法律文章英語

1、.：.；Lesson One: Legal System 法律制度Background背景自從哥倫布(Christopher Columbus)于1492年航行至美洲之后，大批歐洲人便開場(chǎng)擁向這片新大陸。不過，人們通常把第一批英國(guó)定居者(the first English settlers)于1607年到達(dá)弗吉尼亞(Virginia)的詹姆斯頓(Jamestown)視為美國(guó)法律制度歷史的起點(diǎn)。美國(guó)法制史可以大體上分為兩個(gè)時(shí)期，即英屬殖民地時(shí)期(the Period of the English Colonies)和美利堅(jiān)合眾國(guó)時(shí)期(the Period of the United States

2、)。雖然美國(guó)的法律制度是在英國(guó)法律傳統(tǒng)的根底上構(gòu)成和開展起來的，但是在近四百年的歷史進(jìn)程中，美國(guó)的法律制度也構(gòu)成了一些不同于英國(guó)法律制度的特點(diǎn)，如公訴制度(public prosecution)等。美國(guó)屬于普通法系(Common Law Legal System)國(guó)家，其法律制度有兩個(gè)根本特點(diǎn)：其一是以分散制(decentralization)為原那么；其二是以判例法(case law)為主體。美國(guó)除聯(lián)邦政府外，還有州政府、縣政府、市政府、鎮(zhèn)政府等等，而且這些政府都是相互獨(dú)立的，各自在其管轄范圍內(nèi)享有一定的立法權(quán)和執(zhí)法權(quán)。因此，有人說美國(guó)是一個(gè)有許多政府的國(guó)家(a country of man

3、y governments)；而美國(guó)的法律體系那么是一個(gè)零散的無系統(tǒng)(fragmental nosystem)。誠(chéng)然，美國(guó)如今也有很多成文法(written law)或制定法(statutory law)，但是其法律制度仍是以判例法為主體的。換言之，服從前例(stare decisis)依然是美國(guó)司法活動(dòng)中最重要的原那么之一。以上兩點(diǎn)對(duì)于了解美國(guó)的法律制度具有重要意義。Text課文Part OneThe United States is at once a very new nation and a very old nation. It is a new nation compared wi

4、th many other countries, and it is new, too, in the sense that it is constantly being renewed by the addition of new elements of population and of new States. But in other senses it is old. It is the oldest of the new nations-the first one to be made out of an Old World colony. It has the oldest wri

5、tten constitution, the oldest continuous federal system, and the oldest practice of selfgovernment of any nation.One of the most interesting features of Americas youth is that the whole of its history belongs in the period since the invention of the printing press. The whole of its history is, there

6、fore, recorded: indeed, it is safe to say that no other major nation has so comprehensive a record of its history as has the United States, for events such as those that are lost in the legendary past of Italy or France or England are part of the printed record of the United States. And the American

7、 record is not only comprehensive; it is immense. It embraces not only the record of the colonial era and of the Nation since 1776, but of the present fifty States as well, and the intricate network of relationships between States and Nation. Thus, to take a very elementary example, the reports of t

8、he United States Supreme Court fill some 350 volumes, and the reports of some States are almost equally voluminous: the reader who wants to trace the history of law in America is confronted with over 5,000 stout volumes of legal cases.No one document, no handful of documents, can properly be said to

9、 reveal the character of a people or of their government. But when hundreds and thousands of documents strike a consistent note, over more than a hundred years, we have a right to say that is the keynote. When hundreds and thousands of documents address themselves in the same ways, to the same overa

10、rching problems, we have a right to read from them certain conclusions which we can call national characteristics.Part TwoThe American legal system, like the English, is methodologically mainly a case law system. Most fields of private law still consist primarily of case law and the extensive and st

11、eadily growing statutory law continues to be subject to binding interpretation through case law. Knowledge of the case law method as well as of the technique of working with case law therefore is of central importance for an understanding of American law and legal methodology.The Common Law is histo

12、rically the common general law - with supremacy over local law-which was decreed by the itinerant judges of the English royal court. The enforcement of a claim presupposed the existence of a special form of action, a writ, with the result that the original common law represented a system of actions

13、similar to that of classical Roman law. If a writ existed (in 1227) a claim could be enforced; there was no recourse for a claim without a writ, the claim did not exist. This system became inflexible when the Provisions of Oxford (1258) prohibited the creation of new writs, except for the flexibilit

14、y which the writ upon the case allowed and which later led to the development of contract and tort law.The narrow limits of the forms of action and the limited recourse they provided led to the development of equity law and equity case law. Equity, in its general meaning of doing equity, deciding ex

15、 aequo et bono, was first granted by the King, and later by his Chancellor as keeper of the Kings conscience, to afford relief in hardship cases. In the fifteenth century, however, equity law and equity case law developed into an independent legal system and judiciary (Court of Chancery) which compe

16、ted with the ordinary common law courts. Its rules and maxims became fixed and, to a degree, inflexible as in any legal system. Special characteristics of equity law include: relief in the form of specific performance (in contrast to the common law award of compensatory damages), the injunction (a t

17、emporary or final order to do or not to do a specific act), the development of socalled maxims of equity law which permeated the entire legal system and in many cases explain the origin of modern legal concepts. However, equitable relief regularly will lie only when the common law relief is inadequa

18、te. For instance, specific performance for the purchase of real property will be granted because common law damages are deemed to be inadequate since they cannot compensate the buyer in view of the uniqueness attributed to real property.As the common law, equity law became part of American law eithe

19、r through judicial acceptance or through express statutory provision. Today, both legal systems have been merged in many American jurisdictions (beginning with New York in 1848), with the result that there is only one form of civil suit in these jurisdictions as well as in federal practice. Only few

20、 States continue to maintain a separate chancery court. Nevertheless, the reference to the historical development is important because, on the one hand, it explains the origin and significance of many contemporary legal concepts (for instance the division of title in the law of property) and, on the

21、 other hand, it is still relevant for the decision of such questions whether, for instance, there is a right to a trial by jury (only in the case of common law suits, in other cases only before the judge). In addition, the differentiation will determine whether the ordinary common law relief of dama

22、ges applies or whether the extraordinary equity remedy of specific performance is available.Case lawdescribes the entire body of judgemade law and today includes common law and equity precedents. In imprecise and confusing usage the terms common law and case law are often used synonymously, with the

23、 term common law in this usage connoting judgemade law in general as contrasted with statutory law. Case law always connotes judgemade law, while common law in contrast-depending on the meaning intended-describes either the judge made law in common law subject matters or, more extensively, all judge

24、 made law.Lesson Two：Legal Profession 法律職業(yè)Background背景美國(guó)的法律職業(yè)由律師、法官、檢察官和法學(xué)教師組成。不過，這幾種人又都可以稱為律師(lawyer)，而且他們都可以是律師協(xié)會(huì)(Bar)成員。由此可見，美國(guó)法律職業(yè)內(nèi)部的職業(yè)劃分并不象中國(guó)及世界上大多數(shù)國(guó)家那樣嚴(yán)厲和確定。誠(chéng)然，這里有言語習(xí)慣問題，但它也在一定程度上反映了美國(guó)各種法律任務(wù)者之間人員變換的頻繁性，而且這種變換總以律師為中心。美國(guó)的法官普通都從律師中產(chǎn)生，而且他們?cè)趽?dān)任法官期間仍可保管律師資歷，只是不能從事律師業(yè)務(wù)而已。美國(guó)的檢察官與律師之間幾乎沒有任何職業(yè)差別。實(shí)踐上，美國(guó)的檢

25、察官就被稱為律師(attorney)。檢察官與律師(我們中國(guó)人所熟習(xí)之含義上的律師)之間的區(qū)別僅在于前者受雇于政府，后者受雇于私人或本人開業(yè)；前者在刑事案件中擔(dān)任公訴，后者在刑事案件中擔(dān)任辯護(hù)。此外，美國(guó)的法學(xué)教師普通都是當(dāng)?shù)氐穆蓭?。美?guó)律師之多，在世界上堪稱第一。據(jù)1984年的統(tǒng)計(jì)，美國(guó)共有649萬名律師，其與人口的比例為1364。美國(guó)律師多的主要緣由是法律在其社會(huì)生活中起著非常重要的作用。除各種法律糾紛外，人們從生到死、從結(jié)婚到離婚、從生活到任務(wù)，往往都需求律師的協(xié)助 。有些人幾乎事事都要討教律師。誠(chéng)然，這闡明美國(guó)人具有很強(qiáng)的法律認(rèn)識(shí)，但也闡明美國(guó)的許多法律規(guī)定過于復(fù)雜。普通來說，美國(guó)人以

26、為到法院去處理社會(huì)生活中的法律糾紛是天經(jīng)地義的，但這并不等于說美國(guó)人喜歡打官司。例如，美國(guó)有一個(gè)流傳頗廣的諧音字謎：有一種套服無人喜歡，是什么?(There is a kind of suits that nobody likes. What is it?)回答是：打官司。(lawsuits.)其實(shí)，美國(guó)人事事找律師也往往出于無可奈何。因此，美國(guó)的律師才得到了各種各樣、褒貶不一的外號(hào)，如：租用之槍(hired guns)；訟棍(shysters)；職業(yè)投刀手(professional knife throwers)；限用之友(limited purpose friends); 社會(huì)工程師(so

27、cial engineers)；社會(huì)正義之斗士(champions for social justice)等。Text課文Part One： The BarThe regulation of the legal profession is primarily the concern of the states, each of which has its own requirements for admission to practice. Most require three years of college and a law degree. Each state administers

28、its own written examination to applicants for its bar. Almost all states, however, make use of the Multistate Bar Exam, a daylong multiplechoice test, to which the state adds a daylong essay examination emphasizing its own law. A substantial fraction of all applicants succeed on the first try, and m

29、any of those who fail pass on a later attempt. In all, over forty thousand persons succeed in passing these examinations each year and, after an inquiry into their character, are admitted to the bar in their respective states. No apprenticeship is required either before or after admission. The rules

30、 for admission to practice before the federal courts vary with the court, but generally those entitled to practice before the highest court of a state may be admitted before the federal courts upon compliance with minor formalities.A lawyers practice is usually confined to a single community for, al

31、though a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted. It is customary to retain local counsel for matters in other jurisdictions. However, one who moves to another state can usually be admitted without examination if one has practi

32、ced in a state where one has been admitted for some time, often five years.A lawyer may not only practice law, but is permitted to engage in any activity that is open to other citizens. It is not uncommon for the practicing lawyer to serve on boards of directors of corporate clients, to engage in bu

33、siness, and to participate actively in public affairs. A lawyer remains a member of the bar even after becoming a judge, an employee of the government or of a private business concern, or a law teacher, and may return to private practice from these other activities. A relatively small number of lawy

34、ers give up practice for responsible executive positions in commerce and industry. The mobility as well as the sense of public responsibility in the profession is evidenced by the career of Harlan Fiske Stone who was, at various times, a successful New York lawyer, a professor and dean of the Columb

35、ia School of Law, Attorney General of the United States, and Chief Justice of the United States.There is no formal division among lawyers according to function. The distinction between barristers and solicitors found in England did not take root in the United States, and there is no branch of the pr

36、ofession that has a special or exclusive right to appear in court, nor is there a branch that specializes in the preparation of legal instruments. The American lawyers domain includes advocacy, counselling, and drafting. Furthermore, within the sphere broadly defined as the practice of law the domai

37、n is exclusive and is not open to others. In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but, with the exception of a few inferior courts, only a lawyer may represent another in court. Nonlawyers are, however, authorized to represent ot

38、hers in formal proceedings of a judicial nature before some administrative agencies. The lines of demarcation are less clear in the areas of counselling and drafting of legal instruments, as for example between the practice of law and that of accounting in the field of federal income taxation. Howev

39、er, the strict approach of most American courts is indicated by a decision of New Yorks highest court that a lawyer admitted to practice in a foreign country but not in New York is prohibited from giving legal advice to clients in New York, even though the advice is limited to the law of the foreign

40、 country where the lawyer is admitted. A foreign lawyer may, however, be admitted to the bar of one of the states and may, even without being admitted, advise an American lawyer as a consultant on foreign law.Part Two： Lawyers in Private PracticeAmong these fifteen lawyers in practice, nine, a clear

41、 majority, are single practitioners. The remaining six practice in law firms, which are generally organized as partnerships. Four or five of these six are partners and the others are associates, a term applied to salaried lawyers employed by a firm or another lawyer. This trend toward group practice

42、 is of relatively recent origin. Throughout most of the nineteenth century law practice was general rather than specialized, its chief ingredient was advocacy rather than counselling and drafting, and the prototype of the American lawyer was the single practitioner. Marked specialization began in th

43、e latter part of that century in the large cities near the financial centers. With the growth of big business, big government, and big labor, the work of the lawyer accomodated itself to the needs of clients for expert counselling and drafting to prevent as well as to settle disputes. The best lawye

44、rs were attracted to this work and leadership of the bar gravitated to persons who rarely if ever appeared in court and who were sought after as advisors, planners, and negotiators. Today the lawyer regards it as sound practice to be continuously familiar with clients business problems and to partic

45、ipate at all steps in the shaping of their policies. Major business transactions are rarely undertaken without advice of counsel.Part Three: House CounselOut of every twenty lawyers, two are employed by private business concerns, such as industrial corporations, insurance companies, and banks, usual

46、ly as house or corporate counsel in the concerns legal department. The growth of corporations, the complexity of business, and the multitude of problems posed by government regulation make it desirable for such firms to have in their employ persons with legal training who, at the same time, are inti

47、mately familiar with the particular problems and conditions of the firm. In large corporations the legal department may number one hundred or more. The general counsel, who heads the office, is usually an officer of the company and may serve on important policy making committees and perhaps even on

48、the board of directors. House counsel remain members of the bar and are entitled to appear in court, though an outside lawyer is often retained for litigation. However, it is the house counsels skill as advisor rather than as advocate that is a valued asset. Constantly in touch with the employers pr

49、oblems, house counsel is ideally situated to practice preventive law and may also be called upon to advise the company on its broader obligation to the public and the nation.Part Four： Lawyers in GovernmentA parallel development has taken place in government and two out of twenty lawyers are now emp

50、loyees of the federal, state, county, and municipal governments, exclusive of the judiciary. Many of those entering public service are recent law graduates who find government salaries sufficiently attractive at this stage of their careers and seek the training that such service may offer as a prelu

51、de to private practice. Limitations on top salaries, however, discourage some from continuing with the government. The majority serves by appointment in the legal departments of a variety of federal and state agencies and local entities. The United States Department of Justice alone employs more tha

52、n two thousands, and the Law Department of the City of New York more than four hundreds. Others are engaged as public prosecutors. Federal prosecutors, the United States attorneys and their assistants, are appointed by the President and are subordinate to the Attorney General of the United States. S

53、tate prosecutors, sometimes known as district attorneys, are commonly elected by each county and are not under the control of the state attorney general. As a rule, lawyers in government are directly engaged in legal work, since law training is infrequently sought as preparation for general governme

54、nt service. However, a small but important minority that constitutes an exception to this rule consists of those who have been appointed to high executive positions and those who have been elected to political office. Though the participation of lawyers in government has declined recently, for two c

55、enturies lawyers have made up roughly half of the Congress of the United States and of the state governors. These figures bear out the comment of Chief Justice Stone that, No tradition of our profession is more cherished by lawyers than that of its leadership in public affairs.Lesson Three: Legal Ed

56、ucation 法律教育Background背景美國(guó)的法律教育體制具有一個(gè)不同于世界上其他國(guó)家的特點(diǎn)，即沒有普通意義上的法學(xué)本科生。美國(guó)法學(xué)院的學(xué)生都是本科畢業(yè)生。換言之，懇求入法學(xué)院學(xué)習(xí)者必需已在其他專業(yè)領(lǐng)域內(nèi)獲得了學(xué)士學(xué)位。這反映了美國(guó)人注重權(quán)益和法律的傳統(tǒng)。他們以為，法律事務(wù)涉及人的各種權(quán)益和復(fù)雜的社會(huì)生活，因此從事法律任務(wù)的人應(yīng)該象醫(yī)生一樣，具有比從事其他職業(yè)的人更為豐富的學(xué)問和閱歷。從實(shí)際上講，在任何專業(yè)領(lǐng)域內(nèi)獲得學(xué)士學(xué)位的人都可以考法學(xué)院；但是在實(shí)際中，法學(xué)院學(xué)生多在政治學(xué)(Political Science)、經(jīng)濟(jì)學(xué)(Economics)、刑事司法(Criminal Justic

57、e)、社會(huì)學(xué)(Sociology)、新聞學(xué)(Journalism)等學(xué)科獲有學(xué)士學(xué)位。雖然美國(guó)律師協(xié)會(huì)(ABA)對(duì)其認(rèn)可的法學(xué)院有一致的評(píng)價(jià)規(guī)范，但是各法學(xué)院在學(xué)位設(shè)置和課程設(shè)置上仍有很大的自主性和靈敏性。普通來說，美國(guó)法學(xué)院設(shè)置的學(xué)位主要有法律博士(JD, 即Juris Doctor)、法學(xué)碩士(LLM，即Master of Laws)和法學(xué)博士(SJD，即Doctor of Juridical Science)。法律博士學(xué)位課程是法學(xué)院的根本教育課程，猶如中國(guó)及其他國(guó)家的法學(xué)專業(yè)本科課程。法律博士學(xué)位的學(xué)制普通為三年，其第一年以必修課(Required Course)為主，包括合同法(Co

58、ntract Law)、侵權(quán)法(Tort Law)、財(cái)富法(Property Law)、刑法(Criminal Law)、民事訴訟(Civil Procedure)和法律文書寫作(Legal Writing)等；第二年和第三年那么以選修課(Elective Course)為主，學(xué)生可以根據(jù)本人的興趣和志愿從幾十門法律課程中選修假設(shè)干門，但要到達(dá)學(xué)校規(guī)定的學(xué)分規(guī)范。法學(xué)碩士和法學(xué)博士的培育屬于法學(xué)院的研討生教育。攻讀法學(xué)碩士學(xué)位的人必需曾經(jīng)獲得了法律博士學(xué)位或者在其他國(guó)家獲得了法學(xué)學(xué)士學(xué)位；其學(xué)制普通為一至二年；其學(xué)習(xí)方式以修課為主，而且法學(xué)院普通允許學(xué)生以增修一定學(xué)分的方式替代畢業(yè)論文。攻讀法

59、學(xué)博士學(xué)位的人普通應(yīng)已獲得了法學(xué)碩士或法律博士學(xué)位；其學(xué)制普通為三至五年；其學(xué)習(xí)內(nèi)容主要為撰寫學(xué)位論文，但法學(xué)院院長(zhǎng)或其導(dǎo)師也能夠要求其選修一定課程或從事一定研討任務(wù)。法學(xué)院很少開設(shè)專門面向研討生的課程，因此研討生多與本科生(JD生)一同聽課。美國(guó)法學(xué)院的教授在教學(xué)過程中較注重對(duì)批判性思想(critical thinking)方式的培育，且多采用案例教學(xué)法(Case Method)和問答式即蘇格拉底式教學(xué)法(Socratic Method)。誠(chéng)然，在美國(guó)的法學(xué)教授中亦不乏偏愛講演式教學(xué)法(Lecture Method)的說書人(story-teller)。Text課文In 1983, over

60、 125,000 law students were studying in more than 170 ABA accredited law schools including public law schools supported in part by government funds; private law schools supported by contributions from individuals and foundation funds; and local or national schools offering full time or part time lega