It is better to fight for justice than to rail at the ill.
—Alfred Tennyson （British writer）
在美国及其他普通法系国家中，商法是一个相当含混的术语。商法与民法并无严格界限，如契约法、财产法等均兼属民法与商法。在美国，商法主要属于州法律的范畴。虽然美国《宪法》第八条第一款被称为“商务条款”（ Commercial Clause，或译为“贸易条款”） ，但其主要涉及国际和州际的商业活动等问题。1957年，美国统一各州法律全国代表大会（ National Conference of Commissioners on Uniform State Laws）通过了《统一商法典》（ UniformComm ercial Code）。目前，美国各州都在不同程度上采用了该法典。按照《统一商法典》所规定的内容，商法包括：商品的销售和租赁（ sales and leasing of goods） ；资金过户（ transfor of funds） ；商业文件（ commercial paper） ；银行押金和托收（ bank deposits and collections） ；信用证（ letters of credit） ；整体过户（ bulk transfers） ；仓库收据（ ware house receipts） ；提货单（ bills of lading） ；投资证券（ investment securities）的担保交易（ secured transactions）等。
Commercial Law
Commercial law （ sometimes known as business law） is the body of law that governs business and commercial transactions. It is often considered to be a branch of civil law and deals with issues of both private law and public law.
Commercial law includes within its compass such titles as principal and agent； carriage by land and sea； merchant shipping； guarantee； marine， fire， life， and accident insurance； bills of exchange and partnership. It can also be understood to regulate corporate contracts，hiring practices，and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law. In the United States， commercial law is the province of both the United States Congress， under its power to regulate interstate commerce， and the states， under their police power. Efforts have been made to create a unified body of commercial law in the United States； the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code.
Various regulatory schemes control how commerce is conducted. Privacy laws， safety laws （ e.g. the Occupational Safety and Health Actin the United States） ， and food and drug laws are some examples.
The power of the Congress to regulate commerce
ArticleⅠ， Section 8 of the Constitution provides in part that Congress shall have the power“To regulate commerce with foreign nations， and among the several states， and with the Indian tribes”. The brevity of this clause belies the fact thatits interpretation has played a significant role in shaping the concepts of federalism and the permissible uses of national power throughout U.S. history. Itmust be remembered from the lastchapter that the federal government， at least in form， was granted neither a general police power nor the inherent right to act on any subject matter in order to promote the health， safety or welfare of the people throughout the nation. But the framers did grant Congress a power to regulate commerce.
This power over commerce might， depending on the definition of that seemingly nontechnical word， include the power to promote the economic welfare of the citizens throughout the country. The grant of power also may be viewed as committing this subject matter to Congress and thereby removing some of the powers of states to deal with local matters that may be considered a part of the“commerce”described by this clause. Thus it can be seen that， absent some further restriction upon the power， it might indeed be the functional equivalent of a generalized“police power”because much of the activity which takes place within the country， and even within a single state， might be said to relate to economic issues and problems. A broad reading of the clause would not only grant a sweeping power to the federal government but it would also restrict the ability of individual states to adopt laws which burden the forms of commerce which were committed to the control of the federal government.
The history of the commerce clause adjudication is， in a very real sense， the history of the concepts of federalism as well as the development of doctrines supporting a specific federal power. It becomes quite important therefore to look at the treatment which the Supreme Court has given this clause throughout each state in its history， even though U.S. people will also summarize the Court s current position in a single section. Therefore， this chapter follows the Court s interpretations of the commerce power on a chronological basis. After some introductory notes we shall turn to the first cases defining the power which demonstrate both historical and theoretical uncertainty on the part of the justices in defining the scope of powers for the new national government. In the next section we will examine the Court s attempt to restrictthe power， more out of a desire to protect the role of the states in the federal system than to hold the federal government to an original limited grantof power. Finally， weshall see that modern economic problems made the justices aware that they were not institutionally appear to be the more capable entities for defining the true nature of national commercial problems and the means that are needed to promote the economic well-being of the country. Today， the Court will uphold the decisions of Congress as long as there is some rational argument for finding that the items that the Congress regulates fall within the commerce power. But in order to understand the meaning of the current rules concerning the nature of Congress power and the slight restrictions placed upon it， one must read the current decisions in light of the past experience of the Court.
