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103 Cards in this Set
- Front
- Back
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Vested Rights
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1. Characterize the area of substantive law.
2. Determine particular choice of law rule. 3. Localize the rule to be applied. |
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Most significant relationship
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consider the facts and contacts
consider policy reasons |
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What is the assumption with Gov. Interest?
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1. Assume the forum state will it's own law. unless asked to apply other law.
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If state asked to apply other law......
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Check for false conflict
and if true conflict... |
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if true conflict...
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reconsider policies
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If forum has no great interest in applying own law
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Dismiss for forum non conveniens or apply interested state's law
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If no interested states
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apply forum law
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What is a false conflict in COL?
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The Forum really has no interest
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What do you look at for Tort Damages under the Governmental Interests approach?
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Plaintiff's Domocile- yes please.
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What are the arguments against foreign law?
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1. Penal
2. Tax 3. Procedural. 4. Against Public Policy. |
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What is the Converse Erie Problem?
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State law is asked to enforce Fed. Right.. But the procedure would deny right.
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What do you DO in the Converse Erie Problem?
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Use Federal rule.
Query: Why not just move to fed court in that Jx? If it is based on FQ SMJ? |
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What force can be used to get back property...
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If in hot pursuit (viewed as still happening) then you can use reasonable/ non deadly force.
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When is physical force attributed to the employer?
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Bouncer
Bill Collector Kicking out Rowdy Customers. All sounds the same to me. |
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False Imprisionment
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1. Intent
2. Cause 3. act or omission 4. confine to bounded area |
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IIED Plus Hallmarks
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1. Extreme and Outrageous conduct
2. Intent/ recklessness 3. Cause 4. Severe Emo Distress Repetitive, fragile, Common Carrier, Hotel |
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what is negligence per se
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presumption of duty and breach.
1. Law 2. Meant to cover harm caused. 3. Meant to cover plaintiff harmed. |
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NIED
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-Foreseeable risk of harm to P
-By threat of harm -Damages: Must be physically manifested |
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Legal Cause: NIED
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-Zone of Danger
- Must be in presence of harm. |
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3 Actual Cause Tests
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But for
Joint Cause: Substantial factor test. Alternative Cause |
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Malice
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Reckless disregard for the high liklihood that the harm will occur
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enterprise liability
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1. Acts within scope of office (agent acting on behalf of corp)
2. Superior Agent (Agent high enough that presumption of reflection of corp policy) |
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Withdraw:
Encouraged- |
Repudiate encouragement
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Withdraw
Provided materials |
neutralize assistance
Notify authorities Take action to prevent. |
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Limiting conspiracy liability
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Notify members
in time for them to abandon |
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Mc'naughten
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Know the wrongfulness of actions
or Understand the nature and quality of his actions. |
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Ires. Impulse
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D not able to control his actions
or D not able to conform conduct to the law |
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Durham
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D's conduct the product of an insane person.
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MPC
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suffered from mental disease and AS A RESULT was unable to know wrongfulness or conform to the law.
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What is the Standard of Proof for admitting evidence?
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Preponderance of the Evidence
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What is the rule for Character evidence
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1. Evidence of a person's character or disposition is inadmissible proof of the conduct of that person except as otherwise proved by law.
2. There are 3 types: R, O, SA 3. Exception: non-conduct use. |
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WHen Character?
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MIMIC
Motive, Intent, lack of mistake, identity, common plan or scheme. |
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Impeachment
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Conviction, Specific Acts, Reputation-- BAD ACTS to truthfulness, Bias, Inconsistent statement, Competency, Contradiction
Carbic C (Conviction, acts, reputation, bias, Inconsistent Competency contradiction) |
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Identification: Hearsay Exception
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1. Prior Statement of W
2. Identifying a person 3. Made after perceiving that person |
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Public Records
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1 Written Statement
2. Public official 3. Setting forth activities of public office or observations made or recorded in course of legal duties. 4. Factual findings of an official investigation unless untrustworth. |
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Pleading in IL
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Illinois courts require a complaint to contain facts constituting a cause of action. IL courts will, however, construe complaints liberally in order to see that justice is served. In addition to requiring such "Fact Pleading" IL courts also require that a party include a specific prayer for relief.
The facts for fraud and conspiracy must be specially alleged in IL. |
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Changing the complaint.
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Liberal amendment rules.
Change COA any time before final judgment. |
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Relate Back
2-616b |
The action will not be barred by lapse if: 1. The time prescribed or limited had not expired when the original pleading was filed, and 2. the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set forth in the original pleading.
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In IL, when must one make a 3rd Party Complaint?
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Within the time for filing an answer--(or later by leave of court).
Same T/O: Purpose is judicial efficiency. |
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IL Class Action
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NAACP
Numerosity, Adequacy, Appropriate, Commonality, Predominate (questions) |
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Venue:
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Proper where 1. The country where a Defendant resides.
2. the place where the occurrence which is the subject of the suit. If no defendant resides in IL-- then any county. |
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Collateral Estopple
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1. the issue in the first case is identical to the issue in the second case.
2. the final judgment in the first case was on the merits. 3. the defendant had a full and fair opportunity to be heard 4. not unfair to defendant. |
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bases of Personal Jurisdiction
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1. Consent
2. Presence 3. Doing Business in IL 4. Domicile/ residence. 5. Long Arm. |
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Forum Non Conveniens
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Proper in one forum but another is more convenient
1. P interest in IL 2. D inconvenience 3. PI of IL 4. Evidence. 5. Enforce Jdg in IL 6. Laws. 7. Congestion of Courts. (Only if P files case within 6 months in other forum, and D accepts process- 2. if P files with in 6 months and SOL has run D must waive) |
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3rd party defendants
When can it be made? |
Necessary
Permissive. If Nec. Must give time to join before dismissing. Can bring 3rd party at answer or by leave of court if after answer. |
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When can 2 P be against 1 d?
Joint P |
1. Same t/o
2. Cases would raise same qustions of law and fact. |
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Relate Back.
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1. The original pleading was timely
2. The claim arises from the same TO |
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What is the thing when under 50k
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Automatic prompt disclosers:
witness, docs, insurance, etc... |
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Buyer in Ordinary Course
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A buyer who buys in good faith and without notice of the rights of a 3rd party who buys in the ordinary course of business.
(buying does not include barter) |
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Owner--Thief-- buyer--- purchaser
Who has superior rights? |
Purchaser unless it is a negotiable instrument.
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Why doesn't Purchaser owe buyer after Owner gets back property?
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Because of the warranty of good title.
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Do zoning laws affect marketability of title?
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No. But current violations do.
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Buyer in Ordinary Course
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A buyer who buys in good faith and without notice of the rights of a 3rd party who buys in the ordinary course of business.
(buying does not include barter) |
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Owner--Thief-- buyer--- purchaser
Who has superior rights? |
Purchaser unless it is a negotiable instrument.
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Why doesn't Purchaser owe buyer after Owner gets back property?
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Because of the warranty of good title.
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Do zoning laws affect marketability of title?
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No. But current violations do.
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Offers that cannot be revoked
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options
firm offers (merch,w/s, 90d, goods) detrimental reliance start of performance-unilateral |
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ways to reject
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add terms (turns into counter offer)
counter offer conditional acceptance JUST SAY NO. |
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Factors for Min Contacts.
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Min Contacts: Purposeful Availed,
Fairness: interest of parties, interest of state, nature and quality of actions in state. |
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Supplemental JX
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1. One claim has SMJ
2. Same T/O 3. P would normally expect to try issues together. Can't be used to bypass SMJ by Diversity. |
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What are the factors of the Erie Doctrine
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1. Is the law outcome determinative?
2. Balance the interests. 3. Avoid Forum Shopping. |
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Compulsory Joinder/ Indespens. party
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1. Party's interest would be harmed.
2. State can not afford relief without the party. 3. Multiplicity of suits. |
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New Trial
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To not give a new trial would result in a miscarriage of justice.
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What's the exception to the Final Judgment Rule?
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1. Pretrial orders involving temporary remedies.
2. Final Judgment on collateral Matter. 3. Interlouctory oders of determinative importance. |
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Joinder of Parties
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1. Same T/o
2. Common NOF |
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JMOL
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Reasonable people could not disagree.
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Privacy Rights
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CAMPER
Contraception, Abortion, Marriage, Procreation, Education, Related living together. Strict Scrutiny. |
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Things you can't waive in a marriage
Not Voidable. |
1. Consanguinity (Relative)
2. Insanity 3. HE IS ALREADY MARRIED!!! |
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FAULT DIVORCE
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ABCD DIP IV
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Recrimination:
Connivance |
You too
Seduce him into affair |
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Defenses to fault
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RIP CoCoCo
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Considerations in distributing Marital Property
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BULL SHIT
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Factors for Alimony
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SOME
St. of living Other expenses Medical Educational support of spouse. |
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Child Custody Factors
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CHIPS
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Common law marriage
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1. Sans
2. words and acts. 3. Validity |
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Annulment
Divorce |
Impediment before marriage
Impediment after marriage |
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waivable defects in a marriage
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L Find
Fraud, Intoxication, nonage, duress Lack of phys capacity. |
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Pre Nup
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Disclosure
written, signed. waive disclosure only with representation Fair at the time of execution. |
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Palimony
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Benefit Conferred
Expectation Unjust Enrichment |
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Venue is proper...
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1. In any district where any defendant resides if all Ds reside in the same state.
2. In a District where a substantial part of the events of the lawsuit occured/ property is located. 3. If not 1 or 2 then where any D is subject to personal jx at the time suit or where any D is found. |
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Warrant Exceptions
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SEx CAPS
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What makes warrant invalid
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1. insufficient on its face.
2. not particular. 3. Officers lied as a basis for PC for warrant 4. judge abandoned role. |
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Line up
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1. Unnecessarily suggestive.
2. substantial liklihood of mis-ID |
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Other documents in WIlls
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Incorp by reference
acts of indep sig |
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Contract WILL
HOWEVER... |
joint and mutual
leaves all to the other uses words like "we" HOWEVER, mirror provisions are never considered contractual. |
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1/2
1/3 1/2 |
1/2- intestate share with kids
1/3 elective share 1/2 elective share no kids |
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I die intestate in IL who gets my money
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1/3 mom
1/3 steph 1/3 dad If dad dead: mom 2/3 steph 1/3 |
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Renounce v. disclaim
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Disclaim- 9 mos. you don't take
renounce- wife- 7mo. |
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Trust Creditors
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1. surpluss
2. prefered creditors 3. you made it yourself dumb ass |
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Enforcing Burden of a covenant on D
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4 things
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Enforcing the benefit of covenant
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3 things: PIT
Vertical privity |
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Enforcing Burden of Equit Sev.
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3 things
TIN |
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Benefit of E.S
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IT
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Subdivision Restrictions
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IN
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Standing
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Injury
Causation Redresability |
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What process is due?
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1. Interests of the Plaintiff
2.procedural safe guards 3. efficiency of administration |
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Regulating Content Based Speech
In Public Place Content Neutral |
Strict Scrutiny.
Intermediate Scrutiny-- no more speech than nec. |
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Time Place Manner
Public/limited public |
Content Neutral, Narrowly Tailored to a significant government interest,
and Open alternative modes of communication. |
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Nonpublic forums
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Viewpoint Neutral AND
Reasonably Related. |
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Commercial SPeech
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Substantial interest
Narrowly tailored directly advances |
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when does a tax unduely burden Interstate commerce?
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no substantial nexus, unfair apportionment, or no fair relatinship between tax and benefits
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State law discriminates against out of staters.
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1. PI: If Economic interest: invalid unless substantial and least restrictive means.
2. Commerce: important non-economic state interest no less alternatives. |
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State law does not discriminate.
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Invalid unless: Interests tip to state
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