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法学coursework代写:US legal system 考试

时间:2019-04-22 14:27:48 来源:www.ukassignment.org 作者:未知 点击:4
Question 1:问题1:
(1) Will the court have subject matter jurisdiction of the case?法院对案件是否具有标的物管辖权?
是的,伊利诺伊州联邦地方法院将对本案具有管辖权。标的管辖,是指原告提出诉讼请求的法律依据。宪法和法令规定了限制联邦法院对标的物管辖权的界限。美国宪法第三条第2款规定,“司法权应适用于根据本宪法[和]美国法律产生的所有案件;[和]适用于两个或两个以上国家[或]不同国家公民之间的争议”。根据《条例》,联邦主体管辖权主要有两种不同的类型:“联邦问题管辖权”和“公民权的多样性管辖权”。在某些情况下,“补充管辖权”也可采用以补充联邦问题管辖权。联邦问题管辖权主要来源于美国宪法、法律或条约。如果争议事项的总额或价值超过75000美元,且在不同国家之间,则公民权管辖权的多样性优先。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,他因爆炸而重伤,被告是Skyworks和Bigbang。由于原告因爆炸而重伤,原告有充分理由要求赔偿其超过75000美元的伤害。Bigbang在堪萨斯州注册成立,在堪萨斯州设有办事处和唯一工厂,堪萨斯州是堪萨斯州的“公民”;Skyworks公司在威斯康星州注册成立,总部设在威斯康星州,威斯康星州是威斯康星州的“公民”;原告Tony Smith是伊利诺斯州的公民。也就是说,诉讼是在不同的国家之间进行的,符合“公民管辖权多元化”的要求。因此,伊利诺伊州联邦地方法院将拥有该案件的标的物管辖权。
(2)法院是否有可能对基建有个人管辖权?
      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.#p#分页标题#e#
  If I were representing the defendant Tim Jones in New Hazard trial court, i will use reasons in the following to support my client’s position.
  First, the 1987 Volkswagen Beetle has extraordinary quality. During the usage of this care for so many years, there was not any record that the car had lost control before. It can be concluded that if driving the car normally, the car cannot be more dangerous  than the horse and buggy.
  Second, even the State law forbids issuing the driver’s license to person whose age is under 18 years old, in Smith v. Johns case, Jack is 17 years old, the car owner cannot tell the difference of 17 years old and 18 years old just from Jack’s appearance. If Jack did not told Tim Johns his real age, Tim Johns might not be able to know it.
  Third, if the driver who have injured the pedestrian is Tim Johns’ spouse or child, there’s no doubt Tim Johns will be reliable because of their family relationship. But from this case, Jack is only a neighbor’s son of the client, the client no need to take the responsibility in that case.
(3) If you were representing Mary Smith, how would you use thiscase to support your client’s position?
      If I were representing the plaintiff Mary Smith in New Hazard trial court, i will use reasons in the following to support my client’s position.
      First, the 1987 Volkswagen Beetle is quite old. From the year this car had produced, roughly twenty years has passed. This car is quite old, which might have some mechanical problems. We have the reason to believe that a twenty years old car cannot be as safe as horse or buggy. 
      Second, the State law forbids issuing the driver’s license to person whose age is under 18 years old. Jack is 17 years old, the defendant should know that the young driver is under the age of 18 years old. 
      Third, in case RADIN v. ELLIS, it is clear that a registered car owner should be responsible for injuries caused to pedestrians by the negligent driving of the car owner’s spouse or child. Jack is not the son of Tim Jones, who is only the neighbor’s son. Tim Johns does not have to be reliable for negligent driving of Jack.
Question 3:
What is the most plausible basis for a dissenting opinion, given the New York precedents that the majority has cited?
      In Howell v. New York Post Co. case, the facts of this case can be simply stated. Howell was a patient at Four Winds Hospital, whose disease was confidential to all except the immediate family of Howell. Hedda Nussbaum was also a patient at Four Winds whose child abuse generated intense public interest. When photographer of New York Post Co. took pictures to Nussabaum, it includes Howell by accident. The news was published next day, which have attracted intense public attentions and interests.
      Since it was imperative to Howell’s recovery that the hospitalization must be a secret to all but her immediate family. Howell, as the plaintiff, sued New York Post Co., 1) claiming multimillion dollar damages for alleged violations of Civil Rights Law, 2) claiming the defendant intentionally and negligently inflict emotional distress, trespass, harassment and tort. 
      For the first cause of action the plaintiff has alleged, refers to Mitchell v. Rochester case, Finger v. Omni Publs, Dallesandro v. Holt & Co., and Arrington v. New York Times Co., the cause of action cannot be supported because of reasons in the following: 1) pictures published in the New York Post Co. was for public interests only, rather than for advertising or trade purpose without prior written consent; 2) pictures illustrating the article actually has a real relationship to the article, also the article cannot be an advertisement in disguise because it has reported child abuse which have generated intense public interest. Since the plaintiff has met these above burdens, this claim for violations of Civil Rights Law cannot be supported. 
      For the second cause of action the defendant intentionally and negligently inflict emotional distress, trespass, harassment and tort, this cause of action can be supported because of reasons in the following: 
      First, the conduct of the photographer of New York Post Co. is not within the scope of the “privileged-conduct”. As stated in the Restatement of Tort in 1948, “one who, without a privilege to do so, intentionally causes severe emotional distress to another is liable for such emotional distress”. We agree that taking pictures of Nussabaum who has involved in child abuse and published these pictures illustrating the news is a privilege-conduct, and the photographer has done no more than to insist upon his legal rights in a permissible way. However, the plaintiff Howell is not relevant to the public-interested news. Taking pictures of Howell is not within the scope of “privileged-conduct”. Hospitalization of Howell was confidential and only known by her immediate family, but after publishing the picture and the news report in New York Post Co., her hospitalization was known by public. This is no good to Howell’s recovery and will definitely have emotional impact. What’s worse, after publishing the picture and the news report to public, it  might be misunderstood that Howell has certain relationships with this six-year-old Lisa Steinberg child abuse case. This kind of misunderstanding will result in emotional distress, trespass, and harassment.
      Second, the conduct of New York Post Co. constitutes a tort. As sated by Gary J. in Shuyler v. Curtis, “that the individual has a right to privacy, is a proposition which is not opposed by any decision in this court and which is within the field of accepted legal principles”. In Howell v. New York Post Co., the hospitalization of Howell is a secret which is also Howell’s right to privacy, which cannot be disclosed without the consent of Howell. Besides, according to the elements of torts, conduct of New York Post Co. also constitute a tort: 1) even the conduct of New York Post Co. is not extreme and outrageous, the intention of publishing the pictures is to report the news of child abuse, therefore the photographer has taken pictures of Nussabaum. When they have noticed someone else was included in the pictures, they should not use the pictures. Therefore even the conduct of defendant is not extreme or outrageous, it is no doubt that the conduct is inappropriate. 2) The defendant does not intend to cause severe emotional distress of plaintiff. However when finding the problems of the pictures, they did not take any measures. This kind of conduct have disregarded a substantial probability of causing severe emotional distress. 3) Because of the misconduct of the defendant, the right of privacy of Howell was invaded, and what’s worse she was most likely to connect with a disgraceful child abuse news. The casual connection exists between the conduct and the injury. 4) Because it was imperative to Howell’s recovery that her hospitalization remain a secret form, the disclose of this information will have bad impact on her recovery and have caused severe emotional distress. 
      Because of all the reasons mentioned above, there is no doubt the defendant intentionally and negligently inflict emotional distress, trespass, harassment of Howell, and constitutes a tort as well, this cause of this action is most likely to be supported by the court.
Question 4:
Is it likely that a California court would find Dr. Smith liable underSection (a) of the California Duty to Protect statute?
      Facts: 
      1) Plaintiff, Steven Rits’ brother (hereinafter “Brother”) has filed a lawsuit to defendant Dr. Smith under Section (a) of the California Duty to Protect statute, for failing to warn his mother (the victim) who has been murdered by Steven Rits in advance. 
      2) Dr. Smith is a successful psychiatrist in Los Angels, California, Steven Rits is a patient of Dr. Smith. During their psychotherapy sessions, Dr. Smith has known how much Steven hated his mother because i) most of their sessions concerned Steven’s hatred, ii) Steven was once dangled by his mother from the Golden Gate bridge just for fun; iii) Steven stayed away from San Francisco (where his mother was living) because he was afraid that he would kill his mother if he ever went there. 
      3) Dr. Smith and Steven Rits are Facebook friends. When Steven went to San Francisco and posted a picture of the Golden Gate bridge, it concerned Dr. Smith by reminding him the Golden Gate bridge story from Steven’s childhood.
      4) Dr. Smith did nothing and finally Steven murdered his mother. 
      Issue: 
      whether there is any evidence that the plaintiff has violated the California Duty to Protect statute, which stipulates: (a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to protect from a patient’s threatened violent behavior or failing to predict and protect from a patient’s violent behavior except if the patient has communicated to the
psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.
 Holding: NO (The defendant cannot be able to predict a threat of physical violence from a patient against a identifiable victim)#p#分页标题#e#
      Analysis:
      (1) The whole of the Brother’s claim is that Dr. Smith had violated the California Duty to Protect Statute, and was failing to warn his mother about potential physical violence from Steven in advance.
      (2) Steven has communicated to Mr. Smith he was afraid he would kill his mother if he ever went to San Francisco. He has described the Golden Gate bridge story in details but the story was one of many stories about how Steven hated his mother. When Dr. Smith saw Steven’s Facebook posting, it does remind Dr. Smith about the story, but it does not necessarily constitute a signal of threat of physical violence. Because Steven has told Mr. Smith many stories about his childhood, and these stories might have also happened in San Francisco. 
  (3) Steven has said that “he stayed away from San Francisco because he was afraid that he would kill his mother”, these words were just an assumption rather than a decision that if Steven went to San Francisco he will kill his mother. So Dr. Smith cannot presume Steven would take physical violence against his mother. This kind of assumption was beyond Dr. Smith’s practice area. 
  (4) Dr. Smith is a Facebook friend of Steven, but he is not a Facebook friend of Brother and his mother. If Dr. Smith assured the physical violence would happen, he was supposed to take actions according to the California Duty to Protect statute, he can perhaps reach Brother and his mother via Steven’s Facebook. But there is no evidence showing that the physical violence was going to happen. 
  (5) While not assuming the physical violence was going to happen, there is no reason that the California court would find Dr. Smith liable under Section (a) of the California Duty to Protect statute.  
 
END OF EXAM


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