【正文】 可一年一年越來越難。但當(dāng)我們這樣做的同時，要記住公平與正義的面貌都是多樣和復(fù)雜的。全方位地理解美國司法程序?qū)粩嗵嵝盐覀冏⒁饪罐q制的存在和其批判學(xué)說的不足?？罐q制下勝訴往往不取決于案件本身的實體問題而取決于其他因素，想到這點，人們便更有理由對這種是非選擇作出最終結(jié)論。一個有利害關(guān)系的當(dāng)事人將會有效率地尋求、發(fā)現(xiàn)并呈現(xiàn)其準(zhǔn)備的材料，這些材料將會為他自己的訴求提供有力支撐并且削弱抗辯對方的訴求。法官只會偶爾地、短暫地進(jìn)行干預(yù)以確保所有正當(dāng)司法程序條款中的程序保障和達(dá)到基本的正義。s power and responsibility is wide. It is the lawyer who makes the initial and usually final decisions as to choice of court, size of claim, nature of claim stated, parties, extent and kind of pretrial investigation, mode of trial （whether jury or nonjury）, settlement offers, extent and kind of proofs, style of presentation and argument, and, within limits, speed and vigor of presentation. The trials are largely produced and directed by the lawyers. They supply the actors and the script, through the witnesses called and the testimony elicited by direct and cross examination. Judges are called on to intervene only occasionally and then briefly, to ensure that all the procedural safeguards of due process are met and essential fairness is achieved. They rule on the admissibility of evidence, but this is a negative function of keeping out unreliable evidence rather than an affirmative one of providing the facts upon which a case is determined.譯：在抗辯制下，律師的權(quán)利和義務(wù)范圍廣。法官最常做的是謹(jǐn)遵程序法的規(guī)定引導(dǎo)法庭按程序進(jìn)行，據(jù)此作出當(dāng)事人提出的法律問題的裁判。3. A distinctive element of the American procedure far resolving legal controversies is the adversary system, which is the characteristic form of trial procedure in mon law countries, in civil as well as criminal cases. Its essential feature is that a decision is made by judge, or judge with jury, who finds the facts and applies the law from submissions made by partisan advocates on behalf of the parties. In this system of trial procedure, the responsibility for beginning suit, for shaping the issues, and for producing evidence rests almost entirely upon the parties. The court takes almost no active part. It does not do its own investigating. It rarely even asks a question. Most often it is only responsible for guiding the proceeding according to certain procedural rules and for making decisions on questions of law that arise. This system is to be contrasted with what is generally called the inquisitorial system, which is used in countries of the civil law tradition such as France and Germany. In the inquisitorial system of trial, the judge applies the law and finds the facts by his own active investigation and inquiries at trial.譯：美國法律爭議解決的程序有一個與眾不同之處，就是抗辯制（對抗制），這種制度也是普通法系國家在民事和形式案件審判中的程序的特征。司法程序也反過頭來，在確定法律爭議時引導(dǎo)法庭的運作，或者像法律學(xué)者一樣為其下定義，司法程序是法院判決私人間（或私人和國家間）爭議的過程，這種判決照理應(yīng)是基于法律和爭議的理性考慮，而不僅僅是基于針對個人的考慮而做出的。潛在地，任何源于聯(lián)邦區(qū)法院的案子都有可能被上交最高法院。14. The highest court in the federal system is of course the Supreme Court of the United States. The Supreme Court has original jurisdiction over a very limited class of cases, chiefly actions between states. Its appellate jurisdiction covers cases originating in the lower federal courts as well as certain types of cases originating in state courts. Potentially, any case originating in a federal district court may be taken to the Supreme Court. Most of such cases must be appealed initially to the courts of appeals and may be thereafter taken to the Supreme Court at the latter39。13. Determinations made in the federal district courts are ordinarily appealable to the United States Courts of Appeals, the intermediate appellate courts of the federal system. The Courts of Appeals, formerly known as the Circuit Courts, principally are organized territorially by groups of states known as circuits. There are at present thirteen Courts of Appeals, eleven bearing numbers （First Circuit, Second Circuit, etc. ） with the twelfth being the Court of Appeals for the District of Columbia and the thirteenth being the Court of Appeals for the Federal Circuit. Each Circuit Court consists of several judges who ordinarily sit in panels of three for each case4.譯：聯(lián)邦區(qū)法院作出的判決通?？上蛴擅绹?lián)邦上訴法院上訴，即聯(lián)邦系統(tǒng)的中級上訴法院審理。12. The federal district courts have jurisdiction over several types of cases. A principal type includes actions between citizens of different states where the amount in controversy exceeds $ 10, 000. This is known as the diversity jurisdiction of the federal courts. A second principal type includes actions by individuals arising under federal law, known as the federal question jurisdiction of the federal courts. A third principal type of federal jurisdiction is actions by or against the Federal Government and its agencies.譯：聯(lián)邦地區(qū)法院對多類案子有管轄權(quán)。10. The Federal court system parallels the court systems of the states except that the federal courts are courts of limited subject matter jurisdiction.譯：聯(lián)邦法院系統(tǒng)平行于州法院系統(tǒng)，聯(lián)邦法院的對事管轄權(quán)是有限的。有少數(shù)的州有至少法院一個受理來自一般管轄權(quán)法院的初審上訴案件。在一些州，一般管轄權(quán)法院對上訴案件的審理是終審上訴而在另一些州一般管轄權(quán)法院作出的判決可能會被再上訴。該類法院在不同州有不同的叫法：在加州它被稱作高級法院1；在紐約它被稱作最高法院2；在很多州它被稱為巡回法院3；在其