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单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2021/10/3,#,General Features of American Legal System,1/33,Founding of the American legal system,The American Constitution,Important features of American legal system,2/33,We all know that Constitution is usually regarded as the most important and fundamental law of a country.What about American Constitution?In what way do you think American Constitution is important in the construction of American legal system?,Key words for your reference,The first complete constitution,All laws consistent with the constitution,Hard to mend,3/33,The history and development of a nation influence the shape,focus,and scope of its legal system.For example,the United States,Canada,and Great Britain once shared the same system,but since the American War of Independence(1775-1783)that common system has split into three distinct systems.,The United States has one relatively brief document that is known as the first complete Constitution of the capitalist world;all other laws in the US,whether state or federal,must be consistent with it.Because of its importance,the Constitution is very difficult to amend change.In Canada,however,there are many documents that together form that countrys constitution.The UK,on the other hand,has no special documents,and Parliament may change the law at any time.,4/33,New words and expressions,amend:To alter(a legislative measure,for example)formally by adding,deleting,or rephrasing,修正，修订,e.g.Only the Congress has the power to amend the Constitution.,Amendment:Formal revision of,addition to,or change,as in a bill or a constitution.,修正案，修正条款：对法案、宪法正式修改、增补或改变,e.g.The 19th Amendment to the Constitution gave women the right to vote.,5/33,The early constitution,Topics for discussion:,How much do you know about the first Constitution of America?How did it define the powers of the central government?Read The Articles of Confederation and tell me what it is mainly about.,Key words for your reference,The Articles of Confederation,federal courts,president,single chamber of Congress,6/33,In order to understand US law,we must look at the founding of the US and the uniting of the individual colonies into a single nation.The American War of Independence brought the original thirteen colonies together to fight a common foe,the British.The colonies,declaring themselves independent states,originally agreed to a very weak confederation in order to defeat their common enemy.This first federal constitution of the US,“The Articles of Confederation,”was written in 1777 and was finally ratified approved by the states in 1781.,The first constitution of the United States,passed by,The second Continental Congress,in 1787,but not ratified until 1781,replaced by the present constitution in 1789 due to lack of governmental powers.,7/33,In this first form of American government,there were neither federal courts nor a president and the single chamber of Congress had no way to enforce its laws.The individual states could and did ignore federal laws with impunity.It quickly became clear that the US would not remain united long unless the role of the federal government was strengthened.,8/33,New words and expressions,1.Confederation:The act of forming into or becoming part of a confederacy.,联邦,结盟,2.ratify:To approve and give formal sanction to;confirm.,同意,认可,e.g.,“,Amendments.shall be valid.when ratified by the Legislatures of three fourths of the several States”(U.S.Constitution,Article V).,“修正案当为四分之三州立法机构赞同时将生效”,（美国宪法，第五条）,ratification,3.with impunity:without fear of consequences不受处罚地,9/33,Constitution of 1787,Topics for discussion:,For what reason was the constitutional convention held in 1787?What powers did the federal government have according to the new Constitution?How was the government instituted?,10/33,Key words for your reference,formation of a strong union,stronger central government,broader federal powers over individual states,limited powers,right to impose certain federal taxes,wage war,regulate interstate and foreign commerce,make treaties with foreign governments or nations,a federal system of courts,executive branch headed by the president,bicameral legislative branch,11/33,In 1787,a constitutional convention(,制宪会议,)was convened to form a stronger,more durable union.The primary concern of the participants was the formation of a strong union without the disappearance of the states as individual powers in the system.The inevitable compromise among the delegates led them away from the earlier loose confederation of sovereign states toward a stronger central government.In the end this movement resulted in a central government,still protective of states rights,but with broader federal powers over individuals.,12/33,We the people of the United States,in order to form a more perfect union,establish justice,insure domestic tranquility,provide for the common defense,promote the general welfare,and secure the blessings of liberty to ourselves and our posterity,do ordain and establish this Constitution for the United States of America.,我们，美利坚合众国人民，为了组织一个更完善联邦，树立正义，保障国内安宁，建立共同国防，促进全民福利和确保我们自己及我们后代能安享自由带来幸福，乃为美利坚合众国制订和确立这一部宪法。,13/33,Broadened powers,however,didnt mean unlimited powers.The“Founding Fathers”(remember,women were not allowed to vote in the U.S until ratification of the 19,th,Amendment to the Constitution in 1920)designed the federal government with limited powers,which included the right to impose certain federal taxes,to wage war in the name of all the states,to regulate interstate and foreign commerce,and to make treaties with foreign governments or nations.The remaining powers belonged to the states.,14/33,This new constitution added two branches to the federal government:a federal system of courts with the Supreme Court as its head and the executive branch under the control of the newly created office of the president.Additionally,to help solve a major problem of representation between the large and the small states,the legislative branch was changed to its present bicameral two chamber form-the House of Representatives and the Senate,known collectively as Congress.,15/33,Article I,Section 1.All legislative powers herein granted shall be vested in a Congress of the United States,which shall consist of a Senate and House of Representatives.,第一条,第一款,：本宪法所要求立法权，全属合众国国会，国会由一个参议院和一个众议院组成。,16/33,Article II,Section 1.The executive power shall be vested in a President of the United States of America.He shall hold his office during the term of four years,and,together with the Vice President,chosen for the same term,be elected,as follows:,第二条,第一款,：,行政权力赋予美利坚合众国总统。总统任期四年，总统和含有一样任期副总统，应照以下手续选举：,17/33,Article III,Section 1.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.The judges,both of the supreme and inferior courts,shall hold their offices during good behaviour,and shall,at stated times,receive for their services,a compensation,which shall not be diminished during their continuance in office.,第三条,第一款,：,合众国司法权属于一个最高法院以及由国会随时下令设置低级法院。最高法院和低级法院法官，假如尽忠职守，应继续任职，并按期接收俸给作为其服务之酬劳，在其继续任职期间，该项俸给不得削减。,18/33,New words and expressions,1.posterity:Future generations,后代,e.g.,“,Everything he writes is consigned to posterity”(Joyce Carol Oates),2.ordain:To order by virtue of superior authority;decree or enact.,颁布法令,3.impose:To establish or apply as compulsory;levy,征收,e.g.impose a tax,4.wage:To engage in(a war or campaign,for example),发动,5.bicameral:Composed of or based on two legislative chambers or branches,两个议院,基于两个立法议院或立法部门,e.g.a bicameral legislature.,两院立法,6.be vested in:To place(authority,property,or rights,for example)in the control of a person or group,especially to give someone an immediate right to present or future possession or enjoyment of(an estate,for example).授权：给某人或者群体权威、财产或者权利,19/33,Topics for discussion:,What are checks and balances?It seems that the Constitution did not explicitly give the power of judicial review to the newly created federal judiciary.Then how did the power of judicial review come into existence?,20/33,Key words for your reference,three federal branches maintain a watch on the other two,no one branch becomes too powerful,federal government not too powerful,Marbury V.Madison,Chief Justice John Marshall,limited powers of the Congress,federal legislation subject to judicial review in the federal courts,the authority to judge the validity of state statutes,21/33,The Constitution established a series of checks and balances(制衡机制)so that each of these three federal branches could maintain a watch on the other two.These checks and balances ensure that no one branch of the federal government becomes too powerful.Additionally,the states,ever mindful of retaining their powers,also provide an external check to ensure that the federal government as a whole doesnt become too powerful.,There are altogether 27 amendments to the American Constitution.The first ten are called Bill of Rights.The 19th Amendment to the Constitution gave women the right to vote.,22/33,In his decision in the landmark case Marbury V.Madison,5 U.S(1 Cranch)137,2 L.Ed.60(1803),the famous Chief Justice John Marshall established that federal legislation was subject to judicial review in the federal courts.In this case,the Supreme Court refused to give effect to a section of a federal statute.The Chief Justice argued the Constitution had granted limited powers to the Congress.Therefore,it was the job of the federal courts to decide if Congress had adhered to the rules in the Constitution,which in this case the Court decided Congress had not done.Consequently,it was accepted by all branched of the federal government that the role of the judiciary was to determine if Congress had overstepped its powers and,if it had,to declare the legislation unconstitutional.,23/33,Not long after the decision,the Supreme Court successfully held that the federal Constitution(remember,each of the states has its own state constitution)gave the Court the authority to judge the validity of state statutes if they seemed in conflict with the federal Constitution.This judicial review of the state statutes has become one of the major unifying forces in the U.S.In retrospect,it looks as though the Supreme Court carved its powers from the intentionally vague language of the Constitution.The powers the Supreme Court gave itself and the federal judiciary have been crucial in the development of American law.,24/33,New words and expressions,1.overstep its powers:To go beyond(a limit);exceed its powers,2.Unconstitutional:Not in accord with the principles set forth in the constitution of a nation or state.,违宪,3.Valid:Having legal force;effective or binding,正当,有效或有约束力,Validity:有效性,正当性,25/33,Features of American legal system,Topic for discussion:,What are the features of American legal system?,Key words for your reference:,supremacy of law(,法律至上,),precedent(,遵照先例,),the idea of the trial as a contest(,反抗式审判,),complexity,26/33,Even through the nineteenth century,U.S judges,attorneys,and legal scholars relied on British law.Today,however,British law is no longer as influential as it once was.There are a few British cases that are still mentioned in American law schools today,but far more importantly,there are fundamental concepts inherited from the English tradition that are still flourishing and continue to separate the English and American systems from other legal systems,such as the civil law systems of Germany and France.Three of the most important concepts that we have inherited from the English are supremacy of law,precedent,and the idea of the trial as a contest.,27/33,1.The fact that both the executivethe president and legislativethe Congress branches of the government are required to follow the law as set down in the U.S Constitution is an indicator of the supremacy of law in the U.S.,2.Precedent is the tradition that requires that courts follow the law as stated in decisions by earlier courts.,28/33,3.Finally,American trial is an adversarial proceeding(contest),like chess,in which the opposing attorneys seem to be more concerned with winning that with arriving at the truth.Actually,in the U.S.90%of the cases do not proceed to trial but are settled out of court in settlements that are satisfactory to both sides.In other words,in most cases all sides work together to arrive at the truth.,29/33,The American legal system features a complexity resulting from American federalism.Within the federal structure,each state retains a substantial degree of autonomy.Each has its own constitution,statutes made by its own legislature,and a body of case law created by its own courts.So it can be said that instead of one uniform legal system,America has fifty one-a system for each state plus the federal legal system.Each state has its own set of courts and at least one federal district court exercising limited federal jurisdiction(,管辖权,)within that state.Thus,before a plaintiff(,原告,)commences a lawsuit,he must decide upon a choice of federal court or state court.,30/33,If a dispute arises out of a series of activities in different states,and the substantive rights at issue(in dispute)are defined differently in these states,the choice of applicable law becomes a crucial question and further complicates the legal situation.Look at the following example:,A contract is concluded in one state,performed in another,and the parties live in still others.In this multi-jurisdiction case,which states substantive laws are applicable?The law applicable to a tort is generally said to be the law of the state of place of injury(,侵权行为所适用法律普通来说是损害发生地所在州法律。,).Thus,a court sitting in state X would follow its own rules of procedure,but it would use the tort law of state Y if the injury occurred in Y.,31/33,New words and expressions:,1.inherit:To receive or take over from a predecessor,e.g.The new administration inherited the economic problems of the last four years.,2.adversarial:Relating to or characteristic of an adversary;involving antagonistic elements,反抗；含有反抗性质,3.settle out of court:,(,不经法庭,),在法庭外（私下）和解,settlement:,和解,come to a settlement,4.jurisdiction:The right and power to interpret and apply the law,司法权，裁判权：释和运使用方法律权力,e.g.courts having jurisdiction in this district.,在该地域享受司法权法院,5.lawsuit:An action or a suit brought before a court,as to recover a right or redress a grievance.诉讼,32/33,Legal Writing,You are a visiting law professor at the University of Memphis and have been asked to participate in a legal history conference with both law and history professors from the region.You have been asked to submit a two-page summary of the legal system of your country for the conference proceedings.Although it will certainly be difficult to summarize your system in two pages,that is all the space that is available.You will obviously have to limit your description to the most important elements.,33/33,
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