English for the Legal Profession

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.

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.

Features of American legal system Topic for discussion:

What are the features of American legal system?

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.

1. The fact that both the executive[the president] and legislative[the 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.

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.

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English for the Legal Profession

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. 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 state’s substantive laws are applicable? The law applicable to a tort is generally said to be the law of the state of place of injury (侵权行为所适用的法律一般来说是损害发生地所在州的法律。). 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. 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.

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、宪法的正式修改、增补或改变 e.g. The 19th Amendment to the Constitution gave women the right to vote. Confederation: The act of forming into or becoming part of a confederacy.

联邦, 结盟

ratify: To approve and give formal sanction to; confirm. 批准, 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).

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English for the Legal Profession

“修正案?当为四分之三的州立法机构赞同时?将生效” （美国宪法，第五条） ratification

with impunity: without fear of consequences不受惩罚地 posterity: Future generations 后代

e.g.“Everything he writes is consigned to posterity”(Joyce Carol Oates) ordain: To order by virtue of superior authority; decree or enact. 颁布法令 impose: To establish or apply as compulsory; levy征收 e.g. impose a tax

wage: To engage in (a war or campaign, for example) 发动

bicameral: Composed of or based on two legislative chambers or branches 两个议院的, 基于两个立法议院或立法部门的 e.g. a bicameral legislature. 两院立法

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

overstep its powers: To go beyond (a limit); exceed its powers

unconstitutional: Not in accord with the principles set forth in the constitution of a nation or state. 违宪的

valid: Having legal force; effective or binding合法的,有效的或有约束力的 Validity: 有效性, 合法性

inherit: To receive or take over from a predecessor

e.g. The new administration inherited the economic problems of the last four years.

adversarial: Relating to or characteristic of an adversary; involving antagonistic elements对抗的；具有对抗性质的

settle out of court: (不经法庭)在法庭外（私下）和解 settlement: 和解 come to a settlement

jurisdiction: The right and power to interpret and apply the law司法权，裁判权：释和运用法律的权力

e.g. courts having jurisdiction in this district. 在该地区享有司法权的法院

lawsuit: An action or a suit brought before a court, as to recover a right or redress a grievance. 诉讼

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English for the Legal Profession

Chapter 7 The Institutions of the American Government

The federal constitution, ratified in 1788 by the original thirteen states and thus today the oldest operative constitution in the world, is the core of the American legal system. It establishes the governmental structure of the federation, regulates the relationship between the federation and the member states, and lays down the basic rights of the American people.

The first three articles of the constitution separate the power of the government among the three governmental branches: the executive (the president and the federal agencies and departments under him), the legislative (the Congress), and the judicial (the Supreme Court and the inferior federal courts).

The President

The president functions as head of state and chief of government. As head of state, he grants recognition to new foreign states, receives and appoints ambassadors and concludes state treaties. As chief of government, he heads the executive branch, appoints and dismisses members of the government. Besides, he is also the commander in chief of the armed forces.

The president conducts the activities of the administration with the help of the Cabinet. Cabinet members (secretaries of the departments and other officials with cabinet rank) are appointed by the President (and thereafter confirmed by the Senate), and are subject to dismissal by him alone; they are not members of the Congress.

The president is not subject to any legislative control for his political acts.(总统不因其政治行为而受立法机构的控制) There is no vote of no confidence which can force him to resign.(在美国没有对政府不信任的表决制度可迫使他辞职。Political acts特指在任免官员和其他决策中有明显政党派别倾向的行为。) The only legislative control is the president’s possible removal from office by means of the impeachment procedure. This is possible only upon “conviction of treason, bribery, high crimes and misdemeanors.”

The Congress

All legislative powers are vested in the Congress, which consists of the Senate and the House of Representatives.

All statutes except treaties are adopted by simple majority of both Houses of Congress. Proposals for statutes (bills) may be introduced in either House. However, the federal budget, financial allocation in general, and impeachment must originate in the House of Representatives. Statutes enter into force after

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