Unit 1 American Legal System.docx

1、Unit 1 American Legal SystemUnit OneRegard for the public welfare is the highest law.关注公共利益的法律是最高法律。There is no general rule without some exception.任何法律都不能面面俱到。Part IReading and UnderstandingAmerican Legal System (Part 1)The American legal system is a common law system, where cases are settled based

2、 on tradition, common practice and interpretation of statutes. As we have already known, as a matter of practice, even in common law countries there are quite a few number of codes of law. But what should be emphasized is that the central feature of the system lies in its reliance on case law or jud

3、ge-made law. That is, precedents are used as guidance to deal with the same or analogous situations arising today.The American legal system is originally based on the British legal system and the United States Constitution. Article III, Section I of the Constitution States that the judicial power of

4、 the Untied States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. So in the United States of America, a United States Supreme Court is provided by the Constitution and other courts are established by the U.S. Congress in

5、accordance with the Constitution.1. LegislationLaw in the United States is composed of case law precedent (prior judicial decisions), just as with the British system, as well as statutory law created by both the federal government and the states.1.1 The United States ConstitutionThe United States Co

6、nstitution was drafted in 1787 and was amended 26 times ever since. The Constitution separates the government into the three coordinate branches. The Constitution provides for powers to each of the three branches, as well as the states. In addition it sets limits on the powers of federal and state g

7、overnment.1.2 State ConstitutionBesides the United States Constitution, each of the 50 states has also adopted a constitution. The state constitution sets out both the form and operation of government in that state and provides for and sets limits on its power.1.3 Enactment of Legislative BodiesThis

8、 includes the Acts of Congress and statutes of state legislatures. The legislatures of each of the 50 states may pass and enforce their own laws without exceeding the principles established by the United States Constitution and the United States Congress. This results in the fact that the state law

9、in the same fields may be different from one to another. For instance, the length of time within which one must commence a civil lawsuit or be time-barred, referred to as the statute of limitations, can vary dramatically from state to state; and various other matters such as how trade secretes or to

10、rts are defined also may vary significantly.1.4 Case LawIn a common law country, case law plays a very important part in determining the law that applies to a particular set of facts. In application of case law, the weight that case law is given by a particular court in the United States depends sig

11、nificantly upon the court in which the precedent occurred. For example, when a case is brought in Federal court, decisions of the Supreme Court are obviously the most binding on a particular issue, followed by decisions of the circuit court to which an appeal from a district court lies and finally,

12、prior decisions of the district court itself. In many instances, a district court will look to the law of the appropriate state while rendering a decision in a case where issues of state law are of priority.2. Court SystemThere are 51 separate court systems in the United States of America. In additi

13、on to the federal court system, each state has a separate system under its own constitution and laws. Each of the 50 states in the United States has, within its borders, both a state court system and a federal court system. Federal and state courts exist virtually side-by-side in every state, and re

14、view both civil and criminal cases. There are large areas where the jurisdiction of federal and state courts overlaps. The parties may, at their discretion, decide on the court where they initiate a lawsuit. And there is a choice for the disputes between them as to which of the two systems they shou

15、ld be in.2.1 Jurisdiction of the Federal CourtsFederal courts are not courts of general jurisdiction but rather more limited jurisdiction as prescribed by the US Congress. The United States Constitution established the Supreme Court and vests certain original and appellate jurisdiction in it. The co

16、urts in the federal court system include Supreme Court, courts of appeals, district courts, courts of claims, courts of customs and patent appeals, customs courts, tax courts and courts of military appeals. The Supreme Court is the highest appellate review for either federal courts or state courts.

17、It also has the original jurisdiction in those cases affecting ambassadors, ministers and consuls and those cases to which a state is a party.2.2 Jurisdiction of the State CourtsEach state has its own court system and each state court system has a trial court level and two levels of appellate review

18、. With reference to the jurisdiction of a court to hear a lawsuit, state courts are courts of general jurisdiction. Hence, as long as the defendant is served notice of the pending lawsuit, a state court may exert personal jurisdiction (also referred to as “territorial jurisdiction”) over the defenda

19、nt and hear any civil matter. A state court may exercise territorial jurisdiction in the following cases: (1) a defendant consents to be used in the state where the state court is located; (2) the defendant is physically present in the forum state; or (3) such state has a statute which authorizes th

20、e exercise of territorial jurisdiction over persons or properties outside the states borders; (4) the forum state is where the defendant is domiciled. In addition to the above state courts with general jurisdiction, state courts are also courts with specialized trial jurisdiction, such as criminal c

21、ourts, circuit courts, civil courts, juvenile courts and probate courts.2.3 Administrative AgenciesIn addition to the above court systems, some administrative agencies have been established out of the court system to monitor compliance with various federal statutory schemes and are empowered to comm

22、ence proceedings or actions for violations of those laws. For example, the United States Department of Justice monitors and investigates compliance with the antitrust laws and is empowered to commence suits on behalf of the United States to remedy or correct violations. The Federal Trade Commission

23、is the governmental agency that monitors compliance with law relating to trade regulations and is empowered to take actions to ensure compliance. The Securities and Exchange Commission monitors compliance with a broad range of laws governing all aspects of securities transactions. Besides, there are

24、 other federal administrative agencies with similar functions, such as Nuclear Regulatory Commission, Interstate Commerce Commission, and the Federal Communications Commission, etc.2.4 Arbitration and MediationArbitration is the most traditional and well-known form used in the dispute resolution out

25、 of court. Arbitration is characterized by flexibility and mutual acceptance of means of conflict resolution. But recently, arbitration has been criticized as overly formal, expensive and almost as time-consuming as traditional litigation. Consequently, commercial parties often seek less formal and

26、more efficient means to settle their disputes, such as mediation.Mediation is a process in which disputing parties are aided by a neutral third party to attempt to settle their dispute. Mediation, unlike arbitration, is not generally binding. The parties may, however, agree to enter into a settlemen

27、t agreement. Mediation is voluntary and non-binding and its process is under the control of the parties themselves. Settlement will be reached only if it is acceptable to all the parties. If mediation fails, the dispute usually will go on to arbitration or litigation. (to be continued)New Wordsstatu

28、te n.法令，法规code n.法规，法典reliance n.信赖，依靠precedent n.先例，前例guidance n.引导，指导analogous a.类似的Constitution n.宪法vest v.授权，给与ordain v.任命，命令draft v.起草，征兵amend v.修正，改善coordinate a.同等的，等位的enactment n.颁布，制定commence v.开始time-barred a.由于时间被禁止的tort n.侵权行为binding a.有约束力的appeal n.恳求，上诉render v.提供，致使priority n.优先权virtu

29、ally ad.几乎，实际上jurisdiction n.司法权，审判权，管辖权overlap v.重叠，重复discretion n.辨别力，考虑initiate v.开始，创始appellate a.控诉的，上诉的ambassador n.大使pending a.未决定的，待决的exert v.发挥，运用，施以影响consent n.同意，许可domiciled a.指定支付地点的probate n.遗嘱查验，遗嘱查讫证monitor v.监视，监督compliance n.承诺，遵从empower v.授予权力，允许remedy v.治疗，矫正arbitration n.仲裁，公断med

30、iation n.调停，调解litigation n.诉讼，起诉Phrases and Expressionscommon law 普通法，习惯法common practice 惯例case law 案例judge-made law 法官法judicial power 司法权Supreme Court 最高法院in accordance with 按照，根据，与一致statutory law 成文法Acts of Congress 国会法length of time 诉讼时效circuit court 巡回法院with reference to 关于（根据）forum state 审判地所在国

31、家Nuclear Regulatory Commission 核管制委员会Interstate Commerce Commission 州际商业委员会Federal Communications Commission 联邦电讯委员会Notes1. common law system普通法体系。普通法体系是以英国中世纪至资本主义时期的法特别是普通法为基础和传统而发展起来的各国和地区法的总称，故称为普通法体系、英国法体系，亦称英美法体系，由于它以判例法为法的主要表现形式，故称为判例法体系。普通法体系的渊源主要有三个：其一是普通法。普通法是普通法法系的一个主要历史渊源，它是自11世纪法国诺曼底人入侵

32、英国后开始逐渐形成的适用于英格兰全境的一种判例法。判例法产生于法官的判决，是法官从判决中所揭示的原则，是法官创造的法，由于它是适用于英格兰全境的判例法，通称为普通法。其二是衡平法。衡平法是与普通法相对称的一种法，意指公平的法。它从15-16世纪开始出现，并与普通法平行发展，并产生了与普通法法院并行的衡平法院，亦称大法官法院。其三是制定法。到18-19世纪时，制定法大量增加。 2. British legal system 英国法律制度。英国法律制度属普通法系。在英国，法律最初为法官法，所采用的制度为判例制。除普通法外，法典法也是英国法律制度的一部分。由女王在议会制定的法律（议会法或成文法）和依据成文法的授权而制定的法律所起的作用越