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Leon One: Legal System 法律制度

Part One

The United States is at once a very new nation and a very old nation.It is a new nation compared with 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 written constitution, the oldest continuous federal system, and the oldest practice of self-government of any nation.One of the most interesting features of Americans youth is that the whole of its history belongs in the period since the invention of the printing pre.The whole of its history is, therefore, 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 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 the 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 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 addre themselves in the same ways, to the same overarching problems, we have a right to read from them certain conclusions which we can call national characteristics.Part Two

The 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 steadily 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 historically 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” similar to that of claical 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 flexibility 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 aequo et bono, was first granted by the King, and later by his Chancellor as “keeper of the King's 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 competed 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 temporary or final order to do or not to do a specific act), the development of socalled 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 inadequate.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 uniquene attributed to real property.As the common law, equity law became part of American law either through judicial acceptance or through expre 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 States continue to maintain a separate chancery court.Neverthele, 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 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 damages applies or whether the “extraordinary” equity remedy of specific performance is available.“Case law” describes the entire body of judge-made 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 term “common law” in this usage connoting judge-made law in general as contrasted with statutory law.“Case law” always connotes judg-made law, while “common law” in contrast--depending on the meaning intended--describes either the judge made law in common law subject matters or，Leon Two：Legal Profeion 法律职业

Part One： The Bar

The regulation of the legal profeion is primarily the concern of the states, each of which has its own requirements for admiion to practice.Most require three years of college and a law degree.Each state administers its own written examination to applicants for its bar.Almost all states, however, make use of the Multistate Bar Exam, a daylong multiplechoice test, to which the state adds a daylong eay examination emphasizing its own law.No apprenticeship is required either before or after admiion.A lawyer's practice is usually confined to a single community for, although a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted.However, one who moves to another state can usually be admitted without examination if one has practiced 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 busine, 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 busine concern, or a law teacher, and may return to private practice from these other activities.A relatively small number of lawyers give up practice for responsible executive positions in commerce and industry.The mobility as well as the sense of public responsibility in the profeion is evidenced by the career of Harlan Fiske Stone who was, at various times, a succeful New York lawyer, a profeor and dean of the Columbia 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 profeion 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 lawyers domain includes advocacy, counselling, and drafting.Furthermore, within the sphere broadly defined as the “practice of law” the domain 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 others in formal proceedings of a judicial nature before some administrative agencies.The lines of demarcation are le 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.However, the strict approach of most American courts is indicated by a decision of New Yorks 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 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 Practice

Among these fifteen lawyers in practice, nine, a clear 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 aociates, a term applied to salaried lawyers employed by a firm or another lawyer.This trend toward group practice 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 the latter part of that century in the large cities near the financial centers.With the growth of big busine, 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 lawyers 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 busine problems and to participate at all steps in the shaping of their policies.Major busine transactions are rarely undertaken without advice of counsel.Part Three: House Counsel Out of every twenty lawyers, two are employed by private busine concerns, such as industrial corporations, insurance companies, and banks, usually as house or corporate counsel in the concerns legal department.The growth of corporations, the complexity of busine, 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 intimately 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 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 counsels skill as advisor rather than as advocate that is a valued aet.Constantly in touch with the employers problems, 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 Government A parallel development has taken place in government and two out of twenty lawyers are now employees 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 prelude 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 than 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 aistants, are appointed by the President and are subordinate to the Attorney General of the United States.State 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 government 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 centuries lawyers have made up roughly half of the Congre of the United States and of the state governors.These figures bear out the comment of Chief Justice Stone that, “No tradition of our profeion is more cherished by lawyers than that of its leadership in public affairs.” Leon Three: Legal Education 法律教育

In 1983, over 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 legal study programs.As virtually the only way to prepare for membership in the legal profeion, law schools in the United States fulfill several functions including profeional training and socialization of future lawyers and screening and gatekeeping for entrance to the profeion.Since there is no central institution where all lawyers practice, the only institutional experience which lawyers have in common is law school.The criticisms which range from “mild to caustic” of the way in which law schools have carried out these functions and of the functions themselves have been persistent, diverse and rooted in the historical and political development of the profeion.These criticisms have focued on the curriculum and the dominance of the case method;the distribution of power and prestige reflected in the hierarchy within and among the law schools;and the imbalance in terms of women and minorities in the student body and faculty in the law schools.Part One： Curriculum and the Case Method

The traditional first-year program offered in virtually all American law schools includes contracts, torts, property, criminal law and civil procedure.Duncan Kennedy has described the traditional first-year curriculum as basically teaching the ground rules for late 19th century laiez-faire capitalism.The second year and third year course expound the moderate reformist New Deal program and the administrative structure of the modern regulatory state.The peripheral subjects, if they are offered, include legal philosophy, legal history, legal proce, and clinical education, a “kind of playground or finishing school for learning the social art of self presentation as a lawyer”.However, as new areas of the law continue to develop in response to contemporary iues and problems, some law schools have expanded curricula to include courses and clinical programs in environmental law, housing and urban development, women`s rights, health in the workplace, welfare rights and consumer protection.There are also increasing efforts to teach law in interdisciplinary contexts, drawing on other disciplines such as history, psychology, sociology, medicine, and economics.In teaching the traditional curriculum, law teachers in almost all the law schools use to some extent the case method or the Socratic method.Developed in the 1870s by Christopher Columbus Langdell at the Harvard Law School, the case method looked to the common law as the source of legal priniciples and focued on the teaching of an abstract conception of the law as a science.The legal principles elicited were to be taught divorced from the “grubby world of practice--and also from politics, history, economics, and social contexts”.This narrow formalistic approach was justified on the ground that it taught students how to state, analyze, evaluate and compare concrete fact situations thus developing their powers and skills of analysis, reasoning, and expreion.However, this proce of learning “how to think like a lawyer” has been criticized as having an adverse impact both on the students and the quality of future lawyering.Students, law teachers, and others have pointed to the alienation, anxiety, hostility and aggreion caused by use of the case method or Socratic method.The narrow and destructive interaction of this dialogue, or often “no dialogue”, contributes to the impairment of the ability to care about other people, a profeional unemotionalism and cynicism on the part of law students.And it is not only the law students who suffer from this narrowing of their profeional selves.The work of a lawyer involves continuous contacts with clients, aociates, other lawyers, judges, witnees, others affected by the law, and involves the lawyer’s own goals, attitudes, performance, and sense of satisfaction.Part Two： Law School Hierarchy

Duncan Kennedy has described the law schools as “intensely political places”, characterized by a “tradeschool mentality, the endle attention to trees at the expense of forests.” The law schools function as the institution for “ideological training for willing service in the hierarchies of the corporate welfare state”.In the ranking and evaluation of students, students learn to accept their place in a hierarchy which is presented as just and inevitable and “so prepare themselves for all the hierarchies to follow”.In the law teachers modeling of hierarchical relationships with students, colleagues, secretaries and support staff, students learn a particular style of condescension towards perceived inferiors and deference towards perceived superiors.And under the subtle but intense preure to conform to the “white, male, middlecla tone” set by law faculties which are overwhelmingly white, male, and middlecla, law students adapt, “partly out of fear, partly out of hope of gain, partly out of genuine admiration for their role models”.In these ways, “legal education is one of the causes of legal hierarchy.Legal education supports it by analogy, provides it a general legitimating ideology by justifying the rules that underlie it, and provides it a particular ideology by mystifying legal reasoning.Legal education structures the pool of prospective lawyers so that their hierarchical organization seems inevitable, and trains them to look and think and act just like all the other lawyers in the system”.In addition to the hierarchy within the law schools suggested by Kennedy, other analyses of the law schools functions and relationship to the profeion suggest the existence of a hierarchy among the law schools.The top dozen or so elite law schools occupy a position of power and prestige which is partially reflected in the profeional career paths of their graduates and in the “old boy networks” connecting the law schools and the rest of the legal profeion.The models of the “law school as the gateway to the American power elite became poible with the New Deal”.Felix Frankfurter’s placement network for the “best and the brightest” into influential public policy positions during the New Deal in the 1930s was an early example of this kind of network.During his tenure at Harvard and later while on the Supreme Court, Frankfurter developed an “old boy network” which was intimately involved with the placement of many of the “elite” lawyers, all of whom were white and male, into public service.The typical Frankfurter recruit was “a graduate of Harvard Law School, politically liberal, usually ranked high in his cla, and either an obvious product of upper cla gentile culture or an obvious product of a radically different culture who was 'comfortable' in the upper cla gentile world”.In the current hiring practices of the major law firms and in the competition for judicial clerkships, and in the appointments to law faculties, the graduates of the elite schools continue to have an advantage over graduates of other schools.In a recent study of Chicago lawyers, Zemans and Rosenblum found that lawyers who attended “high-prestige law schools and graduated in the top 20 percent of their claes were much more likely to practice in large firms and specialize in high-prestige fields of law”.In terms of appointments to law faculties, 60% of the legal profeion’s teaching specialists are produced by fewer than 15% of the nations accredited law schools.These law teacher producer schools are mostly national, located in urban locations, and include schools such as Harvard, Yale, Columbia, University of Michigan, Chicago, New York University, Northwestern University, and Georgetown.If it is true that the fulltime faculty of the law schools “have a virtual monopoly on who will and will not enter the(legal)profeion” and “on the power to mold future generations”, then the existence of a hierarchy among the law schools suggests that an elite group of schools is primarily responsible for staffing the law schools, which in turn produce lawyers for the hierarchies within the profeion.Leon Four：Judicial System 司法系统

Part One： Courts

There are fifty-two separate court systems in the United States.Each state, as well as the District of Columbia, has its own fully developed, independent system of courts and there is a separate federal court system.The federal courts are not superior to the state courts;they are an independent, coordinate system authorized by the United States Constitution, Art.Ⅲ,§2, to handle matters of particular federal interest.The presence of two parallel court systems often raises questions concerning the relationship of the state and federal systems, presenting important iues of federalism.The United States Supreme Court, composed of nine justices, sits as the final and controlling voice over all these systems.Although a few states, such as Nebraska, have a two-tiered system, most states, as well as the federal courts, are based on a three-tiered model.That means that for any litigant there will be the opportunity to plead his case before a trial court and then, should he lose, there are two levels of appeal at which he ultimately may succeed.For example, in the federal system the trial court is the United States District Court, of which there is at least one in every state.Many larger states are divided into two, three or even four judicial districts, depending on population, geography and caseload.There are ninety-four districts in the United States and each district court has one judge, or more commonly two or more.After an adverse judgment in the district court, a litigant may appeal to the United States Court of Appeals for the circuit in which the district court is located.There are eleven numbered intermediate appellate courts in the federal system, each including anywhere from three to ten states and territories.Additionally, there is a Court of Appeals for the District of Columbia, hearing appeals from the federal district court there, and one for the Federal Circuit, taking appeals from various specialized federal tribunals, such as the Claims Court.Each court of appeals has four or more judges who sit in panels of three to review district court decisions, as well as some decisions of administrative agencies.A losing litigant in the court of appeals may, in some cases, be able to obtain review by the United States Supreme Court.Cases in the state courts similarly may proceed through a trial court, a state appellate court, and then the state supreme court.If a federal constitutional question is involved the decision of the state Supreme Court may be reviewed by the United States Supreme Court.Since 1988, review by the Supreme Court in civil cases is discretionary;virtually all civil appeals as of right to the highest court have been abolished.Three-tiered systems vary on the role which the highest court plays.The approaches taken reflect differing philosophies with regard to what the highest court should do.For example, in California only criminal cases in which capital punishment has been imposed are appealable as of right to the state supreme court.Similarly, in the federal courts, except in a few very limited circumstances, appeals to the United States Supreme Court are discretionary, by writ of certiorari.The Court decides for itself what are the most important questions that deserve its attention and will refuse to review decisions raising iues that it feels are not as crucial.In this way it supervises the administration of law by the lower courts on an ad hoc basis.At the other end of the spectrum, such as in New York, appeals to the states highest court are as of right in a great many cases provided for by statute.The primary function of the highest court in New York appears to be to aure that cases are correctly decided.It is neceary to check carefully the statutes of the system in which you are appearing to determine the specific rules regarding review by those appellate courts.Part Two： Judges

Fewer than one in twenty of those admitted to practice law is a federal, state, county, or municipal court judge.Except for some inferior courts, judges are generally required to be admitted to practice but do not practice while on the bench.There is so little uniformity that it is difficult to generalize further than to point out three salient characteristics that relate to the ranks from which judges are drawn, to the method of their selection, and to their tenure.Judges are drawn from the practicing bar and le frequently from government service or the teaching profeion.There is in the United States no career judiciary like that found in many other countries and there is no prescribed route for the young law graduate who aspires to be a judge, no apprenticeship that must be served, no service that must be entered.The outstanding young law graduates who act for a year or two as law clerks to the most distinguished judges of the federal and state courts have only the reward of the experience to take with them into practice and not the promise of a judicial career.While it is not uncommon for a vacancy on a higher court to be filled by a judge from a lower court, even this cannot be said to be the rule.The legal profeion is not entirely unaware of the advantages of a career judiciary, but it is generally thought that they are outweighed by the experience and independence which American lawyers bring to the bench.Many of the outstanding judges of the countrys highest courts have had no prior judicial experience.Criticism has centered instead on the prevalent method of selection of judges.State court judges are usually elected, commonly by popular vote, but occaionally by the legislature.Popular election has been the subject of much disapproval, including that of the American Bar Aociation, on the ground that the public lacks interest in and information on candidates for judicial office and that therefore the outcome is too often controlled by leaders of political parties.The situation has been somewhat improved since many local bar aociations have undertaken to evaluate the qualifications of candidates and to support or oppose them on this basis.Since 1937, the American Bar Aociation has advocated the substitution of a system under which the governor appoints judges from a list submitted by a special nominating board and the judge then periodically stands unopposed for reelection by popular vote on the basis of his or her record.Such a system is now in effect, for at least some judges, in a substantial minority of states.In a small group of states, judges are appointed by the governor subject to legislative confirmation.This is also the method of selection of federal judges, who are appointed by the President subject to confirmation by the Senate.Even under the appointive system the selection of judges is not immune from political influence and appointees are usually of the Presidents or governor’s own party.But names of candidates for the federal judiciary are submitted to a committee of the American Bar Aociation and appointment is usually made only with its approval.The office of chief judge or chief justice is usually filled in the same manner as other judicial offices, although in some states it is filled from among the members of the court by rotation, by seniority of service, or by vote of the judges.The Chief Justice of the United States is appointed by the President, subject to Senate confirmation.The third characteristic is that judges commonly serve for a term of years rather than for life.For courts of general jurisdiction it is typically four, six, or eight years, and for appellate courts, six, eight, or ten years.Happily, even where selection is by popular election, it is customary to return to office for sitting judges whose service has been satisfactory.In a few state courts and in the federal courts the judges sit for life.Whether on the bench for a term of years or for life, a judge may be removed from office only for gro misconduct and only by formal proceedings.Instances of removal have been rare indeed and only a handful of federal judges have been removed by formal proceedings.The independence of the judiciary is also encouraged by the rule that a judge incurs no civil liability for judicial acts, even if guilty of fraud and corruption.The American Bar Aociation’s Code of Judicial Conduct has been widely adopted as a standard to which judges are expected to adhere.Salaries for the higher judicial offices are usually good although le than the income of a succeful private practitioner, the prestige of these offices is high, and the bench has been able to attract many of the country’s ablest legal minds.The great names in American law are in large part the names of its great judges.Leon Five：Constitution 宪法

Part One： The Constitution as Supreme Law

The U.S.Constitution, a relatively simple document, is the selfdesignated “supreme law of the land”.This clause is taken to mean that when state constitutions, or laws paed by state legislatures or the national Congre, are found to conflict with the federal Constitution, they have no force.Decisions handed down by the Supreme Court over the course of two centuries have confirmed and strengthened this doctrine of constitutional supremacy.Final authority is vested in the American people, who can change the fundamental law if they wish, by amending the Constitution, or--in theory, at least--drafting a new one.The peoples authority is not exercised directly, however.The daytoday busine of government is delegated by the people to public officials, both elected and appointed.The power of public officials is limited.Their public actions must conform to the Constitution and to the laws made in accord with the Constitution.Elected officials must stand for reelection at periodic intervals, when their record is subject to intensive public scrutiny.Appointed officials serve at the pleasure of the person or authority who appointed them, and may be removed when their performance is unsatisfactory.The exception to this is the lifetime appointment by the President of Justices of the Supreme Court and other federal judges.Most commonly, the American people expre their will through the ballot box.The Constitution, however, does make provision for the removal of a public official from office, in cases of extreme misconduct or malfeasance, by the proce of impeachment.Article Ⅱ, Section 4 reads: “The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” In such cases, the House of Representatives must vote a bill of impeachment.The public official is then tried in the Senate, with the Chief Justice of the United States presiding at the trial.Impeachment is considered a drastic measure in the United States.In the past 200 years, only 13 U.S.officials have been impeached: nine judges, an Aociate Justice of the Supreme Court, a Secretary of War, a Senator, and a President, Andrew Johnson.(In the case of another President, Richard Nixon, although the House Judiciary Committee recommended impeachment the President resigned before a House vote was taken.)Out of the thirteen cases, only four judges have been convicted and removed from office.State officials are similarly subject to impeachment by the legislatures of their respective states.In addition to setting forth general political ideas, the Constitution provides the blueprint for the governmental system.The three major articles describe the three branches of the national government--legislative, executive and judicial--each with specific duties and responsibilities.Subjects on which the legislative branch can make laws are set out in considerable detail, although over the years judicial decisions have expanded the scope of congreional activity.The powers and duties of the President, as head of the executive branch, are described.A system of federal courts is outlined, and its relationship to other branches of government is set forth.Part Two： The Principles of Government

Although the Constitution has changed in many aspects since it was first adopted, its basic principles remain the same now as in 1789: The three main branches of government are separate and distinct from one another.The powers given to each are delicately balanced by the powers of the other two.Each branch serves as a check on potential excees of the others.The Constitution, together with laws properly paed according to its provisions, and treaties entered into by the President and approved by the Senate, stands above all other laws, executive acts and regulations.All men are equal before the law and are equally entitled to its protection.All states are equal, and none can receive special treatment from the federal government.Within the limits of the Constitution, each state must recognize and respect the laws of the others.State governments, like the federal government, must be republican in form, with final authority resting in the people.The people have the right to change their form of government by legal means defined in the Constitution itself.Part Three: Provisions for Amendment The authors of the Constitution were keenly aware that changes would be needed from time to time if the Constitution were to endure and keep pace with the growth of the nation.They were also conscious that the proce of change should not be facile, permitting illconceived and hastily paed amendments.By the same token, they wanted to aure that a minority could not block action desired by most of the people.Their solution was to devise a dual proce by which the Constitution could be changed.The Congre, by a two thirds vote in each house, may initiate an amendment.Or the legislatures of two thirds of the states may ask Congre to call a national convention to discu and draft amendments.In either case, amendments must have the approval of threefourths of the states before they enter into force.Aside from the direct proce of changing the Constitution itself, the effect of its provisions may be changed by judicial interpretation.Early in the history of the republic, in the landmark case of Marbury vs.Madison,the Supreme Court established the doctrine of judicial review, which is the power of the Court to interpret acts of Congre and decide their constitutionality.The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to changing legal, political, economic and social conditions.Over the years, a series of Court decisions, on iues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has had the effect of altering the thrust of constitutional law, with no substantive change in the Constitution itself.Congreional legislation, paed to implement provisions of the basic law, or to adapt it to changing conditions, also broadens and, in subtle ways, changes the meaning of the Constitution.Up to a point, the rules and regulations of the myriad agencies of the federal government may have a similar effect.The acid test in both cases is whether, in the opinion of the courts, such legislation and rules are in conformity with the intent and purposes of the Constitution itself.Leon Seven: Criminal Law 刑法

Homicide is the killing of one human being by another human being.Not all homicides are criminal, however.For instance, a person who kills another in selfdefense has committed no crime;it is justifiable homicide.The same is true of the police officer who kills a person to prevent the commiion of a forcible felony, such as robbery or burglary, when the killing is a reasonably neceary preventive measure;or when the officer kills a dangerous felon in order to prevent his escape.Then, too, some killings are excusable homicides;for instance, where a person accidentally, and without gro negligence, causes the death of another individual.A killing amounts to a criminal homicide when it is done without lawful justification or excuse.Depending upon certain circumstances it may be either murder or manslaughter.In the early days of our country, and prior thereto in England, the elements of the crimes of murder and manslaughter were prescribed by court decisions.These decisions came to be known as the “common law”.Since then, in most jurisdictions murder and manslaughter have been redefined by the legislatures, either in the form of a separate statute or as a provision of a criminal code.1.Murder According to the common law, murder was the killing of a human being with “malice”, and the requirement of “malice” is still found in some presentday statutes and codes.The California Penal Code, for instance, has retained it.That code provides, as did the common law, that “...malice may be expre or implied.It is expre when there is manifested a deliberate intention to take away the life of a fellow creature.It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

A clear illustration of expre malice is a case where one person intentionally pushes another off the side of a mountain.An example of implied malice is where a person fires a rifle at a moving paenger train, just “to scare” the persons aboard or to display skill at firing a bullet between the cars without hitting anyone.The dangerousne of the conduct would be evidence of “malice” as regards any killing that may be reasonably attributed to such conduct.It would indicate, to a California court or jury, “an abandoned and malignant heart”.The penalty for murder is punishable by death in some states;in others by prison terms extending to “life” or a specified number of years.(a)FelonyMurder

Another example of a satisfaction of the element of malice is a killing during the course of a felony such as robbery.Even though a robbers gun goes off accidentally, killing the robbery victim, or a bystander, or a police officer, his conduct of committing such a dangerous crime as robbery satisfies the requirement of malice so that the killing becomes punishable as murder.A similar line of reasoning has resulted in holding cofelons guilty of murder where, in the course of an exchange of shots between robbers and the police, a police officer is accidentally killed by another officer.Malice may also be attributed to a robber whose partner in the crime intentionally kills someone during the commiion of the crime or the attempted escape.Malice on the part of all participants is implied from the dangerousne of the robbery itself;moreover, each robber is considered to act as an agent for the others in accomplishing their objective, including the attempt to escape.This whole iue of felonymurder stems primarily from the prosecutions interest in seeking the death penalty for such killings.In some of the states which have abolished capital punishment(Wisconsin, for example), the legislatures, out of an understandable desire to punish robbers more severely whenever a killing results, have provided that the punishment for such offenses shall be fifteen years greater than that provided for nonfatal robberies.(b)Degrees of Murder Some states have specified varying penalties for murder, depending upon the ci

rcumstances of the killing.A “willful, deliberate and premeditated” killing, such as a poisoning or a killing during the commiion of a dangerous felony, may be labeled first degree murder and punishable by death or long imprisonment.Other forms of murder may be of the second degree and punishable with a leer penalty.According to the common law, however, there were no degrees of murder.Any unlawful killing was either murder or manslaughter.2.Manslaughter Manslaughter was defined at common law as an unlawful killing of another without malice.It could be either voluntary or involuntary.Manslaughter, in contrast to murder, is usually punishable by a prison term which may range from one year to ten or fourteen years.(a)Voluntary Manslaughter An intentional killing upon “great provocation” and “in the heat of paion” constitutes the crime of voluntary manslaughter.A claic example is the killing by a husband(or wife)who unexpectedly finds his or her spouse in an act of sexual intercourse with another person, or in a situation evidencing impending or immediately concluded adulterous conduct.A killing of the paramour or of the spouse, or both, in such a circumstance would fall within the category of manslaughter because(a)the provocation was great, and(b)the killer was in the “heat of paion”.A killing of this type is treated le harshly than murder, out of consideration for the frailties of human nature.In other words, there is an understanding appreciation that the instinctive reaction of the husband(or wife)in such a situation is to kill or do other serious harm.Neverthele, there is a feeling that such conduct should be discouraged by a criminal sanction, but one with a penalty considerably le than for the crime of murder.It is of interest to note that in such paramour killing cases the conviction rate is quite low, primarily because of the willingne of juries to accept occasionally the frequently concocted explanation that the killing was done in selfdefense;in other words, the paramour attacked the spouse, who killed his “attacker” only in order to keep from being killed himself.The result of acquittal in such cases is sometimes described in the pre as an acquittal by reason of “the unwritten law”.A few states(Texas, New Mexico, and Utah)have tried to simplify the whole matter of paramour killings by legalizing such killings where the paramour is caught in the act.But in those states the privilege does not extend to the killing of the participating spouse!

In applying the test of whether an intentional killing was upon great provocation and in the heat of paion, the question is put to the jury, or to the judge in nonjury cases, as to whether the accused reacted as a “reasonable man”.Technically speaking, it is not the particular sensitivity or temper of the killer that is taken into consideration, but rather an effort is made to determine how a “reasonable man” might have acted under similar circumstances.An illustration of this is a famous English case where a sexually impotent man felt insulted by the remarks of a prostitute with whom he had tried in vain to have sexual intercourse, and he proceeded to kill her.He contended that his sensitivity over his condition should be taken into account in determining whether there was serious provocation for this reaction, but the court held that his conduct was to be judged by the standard of an ordinary, normal “reasonable man”.(b)Involuntary Manslaughter Involuntary manslaughter may be described generally as an unintentional killing resulting from gro negligence, or as a result of dangerous unlawful conduct.For example, a person who throws a heavy object from the upper stories of a building into an alley used with some frequency by pedestrians may be guilty of manslaughter if a killing results.Likewise, a motorist may commit manslanghter if he kills a child at a school croing while travelling at an exceive speed.A number of states have created a related crime known as “reckle homicide” or “negligent homicide”, for application to killings by motorists who were driving in a reckle or groly negligent manner.This special kind of homicide legislation was enacted because of the difficulty encountered in convicting motorists for the more revoltingly labeled offense of manslaughter(i.e., the slaughter of a man), which also carried, traditionally, a minimum penalty of one year in the penitentiary.It was thought advisable to categorize such conduct with the le revolting label of reckle or negligent homicide and also to permit the imposition of leer penalties than the one prescribed for manslaughter.Stated another way, it is better to obtain a reasonable number of convictions carrying relatively light penalties than to get very few convictions carrying heavy penalties.The permiible range of penalties in reckle homicide or negligent homicide statutes is generally a fine up to $1,000, or incarceration other than in a penitentiary for any period up to one year, or imprisonment in a penitentiary up to five years.(Where the traffic victim of such conduct does not die, another new statutory offense may be invoked--“reckle conduct”.)

The flexibility of penalties in traffic death cases has the effect of encouraging pleas of guilty from offenders, and it results in convictions that might not be secured if a judge or jury had no choice other than a penitentiary sentence or an acquittal.3.Federal Homicide Law There is no general federal homicide law.There can be none, in fact, since constitutional authority is lacking for Congre to legislate upon the subject, except with respect to killings within a federal territory, in federal buildings or upon other federal property, or killings of federal officials or officers.Example X, without justification or excuse, shoots and kills Y in a Post Office.X has committed a federal offense of criminal homicide.Example X, a bank robber fugitive about to be apprehended by an F.B.I.agent, shoots and kills the agent.X is guilty of a federal crime of murder.4.Modern MurderManslaughter Legislation In most states the crimes of murder and manslaughter are covered in state statutes closely patterned after the common law.A trend is now under way, however, to modernize the law.The 1961 Illinois Criminal Code is a good example.In defining murder, for instance, it avoids such language as “malice” and “abandoned and malignant heart”, and uses more precise and meaningful terminology.According to the Illinois Code, a person who kills another individual without lawful excuse commits murder(a)if he intended to kill him or do great bodily harm;or(b)if, without intending to kill, it clearly appears that he must have known that his conduct probably would cause death;or(c)if death resulted from the commiion of a very serious crime like robbery, burglary or rape.5.Capital Punishment For many years there has been much controversy as to whether capital punishment serves its intended purpose--a deterrent to murder.The iue is still unresolved among researchers on the subject.The capital punishment controversy has become rather academic, however, by reason of the rapid decline in executions in recent years.Although there were 199 executions in 1935, there was only one in the entire United States in 1966, two in 1967 and none in 1968.Yet in each of the latter three years over four hundred persons were under sentence of death.In addition to an increasing unwillingne to execute murderers who have been sentenced to death, a legal concept was recently developed and enunciated by the Supreme Court of the United States regarding jury selection in capital cases that will make jury imposition of the death penalty much more difficult to obtain.The Court held that prospective jurors could not be rejected solely because of conscientious scruples against the death penalty.To do so, said the Court, constitutes a deprivation of due proce, because the defendant would not then be accorded a trial by a “fair and impartial jury”.Exclusion because of such beliefs alone is permiible only when the prospective juror states that he would not consider setting them aside in the particular case for which he was called for jury service.