Microsoft Silently Kills Windows 7 Security Upd... | CommunityLesson One: Legal System 法律制度Background 背景自从哥伦布(Christopher Columbus)于 1492 年航行至 美洲之后， 大批欧洲人便开始拥向这片&新大陆&。 不过， 人们通常把第一批英国定居者(the first English settlers) 于 1607 年 到 达 弗 吉 尼 亚 (Virginia) 的 詹 姆 斯 顿 (Jamestown)视为美国法律制度历史的起点。美国法制 史可以大体上分为两个时期，即英属殖民地时期(the Period of the English Colonies)和美利坚合众国时期 (the Period of the United States)。虽然美国的法律制 度是在英国法律传统的基础上形成和发展起来的， 但是 在近四百年的历史进程中， 美国的法律制度也形成了一 些不同于英国法律制度的特点，如公诉制度 (public prosecution)等。 美国属于普通法系(Common Law Legal System)国家， 其法律制度有两个基本特点：其一是以分散制 (decentralization)为原则；其二是以判例法(case law) 为主体。美国除联邦政府外，还有州政府、县政府、市 政府、镇政府等等，而且这些政府都是相互独立的，各自在其管辖范围内享有一定的立法权和执法权。因此， 有人说美国是&一个有许多政府的国家&(a country of many governments)； 而美国的法律体系则是一个&零散 的无系统&(fragmental no?system) 诚然，美国现在也 。 有很多成文法(written law)或制定法(statutory law)，但 是其法律制度仍是以判例法为主体的。换言之，&遵从 前例&(stare decisis)仍然是美国司法活动中最重要的原 则之一。 以上两点对于理解美国的法律制度具有重要意 义。Text 课文Part OneThe United States is at once a very new nation and a very old nation. It is a new nation compared with many other countries, and it is new, too, in the sense that it is constantly being renewed by the addition of new elements of population and of new States. But in other senses it is old. It is the oldest of the &new& nations--the first one to be made out of an Old Worldcolony. It has the oldest written constitution, the oldest continuous federal system, and the oldest practice of self?government of any nation. One of the most interesting features of America?s youth is that the whole of its history belongs in the period since the invention of the printing press. The whole of its history is, therefore, recorded: indeed, it is safe to say that no other major nation has so comprehensive a record of its history as has the United States, for events such as those that are lost in the legendary past of Italy or France or England are part of the printed record of the United States. And the American record is no it is immense. It embraces not only the record of the colonial era and of the Nation since 1776, but of the present fifty States as well, and the intricate network of relationships between States and Nation. Thus, to take a very elementary example, the reports of the United States Supreme Court fill some 350 volumes, and the reports of some States are almost equally voluminous: the reader who wants to trace the history of law in America is confronted with over 5,000 stoutvolumes of legal cases. No one document, no handful of documents, can properly be said to reveal the character of a people or of their government. But when hundreds and thousands of documents strike a consistent note, over more than a hundred years, we have a right to say that is the keynote. When hundreds and thousands of documents address themselves in the same ways, to the same overarching problems, we have a right to read from them certain conclusions which we can call national characteristics. Part TwoThe American legal system, like the English, is methodologically mainly a case law system. Most fields of private law still consist primarily of case law and the extensive and steadily growing statutory law continues to be subject to binding interpretation through case law. Knowledge of the case law method as well as of the technique of working with case law therefore is of central importance for anunderstanding of American law and legal methodology. The Common Law is historically the common general law -- with supremacy over local law--which was decreed by the itinerant judges of the English royal court. The enforcement of a claim presupposed the existence of a special form of action, a writ, with the result that the original common law represented a system of &actions& similar to that of classical Roman law. If a writ existed (in 1227) a cla there was no recourse for a claim without a writ, the claim did not exist. This system became inflexible when the &Provisions of Oxford& (1258) prohibited the creation of new writs, except for the flexibility which the &writ upon the case& allowed and which later led to the development of contract and tort law. The narrow limits of the forms of action and the limited recourse they provided led to the development of equity law and equity case law. &Equity&, in its general meaning of doing &equity&, deciding ex aequo et bono, was first granted by the King, and later by hisChancellor as &keeper of the King's conscience&, to afford relief in hardship cases. In the fifteenth century, however, equity law and equity case law developed into an independent legal system and judiciary (Court of Chancery) which competed with the ordinary common law courts. Its rules and maxims became fixed and, to a degree, inflexible as in any legal system. Special characteristics of equity law include: relief in the form of specific performance (in contrast to the common law award of compensatory damages), the injunction (a temporary or final order to do or not to do a specific act), the development of so?called maxims of equity law which permeated the entire legal system and in many cases explain the origin of modern legal concepts. However, equitable relief regularly will lie only when the common law relief is inadequate. For instance, specific performance for the purchase of real property will be granted because common law damages are deemed to be inadequate since they cannot compensate the buyer in view of the uniqueness attributed to real property. As the common law, equity law became part ofAmerican law either through judicial acceptance or through express statutory provision. Today, both legal systems have been merged in many American jurisdictions (beginning with New York in 1848), with the result that there is only one form of civil suit in these jurisdictions as well as in federal practice. Only few States continue to maintain a separate chancery court. Nevertheless, the reference to the historical development is important because, on the one hand, it explains the origin and significance of many contemporary legal concepts (for instance the division of title in the law of property) and, on the other hand, it is still relevant for the decision of such questions whether, for instance, there is a right to a trial by jury (only in the case of common law suits, in other cases only before the judge). In addition, the differentiation will determine whether the &ordinary& common law relief of damages applies or whether the &extraordinary& equity remedy of specific performance is available. &Case law&describes the entire body of judge?made law and today includes common law and equityprecedents. In imprecise and confusing usage the terms &common law& and &case law& are often used synonymously, with the term &common law& in this usage connoting judge?made law n general as i contrasted with statutory law. &Case law& always connotes judge?made law, while &common law& in contrast--depending on the meaning intended--describes either the judge made law in common law subject matters or, more extensively, all judge madelaw.Lesson Two：Legal Profession 法律职业Background 背景美国的法律职业由律师、 法官、 检察官和法学教师组成。 不过，这几种人又都可以称为&律师&(lawyer)，而且他 们都可以是律师协会(Bar)成员。 由此可见， 美国法律职 业内部的&职业划分&并不象中国及世界上大多数国家那 样严格和确定。诚然，这里有语言习惯问题，但它也在 一定程度上反映了美国各种法律工作者之间人员变换 的频繁性，而且这种变换总以律师为中心。美国的法官一般都从律师中产生， 而且他们在担任法官期间仍可保 留律师资格，只是不能从事律师业务而已。美国的检察 官与律师之间几乎没有任何职业差别。实际上，美国的 检察官就被称为律师(attorney)。检察官与律师(我们中 国人所熟悉之含义上的律师)之间的区别仅在于前者受 雇于政府，后者受雇于私人或自己开业；前者在刑事案 件中负责公诉，后者在刑事案件中负责辩护。此外，美 国的法学教师一般都是当地的律师。 美国律师之多， 在世界上堪称第一。 1984 年的统计， 据 美国共有 64?9万名律师，其与人口的比例为 1∶364。 美国律师多的主要原因是法律在其社会生活中起着非 常重要的作用。除各种法律纠纷外，人们从生到死、从 结婚到离婚、从生活到工作，往往都需要律师的帮助。 有些人几乎事事都要请教律师。诚然，这说明美国人具 有很强的法律意识， 但也说明美国的许多法律规定过于 复杂。一般来说，美国人认为到法院去解决社会生活中 的法律纠纷是天经地义的， 但这并不等于说美国人喜欢 打官司。例如，美国有一个流传颇广的谐音字谜：&有 一种套服无人喜欢，是什么?&(There is a kind of suits that nobody likes. What is it?)回答是：&打官司。 &(lawsuits.)其实，美国人事事找律师也往往出于无可奈何。因此，美国的律师才得到了各种各样、褒贬不一的 外号，如：&租用之枪&(hired guns)；&讼棍&(shysters)； &职业投刀手&(professional knife throwers)；&限用之友 &(limited purpose friends); & 社 会 工 程 师 &(social engineers)；&社会正义之斗士&(champions for social justice)等。 Text 课文Part One： The BarThe regulation of the legal profession is primarily the concern of the states, each of which has its own requirements for admission to practice. Most require three years of college and a law degree. Each state administers its own written examination to applicants for its bar. Almost all states, however, make use of the Multistate Bar Exam, a day?long multiple?choice test, to which the state adds a day?long essay examination emphasizing its own law. A substantial fraction of all applicants succeed on the first try, and many of those who fail pass on a later attempt. In all,over forty thousand persons succeed in passing these examinations each year and, after an inquiry into their character, are admitted to the bar in their respective states. No apprenticeship is required either before or after admission. The rules for admission to practice before the federal courts vary with the court, but generally those entitled to practice before the highest court of a state may be admitted before the federal courts upon compliance with minor formalities. A lawyer's practice is usually confined to a single community for, although a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted. It is customary to retain local counsel for matters in other jurisdictions. However, one who moves to another state can usually be admitted without examination if one has practiced in a state where one has been admitted for some time, often five years. A lawyer may not only practice law, but is permitted to engage in any activity that is open to other citizens. It is not uncommon for the practicing lawyer to serve onboards of directors of corporate clients, to engage in business, and to participate actively in public affairs. A lawyer remains a member of the bar even after becoming a judge, an employee of the government or of a private business concern, or a law teacher, and may return to private practice from these other activities. A relatively small number of lawyers give up practice for responsible executive positions in commerce and industry. The mobility as well as the sense of public responsibility in the profession is evidenced by the career of Harlan Fiske Stone who was, at various times, a successful New York lawyer, a professor and dean of the Columbia School of Law, Attorney General of the United States, and Chief Justice of the United States. There is no formal division among lawyers according to function. The distinction between barristers and solicitors found in England did not take root in the United States, and there is no branch of the profession that has a special or exclusive right to appear in court, nor is there a branch that specializesin the preparation of legal instruments. The American lawyer?s domain includes advocacy, counselling, and drafting. Furthermore, within the sphere broadly defined as the &practice of law& the domain is exclusive and is not open to others. In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but, with the exception of a few inferior courts, only a lawyer may represent another in court. Nonlawyers are, however, authorized to represent others in formal proceedings of a judicial nature before some administrative agencies. The lines of demarcation are less clear in the areas of counselling and drafting of legal instruments, as for example between the practice of law and that of accounting in the field of federal income taxation. However, the strict approach of most American courts is indicated by a decision of New York?s highest court that a lawyer admitted to practice in a foreign country but not in New York is prohibited from giving legal advice to clients in New York, even though the advice is limited to the law of the foreign country where the lawyer is admitted. Aforeign lawyer may, however, be admitted to the bar of one of the states and may, even without being admitted, advise an American lawyer as a consultant on foreign law. Part Two： Lawyers in Private PracticeAmong these fifteen lawyers in practice, nine, a clear majority, are single practitioners. The remaining six practice in law firms, which are generally organized as partnerships. Four or five of these six are partners and the others are associates, a term applied to salaried lawyers employed by a firm or another lawyer. This trend toward group practice is of relatively recent origin. Throughout most of the nineteenth century law practice was general rather than specialized, its chief ingredient was advocacy rather than counselling and drafting, and the prototype of the American lawyer was the single practitioner. Marked specialization began in the latter part of that century in the large cities near the financial centers. With the growth of big business, big government, and big labor, the work ofthe lawyer accomodated itself to the needs of clients for expert counselling and drafting to prevent as well as to settle disputes. The best lawyers were attracted to this work and leadership of the bar gravitated to persons who rarely if ever appeared in court and who were sought after as advisors, planners, and negotiators. Today the lawyer regards it as sound practice to be continuously familiar with clients? business problems and to participate at all steps in the shaping of their policies. Major businesstransactions are rarely undertaken without advice of counsel. Part Three: House Counsel Out of every twenty lawyers, two are employed by private business concerns, such as industrialcorporations, insurance companies, and banks, usually as house or corporate counsel in the concern?s legal department. The growth ofcorporations, the complexity of business, and the multitude of problems posed by governmentregulation make it desirable for such firms to have intheir employ persons with legal training who, at the same time, are intimately familiar with the particular problems and conditions of the firm. In large corporations the legal department may number one hundred or more. The general counsel, who heads the office, is usually an officer of the company and may serve on important policy making committees and perhaps even on the board of directors. House counsel remain members of the bar and are entitled to appear in court, though an outside lawyer is often retained for litigation. However, it is the house counsel?s skill as advisor rather than as advocate that is a valued asset. Constantly in touch with the employer?s problems, house counsel is ideally situated to practice preventive law and may also be called upon to advise the company on its broader obligation to the public and the nation. Part Four： Lawyers in Government A parallel development has taken place ingovernment and two out of twenty lawyers are now employees of the federal, state, county, and municipalgovernments, exclusive of the judiciary. Many of those entering public service are recent lawgraduates who find government salaries sufficiently attractive at this stage of their careers and seek the training that such service may offer as a prelude to private practice. Limitations on top salaries, however, discourage some from continuing with thegovernment. The majority serves by appointment in the legal departments of a variety of federal and state agencies and local entities. The United States Department of Justice alone employs more than two thousands, and the Law Department of the City of New York more than four hundreds. Others are engaged as public prosecutors. Federal prosecutors, the United States attorneys and their assistants, are appointed by the President and are subordinate to the Attorney General of the United States. State prosecutors, sometimes known as district attorneys, are commonly elected by each county and are not under the control of the state attorney general. As a rule, lawyers in government are directly engaged in legal work, since law training is infrequently sought aspreparation for general government service. However, a small but important minority that constitutes an exception to this rule consists of those who have been appointed to high executive positions and those who have been elected to political office. Though the participation of lawyers in government has declined recently, for two centuries lawyers have made up roughly half of the Congress of the United States and of the state governors. These figures bear out the comment of Chief Justice Stone that, &No tradition of our profession is more cherished by lawyers than that of its leadership in public affairs.& Lesson Three: Legal Education 法律教育Background 背景美国的法律教育体制具有一个不同于世界上其他国家 的特点，即没有一般意义上的法学本科生。美国法学院 的学生都是本科毕业生。换言之，申请入法学院学习者 必须已在其他专业领域内获得了学士学位。 这反映了美 国人注重权利和法律的传统。他们认为，法律事务涉及人的各种权利和复杂的社会生活， 因此从事法律工作的 人应该象医生一样， 具有比从事其他职业的人更为丰富 的学识和经历。从理论上讲，在任何专业领域内获得学 士学位的人都可以考法学院；但是在实践中，法学院学 生多在政治学(Political Science)、 经济学(Economics)、 刑事司法(Criminal Justice)、社会学(Sociology)、新闻 学(Journalism)等学科获有学士学位。 虽然美国律师协会(ABA)对其认可的法学院有统一的评 估标准， 但是各法学院在学位设置和课程设置上仍有很 大的自主性和灵活性。一般来说，美国法学院设置的学 位主要有法律博士(JD, 即 Juris Doctor)、法学硕士 (LLM，即 Master of Laws)和法学博士(SJD，即 Doctor of Juridical Science)。法律博士学位课程是法学院的基 本教育课程，犹如中国及其他国家的法学专业本科课 程。法律博士学位的学制一般为三年，其第一年以必修 课(Required Course)为主， 包括合同法(Contract Law)、 侵 权 法 (Tort Law) 、 财 产 法 (Property Law) 、 刑 法 (Criminal Law)、民事诉讼(Civil Procedure)和法律文书 写作(Legal Writing)等；第二年和第三年则以选修课 (Elective Course)为主，学生可以根据自己的兴趣和意 愿从几十门法律课程中选修若干门， 但要达到学校规定的学分标准。 法学硕士和法学博士的培养属于法学院的 研究生教育。 攻读法学硕士学位的人必须已经获得了法 律博士学位或者在其他国家获得了法学学士学位； 其学 制一般为一至二年；其学习方式以修课为主，而且法学 院一般允许学生以增修一定学分的方式代替毕业论文。 攻读法学博士学位的人一般应已获得了法学硕士或法 律博士学位；其学制一般为三至五年；其学习内容主要 为撰写学位论文， 但法学院院长或其导师也可能要求其 选修一定课程或从事一定研究工作。 法学院很少开设专 门面向研究生的课程，因此研究生多与&本科生&(JD 生) 一起听课。 美国法学院的教授在教学过程中较重视对批判性思维 (critical thinking)方式的培养，且多采用案例教学法 (Case Method)和问答式即苏格拉底式教学法(Socratic Method)。诚然，在美国的法学教授中亦不乏偏爱讲演 式教学法(Lecture Method)的&说书人&(story-teller)。 Text 课文In 1983, over 125,000 law students were studying in more than 170 ABA accredited law schools includingpublic law schools supported in part private law schools supported by contributions from individuals
and local or national schools offering full time or part time legal study programs. As virtually the only way to prepare for membership in the legal profession, law schools in the United States fulfill several functions including professional training and socialization of future lawyers and screening and gatekeeping for entrance to the profession. Since there is no central institution where all lawyers practice, the only institutional experience which lawyers have in common is law school. The criticisms which range from &mild to caustic& of the way in which law schools have carried out these functions and of the functions themselves have been persistent, diverse and rooted in the historical and political development of the profession. These criticisms have focussed on the curriculum and the dominanc the distribution of power and prestige reflected in the hierarchy withinand a and the imbalance in terms of women and minorities in the student body and faculty in the law schools.Part One： Curriculum and the Case Method The traditional first?year program offered in virtually all American law schools includes contracts, torts, property, criminal law and civil procedure. Duncan Kennedy has described the traditional first?year curriculum as basically teaching the ground rules for late 19th century laissez?faire capitalism. The second year and third year course expound the moderate reformist New Deal program and the administrative structure of the modern regulatory state. The peripheral subjects, if they are offered, include legal philosophy, legal history, legal process, and clinical education, a &kind of playground or finishing school for learning the social art of self presentation as a lawyer&.However, as new areas of the law continue to develop in response to contemporary issues and problems, some law schools have expanded curricula to include courses and clinical programs in environmental law, housing and urban development, women?s rights, health in the workplace, welfare rights and consumer protection. There are also increasing efforts to teach law in interdisciplinary contexts, drawing on other disciplines such as history, psychology, sociology, medicine, and economics. In teaching the traditional curriculum, law teachers in almost all the law schools use to some extent the case method or the Socratic method. Developed in the 1870?s by Christopher Columbus Langdell at the Harvard Law School, the case method looked to the common law as the source of legal priniciples and focussed on the teaching of an abstract conception of the law as a science. The legal principles elicited were to be taught divorced from the &grubby world of practice--and also from politics, history, economics, and social contexts&. This narrow formalistic approachwas justified on the ground that it taught students how to state, analyze, evaluate and compare concrete fact situations thus developing their powers and skills of analysis, reasoning, and expression. However, this process of learning &how to think like a lawyer& has been criticized as having an adverse impact both on the students and the quality of future lawyering. Students, law teachers, and others have pointed to the alienation, anxiety, hostility and aggression caused by use of the case method or Socratic method. The narrow and destructiveinteraction of this dialogue, or often &nondialogue&, contributes to the impairment of the ability to care about other people, a professional unemotionalism and cynicism on the part of law students. And it is not only the law students who suffer from this narrowing of their professional selves. The work of a lawyer involves continuous contacts with clients, associates, other lawyers, judges, witnesses, others affected by the law, and involves the lawyer?s own goals, attitudes, performance, and sense of satisfaction.Part Two： Law School HierarchyDuncan Kennedy has described the law schools as &intensely political places&, characterized by a &trade?school mentality, the endless attention to trees at the expense of forests.& The law schools function as the institution for &ideological training for willing service in the hierarchies of the corporate welfare state&. In the ranking and evaluation of students, students learn to accept their place in a hierarchy which is presented as just and inevitable and &so prepare themselves for all the hierarchies to follow&. In the law teachers? modeling of hierarchical relationships with students, colleagues, secretaries and support staff, students learn a particular style of condescension towards perceived inferiors anddeference towards perceived superiors. And under the subtle but intense pressure to conform to the &white, male, middle?class tone& set by law faculties which are overwhelmingly white, male, and middle?class, law students adapt, &partly out of fear, partly out of hope of gain, partly out of genuineadmiration for their role models&. In these ways, &legal education is one of the causes of legal hierarchy. Legal education supports it by analogy, provides it a general legitimating ideology by justifying the rules that underlie it, and provides it a particular ideology by mystifying legal reasoning. Legal education structures the pool of prospective lawyers so that their hierarchical organization seems inevitable, and trains them to look and think and act just like all the other lawyers in the system& . In addition to the hierarchy within the law schools suggested by Kennedy, other analyses of the law schools functions and relationship to the profession suggest the existence of a hierarchy among the law schools. The top dozen or so elite law schools occupy a position of power and prestige which is partially reflected in the professional career paths of their graduates and in the &old boy networks& connecting the law schools and the rest of the legal profession. The models of the &law school as the gateway to the American power elite became possible with the NewDeal&. Felix Frankfurter?s placement network for the &best and the brightest& into influential public policy positions during the New Deal in the 1930?s was an early example of this kind of network. During his tenure at Harvard and later while on the Supreme Court, Frankfurter developed an &old boy network& which was intimately involved with the placement of many of the &elite& lawyers, all of whom were white and male, into public service. The typical Frankfurter recruit was &a graduate of Harvard Law School, politically liberal, usually ranked high in his class, and either an obvious product of upper class gentile culture or an obvious product of a radically different culture who was 'comfortable' in the upper class gentile world&. In the current hiring practices of the major law firms and in the competition for judicial clerkships, and in the appointments to law faculties, the graduates of the elite schools continue to have an advantage over graduates of other schools. In a recent study of Chicago lawyers, Zemans and Rosenblum found thatlawyers who attended &high?prestige law schools and graduated in the top 20 percent of their classes were much more likely to practice in large firms and specialize in high?prestige fields of law&. In terms of appointments to law faculties, 60% of the legal profession?s teaching sp ecialists are produced by fewer than 15% of the nation?s accredited law schools. These law teacher producer schools are mostly national, located in urban locations, and include schools such as Harvard, Yale, Columbia, University of Michigan, Chicago, New York University, Northwestern University, and Georgetown. If it is true that the full?time faculty of the law schools &have a virtual monopoly on who will and will not enter the (legal) profession& and &on the power to mold future generations&, then the existence of a hierarchy among the law schools suggests that an elite group of schools is primarily responsible for staffing the law schools, which in turn produce lawyers for the hierarchies within the profession. Lesson Four：Judicial System 司法系统Background 背景美国法院系统的突出特点是&双轨制&，即由联邦法院和 州法院这两个相互独立且平行的体系组成。 联邦法院行 使美国宪法授与联邦政府的司法管辖权。在刑事领域 中，联邦法院负责审理那些违犯联邦法律的刑事案件； 在民事领域中，联邦法院负责审理以合众国为一方、涉 及&联邦性质的问题&，以及发生在不同州的公民之间且 有管辖权争议等种类的民事案件。 州法院的司法管辖权 较为广泛。按照美国宪法的规定，凡是法律未明确授与 联邦法院的司法管辖权，均属于州法院。在实践中，绝 大多数刑事案件和大多数民事案件都是由各州法院审 判的。 联邦法院是一个统一的系统。它由联邦最高法院(the Supreme Court) 、 13 个 联 邦 上 诉 法 院 (Courts of Appeals)和 94 个联邦地区法院(District Courts)组成。 此外还有索赔法院(the Court of Claims)、关税法院(the Customs Court)、关税及专利上诉法院(the Court of Customs and Patent Appeals) 等 联 邦 特 别 法 院 (Special Courts)。 各州的法院系统并不完全相同， 但一般也都包括三级法院：基层法院多称为审判法院(Trial Court)或巡回法院(Circuit Court)； 中级法院多称为上诉 法院(Appellate Court or Court of Appeals)；高级法院 多称为最高法院(Supreme Court)，但在纽约等州，高 级法院称为上诉法院。许多州也有一些专门法院，如遗 嘱 检 验 法 院 (Probate Court) 、 青 少 年 法 院 (Juvenile Court)、家庭关系法院(Court of Domestic Relations)和 小额索赔法院(Small Claims Court)等。 此外， 每个城市 还有自己的法院， 主要负责审理交通违法、 青少年犯罪、 家庭纠纷及其他与城市法令有关的案件。 美国的联邦法官都是由总统任命的； 各州的法官多经选 举产生，但也有些是由地方行政长官(如州长或市长)或 地方立法机关(如州议会或市议会)任命的。一般来说， 联邦和州最高法院的法官称为大法官(Justice)，上诉法 院和审判法院的法官则称为法官(Judge)。此外，有此 基层法院的审判人员还称为治安法官(Justice of the Peace)或司法官(Magistrate)。美国的法官虽没有职称 级别之分，但人们有时也会看到&副&(Associate，或译& 助理&)法官的称谓。例如，美国联邦最高法院的 9 名大 法官中，除首席大法官(Chief Justice)外，其他 8 人均 可称为副(或助理)大法官(Associate Justice)； 而一些州审判法院的巡回法官(Circuit Judge)之下也设有副(或 助理)法官(Associate Judge)。在美国，一审案件一般 由一名法官独立审判， 上诉案件则由若干名法官组成合 议庭(Collegiate Panel or Collegiate Bench)共同审判。 Text 课文Part One： Courts There are fifty?two separate court systems in the United States. Each state, as well as the District of Columbia, has its own fully developed, independent system of courts and there is a separate federal court system. The federal courts are not superior they are an independent, coordinate system authorized by the United States Constitution, Art. Ⅲ ,§2, to handle matters of particular federal interest. The presence of two parallel court systems often raises questions concerning the relationship of the state and federal systems, presenting important issues of federalism. The United States SupremeCourt, composed of nine justices, sits as the final and controlling voice over all these systems. Although a few states, such as Nebraska, have a two?tiered system, most states, as well as the federal courts, are based on a three?tiered model. That means that for any litigant there will be the opportunity to plead his case before a trial court and then, should he lose, there are two levels of appeal at which he ultimately may succeed. For example, in the federal system the trial court is the United States District Court, of which there is at least one in every state. Many larger states are divided into two, three or even four judicial districts, depending on population, geography and caseload. There are ninety-four districts in the United States and each district court has one judge, or more commonly two or more. After an adverse judgment in the district court, a litigant may appeal to the United States Court of Appeals for the circuit in which the district court is located. There are eleven numbered intermediate appellate courts in the federal system, each including anywhere fromthree to ten states and territories. Additionally, there is a Court of Appeals for the District of Columbia, hearing appeals from the federal district court there, and one for the Federal Circuit, taking appeals from various specialized federal tribunals, such as the Claims Court. Each court of appeals has four or more judges who sit in panels of three to review district court decisions, as well as some decisions of administrative agencies. A losing litigant in the court of appeals may, in some cases, be able to obtain review by the United States Supreme Court. Cases in the state courts similarly may proceed through a trial court, a state appellate court, and then the state supreme court. If a federal constitutional question is involved the decision of the state supreme court may be reviewed by the United States Supreme Court. Since 1988, review by the Supreme Court in civil ca virtually all civil appeals as of right to the highest court have been abolished. Three?tiered systems vary on the role which the highest court plays. The approaches taken reflectdiffering philosophies with regard to what the highest court should do. For example, in California only criminal cases in which capital punishment has been imposed are appealable as of right to the state supreme court. Similarly, in the federal courts, except in a few very limited circumstances, appeals to the United States Supreme Court are discretionary, by writ of certiorari. The Court decides for itself what are the most important questions that deserve its attention and will refuse to review decisions raising issues that it feels are not as crucial. In this way it supervises the administration of law by the lower courts on an ad hoc basis. At the other end of the spectrum, such as in New York, appeals to the state?s highest court are as of right in a great man y cases provided for by statute. The primary function of the highest court in New York appears to be to assure that cases are correctly decided. It is necessary to check carefully the statutes of the system in which you are appearing to determine the specific rules regarding review by those appellate courts.Part Two： JudgesFewer than one in twenty of those admitted to practice law is a federal, state, county, or municipal court judge. Except for some inferior courts, judges are generally required to be admitted to practice but do not practice while on the bench. There is so little uniformity that it is difficult to generalize further than to point out three salient characteristics that relate to the ranks from which judges are drawn, to the method of their selection, and to their tenure. Judges are drawn from the practicing bar and less frequently from government service or the teaching profession. There is in the United States no career judiciary like that found in many other countries and there is no prescribed route for the young law graduate who aspires to be a judge, noapprenticeship that must be served, no service that must be entered. The outstanding young law graduates who act for a year or two as law clerks to the most distinguished judges of the federal and statecourts have only the reward of the experience to take with them into practice and not the promise of a judicial career. While it is not uncommon for a vacancy on a higher court to be filled by a judge from a lower court, even this cannot be said to be the rule. The legal profession is not entirely unaware of the advantages of a career judiciary, but it is generally thought that they are outweighed by the experience and independence which American lawyers bring to the bench. Many of the outstanding judges of the country?s highest courts have had no pror judicial i experience. Criticism has centered instead on the prevalent method of selection of judges. State court judges are usually elected, commonly by popular vote, but occassionally by the legislature. Popular election has been the subject of much disapproval, including that of the American Bar Association, on the ground that the public lacks interest in and information on candidates for judicial office and that therefore the outcome is too often controlled by leaders of political parties. The situationhas been somewhat improved since many local bar associations have undertaken to evaluate thequalifications of candidates and to support or oppose them on this basis. Since 1937, the American Bar Association has advocated the substitution of a system under which the governor appoints judges from a list submitted by a special nominating board and the judge then periodically stands unopposed for reelection by popular vote on the basis of his or her record. Such a system is now in effect, for at least some judges, in a substantial minority of states. In a small group of states, judges are appointed by the governor subject to legislative confirmation. This is also the method of selection of federal judges, who are appointed by the President subject to confirmation by the Senate. Even under theappointive system the selection of judges is not immune from political influence and appointees are usually of the President?s or governor?s own party. But names of candidates for the federal judiciary aresubmitted to a committee of the American Bar Association and appointment is usually made only with its approval. The office of chief judge or chief justice is usually filled in the same manner as other judicial offices, although in some states it is filled from among the members of the court by rotation, by seniority of service, or by vote of the judges. The Chief Justice of the United States is appointed by the President, subject to Senate confirmation. The third characteristic is that judges commonly serve for a term of years rather than for life. For courts of general jurisdiction it is typically four, six, or eight years, and for appellate courts, six, eight, or ten years. Happily, even where selection is by popular election, it is customary to return to office for sitting judges whose service has been satisfactory. In a few state courts and in the federal courts the judges sit for life. Whether on the bench for a term of years or for life, a judge may be removed from office only for gross misconduct and only by formal proceedings.Instances of removal have been rare indeed and onlya handful of federal judges have been removed by formal proceedings. The independence of thejudiciary is also encouraged by the rule that a judge incurs no civil liability for judicial acts, even if guilty of fraud and corruption. The American Bar Association?s Code of Judicial Conduct has been widely adopted as a standard to which judges are expected to adhere. Salaries for the higher judicial offices are usually good although less than the income of a successful private practitioner, the prestige of these offices is high, and the bench has been able to attract many of the country?s ablest legal minds. The great names in American law are in large part the names of its great judges. Lesson Five：Constitution 宪法Background 背景英 美 法 系 国 家 中 常 见 的 法 律 分 类 (Classification of Laws)有三种：第一种是把法律分为普通法(Common Law)和衡平法(Equity)；第二种是把法律分为实体法(Substantive Law)和程序法(Procedural Law)；第三种 是 把 实 体 法 分 为 公 法 (Public Law) 和 私 法 (Private Law)。公法包括宪法、行政法、刑法、税法等；私法包 括合同法、侵权法、财产法、公司法、家庭法等。在公 法中，宪法占有最为重要的地位。虽然美国的每一个州 都有自己的宪法， 但是人们通常所说的宪法都指联邦宪 法。 1777 年，美国联邦议会通过了&联邦条例&(Articles of Confederation and Perpetual Union)。这是美国最早的 宪法性法律文件。1789 年，美国立法机构大陆会议又 通过了一部新的宪法性文件，即联邦宪法。这部宪法至 今仍然是美国的最高法律。 美国联邦宪法最初只有 7 条、近 8000 字，后来又补充 了一系列修正案(Amendments)。 10 条修正案是作为 前 一个整体--合称为&人权法案&(the Bill of Rights)--于 1789 年由国会通过，于 1791 年由 11 个州批准而生效 的。目前，美国联邦宪法共有 27 条修正案。正因为美 国联邦宪法内容简洁、富有灵活性，而且以修正案方式 不断完善， 所以它才成为世界上&寿命最长&的成文宪法。 Text 课文Part One： The Constitution as Supreme LawThe U.S. Constitution, a relatively simple document, is the self?designated &supreme law of the land&. This clause is taken to mean that when state constitutions, or laws passed by state legislatures or the national Congress, are found to conflict with the federal Constitution, they have no force. Decisions handed down by the Supreme Court over the course of two centuries have confirmed and strengthened this doctrine of constitutional supremacy. Final authority is vested in the American people, who can change the fundamental law if they wish, by amending the Constitution, or--in theory, at least--drafting a new one. The people?s authority is not exercised directly, however. The day?to?day business of government is delegated by the people to public officials, both elected and appointed. The power of public officials is limited. Their public actions must conform to the Constitution and to thelaws made in accord with the Constitution. Elected officials must stand for re?election at periodic intervals, when their record is subject to intensive public scrutiny. Appointed officials serve at the pleasure of the person or authority who appointed them, and may be removed when their performance is unsatisfactory. The exception to this is the lifetime appointment by the President of Justices of the Supreme Court and other federal judges. Most commonly, the American people express their will through the ballot box. The Constitution, however, does make provision for the removal of a public official from office, in cases of extreme misconduct or malfeasance, by the process of impeachment. Article Ⅱ, Section 4 reads: &The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.&In such cases, the House of Representatives must vote a bill of impeachment. The public official is then tried in the Senate, with the Chief Justice of the United States presiding at the trial. Impeachment is considered a drastic measure in the United States. In the past 200 years, only 13 U.S. officials have been impeached: nine judges, an Associate Justice of the Supreme Court, a Secretary of War, a Senator, and a President, Andrew Johnson. (In the case of another President, Richard Nixon, although the House Judiciary Committeerecommended impeachment the President resigned before a House vote was taken.) Out of the thirteen cases, only four judges have been convicted and removed from office. State officials are similarly subject to impeachment by the legislatures of their respective states. In addition to setting forth general political ideas, the Constitution provides the blueprint for thegovernmental system. The three major articles describe the three branches of the nationalgovernment--legislative, executive and judicial--each with specific duties and responsibilities. Subjects on which the legislative branch can make laws are set out in considerable detail, although over the years judicial decisions have expanded the scope of congressional activity. The powers and duties of the President, as head of the executive branch, are described. A system of federal courts is outlined, and its relationship to other branches of government is set forth. Part Two： The Principles of GovernmentAlthough the Constitution has changed in many aspects since it was first adopted, its basic principles remain the same now as in 1789: The three main branches of government are separate and distinct from one another. The powers given to each are delicately balanced by the powers of the other two. Each branch serves as a check on potential excesses of the others.The Constitution, together with laws properly passed according to its provisions, and treaties entered into by the President and approved by the Senate, stands above all other laws, executive acts and regulations. All men are equal before the law and are equally entitled to its protection. All states are equal, and none can receive special treatment from the federal government. Within the limits of the Constitution, each state must recognize and respect the laws of the others. State governments, like the federal government, must be republican in form, with final authority resting in the people. The people have the right to change their form of government by legal means defined in theConstitution itself. Part Three:Provisions for AmendmentThe authors of the Constitution were keenly aware that changes would be needed from time to time if the Constitution were to endure and keep pace with the growth of the nation. They were also conscious that the process of change should not be facile, permitting ill?conceived and hastily passed amendments. By the same token, they wanted to assure that a minority could not block action desired by most of the people. Their solution was to devise a dual process by which the Constitution could be changed. The Congress, by a two?thirds vote in each house, may initiate an amendment. Or the legislatures of two?thirds of the states may ask Congress to call a national convention to discuss and draft amendments. In either case, amendments must have the approval of three?fourths of the states before they enter into force. Aside from the direct process of changing the Constitution itself, the effect of its provisions may be changed by judicial interpretation. Early in the history of the republic, in the landmark case of Marbury vs.Madison,the Supreme Court established the doctrine of judicial review, which is the power of the Court to interpret acts of Congress and decide theirconstitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to changing legal, political, economic and social conditions. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has had the effect of altering the thrust of constitutional law, with no substantive change in the Constitution itself. Congressional legislation, passed to implement provisions of the basic law, or to adapt it to changing conditions, also broadens and, in subtle ways, changes the meaning of the Constitution. Up to a point, the rules and regulations of the myriad agencies of the federal government may have a similar effect. The acid test in both cases is whether, in the opinion of the courts, such legislation and rulesare in conformity with the intent and purposes of the Constitution itself. Lesson Six: Administrative Law 行政法Background 背景 美国的法学家认为， 行政法是管理政府行政活动的部门 法。它规定行政机关可以行使的权力，确定行使这些权 利的原则， 以及对受到行政行为侵害的人给予法律上的 补救。行政法一般被认为是属于公法的范畴，但是在美 国， 公法和私法之间的区别不像在大陆法系国家中那么 严格，因此，美国的行政法案件也由受理私法案件的普 通法院审判。 行政法包括实体法和程序法(Procedural Law)的内容。 美国行政法研究的主要对象是后者。就联邦一级而言， 美国的行政程序法可以追溯至 1789 年的联邦宪法修正 案，但是在实质意义上的行政程序法则始于 1887 年为 处理铁路工业问题而成立的州际商业委员会。 该委员会 是美国联邦行政部门中最早的独立规制机构 (Independent Regulatory Agency)。20 世纪 30 年代， 在罗斯福总统推行的&新政&(the New Deal) 时期，各种联邦行政机关如雨后春笋般建立， 美国的行政程序法也 得到长足的发展。 美国的行政法是由宪法、法律、判例、行政规章等组成 的。其中，最为重要的是联邦宪法第五修正案中的正当 程序(Due Process)条款和 1946 年的联邦行政程序法 (Federal Administrative Procedure Act)。 诚然， 判例法 的作用亦十分重要。 Text 课文 General statutory measures that purport to deal with &administrative law& define the scope of their application in terms of three concerns: the procedures employed by &agencies& in effecting &agency action&; judicial (and, to a lesser extent, political) rev and special procedures relating to the handling and release of information in the government?s possession. Neither a court nor a legislature nor an elected chief executive can be an &agency& under of these courts, statutes, although and the chiefrelationshiplegislaturesexecutives with agencies is very much a matter ofadministrative law concern. Otherwise the concept includes virtually every administrative unit exercising public authority. &Agency action& is also embracively defined. While the provisions of administrative procedure legislation generally deal with the relatively formal procedures of adjudication and rulemaking, as discussed below, federal &agency action& includes any grant, denial, or failure to act upon &the application or petition of, and beneficial to, a person&; under the most recent draft of model stateadministrative procedure legislation, &agency action& includes &an agency?s performance of, or failure to perform, any ... duty, function, or activity,discretionary or otherwise.& Again, the category is virtually as broad as the field of p only traditional criminal law proceedings, traditional civil litigation, and political acts in the strict sense, those indisputably beyond the control of law, are excluded. It should not be surprising to find the domain of &administrative law& in the legal system so broadlydefined. Scholars developed the concept toward the beginning of this century, as public administration grew. As unruly as the developments it sought to capture, it was a grab?bag for all government actions affecting private persons that did not fit comfortably any of the existing structures of legal analysis--either those of the criminal law or of the ordinary civil law as administered by courts. The scholarly view of administrative law has grown, with government, to embrace almost all subjects that can be connected with public administration. Although criminal trials are excluded, many assert that it embraces the exercise of discretion by police officers and prosecutors. Although it excludes an action initiated by the government in federal court to collect a simple debt, it would include that action if begun within an executive body and later brought before courts for enforcement or review. One might have said at the outset that it was sub?constitutional in character, concerned with statutory and customary arrang yet as the preceding pages make plain, constitutionalissuesrespectinggovernmentalstructureandconduct are now important concerns. In the American framework, a focus on procedural issues provides an analytic structure for generalizing about the central tasks of administrative law: assuring the control as well as the effectiveness of government. Such a focus is needed despite the recognition that generalizations are made problematic by the diversity of agencies and agency actions, and the close relationship between the substance of any particular agency?s responsibility and the procedures it will employ. Talking from the perspective of&administrative law& about the work of the Federal Securities and Exchange Commission (or of the Forest Service, or of a state public utilitiescommission, or a local building inspector) focuses on its procedures, rather than its particular substantive responsibility for implementing a certain part of federal (or state or local) policy. One assumes, initially, that all agencies employ certain paradigmatic procedures to accomplish their ends and that theseagencieshaveparadigmaticrelationshipswithoverseers such as courts who review the end product of these procedures. These paradigmatic procedures and relationships can and do vary to meet the needs of particular situations. Consequently, in dealing with a concrete situation, one must always seek to understand the responsibilities and procedures of the particular agency whose work is at issue. at theNonetheless,analysisusefullybeginsparadigms, which are expressed in procedural forms that are not directly a function of the particular agency whose work is under examination. These paradigms are the focus of the following chapters. It would be wrong to anticipate them here in any detail. The remaining paragraphs of this chapter examine a variety of substantive responsibilities commonly given administrative agencies. Forpurposes of initial comprehension it may be useful to have the following sketchy models in mind: Formal adjudication: A proceeding stronglyresembling a civil trial, conducted &on the record&before an administrative law judge or agency to determine a particular dispute. Formal adjudications are generally characterized by a strict separation of functions within an agency, so that staff responsible for investigation and presentation of the agency?s position do not participate in the decision process. The results of formal adjudication are generally reviewed by courts with relatively close attention to the existence of factual and legal support for the outcome. Informal adjudication: Procedures for resolution of a particular dispute that do not require &on the record& hearing. If a hearing format is used, it may be quite informal. But &informal adjudication& is used to describe the taking of decisions by bureaucratic routine--for example, a decision to authorize the use of federal money for the construction of a particular road project. Judicial review is relatively permissive, recognizing considerable discretion in the person acting.Formal rulemaking: A proceeding conducted &on the record& to determine a statute?like norm for future application, for example what proportion of peanuts should be required in a substance to be labeled &peanut butter,& or what is a reasonable rate to be charged for utility services. Formal rulemaking differs from formal adjudication in certain structural those responsible for developing and presenting the agency?s analysis at the hearing, for example, are not required to be separated from the decision process as they are in formal adjudications. The character of the hearing and of subsequent judicial review, however, strongly resembles formal adjudication. Informal rulemaking: The ordinary procedure for generating statute?like norms for future application. Its public stages are initiated by a notice of the interested public then has an opportunity to file written comments on the proposal. Oral hearings are optional, although encouraged by some statutes, for example, many connected withenvironmental, health, and safety rules. On adopting a rule, the agency is under some obligation to explain its basis and purpose. Decision is takenbureaucratically, and judicial review is relatively permissive, although with increasing attention to the existence or not of factual support for rules of importance. A rule once validly adopted has the full force of statutory law on those subject to it. Interpretation: An informal procedure for generating and announcing agency interpretations of applicable norms. Interpretations may be generated internally or in r ordinarily no procedure is required (although procedures like those for informal rulemaking are often followed). The interpretations do not formally bind persons outside the agency, although they are likely to be regarded as persuasive by the courts. Decision is ta judicial review may not be directly available and, when available, is generally deferential. Inspection: Direct physical view by a qualified government official, sometimes used as a substitutefor adjudication procedures (as, for example, in grading agricultural commodities, or examining the skill of applicants for a driver?s license) but also employed to determine the existence or not of conditions warranting formal administrative action. Lesson Seven: Criminal Law 刑法Background 背景 美国的刑法主要属于各州的司法管辖权范围。换言之， 绝大多数犯罪都受各州刑事法律的管辖。 联邦政府只是 在涉及民权、税收、邮政、商业等问题上制定了一些刑 事法律。此外，针对联邦官员和联邦财产的犯罪也受联 邦法律管辖。 虽然美国的刑法是在判例法的基础上发展 起来的，但是目前美国各州都有自己的刑法典。1962 年批准的《标准刑法典》(Model Penal Code)对联邦和 各州的刑事法律都产生了重大的影响。 刑 法 中 的 主 要 问 题 有 三 个 ： 犯 罪 (crime) 、 刑 罚 (punishment)和刑事责任(criminal liability)。 在美国， 各 州法律中关于犯罪定义和种类的规定并不尽同。 一般来 说，犯罪可以分为重罪(felony)和轻罪(misdemeanour)两大类。而每一种犯罪又可以分为若干等级，以表明其 相对的严重性。刑罚一般都由法官确定。虽然刑法典中 没有量刑标准， 但是联邦和各州多有指导法官判刑的量 刑指南(Guidelines for Sentencing)。美国在 1965 年废 除了死刑(capital punishment)，但是在 1976 年又开始 恢复死刑。南部各州恢复死刑较早。纽约州直到 1995 年才恢复死刑。目前，美国大约四分之三的州的法律规 定有死刑， 而没有死刑的州主要集中在美国的东部和北 部。从 1976 年至 1992 年 11 月 5 日，美国共有 184 人在 20 个州被执行死刑，而在狱中等待死刑的囚犯为 2636 人。美国的死刑上诉程序十分复杂，而且名目繁 多，耗费时间，因此，死囚犯在狱中等待死刑的时间超 过 20 年者屡见不鲜。刑事责任问题中最有代表性也最 易产生争议的就是被告人是否有精神疾患(insanity)的 问题。在杀人罪等重大刑事案件的审判中，被告方进行 &精神不正常辩护&(insanity defense)的作法十分常见。 1981 年 3 月发生在华盛顿市的辛克雷企图谋杀里根总 统案就是一个绝好的实例。 Text 课文 Homicide is the killing of one human being by another human being. Not all homicides are criminal, however.For instance, a person who kills another in self?defense ha it is justifiable homicide. The same is true of the police officer who kills a person to prevent the commission of a forcible felony, such as robbery or burglary, when the killing is a reasonably necessar or when the officer kills a dangerous felon in order to prevent his escape. Then, too, some killings are for instance, where a person accidentally, and without gross negligence, causes the death of another individual. A killing amounts to a criminal homicide when it is done without lawful justification or excuse. Depending upon certain circumstances it may be either murder or manslaughter. In the early days of our country, and prior thereto in England, the elements of the crimes of murder and manslaughter were prescribed by court decisions. These decisions came to be known as the &common law&. Since then, in most jurisdictions murder and manslaughter have been redefined by the legislatures,either in the form of a separate statute or as a provision of a criminal code.1. Murder According to the common law, murder was the killing of a human being with &malice&, and the requirement of &malice& is still found in some present?day statutes and codes. The California Penal Code, for instance, has retained it. That code provides, as did the common law, that &... malice may be express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.& A clear illustration of express malice is a case where one person intentionally pushes another off the side of a mountain. An example of implied malice is where a person fires a rifle at a moving passenger train, just &to scare& the persons aboard or to display skill at firing a bullet between the cars without hitting anyone.The dangerousness of the conduct would be evidence of &malice& as regards any killing that may be reasonably attributed to such conduct. It would indicate, to a California court or jury, &an abandoned and malignant heart&. The penalty for murder is punishable by
in others by prison terms extending to &life& or a specified number of years. (a) Felony?Murder Another example of a satisfaction of the element of malice is a killing during the course of a felony such as robbery. Even though a robber?s gun goes off accidentally, killing the robbery victim, or a bystander, or a police officer, his conduct of committing such a dangerous crime as robbery satisfies the requirement of malice so that the killing becomes punishable as murder. A similar line of reasoning has resulted in holding co?felons guilty of murder where, in the course of an exchange of shots between robbers andthe police, a police officer is accidentally killed by another officer. Malice may also be attributed to a robber whose partner in the crime intentionally kills someone during the commission of the crime or the attempted escape. Malice on the part of all participants is implied from the dangerousness o moreover, each robber is considered to act as an agent for the others in accomplishing their objective, including the attempt to escape. This whole issue of felony?murder stems primarily from the prosecution?s interest in seeking the death penalty for such killings. In some of the states which have abolished capital punishment (Wisconsin, for example), the legislatures, out of an understandable desire to punish robbers more severely whenever a killing results, have provided that the punishment for such offenses shall be fifteen years greater than that provided for non?fatal robberies. (b) Degrees of MurderSome states have specified varying penalties for murder, depending upon the circumstances of the killing. A &willful, deliberate andpremeditated& killing, such as a poisoning or a killing during the commission of a dangerous felony, may be labeled first degree murder and punishable by death or long imprisonment. Other forms of murder may be of the second degree and punishable with a lesser penalty. According to the common law, however, there were no degrees of murder. Any unlawful killing was either murder or manslaughter.2. Manslaughter Manslaughter was defined at common law as an unlawful killing of another without malice. It could be either voluntary or involuntary. Manslaughter, in contrast to murder, is usually punishable by a prison term which may range from one year to ten or fourteen years. (a) Voluntary Manslaughter An intentional killing upon &great provocation& and &in the heat of passion& constitutes the crime of voluntarymanslaughter. A classic example is the killing by a husband (or wife) who unexpectedly finds his or her spouse in an act of sexual intercourse with another person, or in a situation evidencing impending or immediately concluded adulterous conduct. A killing of the paramour or of the spouse, or both, in such a circumstance would fall within the category of manslaughter because (a) the provocation was great, and (b) the killer was in the &heat of passion&. A killing of this type is treated less harshly than murder, out of consideration for the frailties of human nature. In other words, there is an understanding appreciation that the instinctive reaction of the husband (or wife) in such a situation is to kill or do other serious harm. Nevertheless, there is a feeling that such conduct should be discouraged by a criminal sanction, but one with a penalty considerably less than for the crime of murder. It is of interest to note that in such paramour killing cases the conviction rate is quite low, primarily because of the willingness of juries to acceptoccasionally the frequently concocted explanation that the killing was done in self? in other words, the paramour attacked the spouse, who killed his &attacker& only in order to keep from being killed himself. The result of acquittal in such cases is sometimes described in the press as an acquittal by reason of &the unwritten law&. A few states (Texas, New Mexico, and Utah) have tried to simplify the whole matter of paramour killings by legalizing such killings where the paramour is caught in the act. But in those states the privilege does not extend to the killing of the participating spouse! In applying the test of whether an intentional killing was upon great provocation and in the heat of passion, the question is put to the jury, or to the judge in non?jury cases, as to whether the accused reacted as a &reasonable man&. Technically speaking, it is not the particular sensitivity or temper of the killer that is taken into consideration, but rather an effort is made to determine how a &reasonable man& might haveacted under similar circumstances. An illustration of this is a famous English case where a sexually impotent man felt insulted by the remarks of a prostitute with whom he had tried in vain to have sexual intercourse, and he proceeded to kill her. He contended that his sensitivity over his condition should be taken into account in determining whether there was serious provocation for this reaction, but the court held that his conduct was to be judged by the standard of an ordinary, normal &reasonable man&. (b) Involuntary Manslaughter Involuntary manslaughter may be described generally as an unintentional killing resulting from gross negligence, or as a result of dangerous unlawful conduct. For example, a person who throws a heavy object from the upper stories of a building into an alley used with some frequency by pedestrians may be guilty of manslaughter if a killing results. Likewise, a motorist may commit manslanghter if he kills a child ata school crossing while travelling at an excessive speed. A number of states have created a related crime known as &reckless homicide& or &negligent homicide&, for application to killings by motorists who were driving in a reckless or grossly negligent manner. This special kind of homicide legislation was}