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法學coursework代寫:US legal system 考試

時間:2019-04-22 14:27來源:未知 作者:anne 點擊:
Question 1:問題1: (1) Will the court have subject matter jurisdiction of the case?法院對案件是否具有標的物管轄權? 是的,伊利諾伊州聯邦地方法院將對本案具有管轄權。標的管轄,是指原告提出訴訟請求的
Question 1:問題1:
(1) Will the court have subject matter jurisdiction of the case?法院對案件是否具有標的物管轄權?
是的,伊利諾伊州聯邦地方法院將對本案具有管轄權。標的管轄,是指原告提出訴訟請求的法律依據。憲法和法令規定了限制聯邦法院對標的物管轄權的界限。美國憲法第三條第2款規定,“司法權應適用于根據本憲法[和]美國法律產生的所有案件;[和]適用于兩個或兩個以上國家[或]不同國家公民之間的爭議”。根據《條例》,聯邦主體管轄權主要有兩種不同的類型:“聯邦問題管轄權”和“公民權的多樣性管轄權”。在某些情況下,“補充管轄權”也可采用以補充聯邦問題管轄權。聯邦問題管轄權主要來源于美國憲法、法律或條約。如果爭議事項的總額或價值超過75000美元,且在不同國家之間,則公民權管轄權的多樣性優先。Yes, the Illinois Federal District Court will have subject matter jurisdiction of the case. Subject matter jurisdiction refers to the legal basis for the claim asserted by the plaintiff. The Constitution and statute set boundaries to limit the subject matter jurisdiction of the federal courts. Article III, §2 of the US Constitution stipulates that “The judicial Power shall extend to all cases arising under this Constitution [and] the Laws of the United States; [and] to Controversies between two or more States [or] between Citizens of different States”. Based on the regulation, federal subject matter  Jurisdiction mainly has two different types: “federal question jurisdiction” and “diversity of citizenship jurisdiction”. In certain cases, “supplemental jurisdiction” may also adopt to supplement federal question jurisdiction. Federal question jurisdiction mainly derives from the Constitution, laws, or treaties of the United States. Diversity of citizenship jurisdiction  prevails if the matter in controversy exceeds the sum or value of $75,000 and is between of different states.
在本案中,原告是托尼·史密斯,他因爆炸而重傷,被告是Skyworks和Bigbang。由于原告因爆炸而重傷,原告有充分理由要求賠償其超過75000美元的傷害。Bigbang在堪薩斯州注冊成立,在堪薩斯州設有辦事處和唯一工廠,堪薩斯州是堪薩斯州的“公民”;Skyworks公司在威斯康星州注冊成立,總部設在威斯康星州,威斯康星州是威斯康星州的“公民”;原告Tony Smith是伊利諾斯州的公民。也就是說,訴訟是在不同的國家之間進行的,符合“公民管轄權多元化”的要求。因此,伊利諾伊州聯邦地方法院將擁有該案件的標的物管轄權。
(2)法院是否有可能對基建有個人管轄權?
      In the case, the plaintiff is Tony Smith, who was severely injured by the explosion, the defendants are SkyWorks and BigBang. Since the plaintiff was severely injured by an explosion, the plaintiff has a good reason to claim a recovery of his injuries over $75,000. BigBang is incorporated in Kansas and has its office and sole factory in Kansas, which is a “citizen” of Kansas; SkyWorks Inc. Is incorporated in Wisconsin and has its principal office in Wisconsin, which is a “citizen” of Wisconsin; the plaintiff Tony Smith is a citizen of Illinois. That is to say, the lawsuit is between different states and fulfill the requirements of “diversity of citizenship jurisdiction”. Therefore,  Illinois Federal District Court will have subject matter jurisdiction of the case.
(2) Will the court likely have personal jurisdiction overSkyWorks?
      Yes, the Illinois Federal District Court will have personal jurisdiction over SkyWorks. Personal jurisdiction usually concerns the court’s jurisdiction over the defendant. Personal jurisdiction in Federal Courts only if a state court in the forum state where the federal court sits has personal jurisdiction over the defendant. See Fed. Rule Civ. Proc. 4. Only for some special rules under certain statutes, for example, bankruptcy laws, securities, and certain antitrust, federal court has nation-wide jurisdiction. To determine whether the state court has personal jurisdiction over the defendant, “minimum contacts” test is applied. According to “minimum contacts” rule, personal jurisdiction has subdivided into two categories, which are “general jurisdiction” and “specific jurisdiction”. “General jurisdiction” has certain conditions, 1) the forum state is where the company is incorporated; 2) the forum state is where the headquarters or principle places are located; 3) the forum state is where numerous factories and offices are located. “Specific jurisdiction” also has some criteria, these are, in the forum state, the company: 1) has regularity and continuity business activities; 2) has shipped its annual volume, in units and dollar value; 3) maintains a distribution chain; 4) advertises its product; 5) customizes its products or provides product support to “target” the forum state; 6) likely causes a tort. 
      In  the case, SkyWorks is incorporated in Wisconsin, the principle office is also in Wisconsin. SkyWorks only has a few customers in Illinois. Since the company was hired by the City of Chicago, Illinois to put on fireworks show in the Fourth of July, it can be evidenced SkyWorks has regularity and continuity business activities in Illinois, which also maintains a distribution chain here. What’s more, the plaintiff was severely injured by the explosion of fireworks provided by SkyWorks, the fireworks explosion is hazardous and likely to cause a tort. SkyWorks has minimum contacts with the forum state and the forum state has personal jurisdiction over the defendant; because of this, the Illinois Federal District Court will likely have personal jurisdiction over SkyWorks.
(3) Will the court likely have personal jurisdiction over Big Bang?
      Big Bang Inc. is incorporated in Kansas where its office and sole factory is also located. From the case we can find, Big Bang does not have any regularity and continuity business activities in Illinois, which also does not maintain a distribution chain in Illinois. However the fireworks of rocket which has severely injured the plaintiff was produced by Big Bang, and sold to SkyWorks for the Fourth of July fireworks show. There’s also one noteworthy issue. Bill Smoke, the president of SkyWorks, has only placed an order with standard items from Big Bang’s catalog by calling Jane Powder, the director of marketing. Jane shipped a new model of rocket free of charge to SkyWorks and has told Bill Smoke the new model of rocket would make everyone in the show surprising. Since the model of rocket was the exact product which has caused the severely accident, there is no doubt Big Bang should also be reliable to the fireworks explosion. To summarize, Big Bang also has minimum contacts with the forum state, the forum state then has personal jurisdiction over the Big Bang, the Illinois Federal District Court will also likely have the personal jurisdiction over Big Bang. 
Question 2:
(1) What do you think is the best description of the “holding” ofthis case?
      Facts: Tim Jones owns a 1987 Volkswagen Beetle. Tim allowed Jack, his neighbor’s 17-year-old son, to drive the Car. Jack had lost control and hit Mary Smith who is a pedestrian. Mary Smith has sued Tim Jones because Jack has no money and Tim Jones is the car owner.
      Issue: Whether the registered car owner has strict liability to injuries caused by the car which was driving by a person under 18 years of age.
      Holding: YES
      Rule:  
      i) Tim Jones owns a 1987 Volkswagen Beetle which is an old car. Tim should know an old car might have mechanical problems and is easy to create dangerous. Only “when the automobile was new and regarded as no more dangerous than the horse and buggy, courts were disposed to hold that no strict liability attached to a registered car owner”. See RADIN v. ELLIS. Apparently it cannot prove that a 1987 Volkswagen Beetle is less dangerous than horse and buggy.
      ii) It is well known that the law of the fictional State of New Hazard forbids to issue a driver’s license to any person under 18 years of age. Jack is only 17 years old, he does not have a driver’s license and Tim Jones should know that. Tim Jones should not allow Jack to illegally drive the car. Tim Jones misconducted and granted the permission to Jack, therefore Tim Jones should be responsible for all injuries to pedestrians. See RADIN v. ELLIS. 
(2) If you were representing Tim Jones in New Hazard trial court,how would you use this case to support your client’s position?
      The Issue of this case is: Whether the registered car owner has strict liability to injuries caused by the car which was driving by a person under 18 years of age. 
      In case RADIN v. ELLIS some rules has already stated clearly, including: 1) the State law forbids issuing the driver’s license to person whose age is under 18 years old; 2) a registered car owner has strict liability to pedestrian who has injured by the car, if the car is not new and cannot be regarded as no more dangerous than the horse and buggy; 3) a registered car owner is responsible for all injuries to pedestrians if the car owner allows his/her spouse or child to use the car, and his/her spouse or child drives the car negligently.


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