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英国留学生法律专业coursework写作范文

时间:2017-01-31 11:39来源:www.ukassignment.org 作者:cinq 点击:
本文是英国留学生法律专业coursework写作范文,主要内容是根据法律课程回答4个关于管辖案件的管辖权的问题。
法院是否有管辖案件的管辖权?
 
伊利诺斯联邦地方法院将有案件管辖权。主体管辖权是原告主张的法律依据。宪法和法令规定了限制联邦法院管辖权的范围。第三,美国宪法2条规定,“司法权适用所有情况下产生的宪法[和]美国法律;争议之间的两个或两个以上国家公民之间不同的国家”。根据该规定,联邦主体管辖权主要有两种不同类型:“联邦问题管辖权”和“公民管辖权多元化”。在某些情况下,“补充管辖权”也可以用来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。多样性的公民管辖权盛行,如果争议的问题超过75000美元的总和或价值,并在不同的国家之间。
 
Question 1:
(1) Will the court have subject matter jurisdiction of the case? 
法院是否有管辖案件的管辖权?
      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.
      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? 你认为什么是“持有”这种情况最好的描述?
      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.
  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.


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