英美司法文书写作
2010-8
中国人民大学出版社
马庆林，谢立新 编著
247
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In 1996 we were assigned by our university to do further study in law at China Universityof Political Science and Law in Beijing. One of the tasks we had to do there was to collect allthe necessary materials that two new courses were in dire need of. One is Legal English; theother is Anglo-American Legal Drafting. Since then we began to keep an eye out for the relevantinformation and tried to use it in the course.During the teaching, we found that in spite of some similarities there still exist some strikingdifferences between Anglo-American legal documents and Chinese legal documents. One ofthe reasons'is that both the U.K. and the U.S. have a long tradition of practicing common lawwhereas China is a country of civil law tradition. Because of the differences in these two legalsystems, there are quite a lot of distinct features in each. Since common law lays stress on caselaw, with stare deeisis as its basic principle and precedents as major source of law, it graduallyhas developed its certain forms of expressions which are usually reflected in its legal documents.Besides, different procedures in two different legal systems ma2 also lead to different writtenforms. Take a civil proceeding in a common law jurisdiction for instance, it is often regarded asa “trial” or“event” and such words as concentration, orality, and immediacy are the essence ofa case trial. Because of this, much legal drafting has to be done by an attorney rather than by ajudge in the common law world. Since common law relies heavily on case law, every attorneymakes an effort to draft documents clearly and in great detail following the norms that a formatrequires. That's why some Chinese jurists and scholars jokingly commented that Anglo-Americanlegal documents are just like boiler-plates. Such differences inspired us to compile a book by meansof which we can introduce some Anglo-American legal documents. With this determination, weset about our great project.The first difficulty we came across is how to make a sound classification of various sorts ofdocuments available and present them in a smooth and logical order. The second is how to furnishthe reader with the typical form of each legal document so that the reader may have a completepicture of Anglo-American legal documents and at the same time have a convenient source forfuture reference. The third is how to make an explicit illustration.
本书是专门针对英语专业学生涉外司法工作的诉讼实践需要设计的一本英文司法文书写作教程。书中细致介绍了英美各种司法文书的写作特点，具有很强的实用性，是广大法律专业学生，尤其是法律英语专业学生学习法律的重要资料，也是涉外法律工作者必备的案头工具书。
Chapter I An Introduction to Legal Writing and the Legal System A. Writing, Legal Writing, and Legal Drafting B. Skills Required for Drafting C. Why Legal Writing Is the Way It Is D. Foundations of Legal Writing E. Sources of Law and Our System of Courts ExercisesChapter 2 Litigation Process and Variety of Legal Documents A. Litigation Process B. Variety of Initial Legal Documents C. Responsive Pleadings: Responding to the Complaint D. Discovery: Discovering What Happened E. The Trial and Documents Issued by Court ExercisesChapter 3 Legal Briefs A. Types of Briefs B. The Form and Content of a Brief C. Samples of a Brief and an Appellate Brief D. The Style of a Brief E. Rules for Effective Brief Writing ExercisesChapter4 Legal Memorandum A. Memorandum and Legal Memorandum B. Format of a Memo C. Editing Checklist: Memoranda D. Sample Memoranda ExercisesChapter 5 Legal Correspondence A. Functions of Legal Correspondence B. Effective Letter Writing C. Guidelines for Effective Letter Writing D. The Format of Letters E. Examples of Legal Correspondence ExercisesChapter 6 Transaction Documents A. Objectives of the Parties B. Functions of Transaction Documents C. Legal and Ethical Considerations D. The Details of the Transaction E. Practical Considerations F. Parts of a Contract G. Examples of Transaction Documents ExercisesChapter 7 Legal Research Strategies A. Introduction B. Types of Research Materials C. Beginning Your Research D. Tailoring Your Research E. Doing Your Research F. Three Fundamental Legal Research Strategies ExercisesChapter 8 Reading Legal Citations A. What Is a Citation？ B. Typical Legal Citations Analyzed C. Some Common Legal Abbreviations D. The Importance of Legal Citation E. Computer Assisted Legal Research——Westlaw ExercisesSelected BibliographyAnswers to Exercises
Ordinarily, languages change over time through ordinary use——words develop new meaningsand old meanings are lost; terms that become archaic drop out of the language; grammaticalconstructions shift to reflect changes in the status of competing dialects （ain't versus isn't andaren't, for example）. Legal terms also change through use. But legal language has developeda number of its forms and meanings through different process——a legal historical process. Anexample of this is the legal meaning of fresh, as in fresh fish. The lay person will probablyunderstand fresh fish to mean fish that was recently caught. But the legal definition of freshfish, which has been set by regulations, is fish that has never been frozen, no matter when it wascaught. It is the courts, legislatures, and government agencies that decide the meaning of manylegal terms, rather than ordinary usage and historical change.The meaning of the legal term negligence developed through litigation. The term has beenrefined through a history of appellate court decisions, so that it now has a very specializedmeaning in the law. In ordinary usage, negligence is synonymous with carelessness, but the legalmeaning, honed by more than a century of litigation, is much narrower. In California, negligenceis the doing of something which a reasonably prudent person would not do, or the failure to dosomething which a reasonably prudent person would do, under a given set of circumstances.Most legal meanings, like meanings of words in ordinary usage, do have a certain flexibility;there is a range of meanings for a given word. But in the law the range in meaning is a result ofdifferent judicial, statutory, or regulatory interpretations or formal negotiations, not of ordinarylinguistic processes.
《英美司法文书写作》：高级英语选修课系列教材
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