法律英语口语试题.doc

法律英语口语试题1. What are the main difference between civil law system and common law system?In common law countries, cases are usually concidered to be the primary source of law. In civil law countries, cases are simply not a source of law---at least in theory.2. Can you explain the difference between the binding precedent and persuasive precedent?Binding precedent is precedent that a court must follow (it is law). All prior judicial decisions in a specific court's jurisdiction heard at that court's level or higher are considered to be binding precedent.In contrast, persuasive precedent is precedent that a court need not follow (it is not law, but as the name suggests, may be persuasive because it suggests a line of reasoning). All prior judicial decisions outside of that court's jurisdiction or from a lower court are considered to be persuasive only.3 .What might happen if a court follows the precedent machanically?A court following the precedent machanically will at times perpetuate legal rules and concepts that are out of date.4 .Explain the difference between stare decisis and res judicata?Stare decisis refers to the tradition of following precedents.Res judicata is ofen used to affirm the judgement of the supreme court or the court of last resort in one state.5. What’s the function of court of last resort? Why are appeals to court of last resort limited?The function of court of last resort is to review the action of the lower judicial tribunals of the state. The scope of judicial review is relatively narrow. It only reviews the record of the proceedings to determine whether or not the lower court committed error on its procedure or in applying the substantive law to the facts of the case.Appeals to court of last resort are limited. It’s because court of last resort has to give its full attention to novel and socially important controversies. The “screening ort” function refers to make the intermediate appellate court the final tribunal for most cases.6. Can you explain diversity of citizenship? What court have jurisdiction over “diversity of citizenship”?Diversity of citizenship means suits between citizens of different states of the United States.Both federal and state courts have the jurisdiction over “diversity of citizenship”. If a plaintiff files the case in a state court of his own district, the defendant can remove it to a federal court of the same district. But if the plaintiff files it in the court of the defendant’s district, the defendant can’t remove it.7. How can you get appeals reviewed by the Supreme Court?You must first persuade the Supreme Court that the issues presented by your case are important enough ,as issues of general federal law,to justify Supreme Court consideration.8.What kind of case can be reviewed by the Supreme Court?The Supreme Court also considers cases on appeal from (or rejected for appeal by) State supreme courts, provided the case is of national importance and involves constitutional or federal law. The justices do not rule on state constitutional issues or state and municipal statutes. The Supreme Court decides to hear a case on three major factors: whether the case was an appeal by the federal court and is in conflict with the decisions of other circuits; the general importance of the case; and whether the lower court's decisions may be wrong in light of the Supreme Court's opinions.9.What does judicial review means? Why it’s very important constitutional principle in us?P47Judicial review is established by Supreme Court in the case of Marbury v. Madison. the power of the court to examine legislation and other acts of Congress and to decide their constitutionality.The doctrine of judicial review also embrace the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court.Because a series of Court decisions has affected a change in the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution.The court system ultimately decides whether or not they are allowable under the Constitution.10.What does checks and balances mean? How do you comment on this principle?P40Checks and balances is a intricate set to checks and balances the Constitution builds into the system of government. By preventing any one of the three branches from acquiring dominance over the others, these structural and procedural safeguards have preserved a fundamental, albeit not always neat, separation of powers.Comments:Although developed over two centuries ago, checks and balances continue to perform this essential function despite the dramatic societal,technological, economic, and political changes in the United States over the past two centuries. The Framers made the conscious decision of choosing constitutional generality over the overly specific civil codes of the European nations. By so doing, they wisely built in a flexibility to accommodate change to that a living。