English for the Legal Profession
they have been signed by the president or at the time specified in them. If vetoed by the president, a statute must be passed anew by a two-thirds majority in both houses before it enters into force.
The Supreme Court
The Supreme Court was established by the Constitution. It consists of nine justices appointed for life by the president with the advice and consent of the Senate. Its jurisdiction as a court of first instance is limited by the constitution. Its jurisdiction as an appellate court as well as the establishment of inferior federal courts derives from federal legislation.
Separation of Powers
The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by reasons of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy (专制，独裁).
Thus, under this scheme of government, the president appoints officials and makes treaties, but only with the consent of the Senate. He may veto legislation, but the congress can override the veto. The president may, as commander in chief, dispatch troops abroad, but only the Congress can declare war and authorize the necessary finances. The president appoints judges, with the approval of the Senate, but the laws made by the Congress and signed by the president are subject to judicial review.
The doctrine of judicial review plays an important role in the whole scheme of checks and balances. Judicial review does not rest on any express provision of the Constitution but derives from its basic philosophic values and from constitutional traditions(司法复审并不是基于宪法的明文规定，它来自于宪法的基本哲理以及宪法的传统。). It was established by the Supreme Court decision in Marbury V. Madison (1803). In that case the Supreme Court decided that judicial control was not limited to the review of state law for its constitutionality. It extends to examination and review of federal laws as well. This basic decision gives effect to the principle of separation of powers, making it an actionable claim for the enforcement and observance of “the rule of law.”
Judicial control over the president logically derives from the same Constitutional tradition. But it was not until 1952 that the courts had an opportunity to exercise that control. In Youngstown Sheet & Tube V. Sawyer, the supreme court declared emergency measures of President Truman to be an unconstitutional exercise of legislative power. The issue of judicial control over the president arose anew in 1973 and 1974 in the famous controversy over Nixon’s involvement in the Watergate scandal. When Nixon refused to
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English for the Legal Profession
obey, on ground of executive privilege, an order of a federal judge to produce certain tapes, the Supreme Court affirmed the order of the district court. In doing so, it reaffirmed that it was “the duty” of the Supreme Court to say what the law is with respect to the claimed privilege. The significance of this decision, United States V. Nixon, is similar to Marbury V. Madison. It concludes the system of judicial control and assures the observance of the rule of law and , with it, of separation of powers in the government structure.
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English for the Legal Profession
Chapter 8 Understanding the Court System of the U. S
When a cause of action诉讼原因 [(called claim for relief救济请求 in the federal system) the acts or omissions necessary to trigger a lawsuit] occurs, the plaintiff, or injured party, files a complaint控告 [petition] with the court having jurisdiction over the matter. The petition requests a review of the facts by the court. Every plaintiff who follows the procedure for submitting a petition receives his or her day in court regardless of the merits of his or her claim. However, trial judges may almost immediately dismiss cases they deem to be frivolous [meaningless], or the matter may be settled out of court prior to or even during the actual trial of the case itself.
In a civil case, the losing party may appeal at least once as a matter of right. The court that has the power to hear the appeal is called the appellate court. Normally this is the intermediate appellate court since most states and the federal system have three-tiered systems. Since the facts are considered to have been determined by the trial court, the appellate court will only hear questions of law. In other words, the question becomes whether the trial court understood and acted in accordance with the law in the jurisdiction.
The following chart will help you visualize how the cases move from court to court. level Level 1 Level 2 Level 3 Trial Court Appellate Court Court of Last Resort State system Circuit Court of Court of Appeals of Supreme Court of Shelby County, Tennessee Tennessee Tennessee Federal District Court US Court of Appeals US Supreme Court system State Court
Each of the fifty states and several territories has its own system. So the chart above and the explanations below are very generalized overviews.
Level 1: Trial Court
1) Also referred to as the court of general jurisdiction, the court of record, or the court of original jurisdiction
2) Plaintiff versus defendant: Johnson V. Pletnikoff 3) Issues of fact: what happened?
Jury is presented with evidence and renders verdict [作出裁决] 4) Issues of law: was the defendant’s action legal or illegal?
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English for the Legal Profession
Judge presides over case, instructs jury on law, enters judgement 5) The losing party has appeal as a matter of right to the next level.
Level 2: Appellate Court
1) Intermediate appellate jurisdiction [中间级上诉法院]
2) Appellant [上诉人]versus appellee[被上诉人] or petitioner[请求者] versus respondent [被告]
Losing party versus winning party in the previous trial
3) Only issues of law may be considered by the appellate court.
a. prejudicial error---- remand for new trial: start over有偏见的错误，退回重审：全案重审。
b. reverse trial decision----judgment for appellant: loser in level 1 becomes winner. 支持上诉人：即在初级法院的败诉方获胜。
c. affirm trial court decision----judgment for appellee: winner in level 1 stays winner. 支持被上诉人：即第一级审判中的胜诉人。
4) An appeal from this level is normally at the discretion of the next higher court.
Level 3: State supreme court
1) Appellate jurisdiction or the court of last resort 2) Appellant and appellee/petioner and respondent
3) Unless there is a conflict with the US Constitution or federal law, no appeal is possible.
4) The state supreme courts are the final arbiters of state law.
Federal Courts
The federal courts are divided into eleven geographic circuits[巡回法院], plus a circuit for Washington, D. C. [District of Columbia] and a federal circuit.
The following chart gives an overview of the structure of the federal courts and the various types of opinions the US Supreme Court may issue.
Level 1: US District Court 美国特区法院
1) Made up of trial courts of original jurisdiction[由具备最初管辖权的法院构成]; ninety-four districts (including the District of Columbia and the territories) 2) One judge and, if desired, a jury. 3) Appeal as a matter of right.
Level 2: US Courts of Appeal 美国上诉法院
1) Thirteen courts of appellate jurisdiction in the various circuits. 不同巡回区的13个法院
2) Bank (also referred to as a panel) of three judges
3) Appeal to US supreme court only via petition for writ of certiorari调卷令 (request to the US supreme court for review请求美国最高法院审议)
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