must first be violated before the state will begin its investigation.6.Felonies , misdemeanors and infractions7.The length or place of punishment often distinguishes a felony froma misdemeanor. Another way to distinguish felonies from misdemeanors is by the so-called in presence rule.8.They are not same, motives is defined as the “cause or reason that moves the will and induces action”. Intent relates to the state of mind at the time of the commission of the unlawful act. Failure to establishan unlawful intent must result in acquittal.9.mens rea , actus reus and causation10.(1)the mere fact that a harm occurs does not necessarily mean a crime has been committed.(2)if a person does not have a legal duty to act and in fact does not act, then that person cannot be held legally accountable for the unlawful acts of others.(3)causation is considered to be the logical coming together of the mens rea and actus reus,resulting in a criminal wrong.第五单元：CRIMINAL PROCEDURE副课文：1.Yes. first the human rights. second, convict innocent means thatyou just do two wrong things.2.The prosecutors. At the end of the presentation of the state’sevidence .the grand jury members vote. Majority rule prevails. 3.An arrest occurs when a peace or police officer takes a suspectinto custody for the purposes of charging the individual with a crime. Arrests may also occur after an official arrest warrant has been issued by a magistrate or judge. The arrest may result from the police officer’s own perception that a crime has been or isabout to be committed .In order to get a warrant ,the official must convince the court that criminal activity has been or is being committed ,since courts may not issue warrants unless there is probable cause that criminal activity is afoot.4.The decision to prosecute largely depends on the strength of thestate’s case against the accused. others:(1)attitude of the victim(2)cost to the system(3)harm to the suspect(4)adequate alternate procedure available and (5)suspect’s willingness to cooperate with law enforcement.5.The magistrate or the preliminary hearing jury. Decide whetherthe state had probable cause to arrest the accused.6.At the arraignment, the accused must make a plea. Thearraignment is important also because the defendant is again informed of the charges , counsel is appointed (if the defendant is indigent), and bail is established.7.The voir dire is the process used to select a jury. The peremptorychallenge ,allows either side to have prospective jurors excused without having to specify a particular reason. The challenge for cause , allows for the exclusion of a juror only if the excluding party (defense or prosecution)demonstrates that the individual cannot be impartial or cannot otherwise handle the responsibility of making a rational decision.8.Typically ,jury instructions are not formulated by the judge ,prosecution, or defense . Rather , “form”instructions are taken from standard jury instruction forms that have met the particular state’s basic requirements .These instructions are designed to be simple enough for the average juror to understand yet complete enough to avoid any potential reversible errors on appeal.9.If a mistrial occurs, the defendant may be required to go throughthe entire process again, since a retrial resulting from a mistrial does not constitute double jeopardy.10.Possible sentences are outlined in the stage statues and areoccasionally determined by the jury but usually by the judge.Sentences may be suspension, probation, jail term, fine, disqualification to hold public office or even capital punishment.第六单元：CIVIL PROCEDURE副课文：1.The lawyer’s first task is to ascertain “the facts”. The facts yourclients alleges can be proved, and that they make a legal violation, you will now have to determine in what court you will “bring your action.”----what court has the jurisdiction.2.(1)do nothing.(2)serve(and/or file in court) a motion to dismissfor failure to state a claim.(3)serve (and/or file) an answer(4)serve(and/or file) an affirmative defense.3.If it is granted , usually the plaintiff will be given an opportunityto “replead”. If the motion to dismiss is denied , and the defendant has, in addition to moving to dismiss, controverted the plaintiffs’ allegations of fact, the case will go to trail. If she does not dispute the facts, there is no need for a trial .The case proceeds directly to judgment , on the law, which may be reviewed on appeal.4.You may have “objections” to the introduction of evidence , forexample , on the ground that the evidence is inadmissible as hear say. If the court, after the defendant’s objection , lets the evidence in, defendant will “except”to the ruling and so preserve her right to challenge the ruling on appeal if the jury verdict goes against her.5.The judge gives her instructions to the jury as to the applicablelaw of the case. What usually happens is that each side draws up draft instructions and submits them to the judge. The judge then looks at the draft instructions submitted by both sides and decides which ones to give to the jury. Each side in the litigation may: (1)except, i.e. , record objections ,to any instruction or part thereof , which he believes is an erroneousstatement of the law; or (2)except to the refusal of the judge to give his instruction.6.Most jury verdicts are general ,a statement of result in somesuch form as “ We, the jury , find for the plaintiff in the sum of ＄5000”.So-called “special” verdicts , by which the jury answers specific questions of fact submitted to it by the judge ,are becoming more frequent.7.The answer is that we require as a matter of law a minimumamount of evidence to support the jury verdict.8.The usual rule is that a losing party cannot appeal any errors ofthe trial court which he did not call to the trial court’s attention by filing a motion for a new trial.9.Before initiating an action it is important to assess whether thedefendant has the resources ,and the compliance, to satisfy a judgment.10.The focus of the appellate court’s scrutiny is on the correctnessof the rulings of the trial court.第九单元：CONTRACT LAW主课文：1. A contract is promise between two or more personsinvolving the exchange of some goods or service. The resources of America is the case law and the UCC2.In order to prevent fraud on the part of either party in theexchange.3.The Uniform Commercial Code (UCC) is the main body oflaw that governs transactions involving goods.4.The “void contract” is a contract held to be void does notexist under law . In other words, although two parties may have come to an agreement , it is not recognized as a legal contract. Voidable contracts are contracts that may be canceled by one of the two parties involved .5. A “quasi-contract”is not an actual contract; it is anon-binding legal mechanism used in special circumstances to prevent one party from being severely harmed or unjustly enriched by an implicit arrangement.6.不当得利7.The essential feature defining these requirements are：“capacity,” “mutual assent”“consideration”8.Persons who are deemed incompetent due to physical ormental illness lack capacity to enter into contracts.9.Mutual assent is demonstrated by “offer” and “acceptance”.10.The essence of consideration is that a party receives somekind of benefit in return for his promise. No consideration ,no valid contract.。