Ⅱ The main traditional source of the common law is cases, while the main traditional source of the civil law is legislation.
Ⅲ The civil law system pays more attention to substantive law; the common law system pays more attention to procedural rules.
Ⅳ The classification of law is different. The civil law is separated into public law and private law, the common law is separated into common law and equity.
Ⅴ Since theory and doctrines is important in legal education of civil law system, professor plays an important role in legal education. on the contrary, cases is the main source of common law, thus the judge’s decision is more important.
Ⅵ The civil procedure is Adversary system (对抗式诉讼),in common law system ,judges take a relatively passive role. Inquisitorial system（纠问式诉讼）, in civil law countries , judges have the power to investigate the case and inquire the parties and the witnesses.
2. To discuss the main differences between American and Chinese law school teaching. ⅠLaw is an undergraduate degree in the china, while in the us is postgraduate degree. Ⅱ The teaching method
In USA, the teaching method is case method or Socratic method, students instead of the professors play an active role in the class.
In China, the professor exposes the law to his students, who take notes and do not intervene in class.
Ⅲ Cases vs. Doctrines
In the USA, students’ textbook contains lots of cases and decisions made by the judges. In China, The textbook involves many doctrines, concepts and theories. 3.To discuss the main features of the American court system
There are fifty-two court systems in the U.S. each state has its own system of courts, one for the District of Columbia and a federal system.
In the state court systems, court structures vary from state to state. But they all exhibit a hierarchical structure; decisions of lower courts may be reviewed by higher courts. A state system includes:
1) Trial courts of inferior jurisdiction 2) trial courts of general jurisdiction 3) appellate courts
The trial courts of inferior jurisdiction hear civil litigations involving small amounts of money and minor violations of the criminal law. While the trial courts of general jurisdiction can hear all kinds of cases.
Every case should first be heard at the trial court. Then it can be appealed to the appellate court. Every state has its court of last resort.
The structure of the federal system is similar. There are three levels of courts: (1) U.S. district courts (2) U.S. courts of appeals
(3) the United States Supreme Court. Not like the other courts in federal systems which are created by congress, the Supreme Court is created by Constitution. There are a few specialized federal courts
4.To discuss the significance of jurisdiction.
First, it can enable the participants to institute a legal proceeding in a specific way.
Next, it makes justice understand the whole case easily. It is convenient for the parties take part in
1
the litigation.
Finally, save legal resources and smooth the legal proceedings. 5. To discuss the main characteristics of case law. it can ensure the consistence of decisions .
Known also as the principle of stare dicisis. Past judicial decisions are formally and generally binding for similar cases.
Some precedents have greater weight than others. The weight of precedent is affected by the ranking of court that decided it.
Once a prior decision has been overruled, it continues to bind the particular parties; it is no longer authoritative to the subsequent cases.
a court is not bound to follow another state’s precedents, but it will consider the outstate decisions and, if their reasoning is persuasive, it can make use of them. 6. To discuss the significance of case Marbury vs. Madison.
it is a landmark case in the United States. It formed the basis for the exercise of judicial review. In this case, Chief Justice Marshall ruled that the Supreme Court could not grant relief to the plaintiff Marbury because it did not has the jurisdiction of the case. This satisfied the immediate concerns of the Republicans and sidestepped the controversy, but the great significance of the case lay in the Court’s assumption that it has the final authority to determine whether any act is constitutional., thus, profoundly enhancing the Court’s authority.
the case was the first strong pronouncement of the principle of judicial review, which is the power of the Court to examine legislation and other acts of Congress.
In a word, the case established the principle of judicial review , which has been a permanent and indispensable feature of United States constitutional system.
So the constitutional scholars, by consensus, regard the case as the most important case the Supreme Court ever has decided.
7. The main differences between substantive law and procedural law.
Procedural law define the form and method by which legal rights are enforced. While substantive law define the legal rights themselves. The differences are as follows:
Ⅰ They contain different rules and substances.
Substantive law provides for the rules about duties or rights. While procedural law sets rules about form or method.
Ⅱ Although “pure” substantive rules and “pure” procedural rules exist, many rules are a mixture of both substance and procedure. Some rules seem to be procedural are adopted for substantive reasons; likewise, some rules seem to be substantive are adopted for procedural reasons. Ⅲ procedural law generally have more efficiency considerations. 8. Whether the death penalty should be abolished in America.
The Court points out that the use of the death penalty has a long history of acceptance both in the US and in England , and it is apparent from the Constitution that the existence of capital punishment was accepted by the Framers. In the mean time we should assure that death penalty will not be wantonly imposed.
it can be justified from the following grounds: (i) as a means of retribution against severe crimes (ii) as a deterrent to others;
(iii) to prevent the criminal from re-offending;
(iv) it's cheaper than keeping people in prison. It is not humanitarian . Opponents may argue:
(i) killing someone is always wrong, and two wrongs can never make a right;
2
(v) mistakes are bound to happen, if you kill someone innocent , you can never correct this wrong . 9. To discuss the importance of Miranda warning
Miranda warning is a warning that is required to be given by police in the United States to criminal suspects in police custody before they are interrogated to inform them about their constitutional rights It includes the right toremain silent; being clearly informed of that anything the person says will be used against that person in court; the right to consult with an attorney and to have that attorney present during questioning, if he or she is indigent, an attorney will be provided at no cost to represent her or him.
1.Miranda warning guarantees the constitutional rights of suspects during the criminal investigation. Those rights are mainly from the fifth and sixth amendments.
2.Due to this warning , suspects are well aware of their rights ,therefore, they can prevent the police from harming their legal rights.
3.Miranda warning also help the suspects understand that he does not have the responsibility to self-incriminate.
4.It guarantees that an indigent suspect has access to the help of an attorney. In this sense, whether the suspects are poor or not, they will receive equitable treatment. 10. To discuss the function of voir dire
The voir dire is the process used to select a jury.
The prospective jurors are questioned about their backgrounds and potential biases before being chosen into a jury. The function is to select a jury acceptable to both sides. Jurors are excluded by two methods: peremptory challenge: exclude a juror without having to specify a reason.
and the challenge for cause.: we must demonstrate that the individual cannot be impartial or cannot handle the responsibility of making a rational decision. Jurors can be excluded by these reasons:
1)have already formed an opinion about the guilt or innocence of the accused; 2)are related to any of the parties or legal actors in the case;
3)are physically or mentally impaired to the extent that the impairment will interfere with their decision-making process or
4) are considered to be incapable of remaining impartial until the case is presented. 11. To discuss what the appellate courts focus on and whether it is proper
Appellate courts review the action of the lower judicial tribunals. Actually, the scope of judicial review is relatively narrow; it does not retry the case on the merits, and it does not substitute its idea of justice for those of the trial court; what it does is to review the record of the proceedings to determine whether the lower court committed error on its procedure or in applying the substantive law to the facts of the case.
They will only look at such documents: the pleadings, the transcript of testimony, the exhibits entered into trial and the trial court’s decisions. No additional testimony is taken. No new evidence is submitted.
In most states, there are two kinds of appellate court, the intermediate appellate court and the court of last resort. If everyone appeals their cases to a higher court, the appellate courts’ workload will be tremendous, therefore, it is necessary to set up an intermediate appellate court.
In my opinion, it is necessary to restrict the scope of judicial review. If the appellate courts retry every case, it would be a waste of judicial resources and make them unable to give their full attention to the novel and socially important controversies.
12. What’s the differences between the torts and crimes? Ⅰ Nature
A crime is considered to be a wrong against the whole society, whereas a tort is a wrong against an individual.
3
Ⅱ The persons who actually prosecute the case.
When crimes occur, State prosecutors/district attorneys. For tort claims, the injured party will prosecute the case. Ⅲ Punishments
One who commits a crime may be subject to such punishments as death penalty, imprisonment, forfeiture and fines. Except for fines, the above remedies are not available in tort law; compensatory damages and punitive damages are the most common punishments.
However, some acts or omissions may be both criminal offenses and tortious ones. For instance, if one individual intentionally punches somebody, a crime may be committed, and the injured party will sue the defendant in a civil action.
13. To discuss the process of the creation of case law
As the name “case law” suggests, a collection of particular decisions, generate rules of general application, namely case law.
From the point of view of parties to a lawsuit, what matters is the immediate outcome. However, in the view of judges, lawyers, the decisions take on broader perspective. Later judges will look to prior, similar decisions.
It is a feature of the common law system that past judicial decisions are formally and generally binding for the disposition of similar present controversies. However, if a former decision has been overruled by a higher court, it is no longer authoritative to subsequent cases.
A series of decisions of former cases does not of course in itself constitute a system of law. But rules of law arise sooner or later out of such decisions. When such rules are taken as normative for future disputes, we have a legal system of precedent.
There is also another factor affecting this process: sense of justice requires that all men are treated alike in like circumstances.
14. To discuss the differences between the binding precedents and persuasive precedents Binding precedent is the precedent that a court must follow (it is law). There are two requirements must be met: these former decisions are in the same jurisdiction as that court. And the courts which rendered these decisions are in the same level as that court or higher.
In contrast, persuasive precedent is precedent that a court need not follow (it is not law, may be persuasive because it suggests a line of reasoning and can be made use of as guidance and justification). All prior judicial decisions outside of that court's jurisdiction or from a lower court are considered to be persuasive only.
15. To discuss the different roles of judge and attorneys in court
First of all, judges have authority to decide questions of law and fact in civil law system and only question of law in common law system. Attorneys only have right to show their evidence to convince the judges, but can’t decide cases at last.
Second, the status is different. Judges have educational background, experiences and power to decide cases finally. So judges are more respectable and get more honor in court. Attorneys are legal practitioner, only can advise judge and jury how to decide cases. So they are inferior to judges in court.
16. To discuss whether it is reasonable to choose common people as jurors It is reasonable to choose common people as jurors.
With the participation of common people, the trial will become more impartial, because it’s more difficult to bribe the jurors than the judges.
We can avoid the professional prejudice of the judges in the trial, which is formed in the long-term adjudication.
It also reflects the democratization in the judicial system.
But common people may be too emotional and sensitive. These will affect their judgments about a
4
specific case.
Compared with experts, they are easier to be misled by lawyers. 17. To discuss the differences between motive and intent Motive and intent have different legal meanings.
Ⅰ Motive is the cause or reason that moves the will and induces action. It represents the stimulus for behavior. Intent relates to the state of mind at the time of the commission of the unlawful act.
Ⅱ the prosecutor is not required to prove the defendant’s motive for behavior and the failure to do so does not mean the jury will vote for acquittal.
And failures to establish an unlawful intent almost certainly result in acquittal.
Ⅲ the motive may help to establish a justifiable reason for the illegal behavior. But a good motive does not necessarily acquit the suspect.
18. To discuss the significance of the case Furman vs. Georgia
It is a mile stone in American history of death penalty. Before this case, capital punishment was widely accepted. After this case, roughly two-thirds of the states promptly redrafted their capital sentencing statutes.
As the justice Marshall pointed out, the burden of capital punishment falls upon the poor, the underprivileged people, who are least able to voice their complaint. After this case, situation has changed; it is a big stride towards equity.
As we all know, death penalty differs from other punishments because of its severity and it is irrevocable.
Although the U.S. did not abolish the death penalty, this case makes the capital punishment imposed in a strict way.
The death penalty can no longer be imposed in an arbitrary or capricious manner. 19. To discuss the importance of due process in criminal procedure.
Due process means that accused person in criminal cases must be accorded certain rights and they will be tried according to legal procedures. Importance:
1.it is based on such a premise that freedom is so valuable, we must protect it from illegal invasion. 2. protect the defendants against having to self-incriminate, being subjected to double jeopardy. Guarantee the trial is evenhanded to a large extent.
3. as we know, it is better to free guilty persons than to convict innocent ones. Safeguarding the rights of the citizenry.
4. it’s helpful to establish an elaborate legal system in order to minimize wrongful results.
5.place limitations on government’s power to investigate and apprehend persons suspected of committing crimes.
20. To discuss the difference between information, complaint and indictment.
the bill of information is an accusation presented directly by the prosecutor without a grand jury indictment. . If the magistrate accepts the information, the defendant is bound over for trial. The complaint, a legal document in which the plaintiff gives the facts and reasons for the suit.. An indictment is a formal accusation that identifies the specific charges against a suspect. Difference:
Compared with information, complaint is often associated with misdemeanor criminal charges presented by the prosecutor without the grand jury process.
2. Both information and complaint are presented by prosecutors, who file a charging document directly with the court, while indictment must be made by grand jury.
21. To discuss the difference between verdict , judgment and sentencing
First of all, verdict is used to solve substantive issues; judgment can solve both substantive and procedural issues.
5
second， in one case, there is only one judgment , but maybe many verdicts,
besides, judgment can only be rendered in written, however, written and oral verdict are both appropriate.
if the accused is found guilty, the sentencing stage follows.
22. to explain the difference between the proof by preponderance of evidence and proof beyond a reasonable doubt
Preponderance of evidence is based on all of the evidence presented. On this standard, we may establish such belief that it is more likely than not that the individual has committed a crime.
This standard is used in some jurisdictions for preliminary hearing and issuance of information. However, proof beyond a reasonable doubt considers all evidence. On this standard, we believe that the individual is clearly guilty; we can use the evidence to convict a suspect. 23. To discuss the main characteristics of adversary system
1. requires the parties to begin the lawsuit, define the issues, develop proof in support of their positions, present that proof to a court.
2.the parties try to present their evidence in the best possible light and the opponent’s evidence in the worst possible light.
3.this system assumes that parties will develop and present their cases more efficiently than a public agent with no interest in the outcome. 4.lawyers act as advocates for the parties.
5.it also assumes that the financial resources available to each side are relatively equal.
6.the judge’s role is reactive. He play a limited, nonintrusive role in the investigation and litigation. Defect:7.but the parties may tend to mislead the judge 8.different lawyers have different competence.
24. To discuss a lawyer’s work before actually filing a complaint
The “client,” when he first comes to a lawyer, does not have a case; he has a problem. The lawyer’s first task is to ascertain “the facts.” This task is crucial, and it is not as easy as it sounds, even in simple situations. Clients are prone to misunderstanding, misimpression, and faulty recollection. Sometimes clients lie, and even when they aim at the truth.
Next, you will need to determine if these facts state a claim under the applicable law. In many instances, the existence of a legal violation will be clear. But in other cases, it is not.
At last, if you are satisfied that the facts can be proved, and they constitute a legal violation ,you will now have to determine in what court you will “bring your action.”
6
因篇幅问题不能全部显示，请点此查看更多更全内容