Defendant Class Actions Under Rule 23(b)(2): Resolving the Language Dilemma

This Article explores the language dilemma created by the provisions of subsection (b)(2). After setting out the precise nature of the language dilemma, the Article discusses the arguments of those courts that have denied subsection (b)(2) defendant class certification based upon a literal reading of the subsection's language, and the arguments of those courts that have used various devices, some involving quite contorted reasoning, to overcome the language dilemma based upon the functional need for defendant class certification under subsection (b)(2). 9 The Article asserts that neither side has developed a persuasive argument for its position because neither side has engaged in the thorough analysis grounded in principles of statutory construction that is necessary to determine the proper interpretation of Rule 23(b)(2). The Article then offers such an analysis, in which it demonstrates that defendant class certification is provided for under Rule 23(b)(2)

Ex Parte Domestic Violence Orders of Protection: How Easing Access to Judicial Process Has Eased the Possibility for Abuse of the Process

This article explores how state domestic violence statutory schemes that grant temporary ex parte orders have inadvertently lead to the abuse of orders of protection. Part I introduces how domestic violence statutes came to be, and describes how the typical statutory scheme works when it comes to granting ex parte orders. Part II examines the problems that occur when ex parte relief is easily obtained. Part III looks at the factors that contribute to the ability to misuse orders of protection. Part IV discusses due process and ex parte orders of protection. Part V is a survey of the state statutory schemes. Specifically, it analyzes participation by judicial officers, prompt post-deprivation hearings, verified petitions or affidavits, and the showing of irreparable harm. Part VI looks at form pleadings as a contributing factor. Finally, Part VII asserts that conscientious judges are the ultimate assurance of due process

Surveying Gender Bias at One Midwestern Law School

The graduating class of 1997 entered Northern Illinois University College of Law (NIUCOL) with 51% women. That figure steadily dropped over the next three years. The graduating class of 2000 entered NIUCOL with just 33% women. This was especially alarming because one of the administration's missions has been to provide access to the legal profession for persons belonging to groups traditionally under-represented in the profession. The decline was viewed as a possible step backward in what had previously been viewed as a very successful effort to recruit higher levels of women students. In an attempt to accurately measure the types and levels of gender hostility in the law school classroom at NIUCOL, the authors conducted a study in which they informally questioned female students about the classroom atmosphere. Anecdotal evidence regarding the "chilly" atmosphere which female students face at NIUCOL then led to the design of a questionnaire which could be distributed to every registered law student at the College of Law. This questionnaire was created to measure whether statistical data would support or refute the anecdotal stories of hostility and harassment uncovered in the informal interviews. The questionnaire solicited the following information: 1) respondents' biographical information, including gender, 2) students' attitudes overall about their law school experience without focusing on gender issues, 3) respondents’ agreement or disagreement with statements concerning gender hostility; 4) whether respondents had ever felt the need to file a complaint over an incident of sexual harassment or gender hostility, whether they had done so, and whether they were ultimately satisfied with the results of that complaint; and 5) a description of acts or comments by professors or fellow students which respondents witnessed or experienced while in law school that made them uncomfortable for gender-based reasons. This article, which reviews the methodology for the survey process described above, also provides a literature review of articles related to sexual bias in the courtroom and sexual bias in the classroom. It further provides recommendations based on the results, including programs for the prevention of gender harassment and mechanisms for addressing gender harassment

Defending the Indefensible to Further a Later Case: Sanctioning Respondents in Illinois Domestic Violence Cases

When an act of domestic violence occurs in Illinois, as in most other jurisdictions, both criminal charges and a civil Domestic Violence Order of Protection may follow. The order of protection may be commenced in conjunction with a criminal charge or may be commenced as an independent action. Because of the exigencies of the domestic violence situation, the legislature has enacted a statutory scheme that expedites the civil proceeding, so that the civil order of protection proceeding takes place in a period of twenty-one days from initial filing to final hearing. In other contexts, an act of intentional injury could give rise to both a civil personal injury matter and a criminal prosecution. But in these situations, it would be anticipated that the criminal case would be resolved prior to the civil matter. Therefore, the domestic violence situation is somewhat unique in that the civil case proceeds prior to the resolution of the criminal matter. This creates an opportunity for the respondent to use the order of protection proceeding for two improper purposes related to the defense of a subsequent criminal charge. First, during the civil proceeding, the respondent may seek to use cross examination of the abuse victim for purposes of intimidation so that she may wish not to be a witness in the later criminal prosecution. Second, the cross examination might be conducted to gain the equivalent of a discovery deposition that would not be available in the criminal matter. In this article, I will discuss that when either or both occurs, the respondent should be subject to sanctions pursuant to both Supreme Court Rule 1378 and the specific sanction provision of the Illinois Domestic Violence Act. The most difficult question involved is how to draw the line between a legitimate defense of the civil matter and a defense for either of the improper purposes. In this article, I will seek to draw that line. I will first discuss that separating legitimate defenses from improper defenses would be aided by requiring respondents to file answers to petitions for orders of protection. I will argue that such is required by applicable statute, though not often required in practice. I will then address the Fifth Amendment problem presented when a party facing concurrent civil and criminal actions is required to answer the civil case before resolution of the criminal matter. I will propose an amendment to the Illinois Domestic Violence Act that prevents the pleadings or testimony from an order of protection action from use in a subsequent criminal action. I will argue that so doing aids both the petitioner and respondent, and comports with the legislature's expressed intention to provide prompt relief and protection to victims of domestic violence

Filing With Your Fingers Crossed: Should a Party Be Sanctioned for Filing a Claim to Which There is a Dispositive, Yet Waivable, Affirmative Defense?

The complications involved in addressing whether Rule 11 sanctions on plaintiff are appropriate in an instance where affirmative defenses are available to defendant are addresses in this article. The federal court’s different approaches to this issue, yes to sanctions, no to sanctions, and sometimes sanctions, are discussed. The Fourth Circuit’s decision in Brubaker v. City of Richmond and its approach on with respect to imposing sanctions are discussed at length. Souran v. Travelers Ins. Co. is discussed as an example of courts not sanctioning plaintiffs where affirmative defenses existed. When addressing the sometimes or middle-ground approach White v. General Motors Corp. is evaluated. The discussion of a middle ground approach evaluates the possibility of sanctions when the affirmative defense was “obvious.” The challenges of defining obvious are considered. In addition to determining what is obvious this article highlights that requiring a plaintiff to account for affirmative defenses that are not part of the substantive claim is in opposition to the Rules Enabling Act, 28 U.S.C. § 2072(b), which prohibits a procedural rule from “abridg[ing], enlarg[ing], or modify[ing] a substantive right.” Burdens and challenges of plaintiffs and defendants in addressing the difficulty of dealing with filed actions subject to affirmative defenses are addressed. A proposal somewhat of the middle-ground nature is provided whereby plaintiffs that file an action in which an affirmative defense is asserted must on their own dismiss the action, thus eliminating the need for defendant to do so through what may amount to a summary judgment motion involving far more of the parties’ and courts’ resources than is necessary