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The Institutions of Government

    Constitutional law, in its essentials, is an expression of how people want to live as individuals within an organized society. What form of government they want? What powers shall the government exercise? What rights and liberties shall remain with the people? By what mechanisms are these rights and liverties protected?

    The federal constitution, ratified in 1788 by the original thirteen states and thus today the oldest operative constitution in the world, is the core of the American legal system. It establishes the governmental structure of the federation, regulates the relationship between the federation and the member states, and lays down the basic rights of the American people.

    The first three articles of the constitution separate the power of the government among the three governmental branches: the executive (the president and the federal agencies and departments under him), the legislative (the Congress), and the judiciary (the Supreme Court and the inferior federal courts).

The President

    The president functions as head of state and chief of government. As head of state, he grants recognition to new foreign states, receives and appoints ambassadors and concludes state treaties; as chief of the armed forces.

    The president conducts the activities of the administration with the help of his Cabinet. Cabinet members (secretaries of the departments and other officials with cabinet rank) are appointed by the President (and thereafter confirmed by the Senate), and are subject to dismissal by him alone; they are not members of the Congress.

    The president is not subject to any legislative control for his political acts. There is no vote of no confidence which can force him to resign. The only legislative control is the president’s possible removal from office by means of the impeachment procedure. This is possible only upon “conviction of treason, bribery, high crimes and misdemeanors”.

    The President and the Vice-President (the latter also serves as President of the Senate) are nominated by party congresses and are elected by the people in an indirect election which is separate from congressional elections. The term of office is four years and reelection is limited to one additional term.

The Congress

    All legislative powers are vested in the Congress, which consists of the senate and the House of Representatives.

    Section 8 of Article I of the Constitution enumerates the legislative powers of the Congress in specified subject matter areas. These inclube, among others, interstate and foreign commerce, federal taxation, currency, postal service, declaraton of war, establishment of armed services, maritime law, bankruptcy, patent and copyright. Besides, Congress also has the power to make laws which shall be necessary and proper for carrying into executon the foregoing powers.

    All statutes except treaties are adopted by simple majority of both Houses of Congress. Proposals for statutes ( bills ) may be introduced in either House. HOwever, the federal budget, financial allocation in general, and impeachment must originate in the House of Representatives. Statutes enter into force after they have been signed by the president or at the time specified in them. If vetoed by the president, a statute must be passed anew by a two-thirds majority in both houses before it enters into force.

    Members of Congress are elected by their respective constituencies in a direct election, senators for a term of six years and members of the House of Representatives for a term of two years. Reelection is permissible for both offices without limitation. Senators represent their respective states and are elected in a general election. Representatives represent districts within a particular state. These districts are called election districts, which, according to constitutional case law, must have the same population in order to assure the constitutional principle of ” one-man one-vote”.

The Supreme Court

    The Supreme Court was established by the Constitution. It consists of nine justices appointed for life by the president with the advice and consent of the Senate. Its jurisdiction as a court of first instance is limited by the constitution. Its jurisdiction as an appellate court as well as the establishment of inferior federal courts derive from federal legislation.

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Separation of Powers

    The framers of the constitution knew that accumulation of all powers in the same hands would result in tyranny. In their effort to prevent tyranny and to form a more perfect union, they undertook to separate the legislative, the executive and the judicial powers in the first three articles of the Constitution. But, knowing equally well that an absolute separation would only impair the effective function of the government, they also rejected a total separation of powers.

     The result was a government of separated institutions sharing powers“, whose structure incorporated the concept of checks and balances.  Within this structure, the departments are formally separated and each was assigned certain core functions, but their functions are also mingled and blended. The separate governmental departments are independent from one another, yet they exercise a mutual control function in order to prevent a misuse of power.

    As Justice Brandeis said, disenting in Myers v. United States(1962):

    The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, buy reasons of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.

    Thus, under this scheme of government, the legislative and the executive branches are independent from and exercise a mutual check upon each other. The president is independently elected. Members of Congress are not permitted to seek office in the executive and judicial branches of government. The president appoints officials, but only with the consent of the Senate. The president makes treaties, but the Senate must give its advice and consent to make them effective. As commander-in-chief of the armed forces, the president may dispatch troops abroad, but only Congress can declare war and authorize the necessary finances. The president is not subject to the legislative control for his political acts, but he may be impeached by congress for treason, bribery, or other high crimes and misdemeanors. Congress can legislate, but the president can veto. After the presidential veto, Congress can override it by a two-thirds majority of votes in both houses. The president appoints judges, with the approval of the Senate, but the laws made by Congress and signed by the president are subject to judicial review.

    The doctrine of judicial review plays an important role in the whole scheme of checks and balances. Judicial review does not rest on any express provision of the Constitution but derives from its basic philosophic values and from constitutional traditions. It was established by the Supreme Court decision in Marbury v. Madison(1803). In that case the Supreme Court decided that judicial control was not limited to the review of state law for its constitutionality. It extended to examination and review of federal laws as well. This basic decision gives effect to the principle of separation of powers, making it an actionable claim for the enforcement and observance of the rule of law.

    Judicial control over the president (in contrast to inferior branches of the executive departments) logically derives from the same Constitutional tradition. But it was not until 1952 that the courts had an opportunity to exercise that control. In Youngstown Sheet & Tube v. Sawyer, the Supreme Court declared emergency measures of President Truman to be an unconstitutional exercise of legislative power. The issue of judicial control over the president arose anew in 1973 and 1974 in the famous controversy over Nixon’s involvement in the Watergate scandal. When Nixon refused to obey, on ground of executive privileg, an order of a federal judge to produce certain tapes, the Supreme Court affirmed the order of the district court. In doing so, it reaffirmed that it was the duty of the Supreme Court to say what the law is with respect to the claimed privilege. The significance of this decision, United States v. Nixon, is similar to Marbury v. Madison. It concludes the system of judicial control and assures the observance of the rule of law and separation of powers in the governmental structure.

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Law under American Federalism

    The United States has a federal system of government. What this means is that under the US Constitution there is a national, or federal, government, and there are individual states, each enjoying a substantial degree of autonomy. Each state has its own constitution, its own government, its own set of statutory laws made by its own legislature, and, because of the common law tradition, a body of case law created by its own courts.

    The US Constitution gives certian law-making powers to the federal government, others to the state government, and yet others to both.

    The law-making powers granted to the United States Congress are specific and limited. They include areas of interstate and foreign commerce, federal taxation, currency, the postal service, declaration of war, maritime law, bankruptcy, patent and copyright, and the establishment of armed forces. In addition, Congress is also empowered to make all laws which should be necessary and proper for carrying into execution the foregoing powers. Among these enumerated and implied powers, some are exclusive and others are shared with the states. In areas where there are both federal and state laws, federal law prevails if the two are in conflict.

    The powers not specifically granted to Congress are reserved to the states or to the people. Thus, most areas of private law, such as contracts, torts, business and corporate governance, are governed by the statutes and common law of each state.

    Beginning in the mid-20th century, a number of trends combined to enhance the federal role within the legal system. While no state may deny a citizen any right guaranteed by the federal Constitution, many interpret their own constitutions as bestowing even more generous rights and privileges. State courts applying state law continue to decide most contractual disputes. The same is true of most criminal cases, and of civil tort actions. Family law, including such matters as marriage and divorce, is almost exclusively a state matter. For most Americans most of the time, the legal system means the police officers and courts of their own state, or the various municipalities and other political subdivisions within that state.

    As a consequence of this federal scheme, choice of law questions confront judges and lawyers in multi-jurisdiction disputes almost as frequently as in international litigation. If a dispute arises out of a series of activities in different states or between parities who are residents of different states, and the substantive rights at issue are defined differently in these states, the choice of applicable law may become a crucial and hotly contested issue, thus giving an added dimension of complexity to the legal situation.

    Let’s first look at a case involving claims of securities fraud. Since securities transactions are governed by both federal and state laws, the applicable law in such cases includes both federal law and the laws of relevant states.

    A tort claim typically does not involve federal law. The law applicable to a tort claim is generally said to be the law. The law applicable to a tort claim is generally said to be the law of the place of injury. Thus, acourt sitting in state X would follow its own rules of procedure, but it would use the tort law of state Y if the injury occurred in Y.

    The choice of law question with respect to contract disputes is much more complicated. Several choice of law rules are used by different courts on issues involving the law of contracts. Suppose a contract. Suppose a contract is concluded in one state(State A), performed in another(State B), and the parties are from still others(State C and State D). In this multi -jurisdiction case, which state’s substantive law is applicable? The question will be answered by the court which hears the case. Suppose the plaintiff brings his contract claim before a court in his home state C. Suppose also that according to the choice of law rules of State C, contract disputes should be governed by the law at the place of contract performance. The court in State C will apply the contract law(both statutory and case law) of state B in resolving the dispute. However, if the plaintiff brings the dispute before a court sitting in defendant’s home state D, whose choice of law rules direct the court to apply the law of the state most involved with the contract, the outcome of the lawsuit may be different.

    The trend toward uniform statutes has tended to decrease these conflicts, but many of them still exist. So, in studying American law, students should be aware that different states may have different substantive laws and different choice of law rules regarding a particular legal situation, tesulting in the possibility that the choice of forum may affect the substantive rights of parties concerned.

   

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美国法院体系 The American Court System

The American Court System 美国法院系统

        Unlike most countries in the world, actually, there are fifty-two court systems in America—one for each of the fifty states, one for the District of Columbia, plus a federal system—similarities abound. The state court systems are established according to the constitution of each state. The federal courts are not superior to the state courts; they are simply independent systems of courts, which derives its authority from Article 3, Section2, of the U.S. Constitution. Although state court systems differ, Exhibit3-1 illustrates the basic organizational structure characteristic of the court system in many states. The exhibit also shows how federal court system is structured.

    与世界上大多数的国家不同,事实上,美国拥有52个法院系统——50个州每州一个,还有一个是哥伦比亚特区,再加上一个联邦法院系统——它们都是相似的。美国州的法院系统是依据各州的宪法而确立的。联邦法院不是各州的最高法院;他们是相对独立的法院系统,联邦法院起源的依据是美国联邦宪法第三条第二款的授权。虽然各州的法院系统各有不同,如图表3-1所阐释的各州法院的基本组织结构特征。这个图标同样显示出了联邦法院系统是怎样构成的。

 1. State court System 州法院体系

      Typically, a state court system will include several levels, or tiers, of courts. State courts may include (1) trial courts of limited jurisdiction, (2) trial courts of general jurisdiction, (3) appellate courts, and (4) the state’s highest court (often called the state supreme court). Generally, any person who is a party to a lawsuit has the opportunities to plead the case before a trial court and then, if he or she loses, before at least one level of appellate court. Finally, if a federal statute or federal constitutional issue is involved in the decision of the state Supreme Court, that decision can be further pleaded before the Federal Supreme Court.

    就典型的来说,美国州的法院体系有若干个层级或审级。州法院体系可能包括(1)拥有有限司法管辖权的初审法院,(2)具有普遍管辖权的初审法院,(3)上诉法院,(4)各州的最高法院。一般来说,案件的任何一方当事人都有申请初审法院予以审理案件的权利,而后,如果他或她败诉,还可以将案件上诉至上诉法院。最后,如果州最高法院的判决涉及到联邦制定法和联邦宪法性的事项,那么,这个判决还可以被上诉至联邦最高法院。

a.     Trial Courts 初审法院

        Trial courts are exactly what their name implies, courts in which trials are held and testimony taken. State trial courts have either general or limited jurisdiction. Trial courts that have general jurisdiction as to subject matter may be called county, district, superior, or circuit courts. The jurisdiction of these courts is often determined by the size of the county in which the courts sit. State trial courts of general jurisdiction have jurisdiction over a wide variety of subjects, including both civil disputes and criminal prosecutions. In some cases, trial courts of general jurisdiction may hear appeals from courts of limited jurisdiction.

    初审法院正如其名称所述,是进行审判和采集证据的法院。州初审法院有普遍和有限司法管辖权之分。拥有普遍管辖权的初审法院就受理的诉讼标的的不同分别叫做郡县法院,地区法院,高级法院和巡回法院。这些法院所拥有的司法管辖权范围是该法院所在郡县的大小来决定的。具有普遍管辖权的州初审法院对各种事物都有管辖权,包括民事争议和刑事指控。在某些案件中,具有普遍管辖权的州法院可以受理具有有限司法管辖权的法院的上诉案件。

    Some courts of limited jurisdiction are called special inferior trial courts or minor judiciary courts. Small claims courts are inferior trial courts that hear only civil cases involving claims of less than a certain amount, such as $5,000 (the amount varies from state to state). Suits brought in small claims courts are generally conducted informally, and lawyers are not even allowed to represent peoples in small claims courts for most purposes. Another example of an inferior trial court is a local municipal court that hears mainly traffic cases. Decisions of small claims courts and municipal courts may be appealed to a state trial court of general jurisdiction.

    一些有限管辖权的法院被称为特殊低级法院或者是次级法院。小额索赔法院都是只听取包括数额在某一特定范围内如5000美元以下索赔的民事案件的低级法院(这个一定数额各州不尽相同)。小额索赔法院受理的诉讼案通常都采用的是非正式审理,并且在许多事项上,甚至不允许律师代表出庭。低级初审法院的另一种形式是主要负责处理交通案件的地方市镇法庭。小额索赔法院和市镇法院的判决可以上诉至具有普遍管辖权的州初审法院。

    Other courts of limited jurisdiction as to subject matter include domestic relations courts, which handle only divorce actions and child-custody cases, and probate courts.

    另外,有限管辖权法院还包括根据受理的诉讼标的不同包括只处理离婚的诉讼,子女监护权案件的家庭关系法院和遗产检验法庭。

b. Courts of Appeals 上诉法院

        Every state has at least one court of appeals (appellate court, or reviewing court), which may be an intermediate appellate court or the state’s highest court. About three-fourths of the states have intermediate appellate courts. Generally, courts of appeals do not conduct new trials, in which evidence is submitted to the court and witnesses are examined. Rather, an appellate court panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error.

    每一个州都至少有一个上诉的法院(上诉法院或者是重审法院),它可能是居中仲裁的上诉法院或者是州的最高法院。大概有3/4的州都有仲裁法院。通常来说,上诉法院不受理新的案件,因为新的案件需要收集证据和询问证人。相反,上诉法庭将有三名或更多的法官重审案件在上诉阶段的纪录,包括检查初审诉讼程序中的副本,并对初审是否有误做出裁决。

        Usually, appellate courts do not look at the questions of fact (such as whether a party did, in fact, commit a certain action, such as burning a flag) but at questions of law (such as whether the act of flag-burning is a form of speech protected by the First Amendment to the Constitution). Only a judge, not a jury, can rule on questions of law. Appellate courts normally defer to a trial court’s findings on questions of fact because the trial court judge and jury were in a better position to evaluate testimony—by directly observing witnesses’ gestures, demeanor, and nonverbal behavior during the trial. At the appellate level, the judges review the written transcription of the trial, which does not include these nonverbal elements.

    通常,上诉法院不审查事实问题,(例如事实上,一方当事人是否做了某种行为,如烧国旗),但是可以审查法律问题(例如烧国旗这种行为是否是美国联邦宪法第一修正案中有关言论自由的一种表现形式)。只有法官,而非陪审团成员,才可以对法律问题做出裁决。正常情况下,在事实问题的查明上,上诉法院要尊重初审法院的意见,因为初审法院的法官和陪审团在调查证据的时候处在一个更有力的位置上——他们可以在审理中直接观察证人的姿势,行为举止,还有非语言的动作。在上诉阶段,法官重审的是初审法院提供的书面纪录,这当中当然不包括那些非语言的要素。

        An appellate court will challenge a trial court’s finding of fact only when the finding is clearly erroneous (that is, when it is contrary to the evidence presented at trial) or when there is no evidence to support the finding. If a jury concluded that a manufacturer’s product harmed the plaintiff but no evidence was submitted to the court to support that conclusion, the appellate court would hold that the trial court’s decision was erroneous.

    上诉法院只有当发现初审法院所查明的事实明显错误(也就是,审判中发现查出的“事实”与证据所证明的相反)或者根本就没有证据支持这些“事实”时,才能对其事实问题提出质疑。如果陪审团得出结论认为一个商家的产品对原告造成了损害,但是法庭却不能提供相应的支持这个结论的证据,上诉法院就将裁定初审法院的这个判决错误。

c. State Supreme (Highest) Courts 州最高法院

        The highest appellate court in a state is usually called the supreme court but may be called by some other names. For example, in both New York and Maryland, the highest state court is called the court of appeals. The decisions of each state’s highest court on all questions of state law are final. Only when issues of federal law are involved can a decision made by a state’s highest court be overruled by the United States Supreme Court.

    州的最高上诉的法院被叫做最高法院,但其实也有其他的名字。比如,在纽约州和马里兰州,州最高法院叫做上诉法院。各州的最高法院的判决对于所有问题的审理都是终局的。只有当州最高法院的判决涉及到了联邦法律问题的时候,联邦最高法院才能够将其推翻。

2. The Federal Court System 联邦法院体系

        The federal court system is basically a three-tiered model consisting of (1) U.S. district courts (trial courts of general jurisdiction) and various courts of limited jurisdiction, (2) U.S. courts of appeals (intermediate courts of appeals), and (3) the United States Supreme Court.

    联邦法院体系模式基本上由三个序列组成(1)美国联邦大区法院(拥有普遍管辖权的初审法院)和各种各样的有限管辖权的法院,(2)美国联邦上诉法院(上诉仲裁法院)和(3)美国联邦最高法院。

        Unlike state court judges, who are usually elected, federal court judges—including the justices of the Supreme Court—are appointed by the president of the U.S. and confirmed by Senate. All federal judges receive lifetime appointments (because under Article 3 they “hold their offices during Good Behavior”).

    与州法院法官通常由选举产生不同,联邦法院的法官——包括最高法院的大法官们——是由美国总统提名,由参议院批准。所有的联邦法官都是终身制(这是由美国联邦宪法第三条“他们品行端正因而受任终身”所规定的)。

a.     U.S. District Court 美国联邦区法院

        At federal level, the equivalent of a state trial court of general jurisdiction is the district court. There is at least one federal district court in every state. The number of judicial districts can vary over time, primarily owing to population changes and corresponding caseloads. Currently, there are ninety-four federal judicial districts.

    在联邦法院的体系中,与享有普遍管辖权的州初审法院相当的是地区法院。每个州至少有一个联邦的地区法院。地区法院的数目在不同的时期不尽相同,首要因素是人口数量的变化,还有待处理案件的数量。迄今为止和,联邦地区法院共有94个。

        U.S. District Courts conduct trials concerning federal matters, such as federal crimes and enforcement of federal statutes. Most federal crimes involve crimes against the government or crimes occurring on federal property. For example, one crime, kidnapping, is a federal crime even though it does not occur on federal land. Federal jurisdiction for the crime of kidnapping is based on taking of the victim across state or country lines and the statute provides that the failure to release the victim within twenty-four hours after seizure creates “a rebuttable presumption that such person has been transported to interstate or foreign commerce.”

     美国联邦地区法院审理涉及联邦事务的案件,例如联邦刑事犯罪和执行联邦法律的事项。大部分的联邦刑事犯罪是反政府刑事犯罪和侵犯联邦财产的刑事犯罪。例如,绑架儿童的刑事犯罪,就是联邦刑事犯罪,即便这宗犯罪不一定是涉及若干个州的。联邦对于绑架罪的管辖是根据受害者跨州或跨国界以及制定法规定的在受害人成为人质24小时之后仍没有被释放的这个反驳性假设来推定的,这个人已经被转运到他州或者外国领地。

         Moreover, it is possible to sue a federal court even though the claim is based on state law when the plaintiff and defendant are from different states and countries. Diversity of citizenship jurisdiction exists when a plaintiff is a citizen of one state and the defendant is a citizen of another state, or when one party is a foreign country or a citizen of a foreign country and the other is a citizen of the United States. The amount of claimed damages in a diversity of citizenship case must be at least $75,000.

    另外,如果原告和被告是来自于不同的州或国家,那么即使这个案件可以根据州的法律来主张权利,它仍有可以诉诸联邦法院来予以解决。当原告来自于一个州,而被告是另一州的公民;或者当事人一方是外国国家;再或者一方是外国公民而另一方是美国公民,就存在多元管辖的问题。多元管辖的案件中,当事人所主张的损害赔偿不得低于75000美元。

        Also, there are other courts with original, but special (or limited) jurisdiction, such as the federal bankruptcy courts and others show in Exhibit3-1.

    另外,还有一些法院拥有特别或有限的司法管辖权,例如破产法院和图表3-1种所列的其他法院。

b.     U.S. Courts of Appeals 联邦上诉法院

        In federal court system, there are thirteen U.S. courts of appeals—also referred to as U.S. circuit courts of appeals. The federal courts of appeals for twelve of the circuits, including the U.S. Courts of Appeals for the District of Columbia Circuit, hear appeals from the federal district courts located within their respective judicial circuits. The Court of Appeal for the Thirteen Circuit, called the Federal Circuit, has national appellate jurisdiction over certain types of cases, such as cases involving patent law and cases in which the U.S. government is a defendant. Also heard before this court are appeals from specialized courts (e.g., the U.S. Claims Court and the U.S. Court of International Trade) and claims arising from decisions of federal administrative agencies.

    在美国联邦法院体系中,一共有13个联邦上诉法院——也叫做联邦巡回上诉法院。它包括12个巡回去和1个美国联邦巡回法院的哥伦比亚特区。这些法院负责审理其所在的巡回司法管辖区内的联邦地球法院的上诉案件。第十三个巡回审判区的上诉法院叫做联邦巡回法院,对于某些类型的案件,例如涉及专利权法的案件或者是以美国联邦政府为被告的案件,拥有国家上诉管辖权。这类法院也审理特别法院的上诉案(如美国联邦索赔法院和美国联邦国家贸易法院)和联邦行政机构的判决引发的索赔案。

c. The United States Supreme Court 美国联邦最高法院

        The highest level of the three-tiered model of the federal court system is the United States Supreme Court. According to the language of the Article 3 of the U.S. Constitution, there is only one national Supreme Court. All other courts in federal system are considered “inferior”. Congress is empowered to create other inferior courts as it deems necessary. The inferior courts that Congress has created include the second tier in our model—-the U.S. court of appeals—–as well as the district courts and any other courts of limited or specialized jurisdiction.

    美国联邦法院的三级体系模式中最高的一级就是美国联邦最高法院。根据美国宪法第三条的规定,联邦只有一个最高法院。联邦系统中其他所有的法院都被认为是低于最高法院的法院组织。国会认为必要时有权创设较低级的法院。国会创设的较低级的法院包括体系模式中的第二级别——美国联邦上诉法院——还有地区法院和具有有限管辖权和特别管辖权的其他法院。

        The United States Supreme Court consists of nine justices. Although the Supreme Court has original, or trial, jurisdiction in rare instances (e.g. , in legal disputes in which a state is a party, cases between two states, and cases involving ambassadors), most of its work is as an appeals court. The Supreme Court can review any case decided by any of the federal courts of appeals, and it also has appellate authority over some cases decided in the state courts.

    美国联邦法院由九位大法官组成。虽然最高法院只对几位有限的案件具有初审管辖权(例如,在州作为一方当事人的法律争议中,或者案件涉及两个州,或者涉及大使的案件),它的大部分案件是受理上诉。联邦最高法院可以审查任何已经由联邦上诉法院做出判决的案件,它也同样有权受理经由州法院判决生效的上诉案件。

Appeals to the Supreme Court To bring a case before the Supreme Court, a party requests the Court to issue a writ of certiorari. A writ of certiorari is an order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review. The court will not issue a writ of certiorari unless at least four of the nine justices approve of it. This is called the rule of four. Whether the Court will issue a writ of certiorari is entirely within its discretion. The court is not required to issue one, and most petitions for writs are denied. (Thousands of cases are filled with the Supreme Court each year, yet it hears, on average, fewer than one hundred of these cases.) A denial is not a decision on the merit of a case, nor does it indicate agreement with the lower court’s opinion. When the Supreme Court declines review of a case, the practical effect is an agreement with the lower court decision, which continues binding the parties.

上诉到联邦最高法院:在案件被送至最高法院以前,当事一方要求法院出具一份由上级法院发出的诉讼文件移送命令书(调案复审令)。调案复审令是最高法院要求下级法院移送案件的记录用以审查的命令状。除非是九位大法官中的至少四位同一,否则一般不会发布调案复审令。这个被称作四人规则。最高法院是否发布调案复审令,全凭它的自由裁量。最高法院不比一定发布调案令,大部分的调案复审诉请都被拒绝了。(每年最高法院都会接到几千个案子,然而,经受理的却不到一百件。)这个拒绝并不是表示这个案件有价值与否,也不表示最高法院对下级法院意见的认同。当最高法院拒绝对一个案件进行复审的时候,产生的实际结果是同意了下级法院的判决,这个判决对双方当事人是具有约束力的。