美国法律体系 on 瓶子裡的小狐狸

Contract Formation and Classification

Fri, 27 Feb 2009 16:37:50 +0800

A contract is, first of all, an agreement. It is a mainifestation of the mutual assent of the parties. The mutual assent, or the agreement, is typically reached when one part ( the offeror) makes an offer to another party ( the offeree ) who accepts the offer. Offer and acceptance are the acts by which the parties come to a “meeting of the minds”.

When there is no meeting of the minds, there is no vaild contract. To determine whether the minds have met, both offer and acceptance must be analyzed. The offeror may have had something in mind quite different from that of the offeree. Notwithstanding, the intention of the parties is determined not by what they think, but by their outward conduct; that is, by what each leads the other reasonably to believe.

Basic Rights

Sat, 27 Dec 2008 17:12:03 +0800

The Constitution, as ratified in 1788, contains a few provisions guaranteeing individual right and liberties. For example, Article Ⅰ, Section 9 prohibits the suspension of writ of habeas corpus except in cases of rebellion or invasion; Article Ⅲ， Section 2 guarantees trial by jury in criminal cases except in cases of impeachment; Article Ⅵ, Section 2 prohibits the use of religious test as a qualification for public office.

Federal-State Relations

Thu, 25 Dec 2008 00:28:35 +0800

Independence from England left the thirteen American states without a central government. Each of them functioned as an autonomous unit. Even under the Articles of Confederation, the states retained their sovereignty. However, as a necessary compromise for the formation of the union, the states that sent their delegates to the constitutional convention at Philadelphia in 1787 yielded a portion of their sovereign powers to the new federal government. The national government thus became responsible, in the main, for the common defense, public peace, regulation of commerce, and foreign relations. And to carry out these functions, the national goverment was given the taxing power and other necessary and proper powers.

The Institutions of Government

Wed, 24 Dec 2008 16:02:59 +0800

Constitutional law, in its essentials, is an expression of how people want to live as individuals within an organized society. What form of government they want? What powers shall the government exercise? What rights and liberties shall remain with the people? By what mechanisms are these rights and liverties protected?

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.

Appeal and Enforcement

Sat, 20 Dec 2008 23:50:33 +0800

Every judicial system provides for review by an appellate court of the decisions of the trial court. When the system has two levels of appellate courts, appeal in most cases should initially be made to one of the intermediate courts, review at the highest level is only at the discretion of that court except in certain classes of cases.

In making the decision to appeal, a party may take into consideration the following points: First, in general an appeal may be taken only after final judgment. Though in the course of trial the judge may make all kinds of errors, no appeal may be taken until the final judgment has been rendered, except in a limited number of situations. A second thing to remember is that an appellate court is suppposed to correct errors, not to render what it thinks is a more just result in the particular case. If the trial judge made a mistake of law and it seems that the mistake affected the outcome, the appellate court will reverse the judgment and order a new trial. If, however, the trial judge has not made any mistakes, but the result does not seem just, the trial judge has not do anything about it. A third important point is that appellate courts in general do not review lower court decisions on matters of fact; review is ordinarily limited to questions of law, unless the appellate court thinks there is no substantial evidence to support the determination in question. Lastly, the appellate court will not ordinarily consider objecions that were not first presented to the trial court and kept in the record. This means that a litigant must raise his objections at the first opportunity and is not permitted afterthoughts.

The Trial

Thu, 18 Dec 2008 21:04:25 +0800

American law provides for jury trials in most actions for damages. This means that in those cases, either party may assert the right to have the facts tried by the jury. If neither wishes so, the judge will try the facts as well as apply the law.

If a jury has been demanded, the first step of the trial is to impanel the jurors, who are selected at random from lists of eligible citizens. The court and lawyers for both parties will question the prospective jurors to determine their fairness and impartiality. If any of them is found to be biased, he may be challenged for cause and excused. A certain number of peremptory challenges, for which no cause need to be given, may also be exercised to reject potential jurors.

Discovery

Wed, 17 Dec 2008 19:28:40 +0800

American civil procedure allows lawyers in civil suits to get information from the opposing party and from witnesses. The techniques for this purpose are called pre-trial discovery.

The chief method of discovery is deposing of the parties and witnesses. In this out-of court procedure, the person whose deposition is taken is questoned under oath by lawyers for each side. the device is useful in finding information that is relevant to the case. The parties almost certainly will want depositions taken of each other, because they are treated as admissions, and can be used by their adversaries as evidence at trial.

Pleadings and Motions Attacking Pleadings

Mon, 15 Dec 2008 19:06:30 +0800

Civil litigation begins with the pleadings. A pleading is a legal document filed with the court that sets forth the position and contentions of a party. The purpose of pleadings in civil actions is to define the issues of the lawsuits. This is accomplished by each pary making allegations of fact and the other party either admitting the allegatons or denying them.

The first of the pleadings is usually called a complaint. A complaint is a written statement which sets forth the plaintiff’s allegations against the defendant. To be legally sufficient, a complaint must contain one or more “causes of action”, that is, one or more sets of facts or allegations that make up the legal grounds for filing a lawsuit, such as “breach of contract” or “fraud”. Besides, a complaint must state the plaintiff’s claim, i.e., what relief he is seeking to obtain.

Commencing a Legal Action

Sun, 14 Dec 2008 17:16:34 +0800

Lawsuits do not begin themselves. Someone must first decide to sue someone else for an alleged injury. If the decision is made intelligently, the person choosing to sue must have weighted several matters, among which at least three are basic.

A potential litigant obviously feels aggrieved. But before making the decision to sue, he must first consider whether the grievance is one for which the law furnishes a relief. There are many wrongs that the law will not redress. if a person has suffered an injury that is not redressable by a court of law, litigation will be a fruitless attempt.

Separation of Powers

Sun, 09 Nov 2008 07:01:00 +0800

The framers of the constitution knew that accumulation of all powers in the same hands would result in tyranny. In their effort to prevent tyranny and to form a more perfect union, they undertook to separate the legislative, the executive and the judicial powers in the first three articles of the Constitution. But, knowing equally well that an absolute separation would only impair the effective function of the government, they also rejected a total separation of powers.

The Adversary System

Tue, 09 Sep 2008 05:02:00 +0800

The law of procedure can be divided into criminal and civil. Civil procedure is the body of rules by which the parties in civil litigation use the court to settle disputes.

Generally, the party bringing the lawsuit to the court is called the plaintiff, and the party against whom the action is brought is called the defendant. On appeal, the appealing party is usually referred to as appellant, and the winning party at trial is called the appellee.

The Dual Court System 双轨制法院体系

Thu, 04 Sep 2008 07:00:00 +0800

The American judicial system, reflecting the overall decentralized nature of its government, comprises a large number of federal and state courts.

The federal and the state judicial systems are each constructed like a pyramid. Entry-level courts at both the state and federal levels are trial courts, tn which witnesses are called, other evidence is presented and the fact-finder ( ajury or sometimes a jujdge ) is called upon to decide issues of fact based on the law.

Law under American Federalism

Wed, 03 Sep 2008 18:00:00 +0800

The United States has a federal system of government. What this means is that under the US Constitution there is a national, or federal, government, and there are individual states, each enjoying a substantial degree of autonomy. Each state has its own constitution, its own government, its own set of statutory laws made by its own legislature, and, because of the common law tradition, a body of case law created by its own courts.

美国法院体系 The American Court System

Wed, 03 Sep 2008 04:03:00 +0800

Unlike most countries in the world, actually, there are fifty-two court systems in America—one for each of the fifty states, one for the District of Columbia, plus a federal system—similarities abound. The state court systems are established according to the constitution of each state. The federal courts are not superior to the state courts; they are simply independent systems of courts, which derives its authority from Article 3, Section2, of the U.S. Constitution. Although state court systems differ, Exhibit3-1 illustrates the basic organizational structure characteristic of the court system in many states. The exhibit also shows how federal court system is structured.