English for Law Students: University Course


M.V. Lomonosov Moscow State University Law School


Department of Foreign Languages





ENGLISH FOR LAW STUDENTS UNIVERSITY COURSE




Part II



Рекомендовано Учебно-методическим объединением по юридическому образованию высших учебных заведений в качестве учебного пособия для студентов высших учебных заведений, обучающихся по направлению «Юриспруденция» и специальности «Юриспруденция»





СТАТУТ
MOCHBft 2016

УДК 802/809.1
ББК 81.2
     Е 58

EDITED BY Tatiana Tarasova

                            CONTRIBUTORS:
                            Natalya Berezhneva,
                            Asya Goloborodko,
Dina Karpova, Tatiana Patenkova, Tatiana Tarasova

                              REVIEWED BY
Suren Avakjan, Professor of Law, Eugenia Yakovleva, Professor of Linguistics, Anna Lebedeva, Professor of Liguistics



Е 58 English for Law Students: University Course / Ed. by T. Tarasova. Part II. — Moscow: STATUT, 2016. — 672 p. [Английский язык для студентов-юристов. — М.: Статут, 2016. — На английском языке]

     ISBN 978-5-8354-1138-2 (Part II; softback)
     ISBN 978-5-8354-0977-8

        ENGLISH FOR LAW STUDENTS is a part of the university course of legal English for academic purposes. It is addressed to law students of noncommon law countries. It is aimed at teaching students to understand the language of Anglo-American legal system, its fundamental concepts and institutions. Its goal is to enable students to deal with different types of legal texts, to become knowledgeable in current legal issues, to use proper English legal terms with regard to their own legal systems. The final objective is to stimulate students’ interest in law and language. Although English for Law Students is designed as a part of the university course of legal English it can also be useful for students of the humanities, economics, social and political sciences, etc. in their self-study of English law and language.



      ISBN 978-5-8354-1138-2 (Part II)
      ISBN 978-5-8354-0977-8

УДК 802/809.1
ББК 81.2

© Contributors, 2015
                                                       © Издательство «Статут» (Statut Publishing House), 2015

CONTENTS



Foreword ........................................... 6

UNIT I
THE HISTORY OF THE U.S. CONSTITUTION

Text 1. The Need for a New Constitution............. 8
Text 2. The Actual Writers of the Constitution .... 25
Text 3. “We the People of the United States” ...... 42
Text 4. Ratification of the Constitution .......... 58
Text 5. The First National Government under the Constitution ......................... 70

UNIT II
AMERICAN CONSTITUTIONALISM: ORIGINS AND PRINCIPLES

Text 1. The Origins of American Constitutionalism . 83
Text 2. American Circumstances.................... 107
Text 3. The American Constitutional System: Principal Characteristics ............... 131

UNIT III
U.S. CONGRESS

Text 1. Historical and Constitutional Background of Legislative Power .................... 152
Text 2. Congress Membership....................... 168
Text 3. Sources of Legislation ................... 181
Text 4. Introduction and Referral to Committees .. 190
Text 5. Senate Action............................. 202


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CONTENTS

Text 6. Congress’s Investigative Oversight Role ..... 215
Text 7. The Enactment Process........................ 225
Text 8. The Party Organization ...................... 231
Text 9. Representative Government ................... 238

UNIT IV
U.S. PRESIDENCY

Text 1. The Chief Executive.......................... 246
Text 2. The Power of Appointment .................... 257
Text 3. Enumerated, Implied, Inherent Powers......... 268
Text 4. The Treaty-Making Power ..................... 277
Text 5. Executive Agreements......................... 289
Text 6. The Presidential Veto........................ 300
Text 7. The President as Legislator ................. 308
Text 8. Impeachment ................................. 324
Text 9. The Intent of the Framers Versus the Modern American Presidency........... 332

UNIT V
THE ORGANIZATION OF COURTS IN THE UNITED STATES

Text 1. State Courts v. Federal Courts............... 347
Text 2. The Structure of American Courts .........361
Text 3. Consequences of the Dual Court System........ 379
Text 4. The Administrative Organization of Courts ... 392

UNIT VI
THE UNITED STATES SUPREME COURT

Text 1. The Court and Constitutional Interpretation . 411
Text 2. The Court as an Institution ................. 428


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CONTENTS

Text 3. Constitutional Guide and Modern Developments ........................................ 448
Text 4. The Court and its Procedures ................ 466
Text 5. A Unique Court............................... 479
Text 6. Judicial Review.............................. 502

Glossary ............................................ 526

Keys ................................................ 652

References ...........................................671

            FOREWORD



   English for Law Students PART II is designed
   • to meet the students’ needs in acquiring both language through law and law through language;
   • to strengthen their reading and writing skills;
   • to develop the students’ ability to analyze, summarize and interpret legal texts concerning particular legal area or issue;
   • to introduce common law terms, concepts and institutions to the students of a non-common law system;
   • to increase their competence in legal language usage;
   • to provide thought provoking materials;
   • to encourage analytical approach to and comparative studies of current legal issues and reforms;
   • to equip students with linguistic tools to advance in their scholarly activity.
   English for Law Students contains six UNITS: The History of the U.S. Constitution, American Constitutionalism: Origins and Principles, U.S. Congress, U.S. Presidency, The Organization of Courts in the United States, The United States Supreme Court. Each unit includes a number of texts on a particular theme followed by LANGUAGE PRACTICE and COMPREHENSION CHECK with TASKS ranging from word building to complicated legal vocabulary, grammar, syntax, discussion points. They focus on reading comprehension, speaking and writing activities. Each unit ends with the task to write an essay based on the texts of the unit which make up one of the exam questions.

6

FOREWORD

   The KEY at the end of the book gives the answers to some exercises.
   The GLOSSARY provides definitions for most legal terms used in the units.
   English for Law Students PART II is designed for all those who strive for academic excellence and professional success.

                UNIT I
                THE HISTORY OF THE U.S. CONSTITUTION




TEXT 1



            THE NEED FOR A NEW CONSTITUTION


  PRE-READING QUESTION:
  1. Was the U.S. Constitution the first one in history?
  2. Were there other early Constitutions?

  1.    For most of modern history the word constitution has meant the entire legal framework of a nation. For example, the English “constitution” includes the Magna Charta of 1215, which was the first written set of restrictions on kingly power, the Petition of Right of 1628, the English Bill of Rights of 1689, the Reform Bills of 1832 and 1867, many statutes, judicial decisions, and royal pronouncements, as well as common law and established government customs and usages. Thus, the English constitution is both much less than and much more than a written constitution such as the American one. In fact, a written constitution - setting forth a plan of government, establishing its institutions, and proclaiming the rights of citizens — is a relatively new development.
  2.    Although claims have been made for the Mayflower Compact of 1620, the 1630 Charter of the Massachusetts Bay Colony, and the 1639 Fundamental Orders of Connecticut, many scholars agree that the first written constitution of 8

THE HISTORY OF THE U.S. CONSTITUTION

government was England’s 1653 Instrument of Government. The Instrument, which set out a new, republican form of government, and its 1657 successor, the Humble Petition and Advice, were swept away by the Restoration of Charles II in 1660 and had almost no influence on either English or American constitutional development, but they did presage many later reforms in England.
   3.    The English colonists in North America regarded themselves as Englishmen possessing all the rights of Englishmen, even though they lived thousands of miles away from the mother country. Each colony had some form of written instrument of government by the eighteenth century, usually a royal charter. Originally, there were three types of colonies: joint-stock companies, organized as economic ventures under a charter granted by the Crown conferring certain privileges, as with trade (for example, Virginia and Massachusetts Bay); compacts, agreements reached by and among the colonists themselves (Plymouth; Providence, R.I.; Fundamental Orders of Connecticut); and proprietary colonies, in which the Crown granted the land composing the colony to one or more landholders known as proprietors. By the mid-eighteenth century, most of the colonies were royal colonies, in which the former joint-stock company or compact form had been replaced by direct royal authority residing in the governor. In Maryland, Pennsylvania, and Delaware, the proprietors (not the Crown) appointed the governors; in Connecticut and Rhode Island, the surviving charter colonies, the colonists themselves chose their governors. Each colony also had a two-house, or bicameral, legislature; the lower house was elected by those colonists who could meet qualifications based on the amount of real or personal property they had, while the upper house was selected by the lower house. The upper house, or council, had both legislative and executive

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UNIT I

powers and duties, in that it also advised the governor on a daily basis. The royal charters that most colonies possessed became the focus of disputes between the colonists and their governments, with the colonials challenging what they saw as arbitrary and unconstitutional exercises of power.
   4.    The initial stages of the American Revolution were moves and counter-moves in an intricate but fierce struggle to determine the limits of Parliamentary authority. Parliament retained supreme legislative power over the colonies, while at the same time other key agencies, such as the Privy Council, the Secretary of State, the Treasury, the Admiralty, and the Board of Trade, also had responsibility for colonial affairs, with the result that for most of the seventeenth and eighteenth centuries British administration of the colonies was entangled in bureaucratic infighting and prey to incompetence and mismanagement.
   5.    In May of 1776, anticipating its action two months later in the Declaration of Independence, the Second Continental Congress passed a resolution calling upon the colonies to prepare new, written constitutions in case it became necessary for them to separate from England. A few colonies merely modified their old charters, deleting all references to the king and England, but within the next few years most prepared entirely new, republican constitutions. These reflected the Americans’ concern with arbitrary power, particularly arbitrary executive power. Pennsylvania’s constitution of 1776 even did away, with a separate executive, establishing instead a Supreme Executive Council chosen by and under the thumb of its one-house legislature. Other states provided for a weak governor and a powerful two-house legislature. Still others, notably New York in 1777 and Massachusetts in 1780, created an independent governor, who was armed with veto power over legislation (although New York’s constitution granted only a qualified veto


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THE HISTORY OF THE U.S. CONSTITUTION

power to a council of revision composed of the governor and several state judges), and a system of checks and balances among the legislative, executive, and judicial branches of government. Massachusetts’s most significant contribution to American constitutional thought was a stipulation mandating ratification of its constitution by the people in special conventions called for that purpose. Previous state constitutions merely went into effect after being adopted by their legislatures. The Massachusetts idea recognized the distinction between constitutions and mere statutes. Its constitution - chiefly the work of John Adams - and the New York one - largely that of John Jay - were important models and sources for the subsequent framing of the U.S. Constitution.

  NOTES TO THE TEXT
  John Jay (1745-1829) - a Founding Father of the United States who served the new nation in both law and diplomacy. He established important judicial precedents as the first Chief Justice of the United States (1789-1795) and negotiated the Jay Treaty of 1794, which settled major grievances with Great Britain and promoted commercial prosperity.
  John Adams (1735-1826) - a leader ofthe American Revolution, the second U.S. President (1797-1801) defeated for another term by Thomas Jefferson (1743-1826). Adams - America’s first Vice President. During his presidency, Washington became the American capital.
  Mayflower - the ship in which the Pilgrim Fathers sailed from Southampton to the New World in 1620.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY
  to presage, humble, to entangle (in), prey (to), venture, proprietary, stipulation, arbitrary, intricate


11

UNIT I

TASK I. a) Match the words to their definitions:

1) to presage       a) be seized by, caught by, harmed or     
                    affected in a bad way by                  
2) to entangle (in) b) foretell, be a sign of                 
3) prey (to)        c) put or get into difficulties, in       
                    unfavorable circumstances                 
4) venture          d) having many complexly                  
                    interrelating parts or elements           
5) humble           e) not restrained or limited in the       
                    exercise of power                         
6) intricate        f) a material condition or requirement    
                    in an agreement; provision                
7) arbitrary        g) owned or controlled by, held as        
                    property                                  
8) proprietary      h) an undertaking involving chance,       
                    risk, or danger                           
9) stipulation      i) reflecting, expressing, or offered in a
                    spirit of deference or submission         

   b)  Use the above words to complete the following sentences:
   1.    An artificially strong euro may ... strong problems for the country.
   2.   The refugees fell . to criminal gangs.
   3.    The Court articulated several . that had to be met to sustain a political gerrymandering claim.
   4.    A tax incentive violates the commerce clause when it has the effect of providing lower tax rates to in-state businesses than those imposed on out-of- state ..
   5.    The law . the interests of church and state by seeking “the symbolic and financial support of government to achieve a religious purpose.”

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THE HISTORY OF THE U.S. CONSTITUTION

   6.   Holmes was both proud and ... about his war service.
   7.    The ruling in Board of Regents v. Roth ... subsequent cases that did expand the rights of terminated employees.
   8.    Federal funding for private universities may come with congressional . protecting student rights.
   9.     The courts have upheld the constitutionality of the death penalty but looking more closely at how it is applied, held that an . or discriminatory application would be unconstitutional.
   10.    The Court ruled that it was not a violation of the due process clause of the Fourteenth Amendment for the state legislature to regulate the price of a necessary good such as milk, as long as the regulation was not . or unreasonable.
   11.     The policy would . the nation in conflicts that could easily lead to war.
   12.     There are few . regarding qualifications for becoming a senator, as is the case for representatives.
   13.     Initially, the father had extensive powers over the family, including the power of life and death; until Justinian’s time, the father alone in his familia had . capacity.
   14.     Hylton v. United States case is important historically, as it . Marbury v. Madison.
   15.     True . rights are ‘binding on the world’ in the lawyer’s traditional phrase.

   c)  Translate the following sentences:
   On the other hand, the highly-debated establishment by Congress of a process by which independent special prosecutors could be established to investigate and prosecute cases of alleged corruption in the Executive Branch was sustained by the Court in a opinion that may presage a judicial approach in separation of powers cases more accepting of some blending of functions at the federal level.

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