Bar Review: Causes Of Action, Lists To Memorize

Front 1

Elements of Battery

Back 1

1. Harmful or offensive contact with the P's person
2. Intent to cause the above
3. Causation (substantial factor)

Front 2

Elements of Assault

Back 2

1. Creating a reasonable apprehension in P of immediate battery
2. Intent
3. Causation

Front 3

Elements of False Imprisonment

Back 3

1. An act or omission that confines or restrains P to a bounded area
2. Intent
3. Causation

Front 4

Requirements for "Shoplifting Detention" Defense to False Imprisonment

Back 4

1. Reasonable belief as to fact of theft
2. Detention in a reasonable manner
3. For a reasonable period of time to make an investigation

Front 5

Elements of Intentional Infliction of Emotional Distress (IIED)

Back 5

1. Extreme and outrageous conduct
2. Intent (actual or reckless)
3. Causation
4. Damages (severe emotional distress)

Front 6

Requirements for IIED to a bystander

Back 6

1. P was present when injury occurred to other person
2. P was a close relative of person
3. D knew that P was present and a close relative
*presence and relationship not required if D had a design or purpose to cause distress

Front 7

Elements of Trespass to Land

Back 7

1. Physical invasion of P's real property by D
2. Intent to enter land
3. Causation

Front 8

Elements of Trespass to Chattels

Back 8

1. Interference with P's right of possession
2. Intent to perform the act
3. Causation
4. Damage

Front 9

Elements of Conversion

Back 9

1. Interference with P's possession serious enough to warrant that D pay full value
2. Intent
3. Causation

Front 10

Defenses to Intentional Torts

Back 10

1. Consent (actual or implied)
2. Self Defense (reasonable belief, no retaliation, no retreat required except for deadly force outside home, not allowed for aggressor, reasonable force)
3. Defense of others
4. Defense of property (reasonable, but never deadly, force)
5. Reentry onto land
6. Recapture of Chattels (force may only be used in hot pursuit)
7. Privilege of arrest
8. Necessity (private or public)
9. Discipline (parent or teacher)

Front 11

Elements of Defamation

Back 11

1. Defamatory language by D
2. Of or concerning P
3. Publication (single third party)
4. Damage to reputation of P*
(5). Falsity
(6). Fault by D

*damage not required for libel or slander per se

Front 12

Slander Per Se Categories

Back 12

1. Business or profession
2. Loathsome disease
3. Crime of moral turpitude
4. Unchastity of a woman

Front 13

Fault Requirements for Defamation re Matter of Public Concern

Back 13

Public figure = malice (intent or recklessness)
Private figure = negligence sufficient

Front 14

Defenses to Defamation

Back 14

1. Consent
2. Truth (except for public concern)
3. Absolute privilege
a. Gov't proceedings
b. Between spouses
4. Qualified Privileges (public policy promotes candor, can be lost if abused, e.g., giving a reference)

Front 15

Elements of Appropriation

Back 15

1. Unauthorized use of P's picture or name for commercial advantage

Front 16

Elements of Intrusion

Back 16

1. Prying or intruding on affairs or seclusion of P
2. Objection to a reasonable person
3. The subject matter is private

Front 17

Elements of False Light

Back 17

1. Wide publication of facts placing P in false light
2. Objectionable to a reasonable person
(3). Malice if matter concerns the public interest

Front 18

Elements of Public Disclosure of Private Facts

Back 18

1. Wide publication of private information about P
2. Objectionable to a reasonable person

Front 19

Defenses to Invasion of Privacy Torts

Back 19

1. Consent
2. Absolute Privileges
3. Qualified Privileges

Front 20

Elements of Misrepresentation (both intentional and negligent)

Back 20

1. Misstatement of fact (or opinion if from expert)
2. Scienter (i.e., malice) for intentional; negligence is an alternative
3. Intent to induce reliance
4. Causation (actual reliance)
5. Justifiable reliance
6. Damages (pecuniary)
(7). Negligent Misrepresentation requires commercial D

Front 21

Elements of Interference with Business Relations

Back 21

1. Valid existing contract or expectancy
2. D knows of contract or expectancy
3. Intentional interference
4. Damage

Front 22

Elements of Negligence

Back 22

1. Existence of duty
2. Breach
3. Actual and proximate causation
4. Damage

Front 23

Special Duties for (1) Child (2) Professional (3) Common Carriers and Innkeepers

Back 23

(1) Child of like age, intelligence, experience (unless adult activity)
(2) A reasonable professional in similar community
(3) Liable even for slight negligence

Front 24

Duty owed undiscovered trespasser

Back 24

No duty

Front 25

Duty owed discovered or expected trespasser

Back 25

Activities - ordinary RPP
Artificial conditions involving a serious risk of injury that the o/o knows of

Front 26

Duty owed licensee

Back 26

Activities - ordinary RPP
Any dangerous condition o/o knows of
(IL ordinary RPP)

Front 27

Duty owed invitee

Back 27

Activities - ordinary RPP
Any dangerous condition o/o should know about - so must make reasonable inspection
(IL ordinary RPP)

Front 28

Elements of Negligent Infliction of Emotional Distress

Back 28

1. P was within danger zone of physical impact
2. P must suffer physical symptoms of distress (contrast with IIED)

Front 29

Res Ipsa Loquiter Requirements

Back 29

1. Usually wouldn't happen without negligence
2. Negligence attributed to D (often instrumentality within D's exclusive control)
3. P not contributorily negligent

*This merely creates inference of negligence for the jury to decide on*

Front 30

Product liability (both negligence and strict liability theories)

Back 30

Must have a commercial supplier
1. The defect must have existed when it left D's control (inference if in normal channels)
2. Successful tort theory
a. Negligence (in design, manufacture, warnings, inspection)
b. Strict Liability (need to show unreasonably dangerous condition)

*Under both theories, P must be in foreseeable zone of risk*

Front 31

Nuisance

Back 31

Conduct objectionable to an average person
Private nuisance - P has possession of land affected
Public nuisance - P has been uniquely harmed

Resolution involves balancing of competing interests

Front 32

Requirements for a Holder In Due Course (HIDC)

Back 32

1. Must be a holder (proper negotiation: bearer -> pass possession; order -> pass and indorse)
2. Acquired for value (past or present)
3. Taken in good faith (honesty in fact, fair dealing)
4. No notice of:
a. Overdue, dishonored, principal default
b. Forged signature or alteration
c. Another's claim to it (e.g., stolen)
d. Drawer/Maker has a defense to payment

Front 33

Real Defenses against HDIC

Back 33

1. Infancy of maker/drawer
2. Duress, lack of capacity, illegality of debt (only if renders void, voidable not enough)
3. Fraud in the factum
4. Discharge in bankruptcy

Front 34

Attachment

Back 34

Last of:
1. Value given (binding future promise OK)
2. Debtor has rights in collateral
3. Authenticated (assent in perceivable form) written (oral OK if collateral in creditor's possession) security agreement providing adequate description of collateral (more detail in consumer transactions)

Front 35

Perfection (filing)

Back 35

After attachment, file UCC-1 Financing Statment with SoS, by debtor name in debtor state
1. Debtor's full accurate name (test is "seriously misleading")
2. Secured creditor's name
3. Description of collateral (super-generic OK, more for consumer goods)
* Lasts 5 years unless continued within last 6 months *

Front 36

Perfection (other methods)

Back 36

1. Motor vehicles covered by certificate of title - lien noted at DoMV. (vehicles in inventory are still ordinary collateral)
2. Possession: counts for both writing in attachment and perfection
3. Automatic perfection of PMSI in consumer goods (NOT commercial)
4. Control (exclusive method for deposit accounts, superior alternative for investments)
5. As a matter of law in proceeds: financing statement says so, identifiable cash, or original was filed + proceeds could be filed in same place + not cash in the interim

Front 37

Basic requirements for Will

Back 37

T 18 or older
1. Signed by T (proxy in presence OK)
2. Two attesting witnesses
3. Witnesses sign in T's presence (no need same time or place, IL rule line of sight, majority rule conscious presence)

* Holographic unwitnessed NOT OK in IL, but yes in majority *

Front 38

Rule for beneficiary as attesting witness

Back 38

Doesn't affect validity of will, but beneficiary-witness loses legacy unless:
1. Supernumerary rule (enough witnesses otherwise) OR
2. Would have taken legacy as heir anyway, then receives lessor of bequest in will or intestate share
* Executor-witness may not be compensated for service in IL, but yes in overwhelming majority *

Front 39

Proof of Lost Wills

Back 39

1. Proof of due execution (testimony of attesting witnesses)
2. Cause of will's nonproduction (overcome presumption of revocation which follows will last seen in T possession not found or mutilated)
3. Contents substantially proved by copy or testimony of witnesses who read or heard

Front 40

Revocation and Alteration of Wills

Back 40

Revocation by:
1. Later testamentary instrument says so (if not, then new instrument treated as codicil)
2. Physical act in IL (writing on top of text counts). Majority rule (holographic-OK states) handwritten + signed can revoke

Alteration
IL rule: No effect unless meets requirements of new will or codicil
Majority rule: Physical acts can rule out, but additions/changes not valid (watch out for DRR)

Front 41

DRR and Anti-Lapse Rules

Back 41

Dependant Relative Revocation: Mistake of law as to the validity of another disposition renders revocation contrary to T's intent. If revoked instrument closer to intent then is disregarded (i.e., it's better to undo the revocation than suffer some worse consequence when the other disposition fails)

Anti-lapse: Beneficiary predeceases T, gift lapses and is revived only if benefits child or other descendant of T (IL) OR descendant of T's grandparent (UPC)

Front 42

T marries post-execution?
T divorces post-execution?
New child post-execution?

Back 42

Marries after -> No effect on will, but spouse can get elective share (1/2 if no other descendants, 1/3 if descendants)

Divorce after (separation not enough!) -> revokes all gifts and fiduciary appointments (as though former spouse predeceased)

New child aka pretermitted child -> takes intestate share unless will specifies otherwise (watch out for codicils post-birth)

Front 43

Abatement of legacies to pay claims against estate

Back 43

Claims paid in order out of:
1. Intestate portion
2. Residuary
3. General Legacies
4. Specific bequests
(demonstrative can be split by how fulfilled)

Front 44

Incorporation by reference (i.e., external document referred to in will)

Back 44

IL: Valid if predates will, will refers to it and describes it sufficiently

UPC: Allows later document to dispose of tangible property (but not money or intangibles)

Acts of significant independence: May specify contents of room, trunk, etc. in a bequest even if contents change later (except title documents)

Front 45

Methods for addressing ambiguity in Will

Back 45

Mistake in drafting -> If plain meaning clear, no overturning

Mis-description = Latent ambiguity
Clear contradiction = Patent ambiguity
May use extrinsic evidence:
1. Facts and circumstances (family relationships, T's personality, etc.)
2. T's statements to attorney

but NOT T's statements of intent to others

If extrinsic evidence fails to cure ambiguity, gift fails entirely

Front 46

Conditions for Contractual Will

Back 46

IL: 1. Married couple's will
2. Labeled joint and mutual
3. Entire estate to spouse
4. Disposes property in unified disposition
5. Common dispositive scheme on death of survivor

UPC: must state contract exists

Later contradictory wills still valid, but constructive trust against beneficiaries to carry out earlier contractual will

Front 47

Intestate distribution

Back 47

Spouse: 1/2 if descendants
Strict per stirpes to descendants

Single decedant
IL: Parents + siblings equal shares, sole parent takes double
Majority: All to parents

Front 48

Lack of Testamentary Capacity

Back 48

1. Understand nature of act (i.e., executing will)
2. Know nature and approx. value of property
3. Know natural objects of bounty (aware of family)
4. Understand disposition made

Front 49

Undue Influence

Back 49

1. Existence and exertion of influence
2. Effect was to overpower mind and will of T
3. Product is a will that would not have been made BUT FOR influence

Front 50

Basic Elements of Crime

Back 50

Voluntary, physical, conscious, willing act

Front 51

Malice Crimes

Back 51

Arson
Murder (common law)

Front 52

General Intent Crimes

Back 52

Rape
Battery
Kidnapping

Front 53

Rules for holding responsible for crimes of others

Back 53

Modern Rule: Provided assistance, did so intentionally

Common Law: 4 Categories
1. Principal in 1st Degree (commits element)
2. Principal in 2nd Degree
3. Accessory Before the Fact
4. Accessory After the Fact (only one that is an independent crime)

Each is held responsible for foreseeable crimes of others

Front 54

Solicitation

Back 54

Asking or encouraging another person to commit a crime

No withdrawal
Merges into completed crime
Impossibility no defense

Front 55

Conspiracy

Back 55

Two-plus people with capacity to commit a crime and the intent to enter agreement (Bilateral)

No withdrawal once overt act taken (but shields from later crimes)
Merges in IL, seems not to merge by default
Impossibility no defense

Front 56

Attempt

Back 56

A substantial step towards completion of a crime

No withdrawal once substantial step
Merges into completed crime
Impossibility no defense

Can abandon under MPC, requires total abandon (not mere postponement) and also voluntary (not due to encountering difficulty)

Front 57

Insanity Defense Variants

Back 57

1. M'Naughten: Doesn't know right from wrong
2. Irresistible Impulse: Can't conform conduct to law
3. Product rule: Action was product of mental illness
4. MPC: Combines 1 and 2

Front 58

Intoxication Defenses

Back 58

Involuntary: Defense to all crimes
Voluntary: Only allowed against specific intent crimes

Front 59

Mistake of Fact

Back 59

Valid defense for specific intent crimes, even if unreasonable

For other crimes, mistake must be reasonable

Front 60

Mistake of Law

Back 60

Generally not a defense, unless the statute requires knowledge of illegality (in which case, the mistake of law is not really a defense, but rather a failure of proof of the elements)

Front 61

Self Defense

Back 61

Force reasonably necessary against aggression. Both objective and subjective standard.

Good faith required (can't create conditions)
Aggressor must disengage or be met with increased force before gaining possibility of using defense

Front 62

Requirements for deadly force used on fleeing felon

Back 62

1. Probable cause that person committed crime
2. Reasonably necessary to use deadly force to stop escape
3. Felon posed risk to others (constitutional requirement)

Front 63

Entrapment defense

Back 63

Police instigated the crime
Defeated if gov't can show D predisposed to commit the crime

Front 64

Battery (Criminal)

Back 64

D inflicts unwarranted touching on another

General Intent

Front 65

Assault (Criminal)

Back 65

1. Attempted Battery
2. Tort-like, Victim has apprehension of immediate touching

IL only recognizes second form
Both specific intent

Front 66

Malice for Murder

Back 66

1. Intent to kill
2. Intent to inflict great bodily harm
3. Implied malice (depraved heart, grossly reckless)
4. Felony murder (note modern rule requires D to directly cause death)

Front 67

Adequate provocation to reduce murder to voluntary manslaughter

Back 67

1. D acts under provacation that causes loss of control
2. Provocation would cause ordinary reasonable person to lose control
3. Insufficient time to cool
4. D does not in fact cool

Front 68

Kidnapping

Back 68

Movement of victim against will

General intent crime

Front 69

Rape

Back 69

Intercourse by force or threat of force with no consent

General intent crime

Front 70

Larceny

Back 70

Crime against possession, title never passes

1. Taking and carrying away
2. Trespass = against will of owner*
3. Intent to PERMANENTLY deprive
4. Only applies to personal property

* If with consent of owner, but achieved by misrepresentation, then Larceny by Trick

Front 71

Embezzlement

Back 71

1. Fraudulent
2. Conversion
3. Of the property of another
4. By a person in lawful possession (distinguish from mere custody)

Front 72

False Pretenses

Back 72

1. D obtains title
2. To property of another
3. By intentional (or knowing) false statement of past or existing fact
4. With intent to defraud another

Front 73

Receiving stolen property

Back 73

1. Actually received
2. Personal property
3. with Knowledge it was stolen
4. with Intent to permanently deprive

Front 74

Robbery

Back 74

Crime against the person

1. Taking personal property
2. Intent to permanently deprive
3. From another's presence
4. By force or threat of force

Front 75

Burglary

Back 75

1. Breaking and entering (minimal physical act)
2. Of another's dwelling*
3. At night*
4. With intent to commit felony inside

*modern rule ignores these

Front 76

Arson

Back 76

The malicious burning (damages fiber) of the dwelling of another

Malice crime

Front 77

Probable Cause

Back 77

A practical, non-technical probability that evidence will be found

Front 78

Challenges to Affidavits (basis for Warrants)

Back 78

1. Does not demonstrate probable cause
2. Based on falsities:
a. an intentional lie
b. relating to material fact
c. by a gov't official

Front 79

Good Faith Limitation on Exclusionary Rule

Back 79

Evidence not excluded if:
1. Proceeding in good faith
2. Reasonable belief warrant was valid
3. Officers in fact have a warrant which is later found invalid (officers merely told warrant exists is OK)

Front 80

Exceptions to Warrant Rule

Back 80

1. Search incident to arrest (person plus area under control at time)
2. Automobile search (with probable cause it contains evidence, containers in vehicle ok inventory later ok, checkpoints only ok if routine, car-related, limited intrusion
3. Plain view
4. Consent (voluntary, apparent authority ok)
5. Stop and frisk (see Terry)
6. Probable cause (flight alone significant, but not enough)
7. Exigent circumstances (hot pursuit, scene of homicide, sweep of premises)
8. School children (reasonable suspicion standard)
9. Garbage (presumed no expectation of privacy)

Front 81

Stop-and-frisk (Terry)

Back 81

1. Reasonable suspicion that crime is about to take place
2. Officer may stop and question
3. If answers don't dispel suspicion, may pat down outer garments

Front 82

Miranda and Right to Counsel
Offense-specific?

Back 82

5th Amendment Miranda is not offense-specific, so all questioning must stop if D requests lawyer, even about unrelated crime

6th Amendment right to counsel is offense specific, e.g., line-up for unrelated, uncharged offense, no right to attorney present

Front 83

Duties of Life Tenant

Back 83

1. No voluntary waste (any action beyond maintenance causing harm - can continue normal depletion if mine,quarry,etc.)
2. Maintain (i.e., no permissive waste) (includes repair, taxes, only interest on mortgage)
3. No Ameliorative waste unless changed conditions make property relatively worthless

Front 84

Reversion (future interest retained by grantor)

Back 84

When Grantor gives less than durational estate

O to A for life (O has reversion)

O to A for life, then to B if B survives A (O has reversion, B has contingent remainder)

O to A for life, then to B (O has nothing, B has vested remainder)


NOT subject to RAP

Front 85

Possibility of Reverter

Back 85

When grantor gives fee simple with condition that triggers automatic reverter.

O to A and heirs for so long as X never happens (O has possibility of reverter, A has fee simple determinable)

NOT subject to RAP

Front 86

Right of Entry

Back 86

Grantor gives fee simple on a condition subsequent, allows right of entry

O to A and heirs provided that if X ever happens, O or heirs have right to reenter and retake (O has right of entry, A has fee simple on a condition subsequent)

NOT subject to RAP
NOT triggered by mere words "for the purpose of"

Front 87

Executory Interest

Back 87

Cuts short an estate before it, but otherwise doesn't naturally come into possession of that estate

O to A for life, then to B and heirs, but if X occurs, then to C (B has vested remainder subject to executory interest, C has executory interest)

Holder of executory interest cannot sue life tenant (contrast with holder of remainder)

Subject to RAP

Front 88

Interests potentially voided by RAP

Back 88

1. Contingent remainders
2. Executory interests
3. Vested remainders subject to open
4. Options and rights of first refusal (unless connected to lease)

Doesn't apply if gift is from charity to charity

Front 89

Joint Tenancy

Back 89

Created by TTIP (time, title, interest, possession) and clear intention to create in writing

Right of survivorship, right to partition

Destroyed by partition, severance (one of TTIP broken, e.g., by conveyance, mortgage in a title state, contract of sale, creditor's sale)

Front 90

Termination of Easement

Back 90

1. Unity of ownership (of both estates)
2. In valid release (in writing to satisfy SoF)
3. Abandonment: intent manifested plus physical act
4. Estoppel:
a. Some conduct or assertion by dominant owner
b. reasonable reliance by the servient owner
c. A change in position (e.g., servient owner building on the easement)
5. Termination by prescription (servient blocks use for statutory period)
6. End of necessity

Front 91

Common Plan (reciprocal negative servitudes)

Back 91

1. Intent (inferred from a common scheme for development)
2. Notice of the covenants (actual, inquiry, record)

Front 92

Chattels becoming fixtures

Back 92

Look to:
1. relationship between annexor and premises
2. Degree of annexation
3. Nature and use of chattel

(Called accession when personalty becomes an integral part of property and therefore is essentially a fixture)

Front 93

Factors for Equitable Mortgage

Back 93

1. debt or promise of payment by deed's grantor
2. grantee's promise to return land when debt paid
3. amount advanced to grantor/debtor lower than property value
4. degree of grantor/debtor's financial distress
5. parties' prior negotiations

Front 94

Benefits of equitable servitudes

Back 94

runs to successors if:
1. original parties so intended
2. servitude touches and concerns the land
3. subsequent purchaser had actual or constructive notice of the covenant (actual, record, inquiry)

Front 95

Quasi-easement (easement implied by law)

Back 95

1. Prior to time tract divided there was a use of servient reasonably necessary to dominant part use
2. The use must be apparent and continuous at time tract divided

(do not confuse this with a pure necessity easement, which can always arise if truly necessary)

Front 96

Adverse possession

Back 96

HELUVA
1. Hostile
2. Exclusive (excluding others)
3. Lasting (statutory period)
4. Uninterrupted
5. Visible (open and notorious)
6. Actual (plus constructive or leasing)

Front 97

Marketable title

Back 97

Seller must give:
1. Proof of title (deeds in chain of title)
2. Title free of encumbrances
3. Valid legal title, but not until day of closing

Seller must be given time to cure if buyer notices defect in title
Otherwise, buyer can get
1. Rescission
2. Damages
3. Specific performance (with price abated)

Front 98

Actual cases and controversies

Back 98

1. Standing (Injury, Causation and Redressability, Generally no third party standing, No generalized grievances except establishment clause case)
2. Ripeness: whether court may grant pre-enforcement review (hardship, fitness of issues and record)
3. Mootness: Must still be live controversy or capable of repetition

Front 99

Issues Fed Courts won't adjudicate

Back 99

1. Republican form of government
2. President's foreign policy
3. Impeachment and removal
4. Partisan gerrymandering

Front 100

Congress's Police Power

Back 100

MILD
Military
Indian Reservations
Lands (federal)
District of Columbia

Front 101

Treaties vs. Other sources of law

Back 101

Treaties > State Law
Treaties = Federal Law (last in time controls)
Constitution > Treaties

Front 102

Executive agreements vs. Other sources of law

Back 102

Exec > State Law
Federal Law > Exec
Constitution > Exec

Front 103

Privileges and Immunities (Article IV vs. 14th Amendment)

Back 103

Art. IV: No state may deny citizens of other states the privileges of its own citizens without substantial justification

14th Amendment: Preserves a person's right to travel between states

Front 104

Differing levels of scrutiny verbatim

Back 104

Rational Basis: Rationally related to a legitimate purpose
Intermediate: Substantially related to an important purpose
Strict: Necessary to achieve a compelling purpose (least restrictive alternative)

Front 105

Due process (14th Amendment) What procedures are required?

Back 105

Assuming a deprivation of life, liberty (freedom secured by constitution or statute) or property (entitlement to benefit),
then balancing test with:
1. Importance of interest to individual
2. Ability of additional procedures to increase accuracy
3. Government's interests (efficiency)

Front 106

Rights triggering Strict Scrutiny

Back 106

Marry, procreate, children, keep family together, raise children, contraceptives
Travel (durational requirements for benefits)
Vote
Speech (content-based and prior restraint), Association
Burden on religion if not a neutral law of general applicability

Front 107

Abortion rights standard?

Back 107

Undue burden

Front 108

Rights triggering rational basis

Back 108

Practicing trade or profession
Physician-assisted suicide
Education

Front 109

Equal Protection - classifications triggering strict scrutiny

Back 109

Race
National origin
Alienage generally

Front 110

Equal Protection - classifications triggering intermediate scrutiny

Back 110

Gender
Illegitimacy
Undocumented alien children

Front 111

Equal Protection - classifications triggering rational basis

Back 111

Alienage related to democratic process
Congressional regulation of aliens
Age
Disability
Wealth
All others

Front 112

Content neutral law burdening speech?

Back 112

Intermediate Scrutiny

Front 113

Symbolic Speech standard?

Back 113

Important interest unrelated to the suppression of the message, impact on communications no greater than necessary to achieve goal

Front 114

Obscenity laws require...

Back 114

1. Appeal to prurient interest
2. Patently offensive
3. Artistic literary political scientific by NATIONAL standard*

other elements may be by any standard

Think P.O.S. (prurient, offensive, social qualities)

Front 115

Speech restrictions in public forums (parks and sidewalks) and limited public forums (gov't could close off, but chooses not to)

Back 115

1. Content-neutral or else meet strict scrutiny
2. Time place and manner ok
3. Regulation need not use least restrictive
4. Permit fees ok, but no discretion on amount of fee

(I've also seen similar definition based on narrowly tailored, doesn't restrict other channels of communication)

Front 116

Speech restrictions on non-public forums (military, outside prisons, city buses, sidewalks outside post office, airports)

Back 116

Can close off speech entirely if viewpoint neutral and rational basis met.

At Airports can't prohibit distribution of literature

Front 117

Establishment Clause checklist

Back 117

SEX
Secular purpose
Effect neither to advance nor inhibit religion
no eXcessive entanglement

Front 118

Discrimination among religions

Back 118

Strict scrutiny

Front 119

SMJ for all levels of courts in IL

Back 119

Circuit: General unless exclusive elsewhere
Appellate: Only final orders except partial or significant
Supreme: Must review constitutional

Front 120

PJ in IL

Back 120

1. Consent or Presence (Dancing, Domicile, Doing Business) or Long Arm (Land, Injury, Matrimony, Insurance, Transaction)
2. Constitutional (Minimum contacts + fairness + reasonably expect to be sued)

Front 121

Service of Process in IL

Back 121

Personal - vicinity
Abode - ATHIM (Abode, 13, Household, Inform, Mail)
Waiver - (60 days for answer)

Entities: Personal or waiver on authorized agent, qualified agent, partner

Publication: RAMP (Real property, Affidavit, Mail, Publish)

Front 122

Venue in IL

Back 122

Any D resides OR any part of claim arose
Exceptions: GRAIL (Gov't entity, Real property, Absent, IL insurance, Libel)
Transfer Venue at discretion of judge for convenience
Change Venue? 3 Affidavits fearing prejudice (1 own 2 inhabs)
Forum Non Conveniens: Conditional, Discretionary, Dismissal for Gross Inconvenience

Front 123

Pleadings in IL

Back 123

General Rule: Liberal fact pleading
Amendments liberally granted on just terms
Relation back of claims: sameness
Relation back of parties: KISS (Knowledge, Identity mistake, Service of process timeframe, Sameness)

Front 124

Joinder in IL

Back 124

Impleader: 3rd party claim for all or part
Interpleader: Common fund + rival
Intervention: Interest adversely affected OR Discretion and commonality
Class Actions: NAACP (Numerosity, Adequacy, Appropriateness, Commonality, Predominance)

Front 125

Discovery in IL

Back 125

Method Proper
1. Automatic prompt disclosure under 50k
2. Limited depos
3. Pretrial witness interrogatories
4. Duty to supplement

Material sought proper - Scope: Relevant and not privileged

Work Product: Attorney's mental impressions - never unless impossible; everything else - always unless consultants

Front 126

Pre-Trial Motions

Back 126

Substitute Judges: Once before substantial issue resolved
P's Voluntary Dismissal: Once before trial or counterclaim + 1-yr to refile
D's 2-615: Pre-answer for facial defect
D's 2-619: Affirmative matter defeating claims
Summary Judgement: no geniune issue of material fact

Front 127

Trial and Related Motions in IL

Back 127

Trial by Jury: Demand + Money
Directed Verdict: Evidence so overwhelmingly favors
JNOV: Evidence so overwhelmingly favorED
New Trial: Discretionary (1) Trial errors (2) Verdict against weight
Vacate Default: Within 30 days, liberally granted
Relief From Judgment: Between 30 days and 2 years MEND (Merit, Equity, New Facts, Due diligence)

Front 128

Finality in IL

Back 128

Parties are barred from relitigating claims or issues which they have already fully and fairly litigated

Res judicata: Claim
Collateral Estoppel: Issue

Front 129

SMJ in Federal Court

Back 129

Limited jurisdiction "arising under" or diversity (complete + over 75K) plus supplemental (common nucleus of operative fact)

Front 130

Process in Federal Court

Back 130

A WASP
Abode, Waiver, Agent Service, State Methods, Personal

Front 131

Venue in Federal Court

Back 131

1. Any D resides, if all from same state
2. Substantial part of claim arose

Transfer: New venue proper + discretion

Front 132

Pleadings in Federal Court

Back 132

Notice of plausible claims (fraud with particularity)
Amendments freely for justice
Relation back of claims: Sameness
Relation back of parties: Sameness + Knowledge within 120 days of filing

Front 133

Joinder in Federal Court

Back 133

Compulsory Counterclaims: Same transaction or occurrence
Impleader: 3rd party claims for all or part
Interpleader: Common fund + Rival claimants (minimal diversity enough + 500)
Intervention: (1) Interest adversely affected (2) Discretion and commonality
Indispensable: Absence so prejudicial, lawsuit dismissed
Class Actions: CAN'T (PS) (Commonality, Adequacy, Numerosity, Typicality) (Predominance, Superiority)

Front 134

Discovery in Federal Court

Back 134

Automatic prompt disclosure
Presumptive limits on depos and exams
Duty to supplement

Work Product - Attorney's mental impression never; all else - showing

Front 135

Trial and Related Motions in Federal Court

Back 135

Summary Judgment: No genuine issue of material fact - burden on non-mover
Judgment as a Matter of Law: Insufficient evidentiary basis + No reasonable jury
Renewed Judgment as a Matter of Law: if original JML made
New Trial: Discretionary (1) trial errors or (2) against weight
Trial by Jury: Demand (14 days) + Money

Front 136

Finality and Appellate Review in Federal Court

Back 136

Parties are barred from relitigating claims or issues which they have already fully and fairly litigated

Appellate Review: Only final orders, except partial or controlling legal issues (interlocutory order)

Front 137

Rules for Abandoned Property

Back 137

It is abandoned if owner:
1. Voluntarily gives up possession
2. with the intent to give up title and control

A finder acquires rights in abandoned property if
1. Finder has possession
2. with the intent to assert title and control

Front 138

Rules for Lost Property

Back 138

Is found property where the owner took no voluntary act in placing the property there; parting was accidental and involuntary

Finders win (except trespasser)
Owner/Occupiers lose (unless in highly private locus, i.e., home or private office)
Master wins over servant

Front 139

Rules for Mislaid Property

Back 139

Is found property where the owner took some affirmative act in placing the property there;

Finders lose
Owner/Occupiers win

Front 140

Requirements for Gifts Inter-Vivos

Back 140

1. Donative intent (to pass TITLE)
2. A valid delivery (handing to or already in possession of, representative object ok)
3. A valid acceptance (silence OK, only explicit rejection defeats)

Tricks: Checks made out to donee not delivered until cashed
Checks by third party or stock still valid when given to donee even if not indorsed
Agent of donor doesn't deliver until given to donee
Agent of donee satisfies delivery

Front 141

Gifts Causa Mortis

Back 141

Same as inter vivos plus peril required: Fair degree of certainty or likelihood of imminent death

Revoking:
1. Donor may revoke at any time
2. Donee predeceases donor
3. Donor recovers (i.e., Donor must die for valid gift)

No longer matters what kills the donor (used to require death by known peril)

Front 142

Bailment

Back 142

Formed when bailee takes CUSTODY of chattel with INTENT to serve as bailee

Presumed to be bailee of items typically found in chattel (e.g., valuables in glove compartment of car)

Valet parking with keys surrendered = bailment
Self-park = not a bailment

Front 143

Liability of Bailee

Back 143

Sole benefit of bailor (e.g., a gratis repair) = liable only for gross negilgence

Sole benefit of bailee (e.g., borrowing chattel from friend) = liable for slight negligence

Mutual benefit = ordinary care

*Modern trend is to always apply ordinary care*

Unauthorized use = strictly liable
Misdelivered chattel (e.g., to someone who fraudulently claims) = strictly liable unless forged claim check

Front 144

Exculpatory Clauses for Bailee

Back 144

May be used to limit liability for (only) ordinary negligence so long as effective notice

Front 145

Character Evidence in Civil Cases

Back 145

Not admissible as circumstantial evidence to infer conduct

Is admissible when character is itself a material issue (specific acts, opinion, reputation)

Front 146

Character Evidence in Criminal Cases

Back 146

Not admissible at initiative of prosecution

Admissible by defense for a relevant trait (e.g., peacefulness if accused of violence) (reputation and opinion)

Then prosecution may cross examine good character witness on specific acts
Prosecution may also call own witnesses for bad opinion or reputation

Front 147

Character Evidence regarding Victim?

Back 147

D may, as part of self-defense plea, show opinion of or reputation of victim

Prosecution then may show good rep/opinion of victim AND may also show bad rep/opinion of D

Front 148

Victim Character in Sexual Misconduct Case?

Back 148

Never rep/op
Specific acts only to show:
1. Third-party source of semen
2. Prior acts of consensual intercourse between D and victim
3. If exclusion would violate constitutional rights of D

Front 149

Rules for other crimes of the accused offered into evidence

Back 149

Allowed if:
1. Accused offered good character evidence first
2. Other purpose to prove a material fact other than disposition: MIMIC (Motive, Intent, Mistake absence of, Identity, Common plan

Note: Prior sexual assault and child molestation may always be shown by prosecution when similar accusation

Front 150

Methods of Authentication

Back 150

1. Admission
2. Eyewitness testimony
3. Handwriting proof (familiar lay witness, expert, jury comparison)
4. Ancient document rule (20 yrs+, regular on face, natural place of custody)
5. Solicited reply
6. Self authenticating (certified copies, official publications, periodicals, trade label, notarized)

Front 151

Best Evidence Rule

Back 151

Applies to:
1. Legally operative documents
2. Witness's sole knowledge from document

NOT Facts known independent of writing
NOT Collateral (minor importance)

Exceptions:
Public records (certified copies ok)
Voluminous (summary ok, originals made available)
Duplicates (unless authenticity issue or unfair redaction)

Front 152

Refreshing recollection

Back 152

When witness memory fails anything may be used
Doesn't have to meet normal evidentiary rules (authentication, hearsay, best evidence)
Introducing party may not admit to evidence
Opposing party may see it, use it on cross, and even introduce it

Front 153

Recorded recollection

Back 153

1. witness had personal knowledge
2. writing by/under supervision/adopted by witness
3. timely made
4. accurate when made
5. witness unable to remember all or part

Only may be read into evidence
Is an exception to hearsay

Front 154

Expert Testimony Requirements

Back 154

Judge decides if:
1. Subject matter expert-appropriate (reliable+relevant)
2. Qualified expert
3. Reasonably certain of opinion
4. Proper factual support
a. Personal knowledge
b. Facts supplied though evidence or hypo
c. Fact not in evidence but which expert uses regularly

Front 155

Learned Treatise Evidence

Back 155

May use to impeach opposing expert if:
1. opposing expert relied on it
2. opposing expert admits it is authoritative
3. call your own witness to say it is authoritative
4. judicial notice

Federal rules allow treatise to support own expert
May be offered for its truth, but only read to jury, no admitting it

Front 156

Impeachment techniques

Back 156

1. Prior inconsistent statement^
2. Showing of bias
3. Prior conviction for crime
4. Specific act of dishonesty
5. Bad rep/op for veracity*

^ Comes in for truth if under oath at prior proceeding or depo
* No extrinsic evidence

Front 157

Specific Non-Hearsay

Back 157

1. Verbal acts or legally operative facts (acceptance, defamation, bribery, permission, etc.)
2. Showing effect on audience (notice, reason for action)
3. Circumstantial evidence of state of mind (I am the pope)
4. Prior inconsistent statement under oath
5. Prior consistent statement to rebut recent fabrication
6. Prior statement of identification by witness

Front 158

Hearsay exceptions

Back 158

1. Admission of party or agent (Federal rules say not hearsay at all)
2. Former testimony (unavailability + opportunity to cross)
3. Statement against interest (unavailable + not exculpating D unless corroborating)
4. Dying declaration (homicide or civil concerning factual cause of death, need not die but must be unavailable)
5. Spontaneous statements
6. Business records (germane)

Front 159

Confrontation Clause Requirements

Back 159

1. Offered against accused in criminal case
2. Declarant unavailable
3. Testimonial in nature
4. Accused had no opportunity to cross-exam declarant at time
UNLESS
Prosecution demonstrates D's wrongdoing caused unavailability

Front 160

Termination of Contract

Back 160

1. Lapse of time (time stated or reasonable)
2. Death of party prior to acceptance
3. Revocation (statement or conduct of offeror)
4. Rejection (words or conduct of offeree: counter, conditional accept, addt'l terms if not goods )

Front 161

Mailbox rules

Back 161

1. Communications other than acceptance effective when received (possession, not knowledge)
2. Acceptance effective when mailed
3. If rejection mailed before acceptance, neither effective until received
4. Mailbox rules may not be used to satisfy option deadline

Front 162

Tricky Acceptance Scenarios

Back 162

1. Conditional verbal response + later conduct (CL = counter is accepted, UCC = accept w/o counter terms)
2. Offeree fully performs (check if notice needed)
3. Offeree starts to perform (bilateral = acceptance, unilateral = no acceptance)
4. Wrong goods sent (generally acceptance + breach, accommodation notice = counteroffer)

Front 163

Preexisting contractual or statutory duty scenarios

Back 163

Generally, not consideration, except:
1. addition or change to performance
2. Unforeseen difficulty
3. 3rd party promise to pay
4. Agreement to pay part of disputed debt before otherwise due in satisfaction of whole

UCC - only rule is good faith for changes. No consideration needed.

Front 164

Promises within statute of frauds

Back 164

1. Answer for debts of another if they default and not for benefit of guarantor
2. Executor promise to answer personally for debt of decedent
3. In consideration of marriage
4. Service not capable of performance one year or less
5. Transfer of interest in real estate (except leases one year or less)
6. Sale of goods $500 or more
7. Lease of goods $1000 or more

Front 165

Satisfaction of Statute of Frauds

Back 165

1. Performance (full for anything, part only with goods to extent of part)
2. Substantial beginning on custom goods
3. Part performance of real estate transfer (any two of payment, improvement, possession)
4. Writing (CL who and what, UCC quantity, must also be signed by person asserting SoF defense)
5. Admission by part that K exists

*between two merchants, must deny K at time if one merchant sends notice with quantity term that claims K exists

Front 166

Risk of Loss Rules

Back 166

1. Agreement controls
2. Breaching party is liable for uninsured loss even if breach unrelated to shipment (e.g., ship nonconforming goods, loss on seller)
3. Delivery by common carrier other than seller - Passes at time seller completes delivery obligation (reaches FOB point)
4. No agreement, no breach, no delivery by carrier: Merchant seller = buyer's receipt, Non-merchant seller = tender

Front 167

Requirements for liquidated damages clause

Back 167

1. Damages hard to forecast at time K made
2. Provision is a reasonable forecast

Front 168

Preliminary Injunction

Back 168

1. Irreparable Injury (facts in time-frame)
2. Likelihood of success (probability + ask court for bond requirement on P)

Front 169

TRO

Back 169

Same as standard for preliminary injunction, but can be ex parte (no notice, no hearing)

10 days (14 in federal)

Front 170

Permanent Injunction

Back 170

I put five bucks down
Inadequate legal remedy (replevin, ejectment, money)
Property right/protectable interest
Feasibility of enforcement (supervision difficult with mandatory)
Balance of hardships (more hardship than benefit, skip if D willful)
Defenses (unclean hands, laches, impossibility, free speech)

Front 171

Specific Performance

Back 171

Cha-cha is my favorite dance
1. Contract valid
2. Conditions on P satisfied
3. Inadequate legal remedy
4. Mutuality of remedy
5. Feasibility of enforcement
6. Defenses (unclean hands, laches, unconscionability, mistake, misrepresentation, statute of frauds)

Front 172

Rescission

Back 172

Good Dog
1. Grounds (formation problem, mutual mistake on material fact, unilateral mistake if other party knows or should know)
2. Defense (unclean hands, laches) negligence not a good defense

Front 173

Reformation

Back 173

Very Good Dog
1. Valid contract (contrast with rescission)
2. Grounds (mutual mistake, unilateral if actually knows, misrepresentation)
3. Defenses (unclean hands, laches) non-defenses include negligence, SoF, parol)

not allowed if adversely affects BFP

Front 174

Constructive Trusts and Equitable Liens

Back 174

D must have title for both
1. Inadequate legal remedy (for constructive trusts, property is unique)
2. Tracing is allowed (follow proceeds)
3. BFPs prevail
4. P will prevail over unsecured creditors

Choose constructive trust if value of property up, lien if value down
If D mingles misappropriated money with other D property, then only equitable lien available.

Front 175

Breach of Promise to Marry

Back 175

Not Actionable

Front 176

Gifts given conditional on marriage

Back 176

Can be recovered if no marriage

Front 177

Conditions for valid prenuptial

Back 177

1. SoF applies (in writing, signed by both spouses)
2. Must have actually gotten married
3. Isn't unconscionable or product of fraud or duress

Unconscionability here defined by lack of disclosure of wealth, unforeseen and extreme hardship

Lack of counsel is evidence of duress/fraud/unconscionable

Lack of sophistication is also evidence

Look to knowledge of forfeiting party understanding his/her rights

Front 178

Proper Marriage

Back 178

License (not required, but failure may be misdemeanor)
Ceremony is what counts: requires Officiant, A witness, Exchange of promises (with solemnity)

Front 179

Incidents of Marriage

Back 179

(tested ones)
1. Support spouse financially
2. No sex with other people
3. Still retain independent legal status

Front 180

Grounds for annulment (void grounds)

Back 180

Must be things that make marriage automatically void (i.e., voidable not enough)
1. Bigamy
2. Consanguinity (Ancestors, Descendants, Sibling whole or half, Lineal relative up or down one (aunt, niece)

Still worth clarifying in court even though automatic
3rd parties can challenge void marriages (e.g., in intestate distribution dispute)

Front 181

Grounds for annulment (voidable grounds)

Back 181

1. Party underage ("nonage," 18 or older, 16-17 with parental or judicial consent, waived if continue to cohabit when of age)
2. Mental incapacity (waived if cohabit once of sound mind)
3. Incurable physical impotence (not fertility!)
4. Duress (waived if cohabit after threat passes)
5. Fraud (concerning central fact, e.g., religion, procreation or sex, identity of father if pregnant, NOT economic circumstances, is waivable if cohabit continues)

Front 182

Divorce Grounds

Back 182

Every state now has no-fault ("irretrievable breakdown")

Fault-based:
1. Adultery
2. Desertion (continuous one year)
3. Physical/mental cruelty (one time enough)
4. Voluntary drug/alcohol addiction
5. Insanity after marriage (must show commitment + time)

Always note to client that no-fault is probably a good route even when fault exists

Front 183

Defenses to Divorce

Back 183

1. Condonation (waiver of bad conduct, resumption of marital activities)
2. Connivance (i.e., entrapment)
3. Unclean hands (offsetting charge, e.g., adultery)

First two should never be used as defense to domestic violence

Front 184

Legal separation Grounds

Back 184

Same as divorce, just adds "a mutual agreement to separate"

Used to adjudicate rights while keeping marriage legally intact for insurance, inheritance, survivor benefits, religious reasons

Front 185

Jurisdiction for Annulment/Divorce/Separation

Back 185

One spouse domiciled in forum for statutory period (90 days IL).
Need PJ over other spouse to get orders against that spouse. Despite lack of PJ for orders, divorce will still be honored.

Out of country divorces discretionarily recognized

Front 186

Property Division

Back 186

IL (and most states) use equitable distribution

Husband and wife each keep "separate property" = owner prior + gifts and inheritance in sole name during + appreciation in value of above, active and passive in IL)

Everything else is marital asset even if not in both names
This is divided in judge's discretion

Front 187

Grounds for judge to divide marital property

Back 187

Almost anything may count!
Fault NEVER a factor (contrast with alimony)

Health, education, job skill, earning potential, custody of children, contributions made during marriage, duration of marriage

Division is final and can't be challenged (contrast with some alimony)

Front 188

Alimony (spousal support) rules

Back 188

1. Not punitive, not automatic (trend towards smaller, shorter)
2. "Permanent periodic" most common - modifiable over time
3. Lump Sum also used - not modifiable
4. "Rehabilitative award" - provide education and job training
5. Fault may be considered
6. Terminates on death or remarriage or cohabitation (IL)

Front 189

Child support

Back 189

Applied to non-custodial parent
Modifiable
IL uses percentage tables
Continues to 18, 19 if not done with high school (IL)
Lifetime obligation if special needs
Past-due payments not modifiable
Self-induced reduction in income not ground for reducing
Death does not excuse - estate must provide

Front 190

Child support penalties

Back 190

Seize assets
Wage reduction (garnishment - employer must comply)
Intercept tax refunds
Revoke drivers license, sometimes professional or recreational license
Contempt of court

Uniform Interstate Family Support Act:
Orders valid against employers anywhere
Orders can be registered in other state for enforcement
First order is valid order so long as either parent or child lives in state - "continued exclusive jurisdiction"

Front 191

Separation agreements

Back 191

(don't confuse with legal separation - where a court decides distribution issues but marriage legally intact)

Valid to stay out of court, similar requirements to prenuptial)
Any provision involving kids reviewable de novo
If merged into divorce decree, modifiable
If incorporated into decree, terms control on modifiability

Front 192

Child custody jurisdiction and standards

Back 192

Home state of child control (6 consecutive months prior). Order locks in "continuing exclusive jurisdiction"

"Best interests of the child" is basic standard. Very discretionary.
E.g., desires of parents, wishes of child if over 12-14, age and health of all parties, new companions of parents, domestic violence, sibling proximity, historic caregiver

No presumption of joint custody in IL (look to parents' rapport and proximity)

Very strong presumption for biological parent (defeated only by "unfitness or extraordinary circumstances")

Front 193

Visitation Rights

Back 193

Must show "significant danger to health of child" to block
Failure to pay child support not a factor (and blocking visitation -> contempt of court)
Relocation of primary custodian requires prior notice +bona fide reason + court review/adjustment of order

Visitation of non-parent mandated only if extraordinary cirucmstance

Best interest of child still basic standard. Stability for child included.

Front 194

Requirements for a valid trust

Back 194

Some dudes prefer the blondes in las vegas
1. Settlor who makes a
2. Delivery of legal title to
3. Property to a
4. Trustee who holds title for benefit of
5. Beneficiary with
6. Intent to create a trust for
7. a Lawful purpose
8. in a Validly executed document

Front 195

Totten trusts?

Back 195

A bank account in depositors name "as trustee for" a named beneficiary

Depositor may use account as she wishes during lifetime, balance to beneficiary on depositor's death

Revoked by: withdrawal of all money, manifest intent to revoke, by will, death of beneficiary

Creditors of depositor may reach it

Front 196

Uniform Transfers to Minors Act

Back 196

Custodian has duties to manage and invest as prudent person
Pay for minor's needs
Pay remainder to minor at age 21

These are not considered trusts (custodian does not hold legal title)

Front 197

Charitable Trusts

Back 197

1. Must have indefinite beneficiaries
2. For charitable purpose
3. May be perpetual
4. Cy pres can apply
5. Attorney General has a duty of representing beneficiaries

Front 198

Honorary Trusts

Back 198

A private trust must have a human beneficiary (but trustee can still carry out objective if they choose)
Exceptions:Pet Trusts, Cemetery trusts (both are valid trusts and trustee must carry them out)

Front 199

Purchase Money Resulting Trust

Back 199

Example of a resulting trust - really an equitable remedy
When a purchaser put title in someone else's name who is not a relative where no gift was intended (merely some sort of convenience to purchaser)

Purchaser may compel the title holder to give up title

Front 200

Spendthift clause validity

Back 200

Must be expressly stated in trust (e.g., no assigning interest, nor shall be reachable by creditors...)

Limits:
Creditors who furnish necessities may reach interest
Child support and alimony
Federal tax liens
Any interest retained by settlor (i.e., can't shelter own assets from own creditors)
Revocable trusts are also reachable by settlor's creditors

Front 201

Modification of Trusts

Back 201

1. Find the primary intent of settlor regarding material purpose
2. Due to a change in circumstances, the specific directions of the trust would frustrate its primary purpose

Front 202

Termination of irrevocable/unamendable trusts?

Back 202

Impossible to terminate unless the power to revoke and amend is expressly reserved

Front 203

Trustee's duties

Back 203

Must Manage personally (no delegating unless prudent to do so)
Duty of Loyalty (no self dealing)
No commingling trust and trustee assets
Preserve and make trust property productive (diversify as a prudent investor)

Front 204

Remedies for breach of trustee's duties

Back 204

1. Self-dealing: recover profit made by trustee, affirm transaction, or set aside transaction
2. Commingling: liable for any resulting loss is presumed trustee's, any gain is presumed trust's
3. Improper delegation: trustee liable for amount lost
4. Prudent investor/productive property: Trustee liable for losses and lost profit

Good faith and reasonableness are not defenses for trustee
Exculpatory clauses are invalid if cover all liability, bad faith, intentional breach, recklessness, abuse of confidences

Front 205

Trustee liability in Contract and Tort

Back 205

Personally liable unless contract specifically shields
But, trustee entitled to compensation if:
1. Within powers of trustee
2. Acting in course of proper adminstration

Trustees absolutely liable for own torts and trustee's employees' torts. (Cover by insuring at the expense of the trust)
Trustee reimbursed if acting within powers, not personally at fault

Front 206

Uniform Prudent Investor Act (UPIA)

Back 206

Adopted in IL, trustee can pursue "modern portfolio" - creates custom investment strategy

Overall balance for an expected total return. No need to justify each individual investment. Flexibility allowed in pursuit of maximum total return

Front 207

Full Faith and Credit?

Back 207

1.a. Jurisdiction was proper in rendering state
b. Judgment on merits (default counts)
c. Judgment final
2. No good defense
a. Judgment was penal (offense against public, excludes tax)
b. Extrinsic fraud (bribing judge yes, perjury no)

Against recognizing state public policy NEVER a defense, mistakes of law and fact in rendering state NEVER a defense

Front 208

Recognition of foreign country judgments

Back 208

Comity given same as between states plus roughly met due process:
1. Jurisdiction was proper (minimum contacts)
2. No sham procedures

Front 209

Jurisdiction issues with divorce decrees

Back 209

Divorce decree jurisdiction where one spouse domiciled (voidable if violated)

Check to see if person attacking jurisdiction is estopped (i.e, the people in the proceeding, played meaningful role, children of parties, those who marry or remarry in reliance on it)

Front 210

Property and custody awards jurisdiction

Back 210

Property: Valid if PJ over spouse whose rights at issue

Custody: Child's home state (6-mo)

Front 211

Domicile established by...

Back 211

1. Physical presence
2. Intent to be domiciled

infants: parents (one with custody if divorced)
incompetents: parents (or domicile of choice if chosen prior to incompetency)

Front 212

Three choice of law approaches

Back 212

1. Vested rights (first restatement)
2. Most Significant Relationship (second restatement) (IL)
3. Governmental Interest

Front 213

Vested rights approach

Back 213

1. Area of substantive of law
2. State the vesting rule
3. Indicate winning state
4. Indicate result

PISSED
Performance (contract performance)
Injury (torts)
Situs (real property)
Situs at time of transaction (personalty)
Execution (contract formation)
Domicile of decedent at death (personalty inheritance)

Front 214

Most significant relationship approach

Back 214

Court will apply law most significantly related to outcome:

1. Connecting facts
2. Policy principles (gov't interest)
3. Indicate which state wins
4. Indicate result

Front 215

Significant relationship factors for Torts, Workers Comp, Contracts, Property, Family Law,

Back 215

Torts: Place of injury, place of conduct causing, domiciles of parties, relationship between parties centered.

Workers Comp: as administrative tribunal, no choice of law

Contracts: place of negotiation, execution, performance, domiciles, subject matter
(capacity under Rest formation, capacity under Rest 2d domicile)

Property: same as vesting rules

Marriage: divorce - always applies own law
legitimation proceeding - state of father's domicile applies, modern trend towards either father's or child's domicile

Front 216

Procedural vs. substantive choice of law

Back 216

Prodecural: Always own forum rules!
Substantive you go through the 3 approaches (unless told do one)

Be ready to go both ways on SoL:
SoL are traditionally procedural, except if told of "borrowing statute" -> use shorter time limit, looking at both forum and other state. If applying another state's law which creates substantive right, use that SoL.

Modern trend to treat SoL as substantive

Front 217

Governmental Interest Approach

Back 217

Court will apply own law unless it doesn't have a legitimate interest in outcome. If no interest, it is a false conflict case and the other state's law will apply

(forum almost always has some legitimate interest)

Front 218

Reasons for invalidating choice of law provision

Back 218

1. No reasonable connection with the K (i.e., no minimum contacts, state is selected for no good reason)
2. No true assent (misrep, fraud in inducement

If in doubt, find it invalid...or at least discuss what happens under the default 3 approaches

Front 219

Liability of principal for torts committed by agent

Back 219

1. There is a principal-agent relationship
2. The tort was committed within the scope of that relationship

Front 220

Principal-Agent Relationship requires:

Back 220

ABCs of agency
Assent (informal, must have capacity)
Benefit (conduct for principal's benefit)
Control (power to supervise manner of A's perf)

Sub-agents and borrowed agents almost never meet this test

Front 221

Liability for Independent Contractors

Back 221

Generally, do not satisfy ABC b/c lack of control

Exceptions:
1. Ultra-hazardous activity, considered non-delegable
2. Estoppel, you held out contractor with appearance of agency

Front 222

Within the scope?

Back 222

1. If within job description, likely within scope
2. Frolics are outside scope, detours are within scope
3. Agent intended to benefit principal -> likely within

Front 223

Liability for intentional torts of agents

Back 223

Generally outside the scope, so no liability

Except:
1. Authorized by P
2. Natural from type of job
3. Motivated by desire to serve P

Front 224

Liability for contracts entered by agent?

Back 224

P is liable if authorized A to enter contract

1. Actual express (oral OK except for land and SoF. revocable unless durable power of attorney)
2. Actual implied (necessity, custom, prior dealing)
3. Apparent (P cloaks + 3rd party relies)
4. Ratification (P knowledge + benefits, no alteration)

Authorized agents not liable unless undisclosed principal

Front 225

Duties owed to A by P

Back 225

Compensation for its efforts and reimbursement for expenses

Front 226

Duties owed to P by A

Back 226

1. Duty of care
2. Duty to obey
3. Duty of loyalty (self dealing, usurping, secret profit) (recover losses and disgorge profits)

Front 227

Formation of general partnership

Back 227

No general partnership formalities

Association, 2+ persons, carrying on, co-owners, business, for share of profit

Front 228

Formation of limited partnership and RLLP

Back 228

Filing certificate of limited partnership with state incl. names of GPs (All partners may now manage business w/o giving up limited status)

RLLP: Register statement of qualification with state plus annual reports (makes NO partner liable for business)

Front 229

Liability to third parties

Back 229

General partners liable for all partnership obligations and each other's torts
Estoppel -> representers are liable as if partners
Limited partners + registered limited liability partners have limited liability

Dissociating partners retain liability until notice given to creditors or 90 days after filing notice of dissociation with state

Front 230

Relationship between partners

Back 230

1. Fiduciaries (Self-dealing, usurp, secret profit) -> accounting (losses + disgorge)
2. Only share of profits is liquid, transferable
3. Absent agreement: equal control, no salary, equal profits, losses like profits

Front 231

Dissolution, Termination, Winding up

Back 231

Dissolution: absent agreement specifying event, one GP's express intent to dissociate

Termination: Actual end of partnership

Winding up: Period between dissolution and termination, partners liquidate partnership assets

Front 232

Priority of distribution in partnership winding up

Back 232

1. Creditors (outside AND partner-creditors at same level)
2. Capital contributions by partners
3. Profits and surplus (shared equally absent agreement)

Front 233

Formation of Corporation (including foreign corps wishing to do business)

Back 233

Articles = A PAIN
1. Authorized shares (max)
2. Purpose (general purpose perpetual duration presumed)*
3. Agent
4. Incorporators
5. Name (some indicia of corp status)


* Watch out for ultra vires -> state can enjoin, corp may sue own directors for losses

Front 234

Liability of Promoters and Subscribers

Back 234

Promoters remain liable until novation and are fiduciaries
Profit made in deal with company prior to being promoter: profit recoverable only if sold > FMV
Profit made after promoter: any profit made

Subscribers -> irrevocable for 6 months

Front 235

Piercing the Veil

Back 235

1. Alter ego: failure to observe formalities
2. Under-capitalization (for foreseeable liabilities)

Piercing more likely for tort victim than contract claimant

Front 236

Issuance of stock

Back 236

Par value = minimum price
No par = adequate if deemed so by board
Treasury stock = always considered no-par
Acquiring property with par stock = adequate if property deemed valuable enough to satisfy par
Consequences? Both directors and buyer liable to corp

Preemptive rights don't exist unless explicit

Front 237

Director Liability

Back 237

1. Must manage
2. Business judgment rule
3. Fiduciaries -> Care (prudence unless articles limit) + Loyalty (no unfair benefit unless disclose + independent ratify)

Front 238

Indemnification of Directors and Officers

Back 238

1. Never for lost suit brought by own corporation
2. Must always if won suit brought by anyone
3. May if:
a. 3rd-party won
b. settlement with own company
c. director acted in good faith believed action in corp best interest

Permissive indemnity decided by any of: majority of ind. directors, majority of committee of ind. directors, majority of shares held ind., special lawyer's recommendation

Front 239

Shareholder Derivative Suits

Back 239

1. Corporation could have brought this suit
2. Contemporaneous stock ownership (minimum one share from claim arising to end of litigation)
3. Must first make demand on directors (they must reject or fail to respond in 90 days. IL: no need if futile)

Front 240

Voting Issues

Back 240

1. right to vote determined by ownership on record date (board sets, within 70 days prior to meeting)
2. Proxy vote ok if writing, signed, directed to secretary, authorizing another to vote, valid for 11 months
3. Quorum is majority of shares
4. Vote passes if for>against (you ignore abstentions!)
5. Cumulative voting presumed in IL

Front 241

Dividends

Back 241

Discretionary unless insolvency
Common -> pay last
Preferred -> pay first
Participating -> pay twice
Cumulative -> add up missed + present

Front 242

Agreements to eliminate formalities

Back 242

1. Unanimous agreement
2. Reasonable share-transfer agreement

Results in no piercing when formalities ignored
Allows possible subchapter S incorp. (taxed like partnership, no more than 100 shareholders, one class of stock)

Front 243

Professional Corporation (PC)

Back 243

All one profession
Limited liability (except for own malpractice)
Must file with name including PC or spelled out

Front 244

LLC

Back 244

Hybrid between corp and partnership
Owners called members
Same limited liabilities as shareholders
Partnership tax treatment
Must file articles and have some limit on liquidity and life

Front 245

Fundamental Changes to Corp

Back 245

1. Board resolves
2. Special Notice
3. Majority of shares (2/3 in IL)
4. Dissenter's rights (separate vote if class rights affected, 2/3 in IL, plus right to buy out if gave notice of dissent and voted against)
5. Notice to state

Includes merger, consolidation, dissolution, substantial amendment, sale of all or substantially all assets

Front 246

Federal 10(b)

Back 246

scienter + deception (misrep or insider trade) + actual purchase or sale

In private action, investor shows reliance + loss causation

Front 247

Federal 16(b)

Back 247

Short-swing strict liability
Only big corporations, big shot defendant (officer, director, large shareholder)

Anchor sale price and date. Look for a purchase at a lower price within 6 months in either direction.

Profits become recoverable by corp.

Front 248

Sarbanes Oxley

Back 248

1. Only reporting corps
2. CEO and CFO certify no falsehoods
3. Willfully false -> $5M + 20 years
4. If falsity is corrected, corp or derivative may recover officer's incentive benefits and any trading in 12 months following falsity
5. Corp or derivative may also recover trading during black outs