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试题1 （586 words）
The court orders injunctive relief against the defendant and agrees to maintain jurisdiction over the case to ensure that the settlement is followed. Injunctive relief is a remedy imposed by a court in which a party is instructed to do or not do something. Failure to obey the order may lead the court to find the party in Contempt and to impose other penalties.
Plaintiffs in lawsuits generally prefer consent decrees because they have the power of the court behind the agreements; defendants who wish to avoid publicity also tend to prefer such agreements because they limit the exposure of damaging details. Critics of consent decrees argue that federal district courts assert too much power over the defendant. They also contend that federal courts have imposed conditions on state and local governments in Civil Rights Cases that usurp the power of the states.
Most civil lawsuits are settled before going to trial and most settlements are private agreements between the parties. Typically, the plaintiff will file a motion to dismiss the case once the settlement agreement has been signed. The court then issues a dismissal order and the case is closed. However, if the defendant does not live up to the terms of the settlement agreement the plaintiff cannot reactivate the old lawsuit.
In more complex civil lawsuits that involve the conduct of business or industry, and in actions by the government against businesses that have allegedly violated regulatory laws, consent decrees are regularly part of the settlement agreement. A court will maintain jurisdiction and oversight to make sure the terms of the agreement are executed. The threat of a contempt order may keep defendants from dragging their feet or seeking to evade the intent of the agreement. In addition, the terms of the settlement are public.
Certain types of lawsuits require a court to issue a consent decree. In Class Action settlements, Rule 23 of the Federal Rules of Procedure mandates that a federal district court must determine whether a proposed settlement is fair, adequate, and reasonable before approving it. Under the Antitrust Procedures and Penalties Act, the court must review proposed consent decrees in antitrust suits filed by the Justice Department. The statute directs the court to review certain items, including whether the decree advances the public interest.
The U.S. Supreme Court ruled in a case that consent decrees “have attributes both of contracts and of judicial decrees.” The division between contracts and judicial decrees suggests that consent decrees are contracts that resolve some issues through the consent of the parties. However, for some issues, the decree contains judicial acts rendered by the judge, not the parties. Commentators have noted that these dual attributes require a court to determine when it is appropriate to “rubber-stamp” a proposed settlement and when it is more appropriate for the court to treat the proposal as it would any judicial order.
The federal courts have been criticized for using consent decrees to reform prison systems, school systems, and other government agencies. Some courts have maintained oversight of agencies for many years and have imposed conditions that have cost state and local governments substantial amounts of money. Congress intervened in one litigation area when it passed the Prison Litigation Reform Act of 1995. The law imposed strict limits on what federal courts could do in the future to improve prison conditions through the use of consent decrees. In addition, it gave government agencies the right to seek the termination of consent decrees, many of which had lasted for decades.
试题2 （380 words）
A civil penalty was a type of remedy at common law that could only be enforced in courts of law. Remedies intended to punish culpable individuals, as opposed to those intended simply to extract compensation or restore the status quo, were issued by courts of law, not courts of equity. The action authorized by this Act is of this character.
This Act does not direct that the “civil penalty” imposed be calculated solely on the basis of equitable determinations, such as the profits gained from violations of the statutes, but simply imposes a maximum penalty of $10,000 per day of violation. The legislative history of the Act reveals that United States Congress wanted the district court to consider the need for retribution and deterrence, in addition to restitution, when it imposed civil penalties. A court can require retribution for wrongful conduct based on the seriousness of the violations, the number of prior violations, and the lack of good-faith efforts to comply with the relevant requirements. It may also seek to deter future violations by basing the penalty on its economic impact. This Act’s authorization of punishment to further retribution and deterrence clearly evidences that this subsection reflects more than a concern to provide equitable relief.
In the present case, for instance, the district court acknowledged that petitioner received no profits, but still imposed a $35,000 fine. Thus, the district court intended not simply to disgorge profits but also to impose punishment. Because the nature of the relief authorized by this Act was traditionally available only in a court of law, petitioner in this present action is entitled to a jury trial on demand.
The punitive nature of the relief sought in this present case is made apparent by a comparison with the relief sought in an action to abate a public nuisance. A public nuisance action was a classic example of the kind of suit that relied on the injunctive relief provided by courts in equity. Injunctive relief for enjoining a public nuisance at the request of the Government is traditionally given by equity upon a showing of peril to health and safety. The Government, in fact, concedes that public nuisance cases brought in equity sought injunctive relief, not monetary penalties. Indeed, courts in equity refused to enforce such penalties.
Although the idea of “degrees of negligence” has not been without its advocates, it has been condemned by most writers, and, except in bailment cases, rejected at common law by most courts, as a distinction “vague and impracticable in its nature, so unfounded in principle,” that it adds only difficulty and confusion to the already nebulous and uncertain standards which must be given to the jury. The prevailing rule in most situations is that there are no “degrees” of care or negligence, as a matter of law; there are only different amounts of care, as a matter of fact. The difficulty of classification, because of the very real difficulty of drawing satisfactory lines of demarcation, together with the unhappy history, justifies the rejection of the distinctions in most situations.
The skepticism of Prosser and Keeton about the ability of judges, juries, and commentators to intelligibly apply different degrees of negligence was preceded a century and a half ago by the United States Supreme Court. In the 1853 admiralty personal injury case (arising from an exploding boiler on a vessel), the Court complained about the distinctions claimed for classifying negligence into categories:
The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation.
The Court commented that if the law furnished no practically applicable definition of the terms “gross negligence” or “ordinary negligence,” but left it to the jury to determine in each case what the duty was, and what omissions amount to a breach of it, “it would seem that imperfect and confessedly unsuccessful attempts to define that duty, had better be abandoned.” Whatever test might be used, the Court said there was gross negligence in the failure to use proper skill in the management of the boilers on the vessel.