法律英语课后问答题

法律英语课后问答题第一单元1．How was the common law established?答：The common law tradition originated in england, when william conquered england. He did not abolish the local law and the local court,Besides that, he established roaly courts,whose decisions developed common law. The main tradition of common law is stare decisis. Commom law spreaded all over the world ,following the english’s coloney. After the world war two ,the hegemomy of the US also contributed the expansion of the common law. In today’s world common law exisits in Englao and US ,Austrilia Canada, Hk ,etc.2. what does the common law tradition include？答：The main traditional source of the common law is case, not legislation. When the common law evolved into an unfair set of rigid and formal procedural rules. The king created a new court rather than to amend the law. However there were so many petitions that the court of Chancery , which could grant a discretionary relief to correct the common law. The decision of this court gave birth to a body of equlity. Both law and equlity are part of the tradition of common law.3. how does the cilvil law estalished ?答：The origins of the civil law can be traced to Twelve T ables of the Republic of Rome, the law of the city of Rome. After the fall of the western Rome Empire, the so –called barbarians brought their law to Rome., which trigged the process of the vulgraized Rome law. In this time, only canon law kept intact many elements of the Rome law. Howerve , in 529-534year, the eastern Rome Empreor Justinian published the corpus Juris Civilis. At the end of 17th century, the university of Bologna started to teaching Roman law., more spcifically the corpus Juris Civilis. Many other universities followed. The French and German codes are two main civil law models.4.Legal methods in two system ?答：As to the students, in common law, rinc method classes start with the study of the case, because that cases are considered to be the primary source of the law. In civil law, things are diffrernt, cases are not as important as that in common law. Therefore ,the study mainly is the legislation.As to the jurists, in common law rinciple on, the court has a rincipl to interpret legislation more strictly. Legislation are considered to be an exception to the case law. Both of them will not tend to use abstract trems or to enunciate general rinciple.5. How is the case law created ?答：The decision of judges ,or of other officials empowered by the constitution or laws of a political entitiy to hear or decide controversies, creat case law, which is generated by a particular decision, or a collection of the particular decision6. What does a particular decision mean to the parties ? to a lawsuit ? to the lawyers ，judges, and the law studdents ?答：To the parties to lawsuit, a particular decision is the udges te outcome. The result the tribunal reaches in their cases. To the lawyes, udges and the law students, it means a possible source of general applicable case law. In other word, it becames authority for deterring the following controversies.7.According to the prof. Liwellyn , what creat a legal system of the precendent? When and why?答：Case law in some form and to some extend is found wherever there is law. A more serial ofindividual case dose not of course constitutes a system of law. But in any judicial system, rules of law arises sooner or later out of such decision of cases. Generalization contained in or built upon past decisions, when taken as normatives for future disputes, creat a legal system of precedent. 8. What might happened if a court follows the precedent mechancially ?答：At time ,it will perpetuate legal rules and concepts that have outlived their usefulness and maintain an acceptable accommodation of competing values of stabilty in a law.9．What is the problem remaining in the legal system recognizaing put decisions as authortitative sources of law for future cases?A:10.Explain two latin trems :stare decisis and res judicates?答：Stare decisis , for the impact of the decision as precedent.Res judicates ,for its effect as a resolution of the immediate ontroversy11. What doctrine bars a person from suing on the same claim?答：Res judicate12.Can you explain the difference between the binding precedents and persuasive precedents?答：The difference is much like the difference between the holding of a case and dictum in a judicial opinon, the holding being filly authoritative and generally binding and the ictum only ,again persuasive authority.13. How does a court of last resort in one state usually make use of outstate decision ？答：Such outstates decisions are not full-fledged precedents, but they are ccorded the status and weight of persuasive authority, which means that they are not binding in any sense but have , often very great influence, in cases where is no local precedent or local precedents are conflicting and unclear .14.Why does the case law process in American court thus have a considerable comparative-law ingredient?答：A court of last resort in one state does not consider itself bound to follow anotherr state’s case law rules , but it will carefullly consider the outstate’s ddecisions ,if it finds their reasoning persuasive ,make use of them as sources of guidance and justification. This activity is not suprising . The “reception” of the common law in the US means that all the case law decision of each state reflect common law principle第二单元第四单元1.List some of typical forms of punishment mentioned in the text. Do you know any otherforms of punishment used in the U.S.?答：Typical forms of punishment include death, imprisonment, fine, removal from public office or disqualification from holding public office, probation, and restitution.2.What are the differences between civil and criminal law?答：A crime is considered to be wrong against all of society, whereas a tort is considered to be a private matter between the parties directly involved. The second distinction involves the personswho actually prosecute the case. Third, although one who commits a crime may be required to provide some forms of monetary restitution to society or to the victim, additional punishments are also readily available. Rather, tort restitution relies primarily on monetary compensation. Finally, compensation paid individuals who have sued others in civil courts is called damages. Although it is extremely rare, civil courts occasionally award what was known as punitive or exemplary damages to a harmed party.3.How are civil damages categorized? When do they apply?答：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?答：Substantive criminal law defines crimes and establishes punishments. 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 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 the police must advise the suspect of before any interrogation?What is the significance of the case Miranda v. Arizona?答：The so-called Miranda warnings represent procedural law because the police have been directed by that famous U.S. Supreme Court case to advise the suspect of a variety of legal rights that he or she has. 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 committed : That is, a particular substantive law must first be violated before the state will begin its investigation.6.How are the crimes classified?答：Felonies, Misdemeanors, and Infractions.7.How are felonies distinguished from misdemeanors?答：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. Another way to distinguish felonies from misdemeanors is by the so-called in presence rule.8.Are motive and intent the same? If not, what are the differences between them?答：Motive and intent have completely different legal meanings. Motive is defined as the “cause or reason that moves the will and induces action.”Intent relates to state of mind at the timeof commission of the unlawful act.9.What are the elements establishing the criminal liability?答：It is generally recognized that three legal elements must be proved before one is declared to have committed a crime. These elements are referred to as (1) mens rea, (2)actus reus, and (3)causation.10.Explain the significance of mens rea, actus reus, and causation.答：The intent is inferred from the grossly negligent behavior of the accused. The actus reus element relates to the “doing” part of the crime. Finally, 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1.Do you agree with the statement that “it is better to free guilty persons than to convictinnocent ones”?答：It often has been stated that it is better to free guilty persons than to convict innocent ones. 2.Who files the bills of information, the prosecutor or the grand jury? How does a grandjury decide whether or not to return a “true bill”?答：Prosecutor may file what are called bill of information. If a majority of the members believe a crime has been committed, then a “true bill” is returned, and the accused is bound over for trial. If the majority believes no crime has occurred, then a “no bill”is returned, and the matter is terminated.3.When does an arrest occur? What does it result from?答：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. Arrests may also occur after an official arrest warrant has been issued by a magistrate or judge.4.What factors may affect the decision to prosecute, according to the passage?答：A variety of other factors also affect the decision, including: (1) attitude of the victim, (2)cost to the system, (3) harm to the suspect, (4) adequate alternate procedure available, (5)suspect’s willingness to cooperate with law enforcement.5.Who conduct a preliminary hearing? What must they decide after the presentation ofthe case?答：In all state jurisdictions the accused is granted either a preliminary hearing or a grand jury hearing, and in a few states defendants are guaranteed both proceeding. After the presentation of the prosecutor’s case the accused has the right to cross-examine witnesses and produce favorable evidence.6.Why is the arraignment important?答：The arraignment 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.What is the function of voir dire? Do you know the difference between peremptorychallenge and the challenge for cause?答：The voir dire is the process used to select a jury. The first, called the peremptory challenge, allows either side to have prospective jurors excused without having to specify a particular reason. The second method, called the challenge for cause, allows for the exclusion of a juror only if the excluding party demonstrates that the individual cannot be impartial or cannot otherwise handle the responsibility of making a rational decision.8.Why are the “form” instructions designed to be simple?答：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.What would happen if a mistrial occurs?答：If a mistrial occurs, the defendant may be required to go through the entire process again ,sincea retrial resulting from a mistrial does not constitute double jeopardy.10.What kinds of sentences may be imposed if the accused is found guilty?答：Sentences may be suspension, probation, jail term, fine, disqualification to hold public office or even capital punishment.第二单元1.What kind of cases do the inferior courts deal with? What are some of the limits that areimposed on them?答：The inferior courts deal with civil suits involving relatively small amounts of money and minor violations of the criminal law.2.What kinds of cases are the trial courts of general jurisdiction empowered to try?答：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?答：To review the action of the lower judicial tribunals of the.4.Why are appeals to the courts of last resort limited? What does the “screening out”function refer to?答：Because most states have created intermediate appellate courts, empowered to strain out and finally dispose of the bulk of appellate litigation. The “screening out” function refer to5.What is the significance of the statute passed by the first Congress on September 24,1789,according to the author?答：This statute, entitled “An Act to establish the Judicial Courts of the United States,” embodied the first Congress’s decision on the issue that the Constitution itself had not resolved.6.What is the number of judges presiding over the trials in a District Court?答：Trials in a District Court are normally presided over by a single judge and in a few situations, a three-judge court must be convened.7.What must be the jurisdiction of a District Court based upon? What does the workloadof the District Court make up?答：It must be based either on the character of controversy or on the character of parties to the controversy. Most of the cases which make up the workload of the District Courts are within one or another of three categories: (1)cases to which the United States is a party; (2)cases involving a “federal question,” (3)cases involving “diversity of citizenship”.8.Which court has jurisdiction over “diversity of citizenship” cases, a federal court, or astate court? Why?答：9.How can people get their appeals reviewed by the U.S. Supreme Court?答：It can be secured only by a “petition for a writ of certiorari”.10.What is the policy underlying the discretionary nature of the Supreme Court appellatejurisdiction?。