重点得课文:(1AB 2A 3B 4A 5B 6B)Unit1A1、How was mon law established?Answer: the mon law tradition originated in England、a new legal order was established as early as 1066 by the Norman conquest, but the mon law did not exist in 1066、William the conqueror did not abolish the local customs and the local courts、Local courts continued to apply local customs、There was no law mon 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 mon to the whole kingdom, the mon law、1.What does the mon law tradition include according to the text? Answer: according to the text, the mon law tradition includes law and equity、2.How different is the legal system of Louisiana from the rest of the United States?Answer: the mon 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 meansthe 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、5.What is the main difference between the civil law system and mon law system?Answer: First and foremost, cases are usually considered to be the primary source of law in mon 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 enpassing document, but in mon law jurisdictions legislation tends to be considered as an exception to the case law、6.What different attitudes do the civil law system and the mon law system hold towards case law?Answer: Cases are usually considered to be the primary source of law in mon law countries, but in civil law countries, cases are simply not a source of law---at least in theory, but cases are being more and more relevant in civil law countries, but the attitudes of civilians and mon lawyers toward legislation and cases differ greatly、7.What 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 mon 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 pare 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 mon law system? Answer: law professors, because Civil law students will read "law doctrine" more than cases、The "doctrine" is the cumulated writings oflaw 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、mon law professors generally do not enjoy a similar prestige within their own jurisdiction、Here the judges get most of the prestige、Unit 1 B1.How 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、2.What 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 contestedcontroversy, what matters is the immediate oute, 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 decisiontakes on broader perspective、The decision bees a possible source of general applicable case law、3.According to Professor Llwellyn, what creates a legal system ofprecedent? Why and when?1)Those generalizations contained in, or built upon, past decisionscreate a legal system of precedent、2)Because as rules of action arise out of the solution of particularproblems, 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、4.What might happen if a court follows the precedentsmechanically?A court that follows precedent mechanically or too strictly will at times perpetuate legal rules and concepts5、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 acmodation of the peting 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 “resjudicata”?“Stare decisis” is an important principle in mon 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 mon 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 addressesa 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 parative-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 followanother 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 2A1、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 “court 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” functi on 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 resortThe “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 theissue 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 char acter 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 example, 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 interpretationor 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 District 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 writ 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 B1.Who has the authority to determine how the constitution isinterpreted 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、2.Does 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 Ⅲstates 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 hierarchy 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、3、In which case was the power of judicial review established? Marbury VS Madison4、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 A1、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 mitted generally hires an attorney to process the claim、Third, when one mits 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 pensation、Finally, pensation 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 pensate for any specific and demonstrable harm that has been caused 、Special damages involve pensation 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 monly 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 mitted, 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 mon 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 mitted, and the person mitting infractions may never receive a jail sentences as punishment、And infractions are consi dered 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 mitted, the subsequent punishment allowed by law and/or the place of confinement of the convicted defendant、There are two mon 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 mitted、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 mitted in the officer’s presence, or more reasonably, with the corroboration by a witness or the signing of a plaint 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 mitted by that person, even though the transgression was mitted out of the presence of the officer、8、Are motive and intent the same? If not, what are the differences between them?No、They have pletely 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 mission of the unlawful act、Failure to establish th e “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 mission of the unlawful act、The mere fact that harm occurs does not necessarily mean a crime has been mitted、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 ing 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 B1、Do you agree with statement that “it is better to fr ee guilty persons than to convict innocent ones”?Yes 、Because if the offender who is missed, can be seized later, but ifa person was killed by mistake, the victim could not revived2、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, prosecutorsmay are called bill of information、If a majority of the grand jury members believe a crime has been mitted, 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 mitted、4、What factor may effect the decision to prosecute, according to the passage?The decision to prosecute largely depends 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 coope rate 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、6、Why 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 munity 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 plete 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 jeopardy、As a result of recent Supreme Court decisions, some local jurisdictions have done away with the unanimity requirement; verdict in which as few as two thirds of the jurors vote to convict or acquit are considered to be constitutional、10、What kinds of sentences may be imposed if the accused is found guilty?Sentences may be suspension, probation, jail term, and fine, disqualification to hold public office or even capital punishment、UNIT6 B1、What does a lawyer generally do before actually filing the plaint? First, discuss with the client about the facts to see whether they can be proved in court、Second, determine whether these facts state a claim under the applicable law、Third, determine in what court you will "bring your action"、2、What can a defendant and his or her lawyer do once a plaint has been served?Once the plaint has been served, the next move is up to the defendant and his lawyer、There are four courses of action open to you、(1) Do nothing, for obvious reasons this is not often the remendedresponse;(2) Serve (and /or court) a motion to dismiss for failure to state a claim, since the motion to dismiss, or demurrer, admits, temporarily, the truth of the facts alleged by the plaintiff, it raises a pure issue of substantive law;(3) Serve (and /or file) an answer、An answer denies all (or some) of the facts alleged in the plaint、It thus raises an issue of fact between the parties, not an issue of law;(4) Serve (and /or file) an affirmative defence、By this pleading, you admit the truth of the facts alleged and that those facts standing alone would win for plaintiff, but allege new facts which require a different result、3、What might happen if the motion to dismiss for failure to state a claim is granted? What if denied?If it is granted, usually the plaintiff will be given an opportunity to “replead,” i、e、to allege additional facts, if they exist, sufficient to state a claim、If he is unable to do so, he may appeal、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 trial (or in some jurisdictions he may appeal immediately)、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、Do you understand the differences between the two terms。