法律英语口语

法英口语24题1. To discuss the differences between the civil law system and the common law system. (P4 )There are many differences between civil law system and common law system.ⅠThe original places are different. The civil law system originated in ancient Rome, and the common law system originated in England.Ⅱ The main traditional source of the common law is cases, while the main traditional source of the civil law is legislation. Thus there are many codes in civil law countries instead of unwritten laws in common law system. Ⅲ The civil law system pays more attention to substantive law; the common law system pays more attention to procedural rules.Ⅳ The classification of law is different. The civil law is separated into public law and private law, the common law is separated into common law and equity.ⅤThe role of judges and professors is another difference. Since theory and doctrines is important in legal education of civil law system, professor plays the important role to expose laws to students. In the contrary, case-law is the main source of common law, thus the judges has the discretion to make laws while trialing cases.Ⅵ The civil procedure: Adversary system (对抗式诉讼)of common law system needs the parties to show the case the jury or the judges. And the judges need to be neutral and impartial. Inquisitorial system（纠问式诉讼）in civil law countries give the judges the power to investigate the case during the trail and also can ask the parties and the witnesses.2. To discuss the main differences between American and Chinese law school teaching. (p4 ) ⅠLaw is an undergraduate degree in the USA, while in China is postgraduate degree.Ⅱ The teaching methodIn the USA, the teaching method is case method or Socratic method, in which the students instead of the professors play the important roles in the class.In China, the teaching style is magisterial—the professor exposes the law to his or her students, who take notes and do not intervene in class.Ⅲ Cases vs. DoctrinesIn the USA, students’ textbook is ca se book, which contains lots of cases and decisions made by the judges. In China, the students will read ―law doctrine‖ more than cases. The textbook involves many doctrines, concepts and theories.3To discuss the main features of the American court system(P17-19)There are fifty-two court systems in the U.S. ----each of the fifty states has its own system of courts, one for the District of Columbia and a federal system. They are independent systems of court.In the state court systems, court structures and court nomenclature vary from state to state. But all the state court systems exhibit a hierarchical structure, in which the decisions of lower courts may be taken for review toa higher court. Typically a state system will include several tiers of court：1) Trial courts of inferior jurisdiction2) trial courts of general jurisdiction3) appellate courtsThe trial courts of inferior jurisdiction hear civil suits involving relatively small amounts of money and minor violations of the criminal law. While the trial courts of general jurisdiction can hear all kinds of cases, without monetary or subject matter limitation.Every case should first be heard at the trial court. Then the party who loses at the trial court stage has a right to appeal case to the appellate court. Every state has its court of last resort, the appellate court which makes the final decision (subject to occasional review on ―federal questions‖ by the Supreme Court of the United States) of what the law is and should be. Most states have created intermediate appellate courts, empowered to finally dispose of the bulk of appellate cases.The structure of the federal judicial system is similar to what is found in the various states. There are three levels of courts:(1) U.S. district courts (trial courts of general jurisdiction) and various courts of limited jurisdiction(2) U.S. courts of appeals (intermediate courts of appeals), and(3) the United States Supreme Court. Not like the other courts in federal judicial systems which are created by congress, the Supreme Court is created by Constitution. There are a few specialized federal courts (e.g. , the claims courts or the tax court ) which operate like District court in their specialized jurisdiction.4To discuss the significance of jurisdiction.（书上无，自己作答，供参考）First, defining jurisdiction, and make it simple will help agencies, organizations and citizens to institute legal proceedings to the judicial authorities which have jurisdiction over it, in order to protect the public interests and legitimate rights and interests of the citizens.Next, most ordinary cases will be placed under the primary jurisdiction of the judiciary, it is not only easy for the judiciary to spot investigation to verify the case , conduct legal education, but also to facilitate the participants to take part in the proceedings and the people to hear the case.Finally, this can save manpower, money and time, and smooth the conduct of legal proceedings to protect the procedural rights of participants in the proceedings.5. To discuss the main characteristics of case law. P 9-15The decisions of the judges, or of other officials empowered by the constitution or laws of a political entity to hear and decide the controversies, create the case law. As the name ―case law‖ s uggests, a particular decision, or a collection of particular decisions, generate law—that is, rules of general application, it can ensure the consistence of decisions and the instability in social relations.The case law is uniquely authoritative and infl uential in a ―common law country‖, which recognizes the doctrine of precedent, known also as the principle of stare dicisis. It is a distinctive policy that past judicial decisions are formally and ―generally binding‖ for the disposition of factually simil ar present controversies.In case law, the decision is a precedent only within the same jurisdiction and only when the pending case is similar to the precedent in material facts. What’s more, the some precedents have greater weight than others. The weight of precedent is affected by the place of court that decided it in the hierarchy of the jurisdiction.In case law, to the particular parties, the decision is a final disposition of the particular controversy, but, on the other hand, it is a precedent which is generally binding to the following cases. This is also the difference between res judicata and stare decisis.In case law, there are two distinct terms—―reversal‖ and ―overruling‖. The higher court can reverse the decision of a lower court, and the decision of the lower court is set aside and is no longer effective to the parties of the particular controversy. The highest court can overruled its own precedent, but the overruled prior decision continues to bind the particular parties, it is just no longer authoritative to the subsequent cases.The case law process in US court has a comparative ingredient: a court of last resort in a state dose not consider itself bound to follow another state’s case law rules, but it will carefully consider the outstate de cisions and, if find their reasoning persuasive, make use of them as source of guidance and justification. And some decisions have greater influence than others on the thinking of judges in other states.Despite the consideration of the persuasive authority from other jurisdictions, the outstate case has different effects with the true local ―precedent‖, much like the difference between the holding of a case which is fully authoritative and general binding and the dictum in a judicial opinion which is only persuasive authority. This is also the difference between the binding precedents and persuasive precedents.6. To discuss the significance of case Marbury vs. Madison. P47-59Marbury vs. Madison is a landmark case in United States law. It formed the basis for the exercise of judicial review in the United States under the Constitution.In this case, Chief Justice Marshall ruled that the Supreme Court could not grant relief to the plaintiff Marbury because it did not has the jurisdiction of the case. This satisfied the immediate concerns of the Republicans and sidestepped the controversy, but the great significance of the case lay in the Court’s assumption to itself of the final authority to determine if the Judiciary Act or any other act of Congress was constitutional. Thus the opinion ceded the immediate issue while profoundly enhancing the Court’s authority.So the case was the first strong pronouncement of the principle of judicial review, which is the power of the Court to examine legislation and other acts of Congress and to decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of the various sections of the Constitution as they apply to particular case brought before the Court.The principle of judicial review has great influence in United States, it has been a nature and necessary part of United States government structure. Over the years, a serious of Court decisions has affected a change in the way many Constitution clauses are interpreted, without amendment to the actual text of the Constitution. And if the actions of Congress or federal agencies are challenged as to the constitutionality, it is the court system that ultimately decides whether or not they are allowable under the Constitution.The case and judicial review also enhance the Court’s authority and assert the power of the judiciary under the principle of checks and balances. The other branches such as the legislative bodies and executive offices and levels of government have not always been happy with this, but by now the principle is firmly established and asserted, even the President could not challenge it.In a word, the case established the principle of judicial review which has been a permanent and indispensable feature of United States constitutional system. So the constitutional scholars, by consensus, regard the case as the most important case the Supreme Court ever has decided.7. The main differences between substantive law and procedural law.( P99-P101)Procedural law are said to define the form and method by which legal rights are enforced. While substantive law are said to define the legal rights themselves. Thus, procedure is often referred to as―adjective law‖ ,because procedural rules function to secure the objectives of substantive law.The differences are as follows:ⅠThey contain different rules and substances.Substantive law provides for the rules about duties or rights. While procedural law sets rules about form or method. For example, in the area of tort law, substantive tort rules provide conditions under which the tort feasor must pay damages to the injured party. It also governs how the injured person’s damages should be measured. In contrast, the law of procedural establishes the method to begin a lawsuit and the degree of detail with which the plaintiff must describe the ―claim‖. Also, italso provide for the rules of evidence.ⅡAlthough ―pure‖ substantive rules and ―pure‖ procedural rules exist, many rules are a mixture of both substance and procedural. Some rules that seem to be procedural are adopted for substantive reasons; likewise, some rules that seem to be substantive are adopted for procedural reasons. For example, in the case of the plaintiff is contributorily negligent and that negligence contribu ted to the plaintiff’s injury, lawmakers may require that the defendant proves that the plaintiff was contributorily negligent. Although this burden-of-proof rule regulates an aspect of trial procedural, lawmakers adopt it for a substantive reason. Procedural policies generally involve efficiency consideration. But when lawmakers create a burden-of-proof rule designed to make it harder for one side to win, they are not aiming at efficiency consideration. Rather, they are aiming at achieving a substantive social objective that transcends efficiency in judicial proceedings.ⅢStatutes of frauds reflect both procedural policy and substantive policy. They are often designed to avoid the difficulties that one party asserts the existence of an oral contract and the other party denies its existence. This requirement is arguably a procedural onebecause it focuses on the fallibility of the evidentiary process employed in judicial proceedings. However, instead of this procedural purpose, statutes of frauds are someti mes supported by a ―cautionary‖ policy. For example, the lawmakers want parties to think carefully before entering into the contracts to prevent―ill-considered and impulsive promises‖. This policy is a substantive one because it focus on behavior outside the context of litigation rather than problems that oral contracts would cause in the litigation process.8. Whether the death penalty should be abolished in America. (P66-P68 )The US Supreme Court holds that the death penalty is not unconstitutionally ―cruel and unusual‖ punishment. The Court points out that the use of the death penalty for murder ―has a long history of acceptance both in the US and in England‖ and that ―it is apparent from the text of the Constitution that the existence of capital puni shment was accepted by the Framers‖. The Supreme Court also holds that some procedures like prompt judicial review of the jury’s decision is necessary in order to assure that sentences of death will not be ―wantonly‖ or ―freakishly‖ imposed.(书上只是讲了美国最高法院对死刑的态度，没有讨论是否应当废除死刑的理由。