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2023年12月25日发(作者:)
法律英语课后习题大全
重点的课文:(1AB 2A 3B 4A 5B 6B)
Unit1A
1. How was common law established?
Answer:the common law tradition originated in England. a
new legal order was established as early as 1066 by the Norman
conquest, but the common law did not exist in m the
conqueror did not abolish the local customs and the local courts.
Local courts continued to apply local customs. There was no law
common to the whole kingdom. The king did however establish
some royal courts at Westminster. Their jurisdiction was at first
very limited but eventually expanded to the point where the local
courts fell into disuse. The decisions of the royal courts became
the law common to the whole kingdom, the common law.
does the common law tradition include according to
the text? Answer: according to the text, the common law tradition
includes law and equity.
different is the legal system of Louisiana from the rest
of the United States?
Answer: the common law was "received" in many countries
such as United States, but the Louisiana excepted, because where
the civil law was in place before the United States gained
jurisdiction.
4.What does “civil law ”mean?
Answer: The expression “civil law ”,in Latin jus civilis,
literally means
the law of the citizens of Rome. It is the law of the city of
Rome, the law applied to a citizen (in Latin, civis) of Rome as
opposed to the law applied to a non-citizen.
is the main difference between the civil law system
and common law system?
Answer: First and foremost, cases are usually considered to
be the primary source of law in common law countries, but in
civil law countries, cases are simply not a source of law---at least
in theory. Civil law jurist will consider the civil code as an all
encompassing document, but in common law jurisdictions
legislation tends to be considered as an exception to the case law.
different attitudes do the civil law system and the
common law system hold towards case law?
Answer: Cases are usually considered to be the primary
source of law in common law countries, but in civil law countries,
cases are simply not a source of law---at least in theory, but cases
are becoming more and more relevant in civil law countries, but
the attitudes of civilians and common lawyers toward legislation
and cases differ greatly.
is significant about the American legal education?
How is law school teaching different from ours?
Answer: American legal education is very original and in
many respects unique. Legal education tends to be longer than
other common law
countries; law is a postgraduate degree in the U.S.
The teaching style is magisterial----the professor exposes
the law to his or her students, who take notes and do not
intervene in class.
8. Is law degree an undergraduate degree in the U.S.? How
do people get a law degree in the U.S.?
Answer: no, the law degree is a master degree in the U.S., the
students must have at least a bachelor's degree in some area of
study, and then to study the law and get the law degree.
9. Can you compare the legal method employed in the
American legal education and the legal method used in other
countries?
Answer: American legal education is a very original and in
many respects unique. The case method or Socratic method is
peculiar to this country .it must be clear to you by now that the
"case" method could not have been thought of in a civil law
country. In those countries (as in the case in England) law is an
undergraduate degree. Legal education tends to be longer than
in the United States. The teaching style is magisterial-the
professor exposes the law to his or her students, who take notes
and do not intervene in class.
10. Who play an important role in defining the law in civil law
system, law professors or judges? What about the common law
system? Answer: law professors, because Civil law students will
read "law doctrine" more than cases. The "doctrine" is the
cumulated writings of
law professors on what the law is or should be. In civil law
the "doctrine" is considered to be a source of law and a highly
respected one. You have to remember that the university, not the
courts, reintroduced the civil law in Continental Europe. It is
therefore not surprising that law professors still have an import
role in defining the law. Common law professors generally do not
enjoy a similar prestige within their own jurisdiction. Here the
judges get most of the prestige.
Unit 1 B
is case law created?
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.
dose a particular decision mean to the parties to a
lawsuit?
To the lawyers, judges, and law students?
1)From the point of view of parties to a lawsuit or other
contested
controversy, what matters is the immediate outcome, the
result the tribunal reaches in their case. It means wether the
aggrieved party or damaged party will obtain a remedy.
2)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.
ing to Professor Llwellyn, what creates a legal
system of
precedent? Why and when?
1)Those generalizations contained in, or built upon, past
decisions
create a legal system of precedent.
2)Because as rules of action arise out of the solution of
particular
problems, in any judicial system rules of law arise sooner or
later out of such decisions of cases, weather or not such
formulations are desired, intended or consciously recognized.
3)When those generalizations are taken as normative for
future dispute,
a legal system of precedent created.
might happen if a court follows the precedents
mechanically?
A court that follows precedent mechanically or too strictly
will at times perpetuate legal rules and concepts
5. What is the problem remaining in the legal system
recognizing past decisions as authoritative sources of law for
future cases?
The continuing problem in a legal system that recognizes
past decisions as authoritative sources of law for future cases 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.
6. Explain these two Latin terms: “stare decisis” and “res
judicata”?
“Stare decisis”is an important principle in common law. It
reflects the effect of a final decision of an appellate as precedent,
or potential precedent for future cases, and it addresses the
impact on the legal norm of conduct.
“res judicata”is another important principle in common
law. It reflects the effect of a final decision of an appellate as an
authoritative settlement of a particular controversy then before
the court. In other words, it addresses a decision’s impact in the
individual case.
7. What doctrine bars a person from ever suing on the same
claim again?
The doctrine “res judicata”bars a person from ever suing
on the same claim again.
8. Why does the case law process in American courts thus
have a considerable comparative-law ingredient?
A judicial decision is a precedent in the full sense only within
the same jurisdiction. However, American appellate courts
frequently cite and draw upon decisions from other jurisdictions.
Such outstate decisions are not full-fledged precedents, but
they are accorded the status and weight of persuasive authority
and especially in cases where there is no local precedent or the
local precedents are conflicting or unclear.
9. How does a court of last resort in one state usually make
use of outstate decisions?
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.
10. Can you explain the difference between the binding
precedents and persuasive precedents?
The major difference between the binding precedents and
persuasive precedents may be the authority to the case.
The binding precedents are fully authoritative and generally
binding, but persuasive precedents just persuasive authority.
Because of the difference in degree of influence, persuasive
precedents are not as authoritative and should not be assigned
the same force as the binding precedents.
UNIT 2A
1. What kinds of cases do the inferior courts deals with? What
are some of the limits that are imposed on them?
Every state has its inferior trial courts with jurisdiction limited
to civil suits involving relatively small amounts of money and to
minor violations of the criminal law. The civil jurisdiction of an
inferior court is usually defined in terms of the amount of money
in dispute: the jurisdiction of an “inferior” criminal court is
likely to be defined in terms of the maximum jail sentence.
2. What kinds of cases are the trial courts of general
jurisdiction empowered to try?
If a civil claim or criminal prosecution involves an amount of
money,
or a potential criminal sentence, beyond the jurisdiction of
an “inferior” trial court , it must be filed and heard om a “trial
court of general jurisdiction .” that is , a court empowered to try
all kinds of cases, without monetary or subject matter limitation.
3. What is the function of the “court of last resort” of each
state? Every state has its “co urt of last resort,” the appellate
court at the top of the judicial hierarchy and the one which
determines with finality what particular state’s law is and should
be . The function is to review the action of the lower judicial
tribunals of the state.
4. Why are appeals to the courts of last resort limited? What
does the “screening out” function refer to?
Answer: Because a vast increase in appellate litigation,
particularly in the more populous states, led to hopeless
congestion of the dockets of the state courts of last resort
The “screening out” function refers to that intermediate
appellate courts could empower to strain out and finally dispose
of the bulk of appellate litigation, so that the court of the last
resort can give its full attention to novel and socially important
controversies.
5. What is the significance of the statute passed by the first
Congress on September 24, 1789, according to the author?
In the evolution of the federal judicial system, the statute was
a landmark. The statute embodied the first Congress’s decision
on the issue
whether there should be federal trial courts as well as a
Supreme Court or whether the interpretation and enforcement
of federal law should be left entirely to the existing state trial and
appellate courts, subject to review by the Supreme Court of the
United States.
6. What is the number of judges presiding over the trials in a
District Court?
In a District Court, trials are presided over normally by a
single judge, but in a few situations, chiefly cases in which
injunctions are sought on federal constitutional grounds against
the enforcement of state or federal statute, three-judge court
must be convened.
7. What must be the jurisdiction of a District Court based
upon? What does the workload of the District Court make up?
The jurisdiction of a District Court of the US must be based
either on the character of the controversy (for example, that it is
a case “arising under this Constitution or the laws of the US”)
or on the character of parties to the controversy (for ex ample,
that it is a controversy“to which the US shall be a party”or one
“between citizens of different States”).
Most of the cases which make up the workload of the District
Court are within one or another of three categories: (1) cases to
which the United States is a party, which includes both civil cases
and all prosecutions for violation of federal criminal statutes; (2)
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; and(3) cases involving “diversity of
citizenship,” that is, suits between citizens of different states of
the United States.
8. Which court has jurisdiction over “diversity of citizenship”
cases, a federal court, or a state court? Why?
Generally speaking, a federal District Court has jurisdiction
over such cases, according to Article Ⅱ, Section 2 of the
Constitution and Judiciary Act of 1789. However, existing federal
legislation impose a further limitation on Di strict Court
jurisdiction in some “federal question” and all “diversity of
citizenship” case: “the matter in controversy must exceed﹩50,000”.That’s because the District Court will be swamped if
very small matters in controversy are able to be accepted by the
District Court.
9. How can people get their appeals reviewed by the U.S.
Supreme Court?
A disappointed litigant cannot secure Supreme Court review
merely by contending that the decision handed down against
him was wrong. He must first persuade the Supreme Court that
the issue presented by his case is important enough, as issues of
general law, to justify Supreme Court consideration. Second,
almost all the reviewing of judgments of federal and state
appellate courts are secured by a petition for “a wri t of
certiorari”.
10. What is the policy underlying the discretionary nature of
the Supreme Court appellate jurisdiction?
The policy is, if appeal to the SC were available in all cases,
the C would be swamped with ordinary appeals and unable to
give full and deliberate consideration to the great cases it must
decide.
Unit3 B
has the authority to determine how the constitution
is
interpreted and applied to a particular case? Among those
who are entitled to such authority; which one has the final say?
The Court has the final say on what the Constitution means
and how it applies in a particular case, every court, federal and
state, has the responsibility and the authority to render decisions
on constitutional issues, but all of those other decisions can
ultimately be reviewed by the U.S. Supreme Court.
the Constitution vest judicial review on the Supreme
Court?
How to interpret Article Ⅲ of the Constitution?
The power of judicial review is not given to the Supreme
Court in the Constitution itself .Although Article Ⅲ states that
“The judicial power of the United States , shall be vested in one
Supreme Court , and in such inferior courts as the Congress may
from time to time ordain and establish, ” and it extends that
power to “all cases , in Law and Equity , arising under this
Constitution” and to other categories .But
the “Supreme ”means only “highest,” designating a
place in the hierar chy but not the court’s authority . The power
to hear cases arising under the Constitution is likewise a grant of
jurisdiction to hear certain kinds of cases, but not a grant of
authority to exercise constitutional review in hearing them.
which case was the power of judicial review established?
Marbury VS Madison
4. Why does Chief Justice Marshall think that the court had
the power to review the constitutionality of legislation? What is
his syllogism?
The Constitution is law. Courts interpret law. Therefore courts
interpret the Constitution.
5. What is the supremacy clause?(需要老师解答)
The Supreme Court is the only authority to interpret
Constitution. The interpretation and mandate made by the
Supreme Court are superior to any other judicial power.
Unit 4 A
1. List some of the typical forms of punishment mentioned
in the text. Do you know any other forms of punishment used in
the U.S.? Typical forms of punishment include death,
imprisonment, fine, removal from public office or disqualification
from holding public office, probation, and restitution.
For example, jail sentences and execution.
2. What are the differences between civil law and criminal law?
Civil violations are often referred to as torts. There are four
distinctions between crimes and torts.
Firstly, a crime is considered to be a wrong against all of
society, whereas a tort is considered to be a private matter
between the parties directly involved.
Secondly, the persons who actually prosecute the case differ.
A specially designated state prosecutor of federal official directs
the proceedings when crimes are involved .However, in tort
actions the individual against whom the wrong has been
committed generally hires an attorney to process the claim.
Third, when one commits a crime, punishments such as
probation, jail sentences, removal from public office and even
execution are readily available. However, these remedies are not
available in tort law. Tort restitution relies primarily on monetary
compensation.
Finally, compensation paid individuals who have sued others
in civil courts is called damages.
3. How are civil damages categorized? When do they apply?
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 compensation for “conscious pain and suffering.”
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 disregard for the safety or well-being of others.
4: What are the differences between substantive law and
procedural
law?
The two broad areas of law are readily distinguished as
substantive law and procedural law.
Substantive criminal law defines crimes and establishes
punishments. These laws are commonly found in statutes and
ordinances that are written by local, state, or federal legislature.
Criminal procedural law outlines the procedures that must be
followed during the investigation of crimes, in the apprehension
of offenders, and in the determination of the individual’s
innocence or guilt.
Thus, substantive law informs the 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: What kinds of legal rights that the police must advice the
suspect of before any interrogation?
The police must advise the suspect of their legal rights before
any interrogation. Such legal rights are included, the right to
remain silent, the right to have an attorney present during
interrogation. Though the suspect may waive these rights, a
waiver must be knowingly and voluntary. What is the significance
of the case Miranda vs. Arizona?
The case of Miranda v. Arizona establishes that criminal
defendants have a right to know their rights under the
constitution prior to questioning by law enforcement. Prior to
this, police officers did not have to advise a suspect about his
rights. This is the right to remain silent, to have a lawyer present
during questioning, and to have a lawyer provided if you cannot
afford one.
6. How are the crimes classified?
The crimes are classified into felonies, misdemeanors and
infractions. The distinction between them centers on the
seriousness of the crime committed, the subsequent punishment
allowed by law and/or the place of confinement of the convicted
defendant.
The grounds for distinction often vary considerably from
state to state. However, a review of the applicable state statutes
reveals a more common test: the length or place of punishment
often distinguishes a felony form a misdemeanor. Any crime
generally punishable by more than six months in prison is
considered to be a felony, whereas a crime requiring punishment
of less than six months is a misdemeanor. As with misdemeanors,
a jury trial is not guaranteed if an infraction has been committed,
and the person committing infractions may never receive a jail
sentences as punishment.
And infractions are considered to be to “petty” offenses.
7. How are felonies distinguished from misdemeanors?
The distinction between felonies and misdemeanors
generally centers on the seriousness of the crime committed, the
subsequent punishment allowed by law and/or the place of
confinement of the convicted defendant. There are two common
ways to distinguish them.
The first one is the length or place of punishment. Any crime
generally punishable by more than six months in prison is
considered to be a felony, whereas a crime requiring punishment
of less than six months is a misdemeanor. However, it is important
not to be confused by the length of the sentence given by the
judge or jurors. For example, assume a judge sentences the
defendant to five months imprisonment. If the greatest
maximum sentence was five months, it is a misdemeanor.
However, if the
judge had the discretion to sentence the individual to six
months or more imprisonment, a felony has been committed.
The second way is by the so-called in presence rule. A police
officer cannot arrest an individual for a misdemeanor unless the
misdemeanor is committed in the officer’s presence, or more
reasonably, with the corroboration by a witness or the signing of
a complaint and the issuance of an arrest warrant. When the
offense is a felony, however, the police office must arrest the
individual if he or she reasonably believes the crime was
committed by that person, even though the transgression was
committed out of the presence of the officer.
motive and intent the same? If not, what are the
differences between them?
No. They have completely different legal meanings.
Motive is defined as the “cause or reason that moves the
will and induces action.” It represents the stimulus for behavior.
Thus, one may kill another because of hatred, jealousy, or even
love. But the fact that one may have the motive to kill another
does not necessarily mean that one harbors the intent to injure
or kill.
Intent relates to the state of mind at the time of the
commission of the unlawful act.
Failure to establish the “why” of the crime does not
necessarily mean the jury will vote for acquittal. However, with
the exception of strict liability offenses, failure to establish an
unlawful intent must result in acquittal. 9. What are the elements
establishing the criminal liability?
The elements are referred as mens rea, actus reus and
causation.
10. Explain the significance of mens rea, actus reus and
causation. Mens rea stands for the state of mind at the time of
the commission of the unlawful act. The mere fact that harm
occurs does not necessarily mean a crime has been committed.
If the accused was criminally negligent in his belief and behavior,
the law may conclude that the unlawful mens rea was present.
The actus reus element relates to the “doing” part of the
crime. Thus, 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.
Finally, causation is considered to be the logical coming
together of the mens rea and actus reus, resulting in a criminal
wrong. If the harm is not the logical result of the intention and
the action, the causation does not exist, and there is no criminal
liability.
Unit5 Criminal Procedure B
1. Do you agree with statement that “it is better to free
guilty persons than to convict innocent ones”?
Yes .Because if the offender who is missed, can be seized later,
but if a person was killed by mistake, the victim could not revived
2. Who files the bills of information, the prosecutor or the
grand jury? How does a grand jury decide whether or not to
return a “true bill”? After conducting typically extensive
background investigations in corroboration with local and even
federal law enforcement, prosecutors may file what are called bill
of information.
If a majority of the grand jury members believe a crime has
been committed, then a “true bill” is returned, and the accused
is bound over for trial.
3. When does an arrest occur? What does it result from?
An arrest occurs when a peace or police officer takes a
suspect into custody for the purposes of charging the individual
with a crime.
The arrest may result from the police officer’s own
perception that a crime has been or is about to be committed.
4. What factor may effect the decision to prosecute,
according to the passage?
The decision to prosecute largely depend s on the strength
of state’s case against the accused. Besides the attitude of the
victim, the cost to the system, harm to the suspect, adequate
alternate procedure available, and suspect’s willingness to
cooperate with law enforcement may also affect the decision to
prosecute.
5. Who conduct a preliminary hearing?
The magistrate or preliminary hearing jury conduct a
preliminary hearing. What must they decide after the
presentation of the case?
They must decide whether the state had probable cause to
arrest the accused.
is the arraignment important?
Because in the arraignment the accused played a relatively
active role that
they must make a plea. Besides, it is important that the
defendant is again informed of charges, counsel is appointed (if
the defendant is indigent), and bail is established.
7. What is the function of voir dire? Do you know the
difference between peremptory challenge and the challenge for
cause?
The voir dire is the process used to select a jury. A random
cross-selection of persons in the community in which the trial is
to occur is summoned to the courtroom.
Peremptory challenge allows either side to have prospective
jurors excused without having to specify a particular reason and
is typically limited to six in non serious cases and twelve in felony
or capital cases. 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
and no limits to be the number of challenge for cause that either
side may employ.
8. Why are the" form" instructions designed to be simple?
In order to understand yet complete enough to avoid any
potential reversible errors on appeal.
9. What would happen if a mistrial occurs?
The defendant may be required to go through the entire
process again, since a retrial resulting from a mistrial does not
constitute double
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