法律英语阅读：美国最高法院百年经典判例选读（一）
法律英语阅读
法律英语阅读是法律职业者（尤其是从事涉外法律业务的法律职业者）应该掌握的一项重要的基本能力。学习法律英语阅读，可以培养阅读不同法律文本的理解能力和提高阅读速度和技能；培养分析归纳能力和思辨能力，以及细致观察法律语言运用的能力；了解英美法的法律适用，有机会更多地接触英美法经典判例和有关法律论述，丰富法律语言和法律文化知识，拓宽专业发展领域。法律英语阅读应注重案例和其他材料的广泛性、实用性和典型性，从而可以从中学习精准的法律语言运用和思维缜密的法律适用及法律逻辑推理知识（《大学法律英语教学大纲》，《法律英语专业教学大纲》）。本公众平台小编将依托国内权威出版社所出版的法律英语阅读教材陆续推出美国最高法院的一些经典判例供大家阅读，以期对大家的法律英语阅读能力提高有所帮助。
判例 ↓
Marbury v. Madison
In the final days of John Adams’presidency he appointed a multitude of justices of the peace under the “Organic Act” deliberately because the oncoming President Thomas Jefferson would not. The commissions were signed and sealed but were not delivered. President Jefferson later refused to honor the commissions because they had gone undelivered until Jefferson had held office and therefore felt they were invalid. Marbury, one of the appointees, later applied to the supreme court for a writ of mamandus, claiming that the Supreme Court could issue such writ “… to any courts appointed, or persons holding office, under the authority of the United States.”
Is Marbury’s appointment valid?
Whether the Supreme Court can award the writ of mandamus.
Whether the Supreme Court has judicial review power.
Is offering the writ of mandamus the appropriate remedy for the court?
Yes. It is valid because the appointment was done in full while Adams was still President. He completed the entire task of the appointment process and did all he could do in such completion. The appointment is valid when the President undertakes his final act required for the appointment, not upon delivery of the appointment which is beyond the President’s control. Marbury is entitled to appointment as a remedy because it was a right given to him by President Adams. In this sense, Marbury was given “a specific right.” The very essence of government is to provide remedies to rights that are abridged.
Yes, the appointment was a legal right offered to Marbury; and for every legal right violated, the law must afford a remedy. As such, his remedy is the rightful entitlement to the appointment. The delivery of the appointment was simply “ministerial” and therefore was owed to him. The appointment had already occurred prior to the necessity of delivery; and once the appointment was granted, Marbury had a vested legal right.
Yes, but not in the instant case. The Judiciary Act of 1789 clearly gives the Supreme Court judicial review over writs of mandamus. However, Article III of the Constitution does not give the Supreme Court authority to review the writs. Therefore, the two laws are in conflict. As such, the Supreme Court – being charged with upholding the Constitution – must adopt Article III’s application. Justice Marshall argued that there would be no point for the Supreme Court to exist were it not to uphold the Constitution and strike down laws adopted by Congress that necessarily conflict with the Constitution itself. In so doing, Marshall established the principle of judicial review.
Yes, but in the instant case the Constitution conflict with the Judiciary Act of 1789 and therefore the remedy cannot be proffered. In this case, a writ of mandamus is appropriate because it is an order for a public official to carry out his duty. But for the reasons explained in (3), the order cannot be carried out.
The Supreme Court uses its own understanding of the Constitution in reviewing the legitimacy of acts by other branches of the government, even though this power is not apparent from the plain text of the document. This case established the legitimacy of judicial review as well as the primacy of the Constitution over any other source of law. Many legal scholars of both Marshall's period and the contemporary era found the opinion's logic strained, basing a sweeping conclusion on relatively little textual support. Still, the concept of judicial review has long been accepted without challenge.
Unfortunately for Marbury, he never received his appointment as a justice of the peace in the District of Columbia, merely because the commission was not delivered before Adams left office.
作者：张法连
出版社：北京大学出版社
本书作为法律英语专业的泛读教材,主要选取了美国历史上最有影响的32个案例,按时间顺序编排,分上下两册,希望读者通过研读这些经典案例,了解法官判案推理过程和有关法律、法规的适用,更有利于学习标准的法律英语,也更容易掌握美国法的精髓。读完每篇案例后,教师都要指导学生如何brief the case,并讨论以下几个问题:Holding of the case? Facts of the case? Majority opinon? Concurring or dissenting opinion? And your comment on the case．书末附录Ⅰ有每篇案例的注释,供学生检查学习掌握案例的情况.建议教师首先指导学生学习附录Ⅱ—Ⅳ的有关内容,这是研读美国法案例的基本知识。