法律英语教案 an unwritten constitution i. suggested teaching plan objectives students will...

法律英语教案 An Unwritten Constitution

I. Suggested Teaching Plan Objectives Students will be able to: 1. understand the main idea (the function of each

organ of the government and their relationship in England) of the text;

2. master some related legal terms; understand how the government work

3. conduct a series of reading, listening, speaking and writing activities

related to the theme of the unit.

Time allotment 1st period pre-reading activities

(familiar new words, warming-up questions and background information)

2nd period while reading (highlights of the text)

3rd period highlights of the text 4th period after-reading activities

II. Teaching Method(s) 1. ppt or 2. teacher gives lecture mainly or 3. students read, teacher asks question

s with detailed explanation or 4. ask students do ppt to do presentati

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III. Cultural Background Notes 1. Parliament 议会。指三权分立制的国家的最高立法机关。议

会起源于英国。英国议会分上议院和下议院 2 ． Elizabeth II 伊丽沙白二世。英国女王， 1952 年登基。 3 ． Cabinet 内阁。 A group of the most important governm

ent ministers, responsible for advising and deciding on government policy

4 ． House of Commons 下议院。亦称‘平民院’，由郡、市、自治市的代表组成。

5 ． House of Lords 上议院。亦称‘贵族院’，由宗教贵族、世俗贵族及一部分苏格兰贵族组成。

6 ． The gentleman Usher of the Black Rod 黑杖侍卫先生。英国上议院官员，第一个黑杖侍卫是 1361 年设立的。在议会中他控制陌生人进入，帮助同级贵族之间互相介绍，惩治侵犯王权和蔑视王权的人。

IV. Detailed reading Pre-reading tasks Warming-up questions 1. How much do you know about

English constitution? 2. Can you guess what the theme of

this unit refers to? 3. Can you say something about the

organ of the English government?

Contents: constitution the system of laws and basic principles that a

state, a country or an organization is governed by unwritten constitution a body of fundamental legal and governing

principles that evolved over time, finds its strength in generations of acceptance, and is expressed though royal decrees and concessions, statutes, case law, and hallowed tradition.

-- Great Britain has an unwritten constitution.

sovereign a king, queen, or similar supreme ruler the government of an independent state or

nation; the supreme legal authority monarch a person who rules a country or an empire executive branch pertaining to the branch of government charged

with implementing the law, headed at the state level by the governor of each state and at the national level by the President, and operation through executive departments and administrative agencies.

commander-in-chief the officer who commands all the armed

forces of a country or all its forces in a particular area

bill a written suggestion for a new law that is

presented to a country’s parliament so that its members can discuss it

--- to approve/reject a bill; --- the Education Reform Bill

queen’s tasks (1)head of the Executive branch; (2)head of the court system; (3)commander-in-chief of armed forces; and (4)head of the Church of England

--- powers are few Cabinet prime minister is the head of the

Cabinet; ministers of the group is made up of leaders of the political party, which has the most seats in the House of Commons

---govern the nation Prime Minister advice queen appoints other

ministers (from) House of commons / House of Lords

House of Commons elected by people; represent the voice of people --- 630persons, where money and the policies of the government can be talked about warmly ； elections for seats in Commons every 5 years (Prime Minister can call for elections if he feels necessary)

---most powerful body in the government House of Lords life peers and those from Ch

urch—join debate to influence the course of government

---few powers

… the door is slammed in his face 议会大门砰地一声把他关在门外

… and he can deliver the Queen’s message 他才能传送女王的旨意

V. After-reading activities A. Try to do the exercises according to the

text. 1. Comprehension of the text. Answer the following questions 1). What is the form of government based on in

Britain? 2). According to the text, which of the following does

not hold power? 3). Which of the following causes a new election of

the Cabinet? 4). Where are the policies of the government warmly

discussed and closely watched? 5). How often is the election for seats in Commons

held?

2. Vocabulary Compare and contrast the following pair

of words. unlike/dislike responsible/responsibility

decide/decision approve/approval represent/representative

3. Grammar Use of noun word Choose the right answer from the four

choices given

B. Supplementary reading The British constitution is just as important to the

British as the U.S. Constitution is to the Americans. Nevertheless, it is not ‘written’; that is to say, it has never been wholly reduced to writing. Further, since Parliament is ‘sovereign’ it can, without any special procedure, and by simple Act, alter any law at any time, however fundamental it may seem to safeguard the rights of the subject and although certain legal remedies, such as habeas corpus, are designed to protect him, yet, under the British Constitution, there are no guaranteed rights similar to the fundamental liberties safeguarded by the U.S. Constitution

The statement that the British Constitution is not ‘written’ does not mean that British possess no important constitutional documents; it merely means that the constitution is not embodied in any single document, or series of documents, containing British essential constitutional laws. Thus British have many enactments which either have been or still are, of great importance. One need only cite as examples Magna Carta (1215), the Bill of Rights (1688)—which sets out the principal rights gained by Parliament and the nation as the result of the seventeenth century constitutional struggles – the Act of Settlement (1700), and the Parliament Acts 1911 and 1949.

Torts

I. Suggested Teaching Plan Objectives: Students will be able to: understand the main idea (the knowledge of t

ort law)of the text; 2. master some related legal terms; 3. conduct a series of reading, listening, speak

ing and writing activities related to the theme of the unit.


(familiar new words, background information)





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III. Cultural Background Notes Tort, in law, the violation of some duty clearly set by law, not by a s

pecific agreement between two parties, as in breach of contract. When such a duty is breached, the injured party has the right to institute suit for compensatory damages. Certain torts, such as nuisance, may be suppressed by injunction. Many crimes are also torts; burglary, for instance, often constitutes trespass.

The history of Anglo-American tort law can be traced back to the action for trespass to property or to the person. Not until the late 18th cent. was the currently observed distinction made between injury willfully inflicted and that which is unintentional. In the early 19th cent., negligence was distinguished as a separate tort, and it has come to supply a large portion of tortious litigation.

IV. Detailed reading Pre-reading tasks 1. How much do you know about

Torts law? 2. What can be covered in torts law?

Contents tort a wrongful act, other than a breach of contract, that results in injur

y to another’s person, property, reputation, or some other legally protected right or interest, and for which the injured party is entitled to a remedy at law, usually in the form of damages

tortfeasor a person or entity that commits a tort trespass 1. n. in the broadest sense, any unlawful conduct, esp. any wrongfu

l interference with the person or property of another --- trespass to goods/person 2. n. the common law form of action to recover damages for wrongf

ul interference with one’s person or property.

wrong the violation of or failure to perform a legal d

uty, or the infringement of another’s legal rights

--- civil wrong 民事过错 fellow servant rule/doctrine 共同雇员原则 the common law rule that employer is not lia

ble to an employee for injuries resulting from the negligence of a fellow employee on the job. This rule has been abolished in 1948.

Farwell v. Boston & Worcester Rr. Corp. Farwell 诉波士顿和伍斯特公司案

‘v.’ abbreviation for ‘versus’, meaning ‘against,’ in case names; usually read as a letter rather than a word.( pronounced vee)

administrative law the body of law that deals with the duties and operatio

ns of administrative agencies ---administrative system 行政制度 negligence conduct involving an unreasonable risk of injury or los

s to others; conduct that falls short of the degree of care that a reasonable person would have exercised in the same circumstances

recover to obtain through litigation—usually money or

property, but sometimes other relief; usually compensation for what has been lost, but sometimes punitive damages

reasonable man/person a person of ordinary intelligence and prudence strict liability civil or criminal liability imposed upon a person

without regard to whether the person intentionally or knowingly did anything wrong or was in any way reckless or negligent. In tort law, also called ‘liability without fault’

V. After-reading activities A. Try to do the exercises according to the

text. 1. Comprehension of the text. 1) What is the common characteristic of the

behaviors defined as civil wrongs? 2) Which category of civil wrongs has not grown

rapidly in the 20th century? 3) As for the product liability, to whom the court

judgments are favorable in the 20th century? 4) According to the text, what is the fundamental

concept of tort law?

2. Vocabulary Study the following pairs of words

and try to use them correctly privacy/private behavior/behave

negligent/negligence imagine/imaginary

define/definition 3. Grammar Use of pronouns

B. Supplementary reading Torts law is the body of law that deals with civil wrongs,

except those that arise from contract problems. The purpose of torts is to compensate an injured party through the award of damages for the injuries incurred during a tortuous act. Policy considerations, such as maintenance of a peaceful society, deterrence, social responsibility and balancing of economic interests against societal benefits, play vital roles in tort law because it attempts to find a balance between the harm caused to individuals and the benefit to society. Of course, societal wrongs are also dealt with in criminal law. The difference is that a tort is a wrong against an individual, whereas a crime is a wrong against society as a whole. However, some acts or omissions may be both criminal offenses and tortuous ones. A simplified equation to explain the elements of a tort action is

act/omission + personal/property interest + intent/negligence/

inadvertence/mistake = tort obviously it would be impossible for any bo

dy of law to address every injury, so the questions then become, under what conditions should liability be imposed? What factors affect liability? And what types of damages/remedies are presumed sufficient under the law to redress these wrongs?

C. Case Reading Miller v. Jackson The facts: The plaintiffs owned a house adjoining a cricket

ground. Cricket had been played on the ground for a long time before the house has been built. The plaintiffs complained of damage caused by cricket balls and loss of enjoyment of their property. They brought an action against the cricket club for private nuisance seeking damages (the common law remedy) and an injunction (an equitable remedy) to prevent cricket being played on the ground. The cricket club argued that it had done everything that was possible to stop the balls coming into the plaintiffs’ garden, including erecting a fifteen foot high fence.

Held: The cricket club was liable to the plaintiffs for private nuisance. And award of damages was made against them but a majority of the court of appeal refused to grant an injunction preventing the playing of cricket.

Opinion: the court when deciding whether to exercise its equitable jurisdiction and grant an injunction must have in mind that it is under a duty to consider the public interest. Where the effect of granting an injunction would be to prevent cricket being played on a ground where it had been played for seventy years or so, the special circumstances are such that the public interest must prevail over the hardship of the individual householders who were deprived of the ability to enjoy, in peace and quiet, their house and garden while cricket was being played.

Crimes and Punishments

I. Suggested Teaching Plan Objectives Students will be able to: 1. understand the main idea (the general knowledge

of crimes and punishment) of the text; 2. master some related legal terms; 3. conduct a series of reading, listening, speaking

and writing activities related to the theme of the unit. 4. try to understand the criminal procedure



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III. Cultural Background Notes Laws are the conditions under which men, naturally independent,

united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation and was deposited in the hands of the sovereign, as the lawful administrator. But it was not sufficient only to establish this deposit; it was also necessary to defend it from the usurpation of each individual, who will always endeavour to take away from the mass, not only his own portion, but to encroach on that of others. Some motives therefore, that strike the senses were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established, against

the infractors of the laws. I say that motives of this kind are necessary; because experience shows, that the multitude adopt no established principle of conduct; and because society is prevented from approaching to that dissolution, (to which, as well as all other parts of the physical and moral world, it naturally tends,) only by motives that are the immediate objects of sense, and which being continually presented to the mind, are sufficient to counterbalance the effects of the passions of the individual which oppose the general good. Neither the power of eloquence nor the sublimest truths are sufficient to restrain, for any length of time, those passions which are excited by the lively impressions of present objects.

IV. Detailed reading Pre-reading tasks 1. What do you expect to learn from this

unit? 2. What will appear in your mind once you

talk about crimes and punishments? 3. Do you think we should impose serious

punishments on crimes to protect the safety of society?

Contents : justice 1. the ideal of fair and beneficent treatment of all peop

le by each other and by their governments, which law in a democratic society attempts to serve

2. the system of law and administration of law ---criminal justice 刑事司法 3 ． a judge or magistrate in certain courts, particularl

y those designated ‘supreme’ and inferior courts at the very lowest level.

---justice of the peace 治安法官

fraud the tort of obtaining money or property

by means of a false portrayal of facts, either by words or by conduct. Also called actual fraud or fraud in fact.

statute a written law; --- statute of frauds 反欺诈法

code an organized compilation of statutes or rules --- penal code 刑法典 self-defense the use of reasonable force against an aggress

or by one who reasonably believes it necessary in order to avoid imminent bodily harm. It is a justification for conduct that would otherwise be a crime or tort

a peeping Tom a person who likes to watch people secretly when they

are taking of their clothes 窥视者汤姆；有窥裸癖者 felony a serious crime, usually defined as one punishable by

death or by imprisonment for more than one year misdemeanor a crime less serious than a felony, usually one punisha

ble by incarceration for up to one year, in some states misdemeanors include some offenses punishable only by a fine

V. After-reading activities A. Try to do the exercises according

to the text. 1. Comprehension of the text. 1) Which aspect of law are ordinary

people most familiar with? 2) What kind of criminal conduct can be

found in a federal government code? 3) In which country was it illegal to own

gold in the past?

2. Vocabulary Compare and contrast the following

pair of words crime/criminal vary/variable

threat/threaten violate/violation burglar/burglary 3. Grammar Use of verb.

B. Supplementary reading 1. Criminal law is a very broad and

complex subject. This complexity relates to the nature of crime. Criminal acts vary in seriousness; the same act may be a criminal offence in one country and not in another. Equally, the same act can be both a criminal offence and a civil wrong. Some of these problems are discussed in the following extract.

Most people have heard of the saying that “ignorance of the law is no defence” which is the result of another well-known phrase or saying that “everyone is presumed to know the law.” Unlike many maxims which have no basis in reality, these do represent the very harsh rule in criminal law that it is no defence to a criminal charge that the person charged was unaware that the act he was performing was a criminal offence. Nor would it make any difference to his guilt or innocence that he had consulted a lawyer who had told him that there was no such offence

This gives rise to several questions. For instance what is a crime and how do you know whether given conduct is or is not a crime? What such questions are not unreasonably looking for is a definition of crime which will at the same time act as an infallible test by which to determine whether given conduct is a crime. Unfortunately no such definition has ever, or is ever, likely to be found. The best that can be offered is to say that a criminal offence is conduct which may be followed by criminal proceedings and sentence. This is every little help to the man in the street who wants to know whether it is a criminal offence to drive a car without properly working windscreen wipers, but given that you can find out whether or not certain conduct can or cannot be followed by criminal proceedings, it is a watertight definition of a crime. Thus in this country adultery cannot be followed by criminal proceedings so therefore it is not a crime. Intercourse with a woman without her consent can be followed by criminal proceedings and is therefore a crime.

C. Watch film The Twelve Angry Men , then ask the students to discuss it. (2periods)

The Jury

I. Suggested Teaching Plan Objectives Students will be able to: understand the main idea (the history of jury

system in common law system; the type of jury)of the text;

2. master some related legal terms; 3. conduct a series of reading, listening, speak

ing and writing activities related to the theme of the unit.


s with detailed explanation or 4. ask students to do preparation of the

text and then do presentations

III. Cultural Background Notes The jury originated in England in 1166. The

English had used a 12 person jury to bring charges and then trial was by combat or ordeal (holding red hot iron, being thrown into water to see if you floated, etc.). The Catholic Church outlawed the ordeal and the Normans who had conquered England and were now making the law had to come up with a new method of trial. They made the 12 person jury (the petit jury) the trial jury and created a new 23 person "grand" jury to investigate and bring charges.

The voir dire is the process used to select a jury. A random cross-selection of persons in the community in which the trial is to occur is summoned to the courtroom. The prospective jurors take the stand and are presented a variety of questions by the prosecution and defense in an attempt to select a jury acceptable to both sides. Jurors are excluded by one or two methods. Jurors are excluded by one or two methods. The first, called the peremptory challenge, allows either side to have prospective jurors excused without having to specify a particular reason. These types of challenges are typically limited to six in nonserious cases and twelve in felony or capital cases. The second method, called the challenge for cause, allows for the exclusion of a juror only if the excluding party (defense or prosecution) demonstrates that the individual cannot be impartial or cannot otherwise handle the responsibility of making a rational decision. Jurors are excluded who (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; (4) are otherwise considered to be incapable of remaining impartial until the case is presented. There are no limits to the number of challenges for cause that either side may employ.

V. Detailed reading Pre-reading tasks 1. Does China have jury system or

similar construction? 2. Does every legal system have

jury system? 3. How much do you know about

jurors’ responsibility in a case?

Contents jury a group of citizens called upon to hear the evidence at

a trial, decide the facts, and render a verdict in accordance with the judge’s instructions on the law

petit jury (law French.) small, minor, lesser. Used in various legal

phrases, often in contrast to Grand. grand jury (law French. ) large, major, greater. Used in certain

phrases, usually in contrast to petit or petty. A group of citizens summoned to hear evidence presented by a prosecutor and issue an indictment if they find sufficient evidence to warrant trying a particular person for a particular crime

indictment the act of a grand jury in formally

charging a person with a crime, or the written instrument setting forth the charge. The written indictment is typically drawn up by the prosecutor, voted on by the grand jury after hearing evidence, endorsed with the words ‘a true bill’ is approved by the jury and then filed with the court, where it becomes the instrument upon which the rest of the case is based.

equity one of the two systems of justice that grew up

side by side in England and together gave rise to the present-day system of justice in both England and the US. It was a flexible system in which judges were able to fashion remedies for situations that did not fit within principles followed in the courts of law; it was less concerned with technicalities and more concerned with reaching a fair result.

in this country ‘country’ here refers to jury

verdict the jury’s decision in a case --- general verdict 总括性裁断 --- special verdict 特别裁断 precedent a judicial decision cited as authority by an attorney or

court in a subsequent case involving similar or analogous facts and issued

judgment a court’s final decision in a case, or occasionally on a

particular aspect of a case

VI. After-reading activities A. Try to do the exercises according

to the text. 1. Comprehension of the text. 1) What is the task of the grand jury? 2) In which country was jury abolished

according to the text? 3) How many types of jury? And what are

they? 4) Why did the Carolingian kings develop

the inquest?

2. Vocabulary Compare and contrast the following pair

of words accusation/accuse sufficient/insufficient

innocent/innocence suspect/suspicion

incompetence/incompetent 3. Grammar Adverbial clause

B. Supplementary reading Use of the jury in the United States depends on two

factors: the degree to which it is available as a matter of right and the degree to which the parties themselves choose to use it. The laws as to its availability have varied from state to state, but in 1968 in Duncan v. Louisiana the United States Supreme Court declared that a jury trial is a constitutional right in all criminal cases in which the penalty may exceed six months’ imprisonment. In civil cases its constitutional status is less clear, but in general, jury trial is available. The practice of allowing the parties to waive a jury trial also varies widely from region to region, and, as a result, the number of jury trials per year also varies widely. The annual number of criminal trials per 100,000 population ranges between 3 for Connecticut to 144 for Georgia.

contracts

Teaching Plan: objectives Students will be able to: 1. understand what makes a valid

contract; 2. master some related legal terms; 3. conduct a series of reading, listening,

speaking and writing activities related to the theme of the unit.

Teaching Plan: time allotment 1st period pre-reading activities

(familiar with new words, terms, and background information)


3rd period while reading (highlights of the text )

4th period after-reading activities

Teaching methods

Students read, the teacher asks questions and give detailed explanation by using PPT, or

Ask students to do PPT and presentation then the teacher gives comments and summary.

--- This should be done paragraph by paragraph.

Background Notes

Sir Henry Maine: 梅因 · 哈里爵士（ 1822-1888 ）。英格兰法学家，杰出的古典派学者。 1861年出版的《古代法》（ Ancient Law) 为他赢得了很大的声誉。在此书中，梅因提出著名的概括：所有进步社会的运动，迄今为止，都是一个从身份到契约的运动。

Samuel Williston: 塞缪尔·威利斯顿（ 1861-1963 ）。对法律的主要贡献是《销售法》（ The Law of Sales) 和《合同法》 (The Law of Contract), 这些著作对统一美国各州内几个州之间贸易惯例起了很大的促进作用。

New words and phrases

by and large used when making a general statement e.g. By and large, the new arrangement

s have worked well. caste one of the fixed social classes, which ca

nnot be changed, into which people are born in India

the caste system(种姓制度）

gobble sth up if one company gobbles up a smaller company, it buys it and takes control of it

Air France gobbled up its main French rivals, Air Inter and UTA.

stock IN A SHOP a supply of a particular type of thing that a shop has available to sell. e.g.

--- We have a huge stock of quality carpets on sale.

treatise: a serious book or article about a particular subject

e.g. a treatise on medical ethics lore: knowledge or information about a subject, for ex

ample nature or magic, that is not written down but is passed from person to person, e.g.

According to local lore, a ghost still haunts the castle. at the drop of a hat ： immediately and without pausi

ng to think about what you are going to do, e.g. Some of these corporations threaten to sue at the dro

p of a hat.

Legal terms

Capacity: 行为能力，在法律上指享受或行使权利和承担义务的能力

Offer Accept Consideration Sales for credit, 信用交易 Promissory notes Negotiable instruments

Promissory notes: a written promise to pay at a fixed or determinable future time a sum of money to a specified individual or to bearer,本票，期票

negotiable instrument: check, promissory note, bill of exchange （汇票） , security （有价证券） or any document representing money payable which can be transferred to another by handing it over (delivery) and/or endorsing it (signing one‘s name on the back either with no instructions or directing it to another, such as “pay to the order of Pamela Townsend”). （可流通票据）

Pre-reading tasks

What is a contract? What can people do with contracts?

Paragraph 1

Contracts: concerns voluntary agreements A bargain or agreement between

two people (or more) to do some work, which one person or company promises to do in exchange for a counter-promise (usually a promise to pay money)

Paragraph 2

From Status to Contract: “ Ancient Law” Sir Henry Maine, the great English

jurist Meaning: the legal relations do not

depend primarily on birth or caste but on voluntary agreement.

e.g. Elizabeth II, but “I” make payments on a used yellow

Plymouth

Paragraph 3

A regime of contract is: fundamental to modern society An economy organized around

voluntary agreements, governed mainly by the market

Not the same as the law of contracts, which deal with only certain aspects of the market, and with certain kinds of agreement

Paragraph 4

In legal terms, a contract is: A promise (or set of promises) that

the law protects and enforces. e.g. seller: promise to deliver a carload

of lumber buyer: promises to pay the seller a

certain price If one party breached the contract,

the other party can choose to sue.

Paragraph 5

A valid contract, Two parties, both have legal “capacity”, a sma

ll child or an idiot cannot enter into a contract One side must make an “offer”, and the other

side must “accept” it. --- A department store ad announcing an “offe

r” of sth. for sale at a low price, is probably not making a legal offer. --- no actual promise to sell

--- An offer --- legally a promise

Paragraph 6

“offer” and “acceptance” are promises and must be supported by “consideration”, which is:

a mysterious substance, an intricate legal concept underlying idea: each party makes his promise “in co

nsideration” of something the other party promises. e.g. I offer to sell my old car for $2,000, the buyer acce

pts (promising to pay $2,000) --- consideration on each side is clear.

e.g. I promise to give my daughter a handful of diamonds --- there is no “consideration” for my promise.

--- she has no right to sue me or my estate and claim the diamonds.

Paragraph 7

other issues in the law of contracts: Businessmen tend to avoid or sidestep

(formal) contract law and contract doctrine, and they especially shied away from suing each other.

Reasons given by Samuel Williston: --- keep valuable relationships --- more subtle, more complicated norms,

practices, and conceptions of honor and fairness that businessmen customarily followed

Paragraph 8(1)

Contract law: --- is a standard first-year course in every

law school --- less important than other fields Commercial law: --- concerns the buying and selling of

goods, especially sales for credit and on the installment plan,

--- it also deals with checks, promissory notes, and other “negotiable instruments”

Paragraph 8(2)

Bankruptcy --- wipes the slate clean and allow

the bankrupt to begin again --- more important, to ensure

fairness to all of the creditors --- administered in the federal courts Law of consumer protection Contracts of insurance

After-reading activities

A. Try to do the exercises according to the text

B. Supplementary reading

Answer the following questions

How to understand “from status to contract”?

What is a contract in legal terms? What are the factors in a valid contract? What is consideration?

Why do businessmen tend to sidestep contract law in the world of affairs?

What is the relationship between contract law and commercial law?

Supplementary reading

http://www.lawspirit.com/legalenglish/text.asp?ID=461

Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law principally includes the terms of the agreement between the parties who are exchanging promises. This private law may override many of the rules otherwise established by state law. Statutory law may require some contracts be put in writing and executed with particular formalities. Otherwise, the parties may enter into a binding agreement without signing a formal written document.

SOURCES OF CONTRACT LAW

Most of the principles of the common law of contracts are outlined in the Restatement Second of The Law of Contracts published by the American Law Institute. The Uniform Commercial Code, whose original Articles have been adopted in nearly every state, represents a body of statutory law that governs important categories of contracts. The main Articles that deal with the law of contracts are Article 1 (General Provisions) and Article 2 (Sales). Sections of Article 9 (Secured Transactions) governs contracts assigning the rights to payment in security interest agreements.

Copyright

Teaching Plan: objectives Students will be able to: 1. understand what makes a valid

contract; 2. master some related legal terms; 3. conduct a series of reading,

listening, speaking and writing activities related to the theme of the unit.

Teaching Plan: time allotment

1st period pre-reading activities (familiar with new words, terms, and background information)




Teaching methods




Background Notes

The Statute of Anne: 1710 年英国议会通过的《不列颠版权法》 Universal Copyright Convention ：《国际版权公约》。根据这

个公约的规定，身为公约成员国国民的作者出版的作品，在一切成员国内享受保护，而不论其作品在何处首次出版。条件是每一件作品上都必须标明版权记号 C 、版权所有人姓名和首次出版日期。

Bern Convention ：《伯尔尼公约》。 1886 年在伯尔尼大会上制定的一个公约，据此，缔约国组成一个伯尔尼联盟，旨在保护作者的文学作品和艺术作品的版权。该公约曾由《 1908 年伯尔尼或柏林修订公约》代替。该公约的主要原则是，属于任何联盟国国民的作者，在著作产生国以外的国家，享受各该国法律给与其本国国民的权利，以及由公约特别赋予的权利。

The Buenos Aires Convention: 《布宜诺斯航空公约》。是南北美洲国家订立的有关知识产权方面的公约。


Prescribe: (formal) to state officially what should be done in a particular situation

--- What punishment does the law prescribe for this crime?

Archive: a place where a large number of historical records are stored, or the records that are stored

--- an archive of the writer's unpublished work

Phonograph: (American English old-fashioned) a record player

Legal terms

Royalty payment: a payment to an author or composer for each copy of a work sold or to an inventor for each item sold under a patent

Injunction: a writ granted by a court of equity whereby one is required to do or to refrain from doing a specified act

Reimbursement: to make restoration or payment of an equivalent to, e.g.

reimburse him for his traveling expenses

Pre-reading tasks

What is copyright? What rights does Copyright Law

protect? How can an owner get protected by

Copyright Law?

Paragraph 1

Copyright: --- any original creation of authorship

produced in a tangible medium, --- include literary pieces, musical

compositions, dramatic selections, dances, photographs, drawings, paintings, sculpture, diagrams, advertisements, maps, motion pictures, radio and television programs, sound recordings, and computer software programs.

Paragraph 2

Copyright does not protect the idea or concept, but only the way in which an author has expressed an idea or concept.

e.g. a scientist publishes an article explaining a new process for making a medicine,

--- prevent others from substantially copying the article: copyright

--- the process of making the medicine: patent

Paragraph 3

The Statute of Anne: --- was the first real copyright law --- enacted in 1710 by the British

Parliament --- forbade the unauthorized

printing, reprinting, or importing of books for a limited number of years

Paragraph 4 (1)

A provision in the Constitution of the United States

--- gave Congress the power to promote the progress of science and useful arts, by

--- securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.

--- gave the federal government the power to enact copyright and patent statutes

Paragraph 4 (2)

The Congress --- in 1790, the first U.S. copyright law --- in 1909 Copyright Act, --- the basic framework for protection --- 1976 Copyright Act, --- went into effect on January 1, 1978 --- the legal basis for copyright

protection today --- made substantial and important

changes in U.S. law

Paragraph 5 (1)

Copyright --- becomes effective on creation of a work --- lost unless a prescribed copyright notice is

placed on all copies, either --- the word Copyright, or, --- the abbreviation Copr. or --- the symbol, accompanied by the name of

the owner and the year of first publication. --- appears most on the reverse side of the ti

tle page. --- the responsibility of the copyright owner

Paragraph 5 (2)

A similar notice bearing the symbol is required to protect sound recordings such as phonograph records and tapes.

Paragraph 6

(in Paragraph 5: the use of the notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office)

A work is not fully protected until a copyright claim has been registered with the Copyright Office.

To register: --- fill out the application, pay a fee, two

copies of a published work/recording --- the sooner the claim, the more remedies

Paragraph 7 (1)

Copyright can be sold or licensed to others: --- an author of a novel can license one

publisher to print the work in hard-bound copies, another publisher to produce paperback copies, and a motion-picture company to make a movie based on the novel.

The laws set up conditions for reproduction of copies by libraries and archives and for transmission of audiovisual and other programs and,

(The laws) forbid unauthorized duplication of sound recordings.

Paragraph 7 (2)

The law provides for royalty payments on recorded music, on public performance of sound recordings by phonographs, and on transmission of some television programs.

--- A radio station that broadcasts a recording of copyrighted music is “performing” the work publicly and for profit and must be licensed to do so.

Paragraph 8

Infringement (1): ---any violation of the exclusive rights

mentioned above, for example, making an unauthorized copy of a copyrighted book,

--- not necessarily word-for-word reproduction;

--- substantial similarity may be infringement

Paragraph 9

Infringement (2) --- dealt with in civil lawsuits, --- remedies 1. an injunction against future infringement 2. the destruction of infringing copies 3. reimbursement for any financial loss incurred

by the owner; 4. transfer of profits made 5. payment of fixed damages for each work

infringed, court costs and attorney’s fees 6. a criminal penalty of imprisonment and/or a

fine

Paragraph 10

Infringement (3): exception of fair use: --- meaning: the reproduction of small amount of

copyrighted material when having little effect on the value of the original work. e.g.

--- quotation of excerpts from a book, poem, or play in a critical review for purposes of illustration or comment;

--- quotation of short passages in a scholarly or technical book to illustrate or clarify the author’s observations;

--- use in a parody; ---summary of a speech or article, with brief

quotation, in a new report; --- reproduction to illustrate a lesson. --- reproduction of government’s works

Paragraph 11

Formalities requirement under U.S. law:

--- marking published copies with a formal copyright notice

--- registering the claim with the Copyright Office

Paragraph 12

UCC (the Universal Copyright Convention):

- an international treaty organization - in effect since 1955 - to eliminate discrimination against / to

give foreign works the same copyright protection as the nation gives to domestic works and authors

- more than 70 nations

Paragraph 12 (2)

To secure copyright protection in the USA and UCC member nations:

- by marking all published copies with a copyright notice

--- the symbol, the name of the owner, and the year of first publication

It is easy for an author to obtain copyright protection in many nations

Paragraph 13

Other international conventions: - the Berne Convention protects withou

t formalities any works first published in a member nation.

- the Buenos Aires Convention, a multilateral treaty of North and South Amercan nations, requires a statement such as “All Rights Reserved” to be printed.

What rights does Copyright Law protect? What is a prescribed copyright notice

made up of? How can an owner get protected by

Copyright Law? What remedies may a copyright owner

have if infringement is proved? As to the exception to the copyright

infringement, what activities are in the realm of fair use?

What has been done to protect the copyright owners in the world?

Supplementary material (1)

17 U.S.C. 9102 (1992) 102 Subject matter of copyright: In general (a) Copyright protection subsists, in

accordance with this title, in original works of authorship fixed in any tangible medium of expression, now know or later developed, from which they can be perceived, reproduced, or other wise communicated, either directly or with the aid of a machine or device.

Works of authorship include the following categories:


(1) literary works; (2) musical works, including any

accompanying words; (3) dramatic works, including any

accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual

works; (7) sound recordings; and (8) architectural works.


(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The Common Law and Its Competitors

Teaching Plan: objectives Students will be able to: 1. know something about the two big

legal systems, their differences and also will know that every society has a legal system ;

2. master some related legal terms; 3. conduct a series of reading, listening,


Teaching methods




Make clear that every society has a legal system by asking pre-reading questions.

Background Notes

Code Napoleon: 拿破仑法典。指经拿破仑提议在法国通过的民法典。

… even though the English insist on driving on the “wrong” side of the road: 按英国交通法规汽车、行人都靠左边通行，与其他欧洲国家不同。


clump together： if separate objects clump together, or are clumped together, they form a group or solid mass ， e.g.

This product will cause bacteria and loose dirt to clump together in the water tank.

chunks: a large part or amount of something, e.g. A huge chunk of the audience got up and left before th

e end of the show. Tenacious: determined to do something and unwillin

g to stop trying even when the situation becomes difficult, e.g.

a tenacious negotiator

Maxim: a well-known phrase or saying, especially one that gives a rule for sensible behavior

Leveller: (British English) leveler (American English) something, especially death or illness, that makes people of all classes and ranks seem equal

Legal terms to remember

Civil law family Code：法典 Statutes Common law system Case law The doctrine of precedent trust

Pre-reading tasks

What legal systems do you know about? Can you say something about them?

What is Russia’s legal system? And The Scandinavian countries’?

Paragraph 1

A bewildering variety of legal systems

- every country - in US, 51 legal systems Law stops at the border/home base.

Paragraph 2

Legal systems: - are not exactly alike, - nor entirely different from each

other -- similar in culture and tradition,

similar in legal systems, e.g. Australia and New Zealand

Paragraph 3

Clusters/families/groups of legal systems - structure, substance, or culture in

common - related: have a common parent or

ancestor, or have borrowed their laws from a common source

English law: influence on American colonies, Canada, Australia, New Zealand, other nations that were once its colonies

Paragraph 4

Civil-law family: a common debt to Roman Law

- rediscovered/revived in the Middle Ages - western Europe: France (and its

colonies), Germany, Italy, Spain, Portugal,

- Latin America, Quebec of Canada - Japan and Turkey, borrowed chunks of

Roman law

Paragraph 5

civil-law system are - “codified” system, - statutes, or super-statutes -- enacted by the national parliament -- orderly, logical and comprehensive The civil code of France-- Code

Napoleon - tremendous influence on the form

and substance of most later codes.

Paragraph 6 (1)

Common law system: - English native traditions - held fast by England, who resisted the

“reception” of Roman law - Many ideas and terms from Roman law and

European law crept into English law, - core legal system of England law Common law differs from civil law - resisted codification - never an English equivalent of the Napoleonic

Code - basic principles of law were in case law

Paragraph 6 (2)

Case law: the body of opinions written by judges, and developed by judges in the course of deciding particular cases.

The doctrine of precedent: the maxim that a judge is bound in some way by what has been decided

Peculiar features of substance, structure, and culture.

- the jury: a common-law institution - trust: an arrangement in which a person/bank as

trustee receives money or property to invest and manage for beneficiaries

Paragraph 7

All common-law countries were once colonies of Great Britain, or in some cases, colonies of colonies.

Paragraph 8

In the Eastern Europe, - difficult to classify - Russia and its satellites -- once had close ties with civil law -- socialist revolutions transformed

them -- legal resemblance to western

Europe, -- some still treat them as part of the

civil law families.

Paragraph 9

Scandinavian countries: - a family of their own A legal system is not an exercise in

history (legal tradition); it is problem-solving machine, problems of today.

Paragraph 10

A country’s law is influenced by the level of development /Technology: a lawmaker and leveler.

Traffic rules: - basically the same in England and

France - similar in every country touched by the

automotive revolution, - the railroad and automobile: rewrite the

law books and show little respect for what family a legal system belongs to

Paragraph 11

Technology (continued): - tort law --- the law of accidents: the child

of the railroad; the adopted child of the automobile

- automobile: -- result in a vast body of rules, -- has changed society in fundamentally -- not separates civil-law and common-law

countries -- separates modern systems from

older/primitive systems

Paragraph 12

Every society has a legal system: - the legal systems of the Far East - the sacred-law systems of classical India,

Israel, and the Islamic countries. -- Islamic law: a living force in the world

today: -- official status in Saudi Arabia, -- comeback in other Moslem countries,

most notably in Iran. - Africa: the home of tribal systems; under

pressure from Western Codes and rules

Paragraph 12(2)

The law of a tribe of hunters and gatherers has got to be different from the law of America.

Evolutionary patterns of law?/Do legal systems evolve in definite, patterned way?

Paragraph 13

A classic question; no definite answer. Some deny the value of the question: Changes in social systems and

technology - the railroad and the automobile

made the modern law of torts Answer to the question: whether we

call the main lines of growth “evolution” is only a question of words.

Paragraph 14

Legal dynamics are a fact. - the rate of change, the kind of

change, the effects of change

How did civil-law system come into being? What countries does the civil-law family

have influence on? What counties does the common law

system have influence on? What is the characteristic of the civil-law

family? What is the doctrine of common law? Does the development of a country have a

close relationship with the country’s law? What is the difference between the civil-

law family and the common law system?


The common law tradition originated in England. A new legal order was established as early as 1066 by the Norman conquest, but the common law did not exist in 1066. William the Conqueror did not abolish the local customs and the local courts. Local courts continued to apply local customs. There was no law common to the whole kingdom. The King did however establish some royal courts at Westminster. Their jurisdiction was at first very limited but eventually expanded to the point where the local courts fell into disuse. The decisions of the royal courts became the law common to the whole kingdom, the common law.

沙丽金主编：研究生英语教程（法律英语分册）， 2001年 8 月第 1 版， P1 。

The common law has its source in previous court decisions. The main traditional source of the common law is therefore not legislation byt cases this is so true that when the common law evolved into an unfair set of rigid and formal procedural rules the king, rather than legislate at amend the law, created a new court. When a subject thought that a common law decision lead to an unfair result he ( and at the time usually not she) would petition the King. There were so many petitions that the King created the court of Chancery which could grant a discretionary relief “in equity” to correct the common law. The decisions of this court gave birth to a body of law called equity which is also based on previous judicial decisions. Both law and equity are part of what is called the common law tradition.

沙丽金主编：研究生英语教程（法律英语分册）， 2001 年 8 月第 1 版， P1 。

An Outline of Court Structure

Teaching Plan: objectives Students will be able to: 1. grasp the structures, jurisdiction and

nomenclature of the state and federal court systems;

2. master some related legal terms; 3. conduct a series of reading, listening,


Teaching methods




Background Notes

en banc: 全体出庭法官听审。在美国指巡回上诉法庭通常对一个重大案件的审理扩大审判官的人数，又称 sitting en banc.


technicality: (plural) the small details of how to do something or how a system or process works, e.g.

- I don't really want to get into discussing the technicalities of laser printing.

throw in the sponge/towel: (informal) to admit that you have been defeated

flock: 1. a group of sheep, goats, or birds 2. a large group of people, e.g. a flock of

children

docket: (American English law) a list of legal cases that will be heard in a particular court

consuls: a government official who is sent to live in a foreign city in order to help people from his or her own country who are living or staying there

second-guess: (American English) to criticize something after it has already happened, e.g. The decision has been made - there's no point in second-guessing it now.

Legal Terms

Jury trial Bench trial Bargain basement: a part of a

large shop, usually below ground level, where goods are sold at reduced prices

En banc

Pre-reading questions

What kind of country is the United States?

How many constitutions are there in the United States?

What do you know about American court systems?

Paragraph 1

The state court system: - majority of lawsuits begin and end

in these courts - though local complications and

technicalities, - essential shape exists - a kind of pyramid

Paragraph 2

Level 1: Lower courts --- basement courts - at the bottom, the broadest part of the pyramid,

dotted all over the state and sprinkled about municipal areas.

- subject matter jurisdiction: less serious offenses and the least serious claims

- names: justice courts, small-claims courts, traffic courts, police courts, municipal courts, mayor’s courts

- many are specialized: -- traffic court stick to traffic cases -- police courts deal with petty offenses -- small-claims courts: no traffic offenses or

drunkenness

Paragraph 3

Level 2: Courts of general jurisdiction(1): - the basic trial courts - hear civil cases “worth” more than the

ones the basement courts try - cases of serious crime: burglary, rape,

manslaughter, and murder. - fewer than basement courts, more

professional - judges are always lawyers - atmosphere more dignified, more solemn,

more full-time staff

Paragraph 4

Level 2: Courts of general jurisdiction(2):

- have jurisdiction over more people and more area than the basement courts

-- one to a county - no uniform name for them, -- circuit courts -- district courts

Paragraph 5

Only a small percentage of the cases filed in court go to full trial

- thousands of cases do go the whole route - trial by jury trial (trial by jury) or by bench

trial (trial in front of the judge alone) - the majority are bench trials The majority are settled out of court,

dropped, compromised, handled summarily.

Paragraph 6

The losers can: - throw in the towel - appeal: taking a case to a higher

court, an appeal court, which -- not every aspect of the trial/ not

try the case all over again -- certain features of the case, parts

of the record, checking the errors.

Paragraph 7

Basis of appeal: the defendant’s lawyer will have to find some error

- the judge let the jury hear improper or irrelevant evidence

- the judge gave wrong instructions to the jury

- the judge showed prejudice The appeal court will - not second-guess the jury - not rehash the facts - not, in civil case, review findings of fact

(generally)

Paragraph 8

in states with small populations: e.g. Idaho - two-tier systems, - losers appeal directly from the trial court

to the state’s top court, the supreme court - the supreme court takes all appeal cases -- hear everybody wanting to appeal -- do not screen cases -- do not pick and choose the best or the

most important

Paragraph 9

States with big or middle-sized populations: e.g. California

- three-tier system -- trial courts -- intermediate courts, most

appeals end here. -- the supreme court

Paragraph 10

Discretion of the top court in three-tier systems:

- can decide which cases to hear: important cases

- a trial loser has the right to appeal at least once, but no right to demand a hearing from the highest court.

Exceptions written into the law in many states - in Ohio, constitutional cases go right to the

top. Generally, the top court has control over its

work load.

Paragraph 11

Federal courts: - a three-tier system - no “bargain basement” tier -- no federal small claims courts or

federal justices of the peace 1. district court -- the bottom federal level -- basic federal trial court 2. the circuit courts 3. the United States Supreme Court

Paragraph 12

In the early nineteenth century: - no firm distinction between trial courts and

appeal courts; - high court judges, state and federal, often

did trial work as well -- even the justices had “circuit duty”; Every

year the judges traveled to his circuit and tried cases there.

Burden not lifted until the end of the 19th century.

- in 1892 Congress made it optional - in the 20th century, it was totally abolished.

Paragraph 13

Level 1: District courts - about 100 federal district courts - every state has at least one - more than one judge to a district - each case is tried by a single

judge, sitting alone.

Paragraph 14

Level 2: The Courts of Appeals --- the federal circuit courts.

- 10, and now 11 (Congress split the old 5th Circuit for Florida, Texas, which grown fast in population) (more?)

- not one-judge court but panels of 3 judges - total number of judges: from 4 ( in the 1st

Circuit for Massachusetts, New Hampshire, Maine, and Puerto Rico) to 23 (in the 9th Circuit for California, 8 other states of the West, Guam and the northern Marinas.)

- important cases heard not by a panel, but “en banc”, (all the judges of the circuit, sizable number of judges in the 9th Circuit)

- the end of the line for most cases.

Paragraph 15

Level 3: The Supreme Court (1): - at the top of the pyramid of federal

courts, - a hearing there is a rare privilege - can hear cases coming out of high

state courts, if involve important federal issues

- nine justices - heavy workload

Paragraph 16

The Supreme Court(2): - enormous control of its docket - is not a simon-pure appeal court -- the Court hears a few “original” cases:

cases that come to the Supreme Court first,

-- provisions of the Constitution: cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party”, e.g. a boundary dispute between two states

Paragraph 17

simple, idealized The farther back in history one goes,

the more confused the situation gets Some states have tried to reform

their court systems, e.g. New Jersey, by chief justice Arthur T. Vanderbilt,

Many states have preserved many specialized courts or hangovers from the past.

What is the jurisdiction of the state basement courts?

What should the loser of a contested case do to make the appeal court review the case?

Are there any differences between the supreme courts in the states with small population and the states with large population? What are they?

What is the structure of the federal courts system?

What duty did the high court judges have in the 19th century?

What kind of original cases can be heard by the U.S. Supreme Court?


A solicitor advises his client on legal, financial and other matters. Not all the solicitor’s work is of a purely legal nature but most of it requires some degree of legal training. When a matter comes to litigation, the solicitor’s function is to prepare the case for trial and arrange for the availability of any necessary witnesses and any documents which may be required. Solicitors are also concerned with the costs of the case. A successful litigant can usually recover about three quarters of his costs from the unsuccessful litigant. We have already seen that a solicitor’s right of audience is limited and if the case is before the High court, he will have to instruct a barrister to present the case. In order to qualify as a

solicitor it is necessary to complete an examination set by the Law Society. The Law Society is responsible for enrolling solicitors, the prescribing of qualifications, setting the examinations, issuing practicing certificates and preserving minimum standards of behaviour. Having completed the examination, it is necessary for a student to serve a period under articles with a solicitor. This involves spending two years with a firm of solicitors gaining experience in a number of areas of the law. After this two year period, application must be made to the Law Society for admission as a solicitor.

陈庆柏编：《涉外经济法律英语》，法律出版社， 2001年 2 月第 2 版， p25-26 。

法律英语教案 an unwritten constitution i. suggested teaching plan objectives students will...

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