Notes on IL essays.docx

ADMIN LAW:- Due process entitles a party to a hearing when: (1) agency action will be based on adjudicative (as opposed to legislative) facts; (2) the action will adversely affect an individuals property or liberty interest, and (3) no emergency exists.- trial-type hearing requires balancing: (1) private interest affected; (2) risk of erroneous deprivation and (3) govt interest.- final decisions of admin agencies subject to ALR may NOT be judicially reviewed by writ of cert at discretion of aggrieved party - when proceedings under ALR are specified in regulatory statute, they are the exclusive remedy.- unless otherwise ordered by the court, only admin agency can file an answer- record upon review must be procured and filed by agency (not Pl)- court may remand for purposes of taking additional evidence when appears just- any final decision, order, judgment or decree of the court in an action to review a decision of an admin agency may be reviewed by the Supreme Court of IL- agency can determine how/what evidence it will consider but (1) must consider all relevant matter presented, (2) must include a general statement of basis and purpose in its rulemaking and (3) in order for rule to be effective, must be published >= 30 days before its effective date- agency rulemaking requires: (1) impartial fact finder; (2) no ex parte contacts w/r/t case or issues - APA prohibits fact finder from having contact with any other parties regarding fact in issue unless there is notice and opportunity for all parties to parties to participate; (3) relevant material; (4) decision to be based on record only; and (5) record must show each finding, conclusion or exception.- APA s.706: scope of review - can set aside if not supported by substantial evidence- under IL Admin Law Review (ALR), party has 35 days to appeal from notice date (deposited in US mail or served)- if municipality is > 500,000 those parties who testify or submit written statements at a zoning board hearing must be notified of Pls appeal and their right to intervene; if fail to name and serve necessary parties, 35 day extension to do so before complaint can be dismissed- if good faith exception, appellant can still be deemed diligent in sending summons even if did so late

AGENCY AND PARTNERSHIP:- acts that require unanimous consent to secure partnership approval: submission to arbitration, assignment for benefit of creditors, confession of judgment, disposition of goodwill of the business, interference with ordinary partnership business) - otherwise majority vote for acts within ordinary course- partners have fiduciary duty of loyalty (common topic)- agent also owes DOL to principal and damages can include profits earned- person who received shares of profits presumed a partner, and can bind pship via actual or apparent auth (apparent presumed unless not in ordinary course and 3P had reason to believe A lacked auth). Actual auth to enter into ordinary course required maj vote; outside ordinary course required unanimous consent - partnership at will: when partner declares dissolution and its effective but this is only for purposes of winding up; though notwithstanding dissolution partnership may still be bound on previous obligations. Partnership does not seek to exist at dissolution but rather at wind-up - a partner who wrongfully disassociates is liable to pship for any damages caused and is not entitled to wind-up affairs of pship. But if rightfully disassociate, no damages and can participate in wind-up.- partners intent to withdraw from an at-will pship causes a dissolution, but partners (except for wrongfully-disassociating partners) can vote to continue operating. Whether rightfully (give proper notice) or wrongfully disassociating, disassociated partner still liable for partnership debts- if undisclosed principal, both undisclosed P + authorized A are liable- authority: (1) actual (this comes from P + A: auth A reasonably believes to possess based on communications w/ P) (2 types: express or implied) or (2) apparent (arises from P + 3P) (3) ratification (as opposed to disaffirmance)- for agents to exist: (1) parties assent, (2) A acts for Ps benefit, (3) P has right to control A and A may have auth (actual - express or implied) or apparent (where P holds out A as agent and 3P reasonably relies), - limiting instructions can accompany auth - they can only limit actual auth (not apparent auth)- 3P can sue P and A but must elect from whom to collect- to form agency, need consent and capacity by both parties- Q of IC/EE depends on whether party has right to control manner and method in which IC/EE does job but the IC/EE distinction only matters in tort; ordinarily P not liable for torts of IC- respondeat superior only applies for EE (not IC) - ER vicarious liability if within scope of employment: (1) of the type auth by ER? (2) occurred within time and space auth by ER? minor detour = still liable, substantial frolic = not liable. (3) was negligent conduct motivated in part by desire to serve ER?- once EE abandons ER task, must have proof of return- to validly terminate agency auth, P must contact 3P and provide public notice (and collect any writing to the contrary that can be used by terminated agent)- generally death + incompetency of P terminates all auth or A; irrelevant that A or 3P unaware of death- in corp law, there is an implied warranty than an officer is acting with auth- P liable to 3P even if no actual auth and apparent auth had limiting instruction unknown to 3P; A liable to P here as well- Bd can only confer auth via Bd meeting or unanimous written consent where auth is needed - though corp can be estopped from denying Pres had auth- in LP-ship, LPs not personally liable but GP is (though LPs J&S liable for contracts of co-LPs) - LP-ship does not dissolve if GP leaves so long as LPs agree to an appointment within 90 days; but even if dissolved, GP still liable. - indemnification from 3P does not release a primary party from obligation to pay - IL p-ship law: assoc of 2+ ppl to carry on as co-owners of a business for profit; partners are J&S liable but judgment only binding on p-ship if a P is personally served. Need no formal agmt - can be implied from conduct. Generally acts of Ps bind pship - but can seek indemnification from co-partners.- pship tort liability if arose w/in scope of pship business- under RUPA, pship at will dissolves upon a partners withdrawal notification (RUPA calls this a dissociation), but dissolution is not the end (wind-up is). Until wind-up, still liable for current business but cannot take on new business- derivative claim: where LP/SH claim is derived from loss suffered by pship/corp - so here LPs can bring action against GP because GP wont sue itself- GPship is formed by default be/c to form LPship must file cert with SOS- under IL pship law, receipt of a share of profits (esp if share in losses) creates pship presumption - but not if receiving debt repayment for loan made to pship- at wind-up, if no pship liabilities, Ps get back their own contributions and split rest according to pship agmt- ULPA no longer makes LPs liable personally if participate in mgmt or control of pship- pship must indemnify Ps for expenses in ordinary course; absent agmt to contrary, Ps entitled to remuneration except for wind-up- act act only binds Pship if within pship business - need unanimous consent to engage in business other than that contemplated by Pship agmt- GPs have rights of partners in a regular pship whereas LPs lack mgmt rights unless in LPA (under ULPA, even of LPs engage in mgmt, have no personal liab for pship obligations)- LPs must maintain records- transferee may become LP only if (1) pship grants that auth or (2) all Ps consent- transferee does not therefore have pship rights to inspect books & records (absent another agreement)- Principal remedy when Agent breaches agency K: damages only- Duty of care breach to partnership: grossly negligent or reckless conduct; intentional misconduct; knowing violation of the law- pship duty to furnish items relevant to business and financial condition; LPs can inspect tax returns at any time. ULPA requires GP to provide relevant info even if not going to financial condition or business, so long as reasonable- LPs not liable as GP for removing GP be/c (1) not mgmt or control and (2) under ULPA LPs not personally liable; under ULPA (which controls today over RULPA), LPs not personally liable for pship obligations beyond their contribution even if participate in mgmt/control- specific performance only available when remedy at law ($ damages) is inadequate - like for real estate K COAs- a pship becomes an LLP on date filed w/ SOS or date specified in statement of qualification from SOS, whichever is later- partner has no interest in pship property so creditor cant attach - creditor should seek judgment and a charging attachment order against financial/transferable interest - transferable interest in pship is only to P&L and distributions (economic rights); transferee cannot force dissolution unless (1) term specified has expired or (2) partnership is at will- to form limited pship, must file w/ SOS - else general pship by default. In LPship, LPs are not personally liable whereas GPs are J&S liable for pship

COMMERCIAL PAPER: - generally a maker/drawer must pay to any holders that present for pmt (generally means must have possession), and generally a holder has right to enforce note but is subject to any K defense maker might have (unless holder is HDC, in which case only real defenses)- receipt by agent is treated as receipt by principal, conferring possession- when an obligor gives an instrument (e.g., check) for pmt on an obligation, obligation is suspended to same extent as if cash were given. If instrument is lost or stolen, the original obligation is permanently suspended, and the obligees rights are limited to enforcement on the instrument. So where check is stolen, action for conversion lies.- if person entitled to enforce an instrument cannot produce it be/c stolen, can nevertheless maintain action on it as if it were in his possession if can prove (1) ownership (2) terms and (3) facts of theft- NI: instrument must be (1) signed by maker (note) or drawer (draft) and (2) be unconditional (3) promise to pay (note) or order to pay (draft) (4) fixed amount (w/w/o interest; written controls over numerical amt) (5) to bearer or to order (lack of payee=bearer note) (6) on demand or at a definite time (if undated, payable on demand), and (7) without any undertaking or instruction not authorized by law- maker of a note undertakes to pay unless has defense- drawee has no liability unless/until signs/accepts draft- indorser liability: liable if note presented for pmt, dishonored and notice of dishonor is given. Indorser has K and warranty liab.- no one liable on an instrument unless it contains her signature or that of her agent- when draft is negotiated w/ special indorsement, need special indorsers signature to further negotiate- to be HDC, holder (one to whom instrument was properly negotiated) must take for value (includes satisfaction of antecedent debt) in good faith (subjective + objective) w/o notice of any defenses (e.g., w/o notice instrument is overdue, has been dishonored, contains an unauth signature or has been altered, that there is a claim or that one party has a defense or claim). - HDC: if negotiable instrument (NI) is negotiated to an HDC, he takes free of personal defenses (includes all K defenses; e.g., breach of K, failure of consideration, fraud in inducement) and is only subject to real defenses (e.g., insanity, duress, fraud in execution like forgery); can become HDC via shelter rule (transferee acquires whatever rights his transferor had)- forgery is a real defense thats effective even as against HDC unless HDC caused it- HDC > perfected SI in a NI (can happen automatically on attachment if new value given w/in 20 days. HDC > payee w/ valid ownership claim- negotiating order paper: requires delivery + payee signature, though indorsement of this w/o naming new payee turns this into bearer paper- negotiating bearer paper: requires delivery only- alteration is a real defense but cant be raised if own negligence contributed to it- pmt on a NI to one not entitled to enforce does not discharge the maker from pmt; rights of co-payee in this instance: (1) free to sue on underlying obligation, (2) conversion [UCC 3-420 applies conversion law to NIs but cannot bring a claim unless payee received delivery directly or through a co-payee/agent, or (3) breach of transfer warranty (when transfer an instrument for value, warrant entitled to enforce it)- certified check discharges obligation like cash- if a transferor transfers a check w/o indorsing it, still makes transfer warranties but only to immediate transferee- finality of pmt rule (generally when maker pays out on a note, pmt is final and maker cannot recover money paid out on the instrument) but there is an exception for breach of transfer warranty- if a NI is dishonored (bad check), underlying obligation is not discharged- indorser liability only extends to one entitled to enforce the instrument- discharge on one co-maker by a person entitled to enforce an instrument does not affect the right of contribution- holder may hold makers and any indorsers liable, including accommodation parties (like co-maker, J&S liable)- extension of note due date discharges an accommodation party to the extent of loss caused by the extension- if a person entitled to enforce on a NI impairs collateral securing the instrument and the accommodation party had right of recourse on the collateral, accommodation party is discharged to the extent of the impairment if person entitled to enforce knew of the accommodation party (deemed to know if signature is anomalous - made by someone other than holder)- intended 3P beneficiaries can also sue on NI- forgery ineffective as the name signed and effective only as the signature of the forger (exceptions (1) for one who fails to exercise ordinary care and this substantially contributes to forgery - like leaving blanks on NI; and (2) where ER entrusts EE, who then makes a fraudulent indorsement, then fraudulent endorsement is effective unless payor transferee failed to exercise ordinary care). So where signature is not an indorsement of payee, transferee is not a holder- forgery breaks chain of title and right to possess is still with payee = no subsequent possessors can qualify as holders- general rule: pmt on NI is final if made to HDC or someone who changes position in reliance on the pmt (anyone presenting a check for pmt warrants entitled to enforce); exception: ordinary care + good faith + for value- discharge by a former indorser is effective as to all subsequent holders, incl HDCs if have notice of the discharge- if maker tenders pmt, discharges him from interest liability thereafter should payee refuse to accept pmt- checks are due within 90 days of their date of issue- if the owner of goods entrusts them to a merchant, merchant has power to transfer all the rights of the entruster to a BIOC of the merchants business- Accord & Satisfaction requires: (1) claim/obligation is disputed or unliquidated, (2) person against whom the claim is asserted in good faith tenders an instrument that (3) conspicuously states that it is tendered in full pmt of the obligation and (4) claimant obtains pmt

CONFLICTS OF LAWS:- Vested Rights Approach (R1d): contractual rights of performance governed by law of place of performance, and formation issues governed by law of place of formation.- Most Significant Relationship Approach (R2d): contacts + policy. Where no valid express provision that governs, IL looks to following specific contacts: (1) place of contracting, (2) place of negotiation, (3) place of performance, (4) location of subject matter of K, (5) domicile, residence, nationality, place of incorp and place of business of the parties- Interest Analysis Approach: if forum determines it has legitimate interest in applying its law, it will (here there is a policy override) - true vs false conflicts- Although a forum may apply a foreign substantive law it will apply its own procedural law (incl SOL) unless borrowing statute according to which elect shorted of forum or foreign SOL- default judgments are still regarded as on the merits for full faith and credit (FFC) purposes- well-settled that the underlying COA or relief granted by a rendering state being contrary to established public policy of recognizing state is not a defense to FFC- generally a marriage that is valid where celebrated is valid everywhere except if it violates prohibitory (as opposed to directory) rule of the domicile to which either/both parties return immediately- also under R2d a marriage should not be recognized even if valid where celebrated if it violates strong public policy of the state with the most significant relationship to the spouses, incl state to which they move

CONSTITUTIONAL LAW: - N/A to private action unless state action: (1) when private actor is performing a traditional and exclusive state function (running a school is not a traditional public function) or (2) state is significantly involved in private action (e.g., involves use of courts or private parties entwined w/ govt entities but not state regulation of an industry, licensing or providing essential svcs like fire or police)- 14th Am DPC requires procedural and substantive due process as to any deprivation of a persons life, liberty or property interest deprivation- if govt rule affects a fundamental right (travel, privacy, voting, 1st Am), DPC requires that the rule be necessary to promote a compelling interest - otherwise must be rationally related to a legitimate govt interest- 14th Am also provides EPC: if govt action concerns (1) fundamental right or suspect clarification, upheld only if necessary to compelling govt interest (strict scrutiny) (2) quasi-suspect, upheld if substantially related to important govt interest (intermediate scrutiny), and (3) all else upheld if rationally related to legitimate govt interest (challenger burden to prove not = rational basis)- EPC prohibits states from unreasonably discriminating against persons: sex discrim subject to intermediate scrutiny (exceedingly persuasive explanation is needed, not generalizations about M vs. F) but if neutral, rational basis; SCOTUS has held that separate but equal is not valid under EPC as race-based classification.- a property right in continued employment can exist via K or clear policy that can only be terminated for cause, in which case cant terminate w/o due process (1.notice, 2.pre-termination opportunity to respond, and 3.evidentiary hearing to test just cause though #3 can be after termination). Expectancy in continued employment does not count.- 1st Am speech: govt cannot regulate or curtail speech content unless prior restraint or regulation is necessary to serve a compelling govt interest but can restrict conduct aspects: (1) public forum: govt can impose content-neutral time/place/manner restrictions that are narrowly-tailored to serve a significant govt interest; (2) nonpublic forum: govt can do same if viewpoint-neutral and reasonably-related to a legitimate govt purpose- exceptions for speech restrictions: speech that incites imminent lawless action/fighting words is unprotected- also 1st Am speech regulation will be invalid if overbroad (complete ban on all leafleting is invalid)- school property is not traditional public forum (e.g., govt cant restrict speech in a nonpublic forum like principals office) but if school throws open facilities for public use when the rooms are no longer used for school purposes, they become designated public forums subject to 3-pt test (content-neutral? narrowly tailored? leave open alternative avenues of communication?)- Dormant Commerce Clause (DCC) - even local laws unconstitutional if place excessive burden on interstate commerce. If discriminates against interstate commerce, clearly violates unless necessary to achieve compelling govt interest; if does not facially discriminate, violates if burdens > benefits- DPC requires laws to be reasonable and not arbitrary; if law involves economic regulation and does not involve a fundamental right, SCOTUS tests reasonableness via rational basis (challenger burden to prove not rationally related to a legitimate state interest)- 1st Am applies to states via 14th DPC- freedom of speech includes freedom to refrain from speaking (SCOTUS has held that govt does not have a compelling interest in forcing students to take pledge of allegiance)- Establishment clause: govt cant pass any law establishing religion or prohibiting free exercise thereof. A law or govt action preferring one religion over another is invalid unless narrowly tailored to promote a compelling interest. If no preference, upheld only if (1) secular purpose (2) primary effect that neither advances nor inhibits religion and (3) does not produce excessive govt entanglement. However note a neutral law of general applicability will be upheld if rational - but a law that targets religious services is not a law of general applicability- SCOTUS has upheld govt display of religious items @ Christmastime as secular- 5th Am prohibits govt from taking private property for public use w/o just comp unless emergency; applies locally via 14th. SCOTUS found a taking where an ordinance required apt owners to allow cable companies to install cables.- taking only proper if for public purpose and this is broad - taking private property to private developer qualified- CL: Pl can sue for defamation if Df made false statement - but if public figure must show malice too (made w/ knowledge false or reckless disregard as to truth/falsity). Privilege to private info reasonable person would object to being published if the info concerns legitimate public interest and made w/o malice.- trespass: intentional physical invasion of Pls real property

CONTRACTS AND SALES:- K formation requires [offer + acceptance (mutual assent)] + consid + no defenses- offer has definite terms and can be accepted or rejected until terminated- if by its terms offer can only be accepted by performance = offer to enter into unilateral K- death terminates an offer (even if offeree did not know of offeror death) but offeror death does not terminate offer if offeror made a legally enforceable promise not to revoke (i.e., performance began on an option or unilateral K)- consideration = bargained-for exchange, which under maj rule must constitute a legal detriment to promisee (in addition to legal benefit); where promise follows detriment there is no consideration be/c did not induce promisee to act but exceptions (i.e., consideration substitutes): (1) material benefit theory of consid whereby promise can be enforced where based on material benefit previously conferred and promisee did not intent to confer the benefit as a gift and (2) promissory estoppel / detrimental reliance where party relies to its detriment and necessary to avoid injustice (requires 1. promisor should have expected promisee to change position in reliance on promise and 2. promisee did change position to its detriment)- CL pre-existing duty rule: K modification requires new consideration - but UCC2 does not follow such that K mods made in good faith are binding w/o consid but extortions made in bad faith are enforceable- commercial impracticability does not excuse performance- remedies: expectation damages + incidental [+ possibly consequential, provided Pl reasonably tried to mitigate]. incidentals + [ K price - resale] - expenses saved (in virtue of breach) - loss avoided (by mitigating)- quasi-K/restitution damages avail when benefits bestowed/party performed but K failed - in amount of reasonable value conferred- all damages must have been (1) reasonably foreseeable (which means reasonable person in position of breaching party would have known at time of K that damages were likely to occur as a result of the breach) and (2) ascertainable w/ reasonable certainty (and courts are reluctant to award lost profits to new business be/c too remote, contingent and speculative)- UCC2 says seller entitled to incidental damages + [K price - mkt val/resale price] but if this is not sufficient to put seller in as good position as performance, then can recover lost profits and if goods cannot be resold, action for price is possible- consequential usually consist of (1) lost profits that (2) could not have been avoided through reasonable efforts and (3) can be proved w/ reasonable certainty.- intentional breach can give rise to punitive damages but generally not avail for commercial Ks (purpose of K damages is to compensate non-breaching pty rather than punish breaching pty)- under Parol Evidence Rule (PER), if a K is reflected in a fully-integrated writing (merger clauses evidence this), evidence of earlier agmt not permitted to vary, add or contradict the terms of the writing; when parties memorialize in writing, other expressions made prior to or contemporaneous with execution are inadmissible. Written K considered fully-integrated if intended as such: facial test or actual intent - but even if only partially-integrated (as when there is a consistent additional term), cts will not admit parol evidence on subjects covered by a writing- but note parol evidence is admissible to show subsequent modification- but PER does not bar extrinsic evidence to show what parties meant if terms are ambiguous; e.g., in Ks involving mechanical fitness, utility, or merchantability and not involving personal taste or judgment, satisfaction standard is objective not subjective and evidence bearing on this is admissible (otherwise promise to perform would be illusory)- SOF: certain Ks must be in writing (e.g., K that cannot by its terms be performed w/in 1 year; sale of goods > $500, but exception for specially manufactured goods that are not suitable for others in ordinary course and seller made substantial beginnings before notice of repudiation- while SOF requires certain K to be in writing signed by party to be charged, exception where fully-performed by one side though oral (so performance can take K out of SOF)- CL governs K for svcs (e.g., employment K): CL mailbox rule: acceptance is effective at dispatch; though mailbox rule d/n/a if offeree sends rejection then acceptance (whichever received first is effective) be/c rejection not effective until received whereas acceptance effective at mailbox (and receipt just means accepting delivery from postal carrier - need not have opened the mail or know its contents!)- rejection can be express or via counteroffer but mere inquiry is not a counteroffer- CL: K enforceable so long as there is substantial performance but parties are free to change rule and require strict compliance. If breach is substantial, performance is discharged; but if minor breach (as when obligee gains substantial benefit of bargain despite obligors defective performance), can get damages- K to build is governed by CL- Note although at CL a court will not enforce a condition solely in promisors control be/c illusory, it will enforce a provision of conditional payment be/c implies duty of good faith (e.g., condition of obtaining loan not satisfied on account of borrowers failure to try excuses counterpartys performance be/c prevented condition from occurring wrongfully/in bad faith).- even if K unenforceable under UCC2, an unpaid seller who discovers buyer received goods on credit while insolvent may reclaim them upon demand made within 10 days after receipt of goods but this reclamation right is cut off by BIOC or other good faith purchasers (GFPs)- SI > reclamation right of unpaid UCC2 seller- one w/ perfected SI can repossess - thereby becoming a purchaser since this includes one who takes by pledge, lien, or other voluntary transaction creating an interest in property- refusal to purchase = breach of K- UCC provides that agreement excluding modification clause except in a signed writing is enforceable although can be waived, which waiver would be binding if other party relied- UCC perfect tender rule permits K rejection in part or in whole of nonconforming goods (which can also be a breach of an express warranty). Generally buyer can reject nonconforming goods within reasonable time after delivery/tender but before acceptance (and seller has cure right); after acceptance, buyer rejection pwr is terminated and buyer must pay K price less any damages due to sellers breach unless buyer entitled to K revocation (if defect materially impairs value to buyer and 1. buyer accepted on reasonable belief that defect would be cured and had not been or 2. buyer accepted be/c of difficulty discovering defects or be/c of sellers assurance that goods conformed)- unlike CL mirror image rule, UCC 2-207 allows an acceptance w/ additional/diff terms to form K be/w merchants if (1) terms dont materially alter offer, (2) offer was not expressly limited in its terms and (3) offeror has not objected w/in a reasonable time. 5% change is a material deviation in quantitative terms unless market practice is otherwise- 3P beneficiary: non-party and gave no consid but benefits. (a) creditors, (b) donee beneficiaries, (c) incidental- generally 3P beneficiary can enforce K directly against a promisor but is subject to same defenses as promisee, but promisor + original promisee free to modify/terminate K before 3P beneficiary rights vest. Per R2d (K), rights of intended beneficiaries vest only where 3PB (1) manifests assent in a manner invited or requested by the parties, (2) sues to enforce or (3) materially changes position in justifiable reliance- creditor beneficiary can sue promisee on preexisting/underlying obligation - UCC2 on express warranties: negation of these is inoperative if unreasonable- UCC2 on warranty of merchantability (goods sold by merchant to be fit for ordinary purpose): can be disclaimed but by conspicuous written disclaimer that mentions this warranty- UCC2 on implied warranty of fitness for a particular purpose: can also be disclaimed by conspicuous written disclaimer- UCC2 on implied warranty of title: can be breached unless properly disclaimed- UCC2 says where owner entrusts property to a merchant who deals in goods of that kind, merchant has power to transfer all rights in that property to a BIOC (buyer in good faith w/o notice of 3P ownership rights), but creditor is not a buyer be/c buying may not include a transfer in total or partial consideration of a debt - so here creditor would seek recovery of item or its value via replevin.- nonoccurrence of a CP entitles obligor to suspend performance but can be waived and if so, cannot be retracted if consideration was given for waiver or counterparty relied and changed position- UCC2: purchaser can only acquire title that his transferor had or had power to transfer - so a thief is unable to transfer title even if purchaser buying for value in good faith- UCC9: if debtor defaults on debt secured by nongoods collateral like accounts (right to pmt not evidenced by an instrument) or chattel paper (writing evidencing monetary obligation and SI in specific goods), creditor can direct account debtor to make pmt to creditor- assignee of accounts, chattel paper or general intangibles is also subject to defenses arising out of K be/w account debtor and assignor- liquidated damages provisions are invalid if penalties; only enforced if (1) damages were difficult to ascertain @ time of K and (2) amt agreed was a reasonable forecast of compensatory damages (cf., penalty)- mistake defense (mutual or unilateral): (1) must go to a basic assumption, (2) have material effect on agreed-upon exchange, and (3) party seeking avoidance did not assume risk of mistake. Must be a mistake rather than uncertainty. Unilateral mistake not a defense unless other party knew or had reason to know 1st party was mistaken.- misrep and fraudulent inducement defenses: K voidable by innocent pty that justifiably relied. Misrep alone need not be fraudulent so long as material. here can avoid K altogether and get damages

CORPORATIONS AND LLCs:- Arts trump Bylaws; corp existence begins when Arts are filed w/ SOS/State-designated official or at whatever later date so specified therein- DOC to operate corp in a manner reasonably believed to be in best interests w/ at least care that ordinary prudent person would exercise in like position. E.g., breach DOC if rely only on interested director, his banker and a brief discussion to approve a merger- BJR: presumption that director acting in good faith and in best interests of corp/LLC- no breach of fiduciary DOC just be/c not profitable: need bad faith, lack of reasonable care, possibly gross negligence, recklessness, intended malfeasance- an interested director txn will not be set aside for violating DOL if (1) was fair to corp @ time entered into or (2) approved by maj of disinterested (a) BOD (not less than 2 directors) or (b) SHs, either way after full disclosure of material facts- IL permits interested director txn to be approved by only 1 director so long as a maj of disinterested- put differently, so long as maj of disinterested directors approve a deal be/c corp & another director after full disclosure of material facts, wont be set aside if deal was fair- SHs have statutory right to enter into voting trust agmt, which must be filed w/ corp and may provide for trustee to vote a certain way - but duration may be a problem (voting trusts only valid for 10 years)- only outstanding (i.e., not Treasury shares or repurchased) can be voted- only BOD can auth extraordinary expenses- only BOD has discretion to declare a dividend- only BOD can terminate officers and if in so doing breaches employment K, may be liable for damages- Arts can limit/eliminate director personal liab for money damages to SH/Corp for actions taken except to extent director received a benefit to which was not entitled, intentionally inflicted harm on corp or SHs, approved unlawful distributions, or intentionally committed a crime- Unless Articles of Incorp say otherwise, directors ordinarily have sole discretion to manage the normal affairs of their corporation; SHs only have a voice w/r/t fundamental corp changes (like sale of all or substantially all assets (but not sale of )- generally most amendments to corp articles are fundamental corp changes that require approval by both directors and SHs, and although generally an amendment can be approved by affirmative vote of (1) directors and (2) maj of voting shares, an amendment that affects rights of a particular class must be approved separately by a maj of that classIL: maj BOD + voting shares reqd for fundamental changes- sale of all/substantially all can trigger dissenters rights (can vote against and demand pmt for shares/get bought out)- no reqt for class voting unless articles so provide- valid & enforceable SH agmt as to elections among themselves supersedes law that permits removal of a director w/o cause; generally SHs may remove a director w/ or w/o cause at a specially-called SH mtg unless Arts provide otherwise- direct claims: where breach of duty owed directly to that claiming SH (right to a dividend is a personal rather than a corp right so subject to direct COA; SH has no rht to dividend until declared by BOD)- derivative claims: of breach of duty owed to the corp- to bring deriv suit, most states require Pl to have owned stock when alleged wrong occurred and must maintain ownership throughout litigation- most states also require a SH to first demand BOD bring action unless demand would be futile (futile to make a demand when maj of BOD is accused of wrongdoing)- when can PCV to hold parent liable for sub: (1) alter ego (sham; same board, shared assets) or (2) not adequately capitalized. Sloppy administration alone not grounds for PCV- generally a SH not personally liable for corp/LLC obligations even if itself a corp (hence parent corp generally not liable for subs) unless PCV- if tort victims can PCV, can reach SH personal assets- 10b5 prevents material misstatements or omissions in connection w/ securities and a person injured can bring private COA for damages. Required to show: (1) Df made untrue statement of material fact or omitted to state a material fact necessary to make statements made not misleading, (2) that misstatement/omission was made w/ scienter (intent to deceive), (3) statements are somehow connected to the purchase or sale of securities by Pl (so continuing SHs have no 10b5 claim though may have a state law deriv claim against O&D who disseminated false info and breached fiduciary duty to corp), (4) using some means of interstate commerce (e.g., stock exchange trading in and of itself, public statements), (5) there was reliance by Pl, and (6) damages- corp Pres is agent of corp and has whatever powers granted by corp incl generally entering into Ks in ordinary course (governed by agency law - actual [express or implied], apparent or ratified?); entering into extraordinary requires BOD approval (which is cannot confer if it does not have the power from SHs). Corp Pres has express actual auth to carry out any act specified in Arts or Bylaws or approved by BOD- where Arts are silent, meeting can occur if there is a quorum consisting of maj of directors (i.e., so Arts can provide otherwise) - and resos can be passed by maj of quorum, but again BOD cant grant more auth than it has and selling assets might be a fundamental change requiring SH approvalIL: fundamental corp change requires (1) Directors to first pass reso and (2) which is then approved by of shares entitled to vote- after adopting reso, must send notice to SHs of mtg >= 20 business days before mtg specifying time, date, place & purpose (but notice defects can be waived)- generally only SHs of record as of the record date (of notice usually) are allowed to vote, though there is an irrevocable proxy exception (proxies are irrevocable if say so and are coupled w/ an interest; i.e. shares were pledged/sold to proxy holder / proxies are revocable unless say otherwise and coupled w/ interest)- proxy must be granted by signed writing or authorized electronic writing- any action taken at an improperly/defectively noticed mtg is voidable by a person who received improper notice and did not waive defect- improper proxy can mean quorum was lacking- unless Arts or bylaws provide otherwise, directors elected by a plurality (relative maj) win- SH who dissent have appraisal rights and can force corp to purchase shares at fair price: to do this SHs must (1) file objection before or at SH mtg @ which vote was taken, then (2) make written demand to corp for fair value of their shares, and if cant agree can sue to have ct determine value- when a promoter enters into a K on behalf of a corp to be formed, becomes personally liable on the Ks unless can show parties had contrary intention- where promoter signs as agent for nonexistent corp and both parties know corp not yet formed, cts usually assume that the parties intended to hold the promoter liable - so generally corp not bound on a pre-existence K by a promoter unless and until adopts it (expressly or by implication) provided that K expressly says promoter will no longer be liable post-corp formation and adoption (otherwise promoter liability continues even after adoption)- at CL corp charitable contributions were viewed w/ suspicion as waste of corp assets but now allowed if reasonable- IL: specifically permits them- a corp may not issue more stock than authorized under its Arts - but BOD can issue options to purchase shares on whatever terms it chooses as these do not in themselves constitute shares- corp cant issue preference shares unless Arts so provide - unless Arts provide otherwise, SHs do not have preemptive rights (rht to buy sufficient new issues to maintain current voting rights / %), and these d/n/a to employee/officer comp plan shares- also (obvious) holders of voting shares w/o preference rights do not have preemptive rights in shares issued w/ pref yet w/o voting rights- a corp cannot prevent transfer of shares absent unanimous SH approval; generally a corp can restrict transfer of shares for any reasonable purpose but cant be absolute prohibition- generally corp must record stock transfers even if prohibition against them invalid- even if transfer restriction valid, invalid against 3P unless transferee knew about it via legend or conspicuous notation- a SH may seek dissolution in some cases (as when directors have been oppressive - includes barring SH from BD - or corp assets were wasted - incl overpaying officers, including themselves)- director elected through cumulative voting [Cumulative voting is a type of voting process that helps strengthen the ability of minority shareholders to elect a director. This method allows shareholders to cast all of their votes for a single nominee for the board of directors when the company has multiple openings on its board. In contrast, in "regular" or "statutory" voting, shareholders may not give more than one vote per share to any single nominee. For example, if the election is for four directors and you hold 500 shares (with one vote per share), under the regular method you could vote a maximum of 500 shares for any one candidate (giving you 2,000 votes total - 500 votes per each of the four candidates). With cumulative voting, you could choose to vote all 2,000 votes for one candidate, 1,000 each to two candidates, or otherwise divide your votes whichever way you wanted.], cannot be removed if the votes cast against removal would be sufficient to elect him- although SHs free to act for own benefit, duty to controlling SHs: must refrain from using control o obtain a special advantage or to cause a corp to take action that unfairly prejudices minority SHs - includes duty to disclose material info to minority SHs- SHs generally have rights to inspect corp books & records for a proper purpose (i.e., one related to their status as SHs). To exercise inspection rights, must give 5 days written notice w/ reason why

CRIM LAW / PROCEDURE:- All attempt crimes require SI of target crime (so no crime of attempted yet involuntary MS) and substantial step beyond mere prep- CL attempt requires (1) intent to commit crime (mens rea) + (2) act in furtherance of that intent (actus reus)Attempt mens rea: (i) intent to commit the acts or cause the result constituting the target crime or (ii) intent necessary for the target crimeAttempt actus reus: (i) MPC: substantial step that strongly corroborates, or(ii) IL (essentially same as MPC): intent to commit crime and take substantial step- solicitation = inciting another to commit a crime w/ the SI that the person commit the crime- if person:agrees committed conspiracyattempts committed attemptcommits completed the crimethen solicitation merges with [right hand column], and can only be convicted of the greater crime- conspiracy: agmt be/w 2+ ppl to pursue an unlawful objective = (1) agmt (2) intent to agree (3) intent to pursue the unlawful objective (4) overt act in furtherance. Conspirator liable for acts of a co-conspirator that reasonably result from the conspiracy and are committed in furtherance thereof- In most states does not merge but in IL merges- IL follows maj view that withdrawal after conspiracy is not a defense, though a conspirator not going through w/ agmt is absolved of later acts by co-conspirators- abandonment is a defense to attempt so long as voluntary and complete; generally once Df took substantial steps in furtherance, abandonment no longer a defense; similarly cannot avoid liability for completed criminal activity via renunciation- generally and in IL, factual impossibility not a defense to attempt be/c does not negate SI- generally and in IL, legal impossibility only arises when Df does or intends to do an act that would not in fact be criminal (but act of sexual activity w/ a minor is a crime)- parent has duty to protect child but not vice-versa- accomplice: one who, with intent that crime be committed, aids, counsels or encourages another (principal) before, during or after commission of a crime; accessory after the fact is a person who, knowing another has committed or completed a felony, renders aid to the felon personally to prevent apprehension, prosecution or conviction- murder: unlawful killing of another human w/ MAF (which can be satisfied w/ (1) intent to kill (2) intent to cause great bodily injury (3) reckless indifference of an unjustifiably high risk to human life (4) intent to commit a felony)- but if acted w/ adequate provocation that would arouse a sudden & intense passion in the mind of the ordinary person such as to cause him to lose self-control, reduced to voluntary MS- IL 1st degree: (1) + (2) + (4) but can be reduced to 2nd degree (voluntary MS) based on heat of passion killing provided knows conduct is almost certain to cause a particular harm/result- Generally & in IL: serious battery considered adequate provocation- need Df act to be actual (but for) and proximate cause of death - and an intervening act (unforeseeable) can cut off liability- robbery: (1) trespassory (2) taking and (3) carrying away (4) of personal property (5) of another (6) w/ intent to permanently deprive the owner of possession (7) by means of violence or threats (of serious bodily injury)- defense of entrapment: requires showing (1) criminal design originated w/ officers and (2) Df was not predisposed to commit the crime prior to police contact (merely providing opportunity to commit a crime is not entrapment)- self-defense as a defense to using deadly force when threat has already subsided generally ineffective; generally + IL, deadly force can only be used when Df is (1) w/o fault (2) confronted w/ unlawful force and (3) threatened w/ imminent or great bodily harm- battery: intentional, unlawful application of force to victims person; can be overcome via defense of 3P (can use deadly physical force if 3P is in immediate danger of unlawful deadly attack)- warrantless search & seizure exceptions: (1) search incident to arrest (SITA): can search person and if arrested in a car, can search entire passenger compartment incl glove compartment and any containers found in the car if (a) arrestee is unsecured and may still gain access to the cat and (b) police reasonably believe that evidence pertaining to the crime may be found in the car; (2) automobile exception to warrant: allows search/seizure of anything in car if police have probable cause to believe that the vehicle contains contraband, fruits, instrumentalities or evidence of crime; auto exception relates to any vehicle moving or temporarily stopped and can extend to any section of the entire vehicle where the items for which there is PC to search may reasonably be found; (3) warrantless inventory search but cannot be pretext to investigate for evidence of a crime; (4) plain view (once trunk legitimately opened; or if officer is lawfully in a place and sees in plain view items that he has immediate probable cause to believe are contraband, evidence, instrumentalities or fruits of a crime; also auto exception makes plain view even broader to cover officer having PC that car contains seizable items)- 4th Am applies to states via 14th DPC: to be valid, a search or seizure must be reasonable. Arrest = seizure and for this to be reasonable need reasonable cause to believe that a felony had been committed and that seized person had committed the felony. Where items are highly suspicious and warrant further investigation, they will not necessarily provide reasonable cause for arrest. But 4th only applies to state action - prevents unreasonable searches & seizures; generally must be pursuant to a warrant or at least based on PC. However police can make investigatory stop w/o warrant and w/o PC if have reasonable suspicion based on articulable facts of criminal activity.- only need warrant to arrest inside home, otherwise can arrest elsewhere if PC committed felony- police can stop car on belief committed traffic violation and may arrest for that violation if state law so provides - does not matter that the police motive for the stop was to investigate something other than the traffic violation (mere pretext is OK!)- 4th Am search & seizure reasonableness reqt usually means that evidence will be found in place searched but exceptions include in plain view - to claim evidence was seized in an unconstitutional manner, must have standing, which requires showing had a reasonable expectation of privacy that was violated (only applies in own home or if one is an overnight guest); if give evidence to someone else, have no expectation of privacy in it as against the state; also if landlord seizes, no constitutional claim- 5th Am applicable to states via 14th DPC guarantees freedom against compelled self-incrimination - need to inform detainees of rights via Miranda Warnings before an investigation, and get a valid waiver otherwise. But Miranda only required before custodial interrogation and not if questioned on street. - motion to suppress evidence: if govt conducts warrantless search that is not w/in one of the recognized exceptions, any evidence found will be suppressed under exclusionary rule. - per SCOTUS exclusionary rule, evidence obtained in violation of 4th/5th/6th rhts as applied via 14th DPC cannot generally be used by state in criminal trials- also via fruit of poisonous tree, evidence derived from excluded evidence will also be suppressed- SCOTUS has said that if police obtain an unwarned confession from a suspect, warn later to try to cure Miranda defect, confessions obtained during both interrogations should be suppressed - unless the 2 questioning sessions do not appear to be part of a cure scheme (in which case might be able to fix defect)- 6th right to counsel belongs to detainee not the attny so denying lawyer access to client is not a violation- but IL DPC says that if lawyer arrives at police station claiming to represent detainee, police must treat lawyer as detainees lawyer unless detainee states otherwise and must inform detainee of lawyers presence, else DPC violation- generally under 6th no right to have attny present at pre-charge investigatory lineup - lineup can violate DPC rights if unnecessarily suggestive and there is a substantial likelihood of misidentification- IL (as opposed to Feds) attaches right to counsel at a lineup as soon as adversary proceedings have begun- if suspect clearly & unambiguously requests counsel, all questioning must stop until suspect meets w/ attny; police however have no duty to seek clarification of whether request is unambiguous- attempted armed robbery: prosecution must establish beyond reasonable doubt (BRD) that Df had SI to commit robbery and took substantial step to complete the crime (MPC/IL = beyond mere prep; cf traditional approach: proximity test = dangerously close to completing the crime)- larceny by false pretenses: (1) obtaining title (2) to property of another (3) by a knowing (belief to the contrary, even if unreasonable, is not enough) or in some states, intentional false statement of past or existing fact (4) w/ intent to defraud another. Title must pass, otherwise larceny by trick.- knowing element can be proved by showing Df had notice of a high probability of falsity + deliberate decision to avoid learning the truth, but commercial puffing does not count- intent to defraud can be proven by showing Df intended victim to rely on the misrep- progression of legal standards of proof: (1) reasonable suspicion, (2) reasonable to believe, (3) probable cause, (4) substantial evidence, (5) preponderance of evidence, (6) CCE, (7) BRD

EQUITY:- equitable remedies: (1) specific performance - but equitable defense of laches (when pty knowingly delays in enforcing rights and the delay prejudices other pty), (2) rescission (reverses K as if it never happened and restores parties to previous positions), (3) constructive trust (imposed by cts to prevent unjust enrichment when a wrongdoer has gained title to property via misrep), (4) equitable lien (equitable charge on property imposed to prevent unjust enrichment, (5) TRO these are discretionary and granted on basis of fairness- best way to recover from judgment proof Df: equitable lien (on which can foreclose like other liens) + deficiency judgment; cf. constructive trust whereby property is in trust so no deficiency judgment avail though not subject to trustee/Dfs creditors. Anyway usually using constructive trust be/c Df insolvent so a deficiency judgment would not help anyway.- laches period cannot exceed SOL on the underlying claim at law (damages)- unclean hands: ct in equity will not act if pty seeking relief has acted unfairly in txn at hand (not an unrelated txn)- Pl seeking specific performance (SP - forced to perform obligations under K) must prove: (1) K exists, (2) all contractual conditions were fulfilled, (3) legal remedy (damages) inadequate (e.g. Df is insolvent), (4) enforcement is feasible and (5) no defenses available. Most states also require bond posting to cover enjoined ptys damages in case improvidently grantedbut bond posting reqt directory in IL- usually specific performance not avail in K for sale of goods be/c $ damages should suffice - unless goods are unique and in short supply- SP can only be granted after trial on the merits - not as prelim relief, but can seek preliminary injunction to prevent injury before a trial can be help and to preserve status quo before trial on merits- For prelim injunction must show (1) likelihood of prevailing on merits (which requires proving up that 1. legal remedy inadequate 2. protectable rht about to be infringed 3. enforcement is feasible 4. hardships balance in movants favor and 5. no defenses avail) and (2) will otherwise suffer irreparable injury. Sometimes granted w/o notice to other party (ex parte = TRO)- in IL and generally, if prelim injunction improvidently granted, restrained pty has right to recover damages either by suing on the bond (limited to amt of bond) or by suing for damages off the bond (full damages can be recovered).- Although most states permit/award damages to victims in contempt proceedings, IL does not since contempt is be/c contemptor & court; IL requires injured pty to bring separate damages action- in determining whether irreparable injury likely to result, ct will look to whether $ damages can make Pl whole, which means looking to whether they are speculative, in which case legal remedy would be considered inadequate be/c damages may not be granted after all (since must have been foreseeable)- loss of exclusive use of customer list counts as irrep harm; customer list is arguably a trade secret and covenant to keep confidential always specifically enforceable be/c legal remedy considered inadequate due to difficulty in computing damages and irrep harm to Pl- in land K, damages are inadequate. Where seller conveys land to buyer w/o obtaining mortgage to secure price, equity implies lien in favor of seller called grantors lien. If buyer defaults, lien can be foreclosed against property to satisfy purchase price.- TRO: emergency order; interlocutory injunction imposed to preserve status quo. Requesting party must make strong showing of why notice to non-moving party should not be granted (incl. inability to find Df or probability will destroy evidence)- whereas TRO is ex parte, prelim injunction can only be granted after hearing on notice to Df- in addition to being challenged for violating 1st Am rhts, TRO may lack ground and even if proper should not necessarily be granted ex parte - as a general rule, pty who has been enjoined must obey injunction until dissolved (or modified) even if erroneously granted or unconstitutional. Proper recourse is to seek expedited appeal otherwise ct may enforce via contempt pwr whereby can impose civil as well as criminal penalties on recalcitrant party (punishable by fines and imprisonment), If charges are criminal, Df entitled to all protections afforded to other criminal Dfs incl right to proof of guilt BRD (rather than lower CCE or preponderance) and jury trial if appropriate (if face imprisonment >= 6 mos). If contempt is civil, no such rights exist. - contempt is an offense against the court so defenses going to merits or validity of the underlying injunction are irrelevant (only defenses to contempt are that 1. ct acted w/o jx and 2. person charged lacked proper notice)- TRO notice need not be formal - requesting pty can call Df to advise of the TRO- Whether contempt charge is criminal or civil depends on goal of ct (and purpose of proceeding is what matters - label of civil contempt proceeding is not outcome-determinative): if to punish, criminal; if to coerce compliance, civil. Where fine could not be lessened by Df via compliance, punishment is criminal.- unless LD clause clearly makes it nonbreaching partys only remedy, courts typically treat it only as an alternative remedy - not necessarily rendering the remedy at law adequate- ordinary damages should be adequate provided delay does not cause further damages that cannot be adequately assessed- courts wont grant specific performance for a svcs K (be/c tantamount to slavery) - even if all elements of specific performance (SP) are metIL will grant SP on non-compete if covenant (1) serves legit interest of ER, (2) does not impose undue hardship on EE, and (3) is not injurious to public- constructive trust imposed when (1) Df has title, (2) retention will unjustly enrich him (unjust enrichment element met if no consid was given) and (3) remedy at law inadequate. No reqt that Df/trustee be the wrongdoer; trust can be imposed not only on property in hands of wrongdoer but also on property traceable to ill-gotten property in hands of 3P, but note commingling funds complicates tracing- constructive trust not limited to the exact property that was misappropriated (can trace proceeds)- constructive trust also effective even if mistaken about true value of property stolen- seller of goods pursuant to fraud can recover the goods from a donee of defrauder (donee does not take for value); defrauded seller of goods may not recover them from a bona fide purchaser (BFP) since purchased w/o notice of fraud and this cut off equitable rights in property. Similarly, since cant reach ill-gotten property, cant reach proceeds thereof either. But if can reach ill-gotten property, defrauded seller can impose a lien on property improved w/ proceeds thereof.- equitable remedies are cut off by transfer of title to BFP (takes for value and w/o notice); donees dont count so can get equitable remedies for property wrongfully misapprop and then gifted to innocent donee- equitable lien requires (1) misapprop of $ or property, (2) which can be traced to same owne by Df, (3) retention would result in unjust enrichment and (4) (in some courts) remedy at law inadequate. When imposed, Pl is treated as having a lien on the property superior to all others except BFPs (and note that judgment creditors are not BFPs so EL > judgment creditors; judgment creditor does not cut off equitable rights)- Equitable lien on a bank acct: unlike CT, EL can be imposed on property improved w/ the misapprop property; so EL can be imposed even if Df s title was not derived solely from the misapprop property (e.g. where Df commingled misapprop funds w/ her own or used misapprop funds to improve property that she already owned). - PUT DIFF: EL = when title held to prop that can be traced to misapprop funds; can be imposed on any property; can get deficiency judgment | CT = imposed only on misapprop property; no deficiency avail- tracing doctrine: cannot get EL on cash unless misapprop funds can be traced to cash- rescission usually avail where there was mutual mistake (as to material fact at time of K) but recall unclean hands a defense- for service provider when counterparty (CP) repudiates, can have K rescinded and seek restitution/quasi-K (equitable rescission to restore benefit conferred on breaching party)- restitution damages = benefits conferred - damages caused by Pl breach (by not performing)- lis pendens: pending legal action- K defense of unconscionability measured at time of K not at time of performance = equitable defense to action for specific performance; too one-sided as w/ K of adhesion or unfair surprise- trustee DOL means cannot transact w/ trust in individual capacity, incl borrowing funds. Good or bad faith are irrelevant. If trustee breaches DOL to trust, liable for (1) losses to the trust, (2) any profit that would have accrued but for the breach, (3) any profit made by the trustee and (4) interest- per Uniform Prudent Investor Act trustee can invest in any type of investment provide she exercises reasonable care, skill + diligence- nuisance: when one substantially (offensive, inconvenient or annoying to avg person in community - not sufficient merely to interfere w/ anothers specialized use, or that offensiveness arises out of Pls hypersensitivity) and unreasonably (severity of injury must > utility of Df conduct) interferes with anothers use or enjoyment of property - estoppel: when (1) person reasonably relies on a statement relating to present facts, (2) it was intended or foreseeable that statement would be relied upon and (3) person relies to his detriment

EVIDENCE:- relevance: has tendency to make any fact of consequence to the action more/less probable- if relevant, then admissible unless excluded if (1) probative value substantially outweighed by danger of unfair prejudice, (2) confusion of parties, (3) misleading jury, or (4) considerations of undue delay or (5) needless presentation of cumulative evidence- Generally every person is competent to testify as a witness so long as (1) has personal knowledge and present recollection of matter to which will testify and (2) declares will testify truthfully. Ct assesses capacity and intelligence - 6 y/o is competent- Hearsay: out of court statement offered for truth of matter asserted = inadmissible unless exceptions apply: (1) excited utterance (made shortly after event causing stress of excitement); (2) former testimony (former testimony of now-unavail witness given under oath at another hearing is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that opportunity to develop testimony or cross exam at prior hearing was meaningful); (3) then-existing (not a past) state of mind (statements of memory or belief not admissible); (4) declaration against interest (requires 1. stmt made against pecuniary/proprietary/penal interest when made, 2. declarant had personal knowledge of the facts, 3. declarant must have been aware that statement against his interest, 4. declarant must be unavail as a witness; (5) refreshed recollection (when witness uses a doc to refresh recollection; in these cases the adverse party can then introduce that writing into evidence) (6) business records (writing/record made in memo of record of any act, txn, occurrence or event is admissible in evidence as proof thereof if made in regular course and authenticated by testimony of custodian or other qualified witness or by a written certification) IL business records exception does not cover police reports although otherwise comes within exception (although statements to an officer by persons not under a business duty to report accurately are not admissible unless w/in another exception) - when hearsay statement admitted into evidence, party against whom it is offered can impeach (cast adverse reflection on veracity) credibility of declarant by evidence that would be admissible had declarant testified as a witness (but only to impeach - not as substantive evidence for TOMA)- photos must be authenticated- NON-hearsay: (1) not offered for TOMA (e.g., bias) (FRE says this is an exception rather than non-hearsay) (2) prior ID or a witness prior statement identifying a person after perceiving him is not hearsay it witness testifies at trial and is subject to cross (3) admission by party-opponent (this need not be against declarants interest when made; conduct on video qualifies) (3B) vicarious admission (by one in privity w/ declarant or jointly interested)IL: (4) prior inconsistent statement if made under oath @ prior criminal proceeding (so depo statement can come in for TOMA in criminal trial - otherwise in civil trial can only come in for limited purpose of impeaching credibility)IL: Dead Mans Act applies to civil cases and says that where a pty sues or defends as the representative of a person who is deceased or under legal disability, an adverse or interested pty is not allowed to testify on own behalf to (1) a conversation w/ the decedent or disabled person or (2) an event that occurred in the presence of the decedent unless waived (which can occur if someone else testifies to same conversation on behalf of decedent)- Put diff: generally prior inconsistent statements are hearsay and cant be offered for TOMA, but if made under oath or at a prior trial, hearing or other proceeding, or in a depo, then become admissible nonhearsay- a person may testify as an expert if has special knowledge, skill, experience, training or education- lay witness can testify to for example speed of moving object but cannot opine unless (1) rationally based on witness perspective, (2) helpful to clear understanding of testimony or to determination of a fact in issue and (3) not based on technical, scientific or other specialized knowledge.- Expert opinion can be based on (1) facts expert knows from own observations (2) facts in evidence at trial and submitted to expert (3) facts not in evidence that were supplied to the expert out of ct and which are of a type reasonably relied upon by experts in the field in forming opinions on the subject - need not be of a type admissible in evidence- privileges: FRE 501 provides that state law privileges will apply to diversity cases incl clergy-penitent re: confidential spiritual communications- marital privilege: other spouse has privilege not to testify as to a confidential communication made be/w spouses during marriage - privilege survives marriage and must be made in reliance on the intimacy of marriage, but does not apply to communication revealed to a 3P- Evidence of other crimes, wrongs or acts is not admissible to prove character in order to show person acted in conformity therewith unless exception: (1) habit (where there is sufficient frequency or predictability), (2) to show bias, (3) MIMIC (FRE 404(b) i.e., Motive, Intent, Mistake, Identity, or Common scheme or plan); (4) witness can also be impeached by other witness offering opinion or character/reputation evidence as to witness character for truthfulness or untruthfulness.- IL witness can be impeached on cross via inquiry into a specific act or conduct that is probative of truthfulness but not by extrinsic evidence of bad acts (and even if on cross witness denies, still cannot introduce extrinsic evidence to refute answer) - so can ask about lying but cannot introduce extrinsic evidence to show lying - Character evidence to prove conduct of a person in the litigated event generally not admissible in a civil case - only admissible when persons character is itself in issue (battery does not put character in issue, nor do most violent crimes, so prior conviction of battery would not be admissible character evidence)- cannot impeach w/ extrinsic evidence of prior bad acts (but extrinsic evidence of prior inconsistent statement can be used to impeach)- while prior conviction not admissible in case-in-chief, admissible to impeach if (1) probative value > prejudicial effect and (2) w/in 10 years of conviction/release (whichever is later)- FRE: statements made during plea discussions that do not result in a guilty plea are inadmissible- hearsay w/in hearsay (e.g., hospital record w/ notes) = inadmissible unless both are exceptedIL: hospital records do not fall w/in business records exception in criminal cases- declaration of past bodily condition admissible if made to medical personnel to assist in diagnosing or treating a condition

FAMILY LAW:- presumption that child of married woman is marital (legal) child of her husband is rebuttable by CCE- IL: although recognizes gestational surrogacy (surrogate not genetically related to child), does not have law recognizing traditional surrogacy (egg is surrogate's)- IL Parentage Act: if H consents in writing to artificial insemination of his W, he is the natural father - but can rebut via (1) K breach, (2) estoppel (would not have agreed otherwise)- Gestational Surrogacy Act: considers child conceived to be child of intended parents at birth- generally legal parent is obligated to support child- most cts incl IL hold that professional degrees are not distributable nor their values easily determined but they will compensate supporting spouse via unjust enrichment by awarding larger pmt/term for spousal support (economic support for spouse whose income dependency has resulted at least in part from marriage; not punitive) or by awarding reimbursement spousal support (latter is fixed and not modifiable or terminable; avail even if spouse not otherwise eligible for spousal support; based on amt of spouses contribution, not value of the license) - unless live in a state where degree considered property, in which case would be value and distributed like all marital property (which is anything appreciated/acquired through marital funds or labor per IL Marriage and Dissolution Act)- growing # of cts consider licenses and degrees to be subject to equitable distribution (hence reimbursement alimony)- CL marriage (abolished in most states but IL recognizes if valid in issuing state): requires (1) exchange consents, (2) cohabitate, (3) publicly hold out as living together as H & W (e.g., by taking a common last name and maintaining joint accounts)- even if unmarried, if had property division or other agreement while cohabiting, this would be enforced as a K unless sex was only consid- Cts are split on whether to recognize CL mariage based on short visits to state where it is recognized, or not to recognize based on own public policy- community property marital regime (not in IL, mostly western states): property acquired during the marriage save gifts and inheritances is owned jointly and divided vs. equitable distribution regimes (where property brought in by one spouse belongs to that spouse)- cts have auth to get equitable distrib of all marital property no matter how title is held- Generally all property acquired during marriage is marital property, unless acquired through gift, bequest, devise or descent to one spouse only (e.g., business build by H is itself marital property) - and even then can become marital property if commingled or jointly improved - marital prop distribution is final and not subject to modification by the court. Most states: all increases in value of separate property that is the result of spouses efforts during marriage = marital propertyIL allows marital estate to recover only reimbursement for spouses effort- factors court will consider for equitable distrib (similar factors for alimony): (1) age, education, background and earning capacity of both parties; (2) duration of the marriage; (3) std of living during the marriage; (4) present income of both parties and their employability; (5) source of funds used to purchase the property; (6) health of the parties; (7) assets & debts of the parties; (8) needs of each party; (9) each partys contribution as a homemaker; and (10) whether the distrib is in lieu of or in addition to alimony- to establish jx over a divorce, one of the parties must be a bona fide resident of the jx where the action is brought. State may set minimum durational residency requirement (DRR) and residence may be basis for granting divorce regardless of PJ over other spouse. To be constitutional under DPC, exercise of PJ over DJ must be (1) statutorily auth + (2A) Df must have min contacts such that exercise would be fair and reasonable so as not to offend traditional notions of fair play and substantial justice. (contacts cannot be accidental but rather purposeful so that Df could reasonably expect to be haled into court), or (2B) specific jx where statutory COA based on contact w/ state + (3) notice (registered mail provides notice)- no-fault divorce: one spouse wanting to stay cant block other from leaving marriage- Generally cts will give FFC to divorce decrees (even ex parte) of cts of sister states if (1) had proper jx and (2) decree valid in that awarding state. Jx satisfied if one of the spouses domiciled in the decree-granting state, but must be domiciliary according to that states rules and presumption is rebuttable (e.g., did not intent to reside permanently)- state ct only has jx to divide up marital property in its jx- doctrine of divisible divorce: ex parte divorce decree can only grant divorce but has no effect on marital property, unless located w/in rendering state; need personal jx over both parties to divide up marital property/res doctrine prevents ct w/ divorce SMJ from also issuing spousal support decree (unless also has PJ over parties - but note if ct granted ex parte divorce, can issue spousal support decree to the that was not subject to PJ)- annulment legally declares a marriage to have never existed; may be sought when marriage is voidable (fraud and misrep as to essentials, incl ability or willingness to engage in sex or bear children; paternity of an unborn child STDs or drug addictions; religious beliefs). Cf void marriage (bigamy - another live-in spouse), which is a nullity and no subsequent act can ratify it, though may become voidable if impediment late removed.- Uniform Child Custody Jx and Enforcement Act (UCCJEA): a state may exercise jx re: custody if it is the home state of the child at the time the proceedings began or w/in 6 months of the proceedings (most important DPC test for purposes of jx to grant custody) and a parent still resides in the jx - but a ct can have temporary emergency jx to protect child- but a custody order from a ct exercising jx in an ex parte proceeding not necessarily entitled to FFC if facts suggest parent wrongfully took child- for FFC, (1) must have been proper jx, (2) on merits, and (3) final judgment but child support orders do not meet this be/care modifiable any time- but FFC for Child Support Act grants FFC over child support order is (a) ct had jx over the matter and parties and (b) parties had reasonable notice and opportunity to be heard; also Uniform Interstate Family Support Act prevents another ct from modifying order (can only enforce unless parties no longer reside in issuing state or agree in writing to non-issuing states jx). Under UIFSA once state w/ proper jx issues a support order, ct of another state w/ PJ over obligor may enforce it by properly registering it.- Federal Parental Kidnapping Prevention Act (PKPA): requires states to enforce custody order only if rendering state had home state jx. Under UCCJEA custody-issuing state has the exclusive, continuing jx as long as child, childs parent, person acting as childs parent still lives in that state or as long as the child has significant connection w/ that state and substantial evidence relating to the matter is avail.- in custody disputes, best interests of child (BIOC) prevails (wishes of parents; wishes of child; relationship between child, parents, siblings and others; childs adjustment to school, home and community; mental and physical health of all), but ct cannot modify based on childs wishes unless of sufficient age/maturity to make intelligent choice (> 7 y/o). Stability and predictability are in BIOC.- joint custody is not appropriate for hostile parents- if H not awarded custody, child support obligations may be increased to reflect additional time in Ws care- courts favor granting custody to primary caregiver- courts disfavor splitting siblings- property division decrees which order cash comp for dividing property that is not easily divisible are not modifiable - may only be opened for reasons for which any judgment may be reopened (fraud)- spousal support, alimony, maintenance only modifiable where substantial change in circumstances (like ability to pay or recipients need) specifically terminates on remarriage and a few states treat cohabitation the same way. Change in circumstances can include legal obligation to new spouse and children but in most states a stepparent relationship does not create legal support obligations.IL: cohab on continuous conjugal basis terminates duty to make periodic pmts- 4 types of alimony (can also be permanent or temporary, as applicable): (1) periodic, (2) lump sum, (3) rehabilitative, (4) reimbursement (for supporting other spouse while got professional degree). Alimony not based on fault (so adultery nor history of domestic abuse are relevant but dissipation/waste of marital assets is considered, like gifts to mistress). Trend today toward less alimony since most couples both work.- Marital fault n/a in alimony nor property settlement.- child support obligations are shared equally by parents and are modifiable or terminable only if there is a substantial change in circumstances w/r/t the child (if theres a change in childs need or both parents ability to pay). Ct will consider: (1) parents employment situation, (2) growth of the child, (3) inflation, (4) income of each parent (but obligor's self-induced reduction cant be basis for child support reduction unless done in good faith), (5) whether either parent is retired and (6) whether either parent has a disabling illness. Most states require substantial time lapse (1-2 yrs) before will modify child supportIL 2 years. - Child support obligations terminate when (1) minor reaches 18, (2) upon minors emancipation or (3) if there is a termination of parental rights (but does not terminate w/ parental death - estate still liable). Educational support for children > 18 that are employable can be made contingent on reasonable parental requests.f- Child support depends on monetary needs of children through ct considers spouse ability to pay; States dictate formulas based on # of children, their ages, special needs. Not retroactively modifiable.- while ct cannot order posthumous support, mothers estate liable for back due child support- generally consent of both biological parents required for adoption but if unmarried, fathers consent may not be necessary - depends on how active father was in rearing child- adoption creates new and permanent legal relationship between child and adoptive parents that cannot be withdrawn after decree is entered - cant divorce adopted child even if divorced spouse from that marriage- if statute only provided for notice to father based on his filing a declaration of paternity,unconstitutional be/c violates DPC in that a biological fathers involvement in childs upbringing is more important than genetic link in determining whether entitled to notice - so long as statute bases an unmarried fathers rights on the level of commitment he has had to the child, satisfies due process = an unmarried putative father is entitled to notice before adoption only if has been involved in childs life- IL: man having reason to believe he is the father of a child can register with Putative Father Registry w/in 30 days of childs birth, and if fails may not bring action thereafter to assert interest in child unless shows by CCE that (1) it was not possible to register w/in 30 days, (2) failure to register was not his fault, and (3) he registered w/in 10 days of being able to do so- DPC comes from 14th as applied to states and parental rights are fundamental so subject to strict scrutiny (laws enforced only if promote compelling interest) - SCOTUS has held states interest in protecting marital family sufficiently strong to override an extramarital fathers interests in establishing paternity- family court cannot grant visitation rights to a natural parent whose parental rights have been terminated or severed by adoption, which cuts off biological parents rights and obligations- how can ct divide up property be/w unmarried cohabitants who later break up? (1) K be/w them valid so long as consideration not based solely on sexual relations (but terms need to be definite); (2) implied K (based on conduct); (3) constructive trust (when Df obtained title via misapprop and would be unjustly enriched (but need to show inadequacy of legal remedy); (4) resulting trust (M would be beneficiary of implied trust be/c he supplied consid/svcs for a txn by which W acquired property constituting the res of the trust; see also purchase money resulting trust where there is a purchase of property in which one party obtains legal title but another party supplied consid but exception here for close relatives among whom gift presumed); (5) quantum meruit allows recovery in quasi-K to prevent unjust enrichment where Pl conferred a benefit for which had reasonable expectation of being compensated, was not compensated, and to allow Df to retain benefits would unfairly enrich Df.- pretermitted heir claims: while parent need not leave anything to child, most states have omitted child statutes that protect children from unintentional disinheritance. In few states applies to after-born children as well. In making up pretermitted childs share, all legacies abate proportionately.IL: only protects children born or adopted after the will is executed - entitled to share of estate = to what would have inherited had testator died intestate unless (1) provision is made for child in the will and (2) it appears from the will (and not from extrinsic evidence) that it was the intention of the testator to disinherit the child. - valid marriage: (1) of age, (2) not too closely related, (3) consented, (4) unmarried to anyone else vs. sham marriage (e.g., for citizenship)- generally one spouse not liable for other spouses debts except necessaries (incl expenses connected w/ final illness)- generally pre-nups are valid if (1) consid (entry into marriage is sufficient consid), (2) compliance w/ SOF, (3) voluntariness and (4) full & fair disclosure by both parties. Even if valid though, ct may still consider each provision vis-a-vis public policy. Cant be product of duress as w/ any K and be/c parties are not arms-length but in a relationship of trust, must act in good faith- cannot enforce waiver of spousal support be/c against public policy (to do so would make spouse dependent on state - though $30K/yr is acceptable); neither are child custody arrangements enforceable - Uniform Premarital Agreement Act (UPAA): parties may not contract to any matter in violation of public policy, incl agreeing not to be liable for each others debts, since cant contract to avoid the requirements of a legal marriage (like CL reqt for spousal support)- generally a state will apply its own procedural law (incl SOL) except when statue conditions a substantive right (as in case of wrongful death act) - and anyway modern trend is to treat SOLs are substantive anway. W/o knowing which choice of law is followed, local law applies as to adoption issues and modern trends favors local choice of law on substantive issues anyway.- there is a void of jx coverage of adoption cases so most states have either added adoption to list of proceedings covered by UCCJEA or adopted jx provisions of UAA- traditional view is that state has power to grant adoption if (1) it is the domicile of the parent or child and (2) adoptive parent and either child or its legal guardian are both subject to its personal jx.- generally parental consent reqd before medical treatment can be administered to person < age of capacity (usually 18), though some states have laws enabling minors to consent to abortion, birth control, STI treatment- a ct may not order nonessential medical treatment over objection of childs parents (constitutional right to privacy gives parents right to decide issues concerning care, custody and control of their children and parental decisions are given deference unless withholding injury would cause irremediable injury to child)- parents also have right to make decisions re: religious upbringing of their children- non parents have statutory right to bring custody action if child not in biological parents legal custody but presumption that natural parents right is superior to 3P (though this is rebuttable w/ good cause)- unwed parents also have right to raise children, esp if were part of family unit then DPC protects relationship- so long as parent is fit, that parents determinations are given special weight (as to visitation by 3P, etc) (Troxel); parent has right to custody over nonparent unless unfit (abuse, neglect, abandonment)- H of W who bears child through assisted conception is childs legal father unless w/in 2 years of learning of birth commences action in which determined he did not consent to assisted conception (Uniform Parentage Act or UPA; Uniform Status of Children of Assisted Conception Act)IL adopted UPA - Most states: child born of adulterous affair is husbands but presumption of H paternity can be rebutted by preponderance of the evidence (PE) in some states andCCE in IL- when child voluntarily abandoned/left w/ 3P, biological parent lost custody- a spouses fraud, duress or coercive behavior/overreaching are grounds to set aside a settlement agreement that is unconscionable - also mediator misconduct- once paternity is established duty of support attaches and rights to visitation and custody may be asserted by the father. - visitation orders can include phone + compute communication

FEDERAL JX AND PROCEDURE:- statements may be relevant and protected by ACP if from client, not from any witness though- alternatively may be protected under trial prep material as WP if made in anticipation of litigation in which case not discoverable except upon showing of substantial need and undue hardship (FRCP 26b3). Claims rep is a party representative whose work covered by WP.- in camera inspection may be reqd- by signing disclosure or discovery response, attny warrants/certifies that (1) supported by good law (2) not interposed for any improper purpose and (3) not unreasonably or unduly burdensome or expensive and ct can sanction attny for violating this rule (26g)- ct exercising jx over out-of-state Df must meet constitutional reqts of due process and mere presence of property does not confer in personam jx - asserting jx must not offend traditional notions of fair play and substantial justice (Intl Shoe). Constitutional limitations on PJ involve (1) notice + (2) nexus (nexus requires min contacts so that do not offend traditional notions, and reasonableness so that can expect to be haled into ct). Min contacts must not be accidental but reflect purposeful availment of the privilege of transacting business in the forum and invoking protections of its laws.- PJ need: (1) state longarm + (2) constitutional to do so (consistent w/ USC DPC)- longarm OK if doesnt require physical presence (business by phone held OK to confer PJ; also commercial internet activity can be enough so long as more than a passive website and Df can reasonably expect to be haled into ct)- where longarm permits exercise of jx consistent w/ USC, the 2 questions for PJ merge into 1: general (systematic & continuous) or specific jx (purposeful contacts?)- USC DPC = (a) min contacts + (b) fair & adequate notice- Min contacts = (i) Df had sufficient, purposeful contacts such that could foresee being sued in the jx, (ii) relatedness of contact to the action, (iii) exercise would be fair & reasonable (so as not to offend traditional notions)- offend traditional notions of fair play & substantial justice? reasonably anticipated being haled into ct?- General jx where have systematic and continuous contacts (i.e., if citizen of state or do substantial business there), else specific jx over particular action- Ancillary jurisdiction extended to compulsory counterclaims, cross-claims, and additional parties to such claims. (as distinct from pendent and supplemental)- MSJ (56): no issue of material fact so movant entitled to JMOL; pty may move for JMOL (1) anytime before case submitted to jury and (2) can only be granted after nonmoving party has been fully heard and ct concludes (3) no legally sufficient evidentiary basis for reasonable jury to conclude for nonmovant (with evidence viewed in light most favorable to nonmovant) - and not taking into account witness credibility- even if ct/judge may grant JMOL, best to defer ruling until jury verdict or facts (more efficient be/c if trial court overturned on appeal, can do so based on verdict rather than having to remand for trial)- juror misconduct is grounds to order new trial (which may be granted on account of serious error, like bias or nondisclosure or jury misconduct), not grounds for JMOL- party can also make post-verdict renewed motion for JMOL but (1) limited to grounds raised in initial JMOL (which could be raised at any time during trial) and (2) must be made w/in 28 days of the judgment- when ct considering a motion to dismiss for fail