Unit 4 Legal Education in America.doc

Proverbs: A good conscience is a soft pillow心中无愧疚，不怕鬼敲门。 Guilty consciences make man cowards心中有愧疚，胆战又心惊。Unit 4Legal Education in AmericaI. A Brief HistoryPrior to 1865 the intellectual origins of American legal training were predominantly English. Most American attorneys in the 19th century learned law through the English apprenticeship approach. William Blackstone (17231780) had established a place for student and practitioner use of legal treatises with his four-volume Commentaries on the Laws of England, which was widely used in American editions and emulated in Commentaries on American Law.The first law schools evolved out of law offices that took in apprentice clerks for a fee. A few attorneys preferred instructing clerks rather than practicing law and gained a reputation for teaching. The Litchfield Law School, which operated from 1784 to 1833 and attracted students from several states, or the 20 other law office-type schools patterned on it, clearly showed their English parentage.Harvard Law School, which opened in 1817, was an ordinary Litchfield-type law school at first. But at last it rose to prominence, which was attributable primarily to the appointment of Charles Eliot (18341906) as university president in 1869 and Christopher Columbus Landell (18261906) to the newly created post of law school dean in 1870. Of the two men, Eliot was the more important, initiating and supporting reform throughout the university actively. Landells most significant innovation was the introduction of an instructional method utilizing Socratic dialogue to discuss appellate court cases.The American law school student population from 1870 to 1900 grew from 1650 to 12500 while the number of law schools increased from 31 to 102. At the turn of 20th century three quarters of the schools were affiliated with a college or a university. But there were also 20 night law schools catering to the urban masses and emphasizing local law and practice much more than university law schools. Elite lawyers began to worry about standards and the influx of immigrant attorneys trained at the night schools. State bar associations began to tighten up qualifying examinations. The schools themselves in 1900 created the Association of American Law Schools (AALS), which together with the American Bar Association (ABA) went into the standards and accreditation business. The AALS initially accepted 32 schools as charter members. A school that failed to qualify for either list was at a competitive disadvantage in attracting students.II. Characteristics of American Legal Educationa. The basis of legal education in America is the common law.The principal distinction between common law and civil law is that the former relies on the English principle of the binding force of precedent. Thus, a case decided by a court today must be consistent with similar cases previously decided, even if the case is very old. The key concept is that the reasoning by the judges in prior cases must be applied to todays cases so that the law is predictable. Yet the common law is flexible since judges can use prior legal reasoning to reach different but equitable outcomes in similar cases.b. American legal education is general rather than specialized.Every law school uses nearly the same course during first year: torts, contracts, property, criminal law, civil procedure, constitutional law, and legal research and writing. In the second and third year, elective courses are chosen by the students but most take other common courses in administrative law, business and commercial law, litigation, family law, intellectual property and technology law, and international and comparative law. Upon graduation, every student has been exposed to a broad spectrum of the law even through he or she may later specialize in some area.c. The development of the American legal system has been influenced by the kind of education that lawyers have received, and legal education in turn reflects the diversity of that legal system.The evidence of this diversity flows from several sources: first, America has a large number of private university law schools. Virtually all states have a public university, and some large states have several. But there is no federal ministry of education that sets out the law curriculum, faculty salaries, or research project. But the greatest diversity stems from the existence and competition of private law schools. Second, the historic pattern of law school development established a hierarchy of prestige among law schools that further stimulates competition. Third, the composition of the typical student body and faculty changed from essentially a group of white males to more closely represent the diversity of American population.New Words:predominantly d. 主要的，最显著的attorney n. 律师，代理人apprenticeship n. 学徒身分approach n. 方法，途径practitioner n. （医生、律师等）开业者，执业许可证持有者treatise n. 论文，专著commentary n. 注释，评注edition n. 版本emulate v. 仿效evolve vi. 演变，逐渐发展reputation n. 名誉，声望pattern vt. 模仿，仿造parentage n. 出身prominence n. 著名；杰出attributable . 可归于.的primarily d. 首先，主要地initiate vt. 开始，发动innovation n. 改革，创新instructional . 教学的，教育的utilize vt. 利用affiliate vt. 接纳为分支机构，使隶属于cater vi. 迎合，投合elite n. 精英，中坚分子influx n. 汇集，流入accreditation n. 认证，鉴定为合格initially d. 最初，开始binding . 有约束力的precedent n. 先例equitable . 公平的，公正的spectrum n. 范围，领域specialize vt. 专门研究，专门从事hierarchy n. 等级制度，阶层prestige n. 声望，威望composition n. 组成，构成essentially d. 本质上，基本上Phrases and Expressions:prior to 先于，在以前at the turn of the century 世纪之交tighten up 加强，使更严qualifying examination 资格考试go into 从事charter member创办人，发起人be consistent with与一致的be applied to 适用于，应用于be exposed to 受到，接触到flow from从产生，是的结果stem from出自，来源于Notes:1. apprenticeship approach学徒制。“法律可学而不可教”的观念在英国源远流长、根深蒂固。有志于法律工作者模仿手工业中普遍流行的学徒制，首先拜某一成功的开业律师为师，充当学徒，通过协理某些事务性法律工作，如询问当事人、调查取证、准备诉讼材料、制作法律文书、提供法律咨询以及旁听法庭辩论等方式学习法律基础知识。2. William Blackstone威廉布莱克斯通。Blackstone是英国历史上把普通法教育搬上大学讲坛的第一个实践者，他首创了一套系统、可行的公共法律教育方法。后来布莱克斯通把讲稿整理出版，书名为英国法释义。布莱克斯通的有关理论和实践敲响了学徒制的丧钟，宣告英国法律教育史上一个崭新的时代即将来临。3. Litchfield Law School利奇菲尔德法学院。由一位律师Tapping Reeve建立于1784年，是美国历史上第一个正规的法学院，位于康涅狄格州（Connecticut State）。这所学校以讲课方式授课，教学着重在商业法。 4. Christopher Columbus Landell克里斯托弗哥伦布兰德尔。Landell是美国著名法学家和法律教育家。他早年为开业律师，后于1870年到哈佛大学法学院任教并担任院长至1895年。当时美国的法律教育虽然已进入大学，但还有一部分是业余性的，获得法律学士学位还没有明确的要求。兰德尔把法律教育提高到大学的水平，他要求学生正规地学习一系列必修课程，并通过必要的考试。他还创立了案例教学法（case method），让学生阅读和讨论原始判例，从中找出法学原理。5. Socratic dialogue苏格拉底问答法。“苏格拉底方法”自始至终是以师生问答的形式进行的，所以又叫“问答法”。苏格拉底在教学生获得某种概念时，不是把这种概念直接告诉学生，而是先向学生提出问题，让学生回答，如果学生回答错了，他也不直接纠正，而是提出另外的问题引导学生思考，从而一步一步得出正确的结论。6. AALS美国法学院联合会（Association of American Law Schools）。AALS于1900年在纽约州由32个法学院作为创始会员成立，制定了会员的资格标准来保证法学院的质量，早于美国律师协会（ABA）实施评估制度。7. ABA美国律师协会（American Bar Association）。ABA成立于1878年，是一个由律师自愿组织的全国性机构。1929年，美国律师协会规定了承认法律院校的标准。凡符合标准经该协会批准的学校，其毕业生方可在全美任何一州参加律师资格考试（bar exam），否则只能在学校所在州应试。如今的美国法学院中，有179所得到了美国律师协会的承认。Exercises IGive your opinions to the following open questions.1. Whats the difference between apprenticeship approach and Blackstones teaching method?2. Which approach do you prefer when learning law, apprenticeship training or academic（学院制）training? 3. Why Harvard Law School finally rose to prominence?4. Would you like your teacher to employ the instructional method using Socratic dialogue?5. Why did the bar associations begin to tighten up qualifying examinations? And how?6. Why does the common law follow the principle of the binding force of precedent?7. Do you think a student specializing in tort law needs to learn other courses such as contract law, property law, and administrative law?8. Do you have any idea of the hierarchy of prestige among law schools? Exercises IIMatch each of the following definitions with the terms in the list.A. apprentice B. innovationC. affiliateD. accreditation E. binding F. attorneyG. eliteH. commentaryI. precedentJ. prestige1. () a person legally appointed by another to act as his or her agent in the transaction of business, specifically one qualified and licensed to act for plaintiffs and defendants in legal proceedings2. () general respect or admiration felt for someone or something because they have high quality, social influence, success, etc.3. () a group of persons enjoying superior intellectual, social, or economic status4. () one bound by legal agreement to work for another for a specific amount of time in return for instruction in a trade, an art, or a business5. () a written collection of opinions, explanations, judgments, etc. on a book, event, person, etc.6. () a judicial decision that may be used as a standard in subsequent similar cases7. () imposing or commanding adherence to a commitment, an obligation, or a duty8. () to adopt or accept as a member, subordinate associate, or branch9. () to begin or introduce something new for the first time10. () to attest to and approve as meeting a prescribed standard Exercises IIIPut the following expressions into Chinese or English.1. binding force _ 有约束力的判例 binding contract _ 约束性仲裁2. initiate a reform _ 着手一项调查 initiate a conversation _ _ 起诉3. legal practitioner _ 执业医师 practice law _ _ 行医4. qualifying examination _ 资格赛 Exercises IVChoose the corresponding words to complete the following sentences.A. precedentB. prior toC. consistentD. prestigeE. practicingF. specializeG. eliteH. qualifying I. emulateJ. expose1. Only the educational go to Oxford or Cambridge.2. She has passed her law examination and is now as a lawyer. 3. Keep indoors and dont your skin to the sun.4. The economic development in underdeveloped societies will be development without. 5. If talking about good things others do, we want to that good behavior.6. It is important to warm-up strength training7. What you say is not with what you do.8. Upon graduation, every student has been exposed to a broad spectrum of the law even through he or she may later in some area.9. The old universities of Oxford and Cambridge still have a lot of .10. Our team was beaten in the round.Exercises VTranslate the following sentences either into English or Chinese.1. This regulation everybody.本规则人人皆须遵守。2. Folk music popular culture. 民间音乐是从流行文化中应运而生的。3. This hospital that university.这个医院是那所大学的附属医院。4. The article aims to on the question of capital punishment.这篇文章的目的在于发动一场关于死刑问题的广泛辩论。5. The course aims to the art of trial court advocacy.这个课程的目的在于让学生了解法庭辩护的技巧。 6. At last Harvard Law School rose to prominence, which was attributable primarily to the appointment of Christopher Columbus Landell to the newly created post of law school dean in 1870.7. Upon graduation, every student has been exposed to a broad spectrum of the law even though he or she may later specialize in some area.8. Today, American legal education is almost uniformly postgraduate professional education at a formal law school, usually affiliated with a university.9. In most states, a law school graduate cannot take the bar exam without having attended an ABA-approved school (or a school that has earned ABA accreditation).10. Some law firms use summer employment as an opportunity to look over promising newcomers to the profession. Part IIPractice of legal termsIn the event that; in the event of “ 如果。”；“在。情况下” 请看以下例句：1. In the event that either party hereto fails to comply with the terms pr conditions of this Agreement, and, within 90 days after the written notice is issued by the other Party hereto, fails to remedy such failure, the Party giving notice may, forthwith, notify the other Party of the matter in question and terminated this Agreement.如果任何一方未能履行本协议规定的条款或条件,并在收到另一方通知后90天内未对其不履行进行补救,发出通知的一方可利己通知另一方终止本协议.2. In the event that any taxpayer or withholding agent fails to accept the examination of the tax authorities in accordance with the relevant provisions, or fails to pay the late-payment within the time limit specified by the tax authorities, the local tax authorities may, under the seriousness of the case, impose a penalty of not more than RMB 5000 yuan.如纳税义务人或扣缴义务人未按照规定接受税务机关检查的，或者未按照税务机关规定的限期缴纳迟纳金的，当地税务机关可以根据情节轻重处以5000元以下的罚款。.注意：此处原句放在下面，改为翻译练习句根据以上例句是把下列句子译成汉语：1. In the event of disagreement between the Parties to the Contract, the Engineer shall, in his opinion, determine such rate or price as is appropriate, and shall notify the Contractor accordingly, with a copy to the Employer. 2. Either Party hereto may terminate this Agreement in the event of the bankruptcy or insolvency of the other party.Part IIICase discussionPotts v. Fidelity Fruit & Produce Co.Banke, JudgeThe appellant sued to recover for personal injuries which he allegedly sustained when he was bitten by a spider while unloading bananas from a truck. The incident occurred during the course of his employment with Colonial Stores. The defendants are the local distributor of the bananas, Fidelity Fruit and Produce Co., Inc., and the transporter Refrigerated Transport Co., Inc. liability was originally predicated both on ordinary negligence and negligence per se under the Georgia Food Act, former Code Ann. However, the appellant has since conceded that the evidence would not sustain a finding of ordinary negligence. This appeal is from a grant of summary judgment in favor of Fidelity Fruit and Produce Co., as to the negligence per se claim, based on a determination that the appellant is not among the class of persons whom the Georgia Food Act was designed to protect. Held:In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. Having examined the provisions of the Georgia Food Act, we agree fully with the following analysis made by the trial court: “Clearly, the Act is a consumer protection act, designed not to render the workplace a safe environment, but to prevent the sale and distribution of adulterated or misbranded foods to consumers. While safety in the workplace, and compensation for injuries arising out of work activities, are indeed matters of contemporary concerns, they are the subject of other legislative enactments on both the state and federal level.” Because the appellants alleged injuries did not arise incident to his consumption of the bananas, we hold that the trial court was correct in concluding that the Act affords him no basis for recovery.Judgment affirmed.Question:1. What is the appellants claim? 2. What is the defendants demand?3. What is the courts decision?4. Which side won the case and the reason?Part IVTranslation Practice Put the following short passage into ChineseVermont: EssexA motorist led police on a chase that ended when his vehicle hit a tree and he fled, leaving his eight-months pregnant girlfriend behind, authorities said. Denis Hodzic, 23, allegedly drove away from police who tried to stop him for speeding. His girlfriend was unhurt. Hodzic, whose drivers license is suspended, appeared voluntarily at police headquarters later Monday to face various citations. Part VSimulated writngDonghai No.1 Intermediate Peoples CourtNOTICE OF RESPONDING TO ACTIONDavid Trading Company Ltd This court has accepted the lawsuit filed by _1_ against you on the dispute of _2_ Attached please find one duplicate of _3_ served to you together with notification concerning matters of responding to action as follows:1. During litigation process, _4_ must duly exercise litigation rights, are entitled to litigation rights as stipulated in _5_ of Civil Procedure Law and meanwhile must abide by litigation orders and perform litigation duties.2. Within 15 days after receipt of _6_ ，you are requested to submit to No.1 Economic Tribunal of this Court your Bill of Defense in _7_. Failure of _8_ BILLOFDEFENSE will not in any way affect _9_.3. In case an agent ad litem is needed to respond to the action on your behalf, a power of attorney _10_ by the principal shall be submitted. Express statement must be made in the power of attorney concerning items and scope of authorization.Donghai No. Intermediate Peoples Court东海市第一中级人民法院应诉通知书 戴维贸易有限公司：本院已经受理东海市银行诉你贷款合同一案，现随文发送起诉状副本一份，并将有关应诉事项通知如下：一、在诉讼进程中，当事人必须依法行使诉讼权利，有权行使民事诉讼法第五十条，第五十一条，第五十二条等规定的诉讼权利，同时也必须遵守诉讼秩序，履行诉讼义务。二、在收到起诉状副本后15日同提出答辩状（正本一份，副本贰份）送交本院经一庭。如不按时提出答辩状，不影响本案的审理。三、如需委托代理人代为诉讼，还应递交由委托人签名或者盖章的授权委托书。授权委托书须记明委托事项和权限。 2008年3月3日Keys to Ex 1 1. The main difference lies in instructing clerks rather than practicing law.2. I prefer training, for it is more systematic and methodic.3. It is primarily attibutable to clerks Eliot and Christopher Columbus Landell who supported an active reform throughout the law school.4. No. I prefer more practical method.5. Because they worry about standards and influx of immigrant attorneys. They creatd AALS and ABA to standardize.6. Because the key concept is that the reasoning by the judges in prior cases must be applied t