Law
1.What’s the relationship between civilization and law? The fairness of a nation’s laws and the extent to which the legal system justly administers the laws is a measure of the enlightenment, humanity, and degree of civilization of its people.
2.What’s law?
Law consists of the whole body of rules applied and enforced under the authority of established government in determining what conduct is proper and should be permitted and that which should be denied or penalized.
3.Can you list the roles of law in society?
Without law, there would be anarchy. Law is the means through which society is able to exist by providing protection for the individual; by establishing and maintaining order, health, and safety; by providing a peaceful means of dispute resolution; by providing stability and flexibility in economic relations between people; and by prohibiting conduct destructive to society.
4. How can law be best understood?
Law is best understood by viewing the legal system as a process——a means of pulling together society’s needs and goals and translating them into guides for fairness and reasonableness in conduct.
5. What are the events that promote the development of the English legal system? Norman Conquest. William replaced the local and highly varied systems of law with a common system of law.
6. Why did the people in England petition to the King and what would be the result?
Because of the extremely rigid, frequently overly technical procedural requirements of the common-law system, people were sometimes unable to obtain fair relief in the courts. In time, some persons who felt that the form of relief was inadequate petitioned to the King directly.
This practice gave rise to a second court system, called the Court of Chancery.
7. What was the situation of equity courts in North America? American court systems in the nineteenth century resulted in simplification of judicial procedures and elimination of equity courts as separate courts in most states.
8.Was the statutes developed fast in North America? Why? 9. What are the disadvantages of statues and the advantages of the common law rules?
10. Who has the power to make the ordinances? The legislative body of a municipal corporation Legal System
1.What is the relationship between the civil law system and Roman Law?
The civil law is based on Roman Law.
2.Who is the Justinian and what is his contribution? Byzantium enthronement
3.Which is the primary source of law in Europe, Roman Law or local laws?
Local customs
4.Why was the concept of codification developed in the 17th and 18th centuries?
As an expression of both Natural Law and the ideas of the Enlightenment.
Emperor.
Compiling
codes
after
the
5.What did the opponents of codification think about codification of law?
Its opponents claimed that codification would result into the ossification of law.
6.What is the main feature of common law?
Its inclusion of extensive non-statutory law reflecting precedent derived from centuries of judgments by working jurists.
7.What is the difference between statutes and regulations? Statues are enacted by a legislature, while regulations are promulgated by executive branch agencies pursuant to a delegation of rule-making authority from a legislature.
8.Where should people go if they wanted to apply for injunctions before the
20th century? Why?
Courts of equity. Only courts of equity have the authority to do it.
9.What is the difference between the selections of judges in civil law countries
and that in common law countries?
Civil law judges are usually trained and promoted separately from advocates, whereas common law judges are usually selected from accomplished and reputable advocates.
10.What are the differences in the criminal procedures of the two major legal
systems?
In general, the judge in a civil law system plays a more active role in determining the facts of the case. Most civil law countries investigate major crimes using a so-called inquisitorial system. Also, civil law systems rely much more on written argument than
oral argument.
Court System
1.What is the main characteristic of the court system of the United States?
Courts are operated in both state and federal governments. 2.Are there any uniform rules for creating state courts? No. but it has a general pattern.
3.What are the functions of the inferior courts at the bottom of the state judicial
hierarchy?
Trying minor civil cases involving small sums of money, and minor criminal cases involving light penalties and conducing preliminary hearings in the more serious criminal cases.
4.Do all states have the same terminology for courts and judges? Please give
examples.
No. For examples, a man who sits on the highest court of New Jersey is called
a justice of the supreme court of that state, while a man who holds an
equivalent position in New York is called a judge of the court of appeals.
5.What are the duties of the judges who sit on appellate courts?
They do no trial work, being occupied exclusively in hearing appeals. They review the proceedings of trial courts upon the basis of written records. They hear oral arguments and read written arguments, called briefs, in an effort to discover whether errors were committed in the trial court of such a nature as to require reversal of the judgment or a new trial.
6.How many tiers of courts are there in the federal court system in the U.S.?
What are they?
There are three levels of courts: trial, intermediate appellate and top appellate.
7.Does each state have a federal trial court? What decides the number of the
federal trial court in each state?
Each state has at least one United States district court. The population of the district
8.What types of cases will be tried by federal courts? Prosecutions for federal crimes civil claims based upon federal law
civil claims between citizens of civil actions.
9.Which authority has the power to create federal circuit courts?
Congress
10.Does the Supreme Court of the U.S. review all the cases appealed? Dose the
Supreme Court of the U.S. have the power to review all the decisions made by the state highest courts?
No. Yes. Constitution
1.What are usually established in a constitution?
A constitution establishes the rules and principles by which an organization,
or political entity, is governed. In the case of countries, this term refers specifically to a national constitution, which defines the fundamental political principles and establishes the power and duties of each government.
2.What are the examples that show the limitation imposed by the constitution
to the organizations in the United States?
An example from the constitutional law of nation-states would be a provincial government in a federal state trying to legislate in an area exclusively enumerated to the federal government in the constitution.
3.What are the relationships regulated by the U.S. Constitution?
The relationship among institutions of the state. In a basic sense the relationship among the executive, legislative and the judiciary, but also the relationship of institutions within those branches.
4.How do you describe an uncodified constitution?
An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten.
5.Why is an unwritten constitution not an accurate synonym for uncodified
constitution?
Because all modern democratic constitutions consist of some written sources, 6.What do the codified and uncodified constitutions respectively result from?
Codified constitutions are usually the product of dramatic political change, such as revolution. Uncodified constitutions are the product of an “evolution”
of laws and conventions over centuries.
7.Is it easy to amend a constitution? Why or why not? No. an extraordinary procedure is required for constitutional amendments involve some procedures that makes obtaining a
constitutional amendment more difficult than passing a simple law.
8.What happens if there are conflicts between the constitution and a statute in
a country using codified constitution?
All or part of the statue can be declared ultra vires by a court and struck down as unconstitutional.
9.What are the sources of uncodified constitution of Britain? Written sources: e.g. constitutional statues enacted by the Parliament
and
also
unwritten
sources:
constitutional
conventions, observation of precedents, royal prerogatives, customs and traditions.
10.Are there any differences between the constitutional law and statutory law in
states using uncodified constitutions?
No. Both can be altered or repealed by a simple majority in Parliament.
Criminal Law
1.Who do ordinary people think of crimes?
People think of crimes as acts that threaten public safety, security or morality.
Crime can be defined as anti-social conduct that is sufficiently serious to require state intervention and punishment.
2.What is the accurate definition of crime?
A crime is any act or omission that is contrary to the criminal law.
3.What are the elements that may establish a crime? Criminal liability, guilty mind,
4.What is the standard of proof for the prosecution to prove that a person is
guilty?
Beyond a reasonable doubt that the defendant committed the actus reus of the crime, while at the same time having the required mens rea
5.What does the actus reus include? Conduct, circumstance and consequence 6.Will all omissions lead to liability? No
7.What are the circumstances where criminal liability has been imposed for an
omission?
8.What is shared by the cases about omission?
A defendant has accepted or been placed under a duty to act, and his/her
omission constitutes a failure to discharge that duty—the omission is no longer pure.
9.In what kind of cases is causation required?
The defendant’s conduct caused the unlawful consequence 10.How is the subjective nature of criminal liability proved? Show a criminal state of mind Criminal Procedure
1.What is the function of criminal procedure law?
The law governing the series of procedures through which the substantive criminal law is enforced.
2.What are the sources of criminal procedure law?
The United States Constitution, (2) federal statutes (3) the Federal Rules of Criminal Procedure (d) local district court rules (e) rulings of federal courts based on their common law decisional authority or their supervisory authority over the administration of criminal justice in the federal courts (f) the
internal regulations of the Department of Justice and other agencies involved in the administration of the federal process.
3.What is a known offence?
Where the police conclude that a crime may well have been committed, it will
be recorded as a “known offence”
4.Who has the power to conduct investigation before arrest? Police, prosecutorial and other non-police investigations 5.What are usually done in the process of booking?
The arrestee’s name, the time of his arrival, the offense for which he was arrested are noted in the police “log”, the arrestee also will be photographed and fingerprinted.
6.How many types of charging instruments are there in the felony cases?
Complaint information, indictment
7.Are there any differences between First Appearance and Preliminary
Hearing?
8.What will be done in the process of a grand jury review? Determining whether there is sufficient evidence to justify a trial on the charge sought by the prosecution. If a majority of the grand jurors conclude that the prosecution’s evidence is sufficient, they will issue the indictment requested by the prosecutor.
9.What are the characteristics of criminal trial?
（a）the presumption of defendant’s innocence (b) the requirement of proof beyond a reasonable doubt (c) the right of the defendant not to take the stand
(d) the exclusion of evidence obtained by the state in an illegal manner
10.How many types of sentences are used in criminal cases? Financial sanctions, some form of release into the community, and incarceration in a jail or prison
Civil Procedure
1.How do people resolve their disputes?
One is to engage in “self-help”, by which you redress the wrong personally.
Another is to contact the person who harmed you and demand some compensation or other remedies.
2.Which way of settling disputes is acceptable in the society? Litigation
3.Why is litigation a publicly funded dispute resolution? The taxpayers provide the courtroom, the judge, and the instrumentalities by which the dispute is resolved.
4.Who usually initiates a civil litigation, a government or an individual?
Individual
5.Is civil litigation time consuming? Why?
Yes. Because there are many more parts to the process than the trial,
6.Why is the question of forum selection important? The decision implicates a variety of important doctrines. And there are questions of tactics and ideal for the defendant.
7.What should be decided by a plaintiff and his /her lawyer before filing a suit?
What to put in the complaint.
8.Where can the elements of claims be found? Substantive law
9.What is the function of civil procedure law?
Civil procedure provides the mechanism—the process—by
which disputes over such substantive claims are resolved. It provides a theoretically content-neutral mechanism for resolving disagreements. It establishes the method by which someone would vindicate a right given to her by the law. 10.What are the stages in civil litigation?
Pleadings, motions, discovery, possible pretrial adjudication, conferences, and meetings
Torts
1.What are the functions of tort law?
The purpose of torts is to compensate an injured party through the award of damages for the injuries incurred during a tortious act.
2.What is the difference between a tort and a crime? The difference is that a tort is a wrong against an individual, whereas a crime is a wrong against society as a whole.
3.How do you prove the intent of a defendant?
Intent is most often proved through circumstantial evidence: the defendant’s conduct, in the context of his or her surroundings and what he or she
presumably knew and perceived.
4.What are the elements of false imprisonment?
(a)Intent to confine a person within a certain area (b) actual confinement
(c) Awareness of plaintiff of the confinement or injury to plaintiff due to
confinement; and (d) Prevention of exit or no safe exit possible by plaintiff 5.What needs to be proved in case of trespass?
An act, coupled with the intent to cause entry by the defendant, and an invasion of the plaintiff’s land
6.What does standard of care mean?
As a general rule, all persons are under a duty to conduct themselves in such
a manner as not to create unreasonable risks of physical harm to others.
7.How do you make defense for a negligent conduct? Contributory or comparative negligence and assumption of the risk
8.What is the difference between the two types of comparative negligence?
Pure comparative negligence simply means that if a plaintiff is 90 percent at fault, he or she can still recover 10 percent. Another name for partial comparative negligence is 50percent rule, which means that if the plaintiff is more than 50 percent at fault, he or she cannot recover.
9.In what situation is the defense of assumption of risk applied?
The plaintiff’s own actions trigger this defense, which is the plaintiff’s knowing and voluntary consent to encountering a known danger.
10.Can a plaintiff get recovery if the defendant has no fault under strict liability
doctrine? Why?
Yes. Legal fault stems from a deviation from a standard of conduct needed to protect society and its citizens.
Contact
1.In what situation is there an implied contract?
An implied contract is one that is inferred from the conduct of the parties.
2.What is the difference between bilateral contracts and
unilateral contracts?
A bilateral contract is one in which the parties exchange promises to do some
future act. A unilateral contract is one in which one party acts immediately in response to the offer. The response is in the form of immediate action rather than a mutual exchange of promises.
3.What is the difference between a void contract and a voidable contract?
A void contract is a nullity from its beginning, and damages do not result. A
voidable contract is one that is binding until it is disaffirmed or canceled by the party with the authority to do so.
4.What are the key elements for the formation of a contract? (1)the capacity of parties; (2) offer and acceptance (3) Consideration
5.How does a corporation enter into a contract?
The law creates a legal fiction that corporations are persons. 6.Are the shareholders of a corporation involved in the contract concluded by
the corporation?
No. This device allows corporations to sue and be sued and to conduct business transactions as entities without involving individual shareholders. 7.What may decide the capacity of a person to enter into a contract?
The age of the individual or from a party’s being mentally incapable of understanding the ramifications 后果of the contract
8.Are there any special provisions about minors’ making contract? What are
they?
Minors are under an obligation to return any consideration
received under the contract
9.How can misunderstandings about terms in complex contracts be avoided?
Complex contracts often contain sections that clearly define certain terms. 10.How do you decide whether the two parties of a contract have the mutual
agreement?
On an objective standard, and the subjective intent of the parties is usually irrelevant
Law of Corporation
1.Why was the corporation proved to be an ideal instrument for the industrial
development?
It could raise large amounts of capital from numerous investors and yet provide centralized direction of large industrial concerns.
2.Who has the power to approve the individual corporate charter originally?
State legislatures
3.Which state is the winner in the race of attracting companies?
Delaware
4.What is the procedure for the formation of a corporation? Filing an appropriate document with a state official, and paying the appropriate fee
5.What can corporations do as artificial persons?
The artificial person may conduct a business or businesses in its own name much in the same way that a “real” person could.
6.What is the most obvious advantage that a corporation has? The corporation is unlimitedly liable for the debts and
obligations of the business but the shareholders are not, since in theory all debts are the artificial entity’s obligations, not the shareholders.
7.Why does a corporation have continuity of life?
The existence of the corporation is not dependent on who the owners or investors are at any time. If shareholders die, or decide to sell out, the corporation continues to exist as a separate entity.
8.How do you understand the sentence “the corporation does not have a
limited life span”?
It does not really mean that all corporations will continue until the end of time but rather that a corporation will continue indefinitely until the owners decide to dissolve it or merge it into another business.
9.What rights do shareholders have?
Very specific rights such as a limited right to inspect the books and records of the corporation
10.Who has the right to decide the transfer of shareholders’ ownership of
interests? oneself
Intellectual Property
1.How are intellectual property and intellectual rights defined?
Products of the mind: inventions, literary and artistic works, any symbols, names, images, and designs used in commerce.
Rights given to people over the creation of their minds 2.Are “ideas” the product of the mind? And are the “ideas” protected by
intellectual property law? Yes, no
3.What do the various kinds of intellectual property have in common?
Patents, copyrights, industrial designs, trademarks and confidential information
4.Why do the intellectual property rights have much in common with the rights
associated with real property?
Intellectual property rights can be assigned or bequeathed. Intellectual property is itself intangible, it will be embodied in real objects.
5.Do the different intellectual property rights have the same history? Why?
Each of the diverse intellectual property rights has its own separate history. 6.What is the shaping of the intellectual property law closely related to?
Change economic and social conditions
7.Are there any differences in the attitudes towards intellectual property rights?
What are they?
Important economic assets rewards for mental labor A reward for individual creativity products of the market 8.In what way the ownership in intellectual property is limited?
Time
9.How are most intellectual property actions settled? Most are settled at the pre-trial stage and the usual remedy, where the claimant is successful, is a permanent injunction together with costs.
10.What are the remedies in intellectual property cases? Delivery up, damages and an account of profits
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