-
unit 1lesson1
1.A basic purpose
of law in our society is to maintain order and to
resolve
disputes.
For
this
purpose we
make
laws
to
define our
rights
and
duties
and
prescribe
what
we
should and should not do.
在我
们的社会里，法律的一个基本目的是维持秩序、解决争议。为此目的
< br>我们制定法律，
以界定权利义务，规定我们应做什么不应做什么。
deals with wrongful acts against
a person or his property and is based on the
theory that in a
civilized
society,
people
who
injure
others
or
their
property
must
compensate
them
for
their
loss.
它
(
侵权法
)
处理危害人身或财产的过错行为，它的理论依据是
:
在文明社会里
,
危害他人或他
人财产者必须赔偿损失。
phrase
“
sources of
law
”
is used to
describe methods and procedures by
which law is
created and
developed,or the origin from which particular
lawsderive their authority or coercive
force.
“法的渊源”这一术语用以描述法律形成和发展
的方法和程序，或特定法律获取权威
和强制力的源头。
are many ways to define
law, but no single definition is completely
satisfactory.
brings about changes in
society, so it is an instrument of change.
F5. Judicial decisions are an important
source of law in France and Germany.
can
be___defined___
in
different ways according to its different
__puqxjses____ .
3. Even if the court
____imposes____ a fine
（罚款）
on him, the judgment
will not
be ____enforceable_____
because he is too poor to pay.
7.
Substantive
laws
define
rights
while
procedural
laws
___establish,___
procedures
by
which
rights
are ___protected___ and enforced.
9.
Public
laws
___affect,___
the
public
generally,
while
___private___
laws
deal
with
the
relationship
between___individuals___
。
2.<
/p>
可将实体法根据内容分成民法、
刑法和行政法三大领域，
而它们各自又可再分成若干部分。
3.
例法是法官制定的，而成文法则是由立法或行政机构制定的。
6.
与大陆欧洲的法官相对照，普通法国家的法官权力大得多。
ntive
laws
can
be
divided
according
to
subject master
into
three
broad
areas:
civil
law,
criminal law and administrative law,
each of which can be subdivided into several
parts.
3.
“
Case
law
is
created
by
judg
，
while
statutory
law
is
made
by
legislative
or
administrative
bodies/authorities.
sted
with
judges
in
Contmental
Europe,
those
in
the
common
law
countries
have
far
greater power.
unit 1lesson2
areas
where
there
are
both
federal
and
state
laws
，
federal
law
prevails
if
the
two
are
in
conflict.
在既有联
邦也有州法律的领域，如果两者相冲突，则以联邦法为准。
a consequence of this federal
scheme
，
choice of law
questions confront
judges
and lawyers
in multi-jurisdiction
disputes almost as frequently as in international
litigation.
联邦制造成的后果之一是，法官和律师在跨辖区的纠纷中常常
要面临法
律选择问题，几乎
就像在国
际诉讼中一样。
T2
．
The
legislative power of the United States Congress is
limited.
F5
．
Federal law is
now a dominant part of American law.
T8. The law for a tort claim is the law
at the place of injury. This is a choice of law
rule.
T9. Choice of law rules may
affect courts
，
judgments on
substantive issues.
F11. Choice of
forum does not affect the outcome of a lawsuit.
T12. Conflict of law problems still
exist despite of many uniform statutes.
powers ___granted_____ to
Congress are enumerated in the U. S.
Constitution. They are
____specific___and
limited.
However,
they
can
be
stretched
through
the
elastic
clause
or
the
“ necessary and proper”
clause
of the Constitution,
which has been a source o
f ___
implied____
powers of
Congress.
taxing power of
the Congress is not
___exclusive____
，
since
states can also
collect taxes.
can quote
court judgments without worrying about
___copyrigtes____
。
They are
in the
public ___domain____.
should be the ___applicable____ law
for a dispute ___arising____ out of
performance?
Is there a
general rule?
of
forum
is
a
procedural
question,
but
it
may
__affect,____the
____substantive___ rights of the
parties.
10. In spite of ____uniform___
statutes, ___substantial____ differences still
exist in the laws of
different states
and ____conflicts___ of law often arise in
____multi-jurisdistion___ cases.
1.
美国法律制度的复杂性很大程度上（
larg
ely)
是由美国式的联邦制
造成的。
2.
在联邦制的架构中，每个州都有实质性的自主权，有自己的宪法、
< br>自己的立法机构制定
的法律，以及自己的法院作出的判例法。
4.
如果纠纷涉及数州，而这些州在有争议的问题上又有
不同的实体法，那么法律选择就成为
至关重要的问题。
1The complexity of the American legal
system results largely from American federalism.
2)Within the federal structure, each
state has substantial autonomy. Each has its own
constitution,
statutes made by its own
legislature, and a body of case law created by its
own courts.
4)If a dispute involves
several states that have different substantive
laws concerning the questions
at issue,
the choice of law becomes a crucial question.
unit 1lesson3
F1.A
plaintiff
injured
in
a
car
accident
can
have
a
choice
be
tween
state
courts
and
federal courts.
F5.A party
unhappy with an appellate court decision is
entitled to a review of the case by the U. S.
Supreme Court.
T8. Judges
can not be removed from office for their poor or
unpopular judgments.
T9
．
All federal
judges are
nominated by the
President and approved by the Senate.
are
meant
to___regulate____
human
behavior
，
and
the
court
is
seen
as
the
last
___resort____ for settling disputes.
5
．
Because I
didn
’
t
have
____access___ to
a
computer
when I was in the
hotel , I
didn
’
t get his
email message until now.
6
．
His claims are
___premised____ on tort liability.
judges are__called__ upon to decide a case, they
often rely on___precedents____.
4.
邦法官都是终身制的。这有助于减少对他们的政治压力。
6.
“因循前例”的原则使法律具有一定程度的稳定
性和可预见性。
4)Federal judges are
appointed for life. This helps to reduce political
pressure from them.
6)The principle of
stare decisis gives the law a measure of stability
and predictability.
unit 2lesson1
1.
。
。
。
all
persons may join in one lawsuit as plaintiffs if
the causes of action arise out of the same
transaction or series of transactions
and involve common questions of law or fact.
如果案由出自同一桩交易或者同类交易并且涉及的事实或法律问题又相
同，原告可以合并
起诉。
a defendant alleges that a complete
determination of a controversy cannot be made
without
other
parties
，
that defendant may
bring in new third parties as third-party
defendants.
如果被告声称彻底解决争议还必须有其他当事人，他可以将其
他人作为
第三人被告纳入该
案。
this system of trial procedure, the
responsibility for beginning suit, for shaping the
issues
，
and
for
producing evidence rests almost entirely upon the
parties to the controversy.
在这种庭审程序制度中，
提起诉讼、界定争议以及出示证据都几乎完全是争议当事人随任。
s of the adversary system point out
that it tends to reduce litigation to a costly
game, in
which the lawyers become the
principal players and the outcome will turn on
their skills rather
than on the true
merits of the case.
对抗辩制持批评态度的人指出，抗辩制把诉
讼变为一场费钱的比赛，律师成了主角
,
而结果
则取决于他们的技巧而不是案子本身的是非曲直。
plaintiff may
join all
persons as defendants who he thinks are necessary
for a complete
determination of the
dispute.
the adversary system the
judge takes an active part in the resolution of
disputes.
judge is responsible for
guiding the proceedings and ruling on questions of
law.
party who brings the
lawsuit to court is the
__plaintiff____
。
party
who
appeals
from
the
decision
of
the
lower
court
is
generally
referred
to
as
the___appel
lant___
。
4
。
When the causes
of action___arise___out of the same transactions
and___involve___common
questions of law
or fact
，
all persons may__
phases__in one law suit as plaintiffs.
a
court
operated
under
the
adversary
system,
the
responsibility
for___beginning____suit,
for____shaping___ the issues and for
___producing__ evidence rests almost entirely ____
on___
the parties, who also ___
bear____ theburden of the time and expenses
required.
e requires that the outcome
of a case depend on the___merits____of
the case.
2.
既然案由是出自同一桩交易，我们可以把所有的受害人作为原告合并在一个案子中。
4
在美国法院，法官并不积极参与诉讼。法官根据
程序法指导案子的进程并决定法律问题
.
5.
案子的结果应该取决于案子本身的事实真相，但是抗辩制往往使它取决于律师的技巧。
< br>
2)Since the cause of action arises
from the same transaction, we may join all the
injured parties as
plaintiffs in the
action.
4)In
American
courts
the
judge
takes
no
active
part
in
litigation.
He
guides
the
proceeding
according to the
rules of procedure and decides questions of law.
5)The
outcome
of
a
lawsuit
should
depend
on
the
merits
of
the
case.
But
the
adversary
system
tends to make it depend on the skill of
the lawyers.
unit 2lesson2
a court to
hear a case
，
it must have
subject matter jurisdiction over the case or
personal
jurisdiction over the parties.
iction
over
the
person
of
the
defendant
is
concerned
with
whether
the
defendant
is
subject to the control of the court.
a defendant does not have minimum
contacts with the forum state, no court in that
state can
assert jurisdiction over him.
ts may be the last
resort
，
but it is not
necessarily the best way to resolve disputes.
are many grievances for
which the law does
not___provide_____relief
，
and there are
many wrongs
which the law can not__
redress___
。
iction in the Anglo-American legal
system has two_____aspects_____
：
jurisdiction over
the ___subject
matter__ and jurisdiction over
the____parties______
。
the
plaintiff
__files___
his
complaint
with
the
court,
he
voluntarily__submits___to
its
jurisdiction.
the defendant
is not a citizen of the forum
state
，
he must have__
minimum___contacts with
the state for a
court in that state to assert jurisdiction over
him.
__probability___of winning the
lawsuit for a party depends largely on that
party’s ability
to produce adequate evidence.
2.
这个案子的胜诉可能性不大，也
许采取息事宁人的办法是最明智的。
5.
原告向法院提交诉状即表明他自动服从法院的管辖。
2)The
probability
of
winning
this
lawsuit
is
not
great.
Perhaps
letting
matters
rest
will
be
the
wisest thing to do.
5)Plaintiff s filing of a compliant
indicates that he
voluntarily submits
to
the jurisdiction of the
court.
unit 2lesson3
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
contmct
”
or
“
fraud
”
。
诉状要
具有法律上的充分性，必须包含一个或多个案由，也就是说，必须
有一组或多组事
实或指称，以构成提起诉讼的法律依据，如“违约”或“欺诈
'
6.
Allegations
of
fact
claimed
by
either
party
and
denied
by
the
other
become
the
issues
to
be
decided at the trial.
一方当事人主张而另一方又否认的事项便成了有待庭审解决的争议。
T2The
court
will
assume
that
a
defendant
in
default
has
admitted
all
the
allegations
in
the
complaint
。
the defendant thinks that service is
not proper, he can make a motion to dismiss.
purpose of the pleadings is to inform
the court of the contentions of each party.
the defendant challenges the legal
sufficiency of the complaint, it means that he has
admitted
all the allegations in the
complaint.
a suit is
dismissed
，
the plaintiff can
not sue the defendant in another court.
first of the
pleadings is called
the__complaint___
。
did not respond to the summons. So a
__default__judgment was entered against him.
the summons been__served___on the
defendant?
the
plaintiff
___files___his
complaint
with
the
court,
the
court
will____issue____
a
summons.
9. If
the defendant files an entry of appearance, it
means that he does not ___challenge____the
complaint.
11. Motions to
dismiss can be made when the defendant wants to
challenge the__jurisdiction___of
the
court
，
the service
of__process___
，
the venue, or
the legal___sufficiency__of the complaint.
tions made
by
one
party
and
denied
by
the
other
become__issues____to
be
decided
at
the
trial.
1.
原告第一份状纸
被称为诉状，在诉状中他陈述对被告的指控。
3.
传票向被告送达后，被告可以登记到庭，或者作出答辩状。
5.
被告可在答辩状中作出要求驳回起诉的动议，这个动议对管辖权、审判地
、传票送达或是
诉状的法律充分性提出异议。
1)
The
plaintiffs
first
pleading
is
called
the
complaint
，
in
which
he
sets
forth
his
allegations
against the
defendant.
3)
After the
summons is served on the
defendant
，
the defendant may
file an entry of appearance
or an
answer.
5)
The
defendant
can
make
a
motion
to
dismiss
in
his
answer.
This
motion
challenges
the
jurisdiction, the venue,
the service of process, or the legal sufficiency
of the complaint.
unit 2lesson4
，
it takes the
surprise element out of litigation and ensures
that the results of lawsuits are
based
on the merits of the controversy rather than on
the ability or skill of counsel.
首先，
它消除了诉讼中的意外因素，
确保案件的结果基于争议的事头真相而不
是律师的能力
或技巧。
ery
also helps make summary judgment a viable and fair
procedure
，
because it enables a
party
to find out issues on which the opposing party has
no evidence.
调查取证使即决判决成为一种公正并切实可行的程序，因为
它使一
^
方当
|
事人发现对方当
事人在哪些争议问题上不掌握证据。
T1.A
lawyer may take depositions from the
opposing party and from witnesses.
pre-trial conferences lawyers argue before the
judge.
the rules of discovery, a
lawyer can serve demands on the opposing party for
the latter
to admit facts under oath.
y judgment saves the parties the
trouble of going to trial.
court
denied
defendant’s
motion
for__summary__judgment,
because
he
failed
to__produce__the
necessary
evidence
to
convince
the__
judge__that
the
jury
will
find
in
his__
favor__
if a trial is held.
ery
techniques
include
the
__deposing___
of
other
parties
and
witnesses
，
the__serving___of
written
questions
and
demands
on
the
other
party,
and__compulsory
___physical
examinations.
ery makes all
evidence___available___to both parties.
a motion for summary judgment, the
mover tries to show the court that the opposing
party
lacks evidence on a decisive
issue, and so, the jury will find in
the___mover’s_
__favor.
1.
通过运用调査取证的各种方法
,
律师不仅能够获得证据并且还能获得导致证据发现的信息。
5.
如果一方当事人拒绝回答取证要求，或者提出不恰当的取证要求，
另一方可以请求法院
命令犯规的一方服从取
证规则。
1)
By using
discovery techniques the lawyer can obtain not
only evidence but also information
leading to the discovery of evidence.
5)
If a party refuses to
respond to discovery requests or makes improper
discovery requests, the
other party
may
make a
motion
for the court
to order the violating
party to obey
the discovery
rules.
unit 2lesson5
the motion is
overruled, the defendant will present his own
witnesses,who will be exposed to
the
same process of direct and cross-examination.
如果动议被否决，
被告将引出他自己的证人，
这
些证人也同样要受到直接
质证和交叉质证。
an law provides for jury trial only in
criminal cases.
s can always challenge
the prospective jurors for cause.
their opening statements the lawyers present the
evidence.
F8.A motion for a directed
verdict asks the judge to submit the case to the
juiy.
jury determines the credibility
of the witnesses.
can do nothing but
accept the verdict.
a
witness
is
being
questioned
by
the
lawyer
who
has
called
him
，
he
is
under__
direct___examination.
7.A
party
who
makes
a
motion
for
a
directed
verdict
asks
the
judge
to
rule
that
there
is
not
enough__evidence,____for
the jury to find in___ favor___of the other party.
8The party having the __burden___ of
proof must produce enough evidence to convince the
jury
on an issue. If he does not, the
jury will decide ___against___him.
instruction usually includes the ___applicable___
law and the burden of proof on each
issue
，
and the rules for
determining the___credibility ___of the witnesses.
3.
陪审团决定证人是否可信，但是
法官可以指导陪审团，告诉他们决定可信性的规则。
5.
即决判决的动议可以免去当事人进行庭审的麻烦，
指令裁决的动议省
去了陪审目认识事实
的麻烦。
3)
The jury decides on the credibility of
the witnesses. But the judge can instruct the jury
on the
rules for determining
credibility.
5)
A motion for
summary judgment may save the parties the trouble
of having to go to trial. A
motion for
a directed verdict saves the jury the trouble of
finding the facts.
unit 3lesson1
president is
not subject to any legislative control for his
political acts. There is no vote of no
confidence which can force him to
resign.
总统不因其政治行为而受立法机构的控制。
（
在美国）没有对政府不信任的表决制度可迫使
他辞职。
“
political
acts
”在此处指在任免官员和其他决策中有明显政党派别倾向的行
为。<
/p>
vetoed by the president, a
statute must be passed anew by a two-thirds
majority in both houses
before it
enters into force.
如果被总统否决，法案必须重新在两院以三分
之二的多数获得通过方能生效。
only way to remove the president from office is by
means of the impeachment procedure.
addition to the enumerated legislative
powers
，
Congress also is
vested with implied powers.
s of both
Houses can introduce bills concerning the federal
budget.
become law when they are
passed by single majority in both Houses.
2.A
government
usually
has
three
branches
：
the__legislative____
，
th
e__executive___and
the__judiciary____
。
means of the
___impeachment___proceeding, Congress can
___remove___thePresident and
other
federal officials from office.
ed
statutes___originate__in the Houses, They have to
be__adopted___by both Houses by
simple___
majority__and then
signed by the President before they enter into
__force___, If the
president
____vetoes____the proposed statutes, they have to
be passed___anew__by a two thirds
majority in both houses before they
finally become law.
2.
提案在最终生效之前，必须在两院以简单多数获得通过并由总统签署。
<
/p>
5.
美国宪法第一章第八节列举了国会的立法权，
其中最重要的是联邦税收，
州际和对外商务，
宣战，建
立武装部队并为其提供给养。
2)
Bills have to pass both houses by
simple majority and be signed by the president
before they
finally enter into force.
?5) Section 8 of Article 1 of the
Constitution enumerates the legislative power of
the Congress, the
most important of
which are faieral taxation, interstate and foreign
conuncrce, declaration of war
and
establishment and support of the armed forces.
unit 3lesson4
3It prohibits the states from deprive
any person of life, liberty, or
property
，
without due process
of
law or denying any person....the
equal protection of the laws.
它禁止各州不经正当
司法程序剥夺任何人的生命、自由和財产
,
或者拒绝
J
给予任何人以平
等的
法律保护。
2028---2032
unit
4lesson1
3The
doctrine
of
consideration
requires
that
the
promisor
receive
a
benefit
for
the
promise
he
makes and the
promisee
，
while gaining the
benefit of the promise, relinquish something or
incur a
detriment.
对价的原则要求允诺
者因他所作的承诺而得利，
而接受允诺者在从允诺中得利时，
也
有所舍
弃或损失。
6
。
If contractual
promises fall under these
categorise
，
suit will lie
only if there exists a writing by
the
party who resists performance which documents his
contractual obligation.
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