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Abstract: Public policy demands that American lawmakers, both federal and state, more vigorously promote the early, accurate, informed, and conclusive designations of fathers in law around the time children are born. There is, in particular, an urgent need today to develop legal standards that better promote more birth certificate designations of paternity for children born to unwed mothers. Public policy also demands that where paternity designations do not accurately reflect the requisite genetic ties with children, paternity laws should be more fair and just in allowing paternity disestablishment. This Article reviews the federal mandates within the Social Security Act both on maternal good faith cooperation in naming biological fathers and on voluntary paternity acknowledgments for children born to unwed mothers. It illustrates the nationwide confusion and uncertainties about these mandates. The Article concludes with suggested reforms of both federal and state laws aimed at securing more fathers in law at birth for children born out of wedlock in the United States.
Abstract: This paper begins by examining federal paternity standards involving voluntary paternity acknowledgments of children born to unmarried women. These standards are increasingly important as voluntary acknowledgments are now typically required for birth certificate recognitions of paternity for children born to unmarried women and as the number of births to unmarried women in the United States has doubled in the past two decades. The paper then explores the confusion in Illinois over these standards arising from the 2004 Illinois Supreme Court decision in People v. Smith. It then illustrates that there is similar confusion nationwide. For example, there is much doubt about what happens when males initiate paternity disestablishment proceedings seeking to rescind voluntary paternity acknowledgments based on lack of genetic ties. Next, the paper reviews other paternity disestablishment standards in Illinois. In doing so, it reveals that the conditions for paternity disestablishment frequently are dependent upon legal distinctions that are, at the least, unsound (and perhaps unconstitutional). The paper concludes with suggested reforms for both federal and Illinois laws on initial paternity designations and on later paternity disestablishments.
Abstract: An earlier version of this paper was presented by Professor Parness at the Third Annual Wells Conference on Adoption Law under the title, "Safe Haven Laws: Where Are the Daddies?", at Capital University Law School on February 15, 2007. The paper explores the difficulties in American state safe haven, adoption and birth record laws, crystalized in the question: "Where are the daddies?" After briefly reviewing safe haven laws, the paper demonstrates how paternity interests are unreasonably, if not unconstitutionally, foreclosed when children are abandoned by their mothers. Comparable paternity losses due to maternal acts are then shown under adoption and birth record laws. Lost daddies are unwarranted because maternal privacy rights and interests should not easily foreclose chances for responsible fatherhood, especially where births result from consensual sex between unwed partners. There should be differences in law between abortion decisions and maternal decisions about children in safe haven, adoption, and birth record settings. These differences should reflect the differing societal interests, maternal interests, and paternal interests in protecting potential human life and in protecting born alive human life. Neither maternal decisional privacy nor maternal informational privacy foreclose expanded protections for legal paternity opportunities and rights. The paper concludes with suggested paternity law reforms.
paternity, adoption, birth record, safe haven, fathers
Abstract: In her recent Columbia Law Review article, "Infant Safe Haven Laws: Legislating in the Culture of Life," Professor Carol Sanger shows that American safe haven laws, viewed "within a larger political culture," promote the "goal of the culture of life: the reversal of Roe v. Wade." Their effectiveness in that pursuit, she correctly notes, depends on whether judges and others recognize the "strong differences" between varying culture of life settings. Like Professor Sanger, I see differences between safe haven abandonment and abortion. Unfortunately, Professor Sanger fails to note that American safe haven laws, within a larger political culture, also significantly promote the culture of motherhood, that is, the unconditional respect for relatively exclusive maternal decisionmaking about newborns, regardless of children's best interests, of any legal paternity interests, and of the strong social policy favoring two parents for each child born alive as a result of consensual sex. As with culture of life settings, there are "strong differences" in culture of motherhood settings. I see significant differences between protecting potential human life from maternal acts and protecting actual human life from maternal acts. I see differences between pursuing actual deadbeat dads and simply projecting certain dads as deadbeat. I see differences between children conceived as a result of artificial insemination via an anonymous donor and children conceived as a result of consensual sex. I see differences between terminating potential or actual legal paternity before and after birth. The culture of motherhood, as the culture of life, in American family law merits our serious attention. There "are strong differences of opinion" on some forms of exclusive maternal decisionmaking. In particular, beyond revisiting safe haven laws, state legislators (and Congress, through the Social Security Act) need to reform many of the adoption and birth certificate laws governing children born as a result of consensual sex. American laws should better assure that the men named as legal fathers at birth merit that designation and that more children have legal fathers named at the time of birth.
Abstract: Significant pleading challenges confront civil rights claimants in both federal and state courts. Issues include the choice of an appropriate forum; the sufficiency of the allegations; and, the requirements of culpability. Possible fora include not only federal or state general jurisdiction trial courts, but also state human rights commissions, and possibly state worker's compensation panels. Sufficiency may be guided by notice, Twombley or code pleading standards. Culpability assessments may vary between challenged legislative or executive actions. Two recent cases, one federal and one state, are used to illustrate the difficulties facing those pursuing due process or equality claims.
pleading, civil rights, equality, due process
Abstract: Professors Molot, Fuller, Fiss, and Resnik, among others, have expressed concerns about the unbounded, unchecked, unbridled, and virtually unfettered judicial discretion of American trial court judges who preside over civil case settlement conferences. I am also concerned. But the best response is not to abolish or severely restrict judicial settlement conferences. Rather, it is to add more formality and more written guidelines. New guidelines would discourage each trial court judge from marching to the beat of her own drummer. These guidelines should involve, as suggested by Professor Fuller, both more adversary control and more detailed and written criteria. In addition, new guidelines should expressly recognize that the claims and interests that might be discussed at judicial settlement conferences are far broader than the justiciable claims that might be discussed at trial preparation conferences. Thus, civil case settlement talks and civil case settlements subject to same-case judicial enforcement can involve many more claims, interests, and people than would have been involved in any adversarial proceedings. New written guidelines for federal and state courts should follow existing rules and statutes of general and particular applicability already operating in some American trial courts. As with pleading and discovery, new settlement conference guidelines should speak to differences between civil actions, including some distinctions between significant cases and routine cases and between civil cases based upon the amounts in controversy.
Civil Procedure, Settlements, Settlement Conferences, Trial Judges
Abstract: Today, American trial courts are trying less and managing more private civil cases. They are also losing many private claims to other dispute resolvers. The traditional role of the trial judge as a neutral, detached, and passive adjudicator for private civil cases has given way to the trial judge who is a more active case manager, a more aggressive settlement facilitator, and an appellate-type reviewer of case decisions first made elsewhere. Unfortunately, contemporary written civil procedure laws do not reflect this new reality, increasingly reflecting only legend. New general visions of contemporary trial court decision making would help civil procedure lawmakers better formulate written procedural law guidelines for trial courts. Unfortunately, the chance for such a new perspective was not pursued in the recent proposed revisions to the ABA Model Code of Judicial Conduct, scheduled for ABA consideration in February, 2007. In particular, there is a need now for new written laws on trial court settlements as well as on trial court oversight of earlier private arbitrations and administrative agency adjudications.
Abstract: In 1983 in Lehr v. Robertson the U.S. Supreme Court recognized that paternity opportunity interests for biological fathers in children born to unwed mothers usually implicate federal constitutional life, liberty or property interests and thus warrant guarantees of fair procedures in adoptions. In 1989 in Michael H. v. Gerald D., the court reiterated that for any such father, there is the unique opportunity to develop a relationship with his offspring, though a similar paternity opportunity may be unavailable where the child is born to a mother married to another. Under Lehr and Michael H., when paternity schemes systematically and unfairly interfere with men who wish, or might wish, to pursue paternity opportunities, these schemes should fail. The Lehr court specifically recognized that governmental systems that likely omit many responsible fathers for reasons beyond their control can be procedurally inadequate.
Unfortunately, many contemporary American paternity schemes are now out of control. They frequently omit many responsible fathers who have little or no control over the unique opportunity to develop a parent-child relationship. As well, often these omissions undercut rather than promote the general policies underlying paternity laws, including dual parenthood and equality. In particular, current state birth certificate, safe haven and adoption schemes are flawed under U.S. Supreme Court precedents like Parratt v. Taylor in 1981 and Monell v. Department of Social Services in 1978.
Flawed paternity schemes can be easily fixed. Suggested reforms are presented after a brief review of control and the unique paternity opportunity interest under Lehr; the general requirements for procedurally adequate paternity regimes; the policies guiding contemporary American paternity laws; and, the deficiencies in current American birth certificate, safe haven and adoption schemes.
Paternity, Adoption, Birth Record, Safe Haven, Fathers, Due Process
Abstract: Many American state constitutions contain equality provisions. Some simply promote Equal Protection in ways comparable to the Fifth and Fourteenth Amendments to the federal constitution. Others are worded quite differently, though read in lockstep with federal precedents. Yet others vary both in letter and spirit form federal constitutional equalities. These variations extend at time constitutional equality protections far beyond the federal precedents. Varying American state constitutional equalities are today promoted by phrases and terms like equality, equal protection, nondiscrimination, sameness, and uniformity. They occasionally limit private as well as public actors. And they occasionally limit the roles of legislatures in defining or enforcing constitutional equalities. For those interested in securing greater American state constitutional equalities, whether for sexual orientation, gender or other classes, Article I, Section 17 of the Illinois constitution provides an excellent model, with self-executing rights, limited General Assembly authority, and regulations of private and public discrimination. The approach in Section 17 is far superior to the approaches in Sections 18 and 19 of the Illinois constitution, which also promote equalities, and to the approaches in other American state constitutional equality provisions.
constitutional law, equal protection, discrimination, equality, state constitutional law, state constitutions
Abstract: The Illinois Crime Victim's Rights Amendment, added to the Illinois Constitution by the legislature and the voters in 1992, includes a 'right to restitution'. The amendment spurred some new legislation, now within the Rights of Crime Victims and Witnesses Act. But most crime victims still have little chance for restitution or other monetary remedies during criminal cases. Other remedies include recoveries from a state fund guided by the Crime Victims Compensation Act and recoveries ordered at sentencing under the Unified Code of Corrections Act. The paper first examines the Illinois constitutional right to restitution and the three separate acts recognizing possible monetary remedies for crime victims during criminal cases. Upon concluding that the constitutional right to restitution has not been adequately implemented by the legislature or the courts, the paper looks to other American state approaches to crime victim recoveries. For Illinois it proposes that the three acts be combined into a single statutory scheme, organized by the stages in a criminal case. Integrated provisions would held better secure the goal of enhanced recoveries by crime victims established by the overwhelming majorities of constitutional amendment drafters and voters.
crime victims, crime victim restitution, criminal sentencing, criminal procedure
Abstract: In early 2006, two Illinois circuit judges, one in Cook County and one downstate, denied dismissals sought by two nonresidents on personal jurisdiction grounds upon finding there were sufficient contacts between the nonresidents and Illinois to support specific in person am authority. Each losing defendant sought immediate intermediate appellate court review which, though initially denied, was ordered (without a rationale) by the Illinois Supreme Court under its supervisory authority. Both appellate courts then reversed, freeing the nonresidents from suits in Illinois. Each nonresident had caused significant harm in Illinois to an Illinois resident. In Ploense v. Electrolux Home Products, Inc., a nonresident allegedly harmed an Illinois worker by conspiring outside of Illinois to suppress knowledge of the harmful health effects of chrome used during manufacturing in Illinois and around the country. In Morris v. Halsey Enterprises, Ltd. another nonresident allegedly harmed an Illinois resident at home by placing in the stream of commerce a defective fan which was bought and then malfunctioned in Illinois. While nonresidents surely may not be sued in violation of procedural due process protections, in each case there were adequate bases for authority. Yet each court told an Illinois resident, hurt in Illinois, to take an Illinois state law claim to a court outside of Illinois. Each appellate court found no personal jurisdiction because the nonresident had not intentionally aimed at or targeted Illinoisians. Both courts read far too narrowly the due process requirement that to be amenable to suit, a nonresident must purposefully avail itself of the privilege of conducting activities in the forum. Due process allows suits against nonresidents who act indirectly in the forum. In both cases the nonresidents benefitted from their indirect acts in Illinois and reasonably should have anticipated suits in Illinois. Hopefully, given the Illinois Supreme Courts interest, there will soon emerge a different approach, allowing more Illinoisians to sue nonresidents in Illinois for harms caused in Illinois under Illinois laws through conspiracy or stream of commerce acts.
Civil Procedure, Personal Jurisdiction, Stream of Commerce, Conspiricies, Minimum Contacts, Nonresidents
Abstract: Safe Haven laws allow genetic mothers to abandon their newborns with no questions asked. Newborns are then protected kom potential abuse or neglect and can be adopted at an early age into loving and welcoming families. Mothers are fiee to go on with their lives knowing that the best interests of their children have been secured. So what is wrong? The problem lies with the law's neglect of the genetic fathers. Seemingly, the parenthood opportunities ofmen are lost without anyone asking the genetic fathers if they care. Furthermore, no matter how much better the children's lives, proper social policy demands that genetic fathers, who often have both paternity opportunity and childrearing interests, should not be so easily dismissed. Beyond social policy, it seems that American Safe Haven laws infringe upon the - constitutionally-protected paternity opportunity and the childrearing interests of many genetic fathers. The governmental action that infringes on these interests is found in the systematic disregard of "many responsible fathers" who could be safeguarded without undue infringements on the privacy interests of genetic mothers, without undermining their children's best interests, and without diminishing the existing legal doctrine on access to abortion services.
Safe Havens, Paternity, Maternity, Adoption, Family Law
Abstract: There is reason to think that Professors McManamon, Resnik and Eskridge might each welcome an independent civil procedure course chiefly focused on civil claim settlements. Professor McManamon wonders whether alternative dispute resolution processes are as "easy to grasp" as some have opined. She counsels that we should not fear creativity and "that we should not be afraid to question our Lengdellian universe." In conclusion, Professor McManamon urges civil procedure teachers to "communicate... to our students" the dramatic changes in civil litigation over the years in ways tha make "the most sense." While expressing and urging us to maintain continuing faith in traditional trial court adjudication for many types of civil claims, Professor Resnik clearly understands that "[i]n the bulk of civil litigation, the parties' decisions to settle are not subjected to review." She posits that because of the "public, visible nature" of all trial court cases and their "public dimension," wherein the parties and others typically settle their differences within "our publicly-financed system of dispute resolution," more inquiry is needed into "the sources and scope of judicial authority" over settlement. Her own inquiry leads her to encourage the development of written rules guiding civil claim settlements, especially guidelines which would reduce the "echoes of the ambiguity about the judicial role in settlement" that presently exists, so that constraints may be put in place to better ensure that settlements are not "achieved under conditions of imbalance, lawyer ineptitude, indeterminacy, and judicial coercion." Professor Eskridge seemingly would also welcome an independent procedure course, and not one limited simply to civil procedure. Such a course certainly could never give any set of civil procedure laws "deferential, if not canonical, treatment," for, as Professor Resnik has lamented, civil procedure rules and statutes are largely silent about settlement. In such a course, "themes and structure of procedure" more likely will influence course direction rather than phrases or lines, as there is no singular arrangement implicated for a settlement, even with regard to a "typical" civil claim. There are significant opportunities in such a course for the exploration of "metaprocedure," as well as the "seamless web" and for a "practical focus on a vivid litigation experience." Professor McManamon has encouraged us to "debate," and to suggest procedure courses that make "the most sense." We should begin. Is it now time for a civil claim settlement course, intradisciplinary in nature, with emphases on: comparative federal and state laws; the anticipation and resolution of typical (private rights) civil claims; and simulated exercises significantly incorporating perplexing settlement law issues that most lawyers (in and outside of litigation) face today?
Civil Procedure, Law Schools, Legal Education, Civil Case Settlement
Abstract: Operating on behalf of insurance companies, adjusters have long facilitated settlements of civil claims. Adjusters work both before and during lawsuits to help resolve differences between the companies and company insureds, thus engaging in first-party adjusting. Adjusters also facilitate pre-lawsuit and post-lawsuit civil claim settlements between their companies and those harmed by company insureds. Such third-party adjusting and first-party adjusting are quite distinct. They raise different issues regarding the application of professional conduct or civil procedure standards governing lawyers to nonlawyer adjusters. Some important questions about applying lawyer standards to adjusters in third-party settings have been resolved, as in the areas of the unauthorized practice of law and the mandatory attendance of adjusters at settlement conferences in pending civil actions. Resolutions here demonstrate serious conflicts over the general applicability of professional conduct and civil procedure standards, prompting the need for more comprehensive study. In examining third-party adjusting, a central question should emerge: When should insurance company employees be governed by the standards governing lawyers who facilitate civil claim settlements for their clients? Those who find the question bizarre need only consider the 2002 Washington Supreme Court decision in Jones v. Allstate Insurance Co. There the court found that some insurance company adjusters dealing with unrepresented third parties must abide by certain lawyer standards on truthful representations. They can also look to the Court of Appeals for the Eleventh Circuit 1991 decision in In re Novak, where the court found that a nonparty insurance adjuster, as well as the lawyer for the insured, could be compelled to attend a pretrial conference to discuss possible settlement of a third-party claim against an insured/client. In approaching issues involving the application of lawyer standards to insurance adjusters, distinctions seem necessary between authorized and unauthorized legal practice acts; between pre-lawsuit and post-lawsuit conduct; between conduct before and after attorneys have been retained; between the regulatory authority of legislatures, courts, and administrative agencies; and, between post-lawsuit activities that occur within and outside of courthouses. After briefly reviewing Jones and Novak, the paper explores other settings involving possible use of lawyer standards for third-party adjusting, including ex parte communications, privileged conversations, work product, settlement authority, and good faith negotiation. The paper urges that courts as rulemakers, legislatures, and administrative agencies should all have some voice in determining how adjusters should act and whether adjusters should abide by lawyer standards. The paper concludes that, at times, laws should treat differently comparable third-party actions by insurance adjusters and lawyers and ends with a call for more comprehensive inquiries into lawyer standards and third-party adjusting.
Civil Procedure, Insurance, Settlements, Adjusters, Settlement Conferences
Abstract: Can civil litigants enforce settlements resolving their actions before the very trial judges who presided over those actions? And, are such same case enforcements always subject to similar guidelines in federal and state trial courts? This short paper answers these questions, responding not always and no. The paper employs Director of Insurance v. A and A Midwest Rebuilders, Inc., 891 N.E.2d 500 (Ill.App.2d 2008) to explore the limits of same case enforcement authority and the differences in federal and state practices. The state appellate court correctly distinguished federal court precedents that focused on distinctions between dismissals with and without prejudice. It instead looked to distinctions between judgment enforcement and judgment modification. Unfortunately, the court in A and A also sanctioned same case enforcement where the earlier dismissal was made "pursuant to the terms" of a settlement that was not made part of the record. While relying on Lynch v. Samatamason Inc., 279 F.3d 487 (7th Cir. 2002), the Illinois state court did not follow the "standard practice" suggested in Lynch. Under Lynch, upon settlement subject to possible same case enforcement, the trial judge normally should call in the court reporter and dictate the terms of an oral agreement, or should place a written agreement on the record. As well, the judge should make sure all parties consent. Further, the court in A and A failed to address the public record nature of some civil case settlements, discussed in Jessup v. Luther, 277 F.3d 926 (7th Cir. 2002), cited by the A and A court. Not all civil case settlements are subject to same case enforcement. Final judgments should clearly reflect when settlement enforcement jurisdiction is retained. When same case enforcement is possible, trial judges should follow public access limits imposed by both First Amendment and common law decisions. Further, judges and lawyers should recognize that settlement enforcement guidelines may differ in federal and state courts.
Civil procedure, litigation, settlements, enforcement, settlement enforcement, federal civil practive, Illinois civil practice
Abstract: In 1970 four new equality provisions were added to the Illinois Constitution, including two explicit equal protection provisions and two explicit antidiscrimination provisions. Shortly thereafter, Elmer Gertz, the Chair of the Bill of Rights Committee for the relevant constitutional convention, declared that "we in Illinois have gone beyond all other states and the federal government in eliminating discrimination." Unfortunately, a few years later Gertz lamented that while Illinois had the "strongest nondiscrimination provisions of any state constitution," these provisions had only yielded "unrealized expectations." Today, the 1970 equality mandates continue to be unrealized. This paper reviews the four provisions and then demonstrates what went wrong, criticizing both the state legislature and high court. In particular, it examines the shortcomings of the Illinois Human Rights Act whose stated goal was to "secure and guarantee" the new equality "rights." While the Act extends statutory equality protections to some who are without explicit constitutional equality guarantees, the Act also fails to protect others who were expressly assured protections in 1970. For example, the Article I, Section 17 assurances of freedom from "discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property" remain unrealized as the Act "covers," but then "exempts", many persons subject to discrimination in employment and property transactions. The paper concludes with suggested reforms that will help to realize the unique promises of Illinois constitutional equality.
equality, discrimination, constitutional equality, state constitutional law, nondiscrimination
Abstract: American courts and legislatures have struggled to define the participation rights of genetic fathers in governmental adoption schemes for infants born to unwed mothers as a result of consensual sexual intercourse. Federal constitutional privacy interests in both paternity opportunity and childrearing compel a certain level of genetic father participation. However, excessive levels of participation undermine the goals of swift, final, and inexpensive adoptions, as well as deny some maternal preferences. The difficulties in balancing genetic father participation with competing interests are well illustrated by recent developments in Florida. There, the so-called "Scarlet Letter" law of 2001 (effectively branding women as promiscuous and unfit parents for little reason) was rather quickly replaced by a "Putative Father Registry" law in 2003. Unfortunately, neither law strikes a proper balance. Scarlet Letter laws are unwarranted (as well as unconstitutional), while putative father registries confer inadequate participation rights for unwed fathers. The most appropriate course of action would be for Florida, and other states, to incorporate a good-faith cooperation responsibility for most genetic mothers during newborn adoptions, under which mothers would have greater duties in naming or helping to name the genetic fathers of newborns who are placed for adoption.
Family Law, Adoption, Genetic Fathers, Adoption Notice
Abstract: Settlements of federal civil actions may, but need not, be subject to later judicial enforcement. As recognized by the U.S. Supreme Court in Kokkonen v. Guardian Life Insurance Co., one significant limitation on enforcement proceedings is subject matter jurisdiciton because federal district courts are "courts of limited jurisdiction." Under Kokkonen, enforcement jurisdiction may be "independent," but usually is "ancillary" because state law claims typically are involved where there is no diversity of citizenship. Ancillary enforcement powers may be exercised by district courts either where claims were initially presented for adjudication and disputes arising from later settlements are "factually interdependent," or where recognition of enforcement authority enables courts "to function successfully," as when courts need to insure that their orders are not "flouted or imperiled." Typically, enforcement authority is exercised so that the courts function successfully. Difficulties have surfaced regarding this ancillary settlement enforcement jurisdiction. They include how to incorporate settlement terms into court orders and how otherwise to retain jurisdiction, whether settlement disputes may prompt the reopening of judgments, and what contract laws and what procedures should apply when federal case settlements are enforced. There are additional troubles which have yet to surface significantly, including whether there is judicial discretion to refuse requests that future enforcement jurisdiction be retained and whether certain settlement disputes can prompt discretionary refusals of available enforcement jurisdiction. We believe new written federal laws are needed now to address many of these difficulties. Relevant lawmakers include both the U.S. Supreme Court, as promulgator of the Federal Rules of Civil Procedure, and the Congress. We suggest amendments to the Federal Rules of Civil Procedure on judgment entry, on judgments involving money and on permanent injunctions, as well as to the supplemental jurisdiction statute.
Settlements, Trial Judges, Pre-trial Conference, Case Management
Abstract: In 2009 in Grafner v. Department of Employment Security, an Illinois appellate court considered whether a nonlawyer hired from an employer services company could represent a former employer in an administrative proceeding before the Department of Employment Security in a case involving disputed employment compensation benefits allegedly owed a former employee. Relying, in part, on a Pennsylvania precedent, the majority found the nonlawyer could serve “as an adjunct,” especially where nothing was “intended to be intensely litigated”; minimal dollar amounts were at stake; “informal, speedy and low cost” proceedings were desired; there was a “long history of participation” by nonlawyer representatives; the proceedings were “largely routine” as there were no “complex and intricate legal problems;” and a relevant statute stated an individual or entity may be represented by a union or a duly authorized agent. A concurrer noted “the appropriate remedy” lies with the General Assembly or Supreme Court. Important questions remain after Grafner involving what Professor Stephen Gillers calls “fear of the other.” First, who should write any new laws on nonlawyer representation: the legislature, the high court, or the agency? In many states, including Illinois, (exclusive or primary) regulatory authority over the practice of law is vested in the high court. As well, should any nonlawyer representation standards vary between administrative agencies? For example, only some agencies have a “long history” of nonlawyer representation, while other agencies (like human rights commissions) routinely hear “complex and intricate legal problems.” Finally, to what extent should opportunities for nonlawyer representation differ before adjudications commence? If insurance adjusters regularly settle prelawsuit claims, other nonlawyers in similar settings may be equally qualified, though they could still be held to lawyer conduct standards as were certain adjusters in Jones v. Allstate Insurance, 45 P.3d 1068 (Wash. 2002).
Abstract: Most American state constitutions contain equal protection clauses. The words in these clauses often follow the words in the equal protection clause of the federal constitution. Not surprisingly perhaps, many state courts read their own clauses as providing no greater equalities than are afforded federally, following "in lockstep". But some American state constitutions have special equality provisions having no federal counterparts. Such clauses not only facilitate, but seemingly require, greater independent state constitutionalism. For example, in Illinois there are three special equality provisions beyond the general equal protection clause. They deal with employment, housing, local government and school districts. Of course, special provisions can extend, but never diminish, federal constitutional, statutory and regulatory equalities. In Illinois and elsewhere in the United States, constitutional equalities are promoted by provisions guaranteeing the equal protection of the laws and insuring freedom from discrimination. These two types of provisions typically are read as seeking comparable forms of equality and anticipating similar types of remedies. State Human Rights Commissions and their equivalents have been broadly delegated powers in many states regarding both equal protection and nondiscrimination. Nevertheless, there are sometimes reasons to treat differently equality and nondiscrimination provisions. Equality duties are often limited to governmental acts, as in the federal constitution, while nondiscrimination responsibilities are extended at times to private acts. As well, even where laws treat people and entities equally, discrimination may continue or arise. Antidiscrimination provisions can be read to impose upon government some affirmative duties to end discrimination not caused by government. This paper was first presented on January 16, 2009 at a symposium sponsored by the Charleston Law School and the Riley Institute at Furman that was entitled, "State Constitutional Reform in the New South." The paper explores the extent to which American states in the New South should promote greater constitutional equalities and nondiscrimination than are afforded federally. It begins by examining the benefits of special equality and nondiscrimination guarantees. It then examines American state experiences inside and outside the New South. Finally, it explores arenas where new explicit guarantees seem warranted, finding one special Illinois equality provision particularly inviting.
equality, constitutional law, employment, discrimination
Abstract: Ancillary federal district court powers embody more than adjudicatory authority over "factually interdependent" civil claims initially presented within cases or controversies. Ancillary powers are used to facilitate civil case settlement agreements encompassing claims never presented for adjudication, as well as to adjudicate some disputes over settlement agreements long after final judgments. While certain ancillary powers are now recognized in the "supplemental jurisdiction" statute, 28 U.S.C. ý 1367, the range of the statute is quite limited. It chiefly codifies earlier precedents on pendent and ancillary jurisdiction that primarily address initial ancillary adjudicatory authority over state law civil claims without independent jurisdictional bases that arise from the same "common nucleus of operative facts" as the civil claims having independent subject matter jurisdictional bases. Section 1367 should provide clarity for all federal court ancillary powers, eliminating much uncertainty and confusion. Section 1367 should be amended to encompass more fully ancillary adjudicatory and nonadjudicatory federal court authority. This task is facilitated by the 1994 decision in Kokkonen v. Guardian Life Insurance Company of America. A reformulated statute should speak for the first time to the ancillary nonadjudicatory powers necessary for courts to function successfully, including management, vindication, and certain enforcement powers. And, it should better recognize the differences between initial and later ancillary adjudicatory powers over nonfederal civil claims that are factually related to federal civil claims. In the absence of Congressional action, judicial decisions should better recognize and differentiate the varying forms of ancillary federal district court powers.
Federal Courts, Jurisdiction, Ancillary Authority, Supplemental Jurisdiction
Abstract: A majority in Berry v. American Standard Inc., 888 N.E.2d 740 (Ill. App. 5th 2008) found that while a trial court judgment for the defendants was "correct under law", "the justice system" failed the claimant. The injustice in the affirmation of the circuit court ruling arose because the claimant died before his evidence deposition could be taken, his discovery deposition was inadmissible, and there was insufficient other evidence on liability even though defendants seemingly "were in control of the discovery deposition" and had taxed the claimant, a terminally ill man, in ways that made "it impossible for him to give an evidence deposition." The injustice to future claimants can and should be avoided by modifications to Illinois deposition practices. Modifications should not involve many more prelawsuit depositions of claimants. Rather, Illinois civil procedure rules on using depositions at trial should be liberally construed "to the end that controversies may be speedily and finally determined according to the substantive rights of the parties." Thus, defendants who drag on civil actions and tax gravely ill claimants, making their evidence depositions impossible due to death, should have to confront the discovery depositions of those claimants. An evidence bar to such discovery depositions is often both incorrect under law, given Illinois Supreme Court Rules 2 (on interpreting court rules) and 212 (on using depositions), as well as a failure of justice.
depositions, evidence, civil procedure
Abstract: Recently there have emerged new special pleading standards applicable to discrete substantive law claims or to certain remedial requests. These norms often raise troubling procedure/substance questions in separation of powers and choice of law settings. The questions are especially difficult where the standards are hard to locate; to distinguish from nonpleading laws; and to differentiate by rationale(s).
In the separation of powers setting, these questions must be approached only after undertaking a distinct and detailed analysis of each relevant government's allocation of lawmaking duties. American governments differ significantly in these allocations.
In the choice of law setting, these questions can arise in circumstances involving Erie, reverse-Erie and choice of state law. The procedure/substance issues here must be approached only after undertaking a close look at functions, not labels; at the possibility of false conflicts; and without a parochial view as to the possible location or designation of the special pleading norms of other interested governments.
Choice of Laws, Conflict of Laws, Pleading, Civil Procedure
Abstract: Civil litigation reform to reduce frivolous civil lawsuits was a hot topic in the most recent Presidential debates. It has stirred much recent interest and action in state and federal legislatures. Some new developments involve special pleading norms. Lawmakers will likely debate and implement new special pleading requirements in coming years, often involving certificates of merit. Such certificates are now required for most or some professional malpractice claims in several states. Illinois adopted a certificate of merit standard for product liability actions, while certificates of merit for certain childhood sexual abuse claims are necessary in both California and Louisiana. As debate continues over the need for and benefits of such special pleading requirements, lawmakers should ensure that empirical evidence supports any new legislation. In implementing new certificates of merit, careful attention must be directed to constitutional issues, as well as to policy questions involving the breadth of coverage, the nature of any needed expert opinion, the opportunity for prefiling discovery, and the possible sanctions upon noncompliance. Upon reviewing various approaches to the use of special certificates of merit to reduce frivolous lawsuits, certain provisions for any future legislation are recommended to address the problems raised by current statutes. To address ambiguities in the breadth of coverage, certificate of merit requirements should be limited to claims where expert testimony is necessary to establish a prima facie case. Expert opinions should be required only after the initial pleadings have been completed, after there has been some opportunity for discovery, and only when the court deems them necessary. Expert opinions filed only for the purpose of certifying the merits of the civil action should not normally be admissible unless the experts are expected to testify at trial. Most would agree with President Clinton who said in the 1996 Presidential debates that frivolous civil lawsuits should be reduced as long as deserving claimants are also not denied recovery. Easier said than done.
Civil Procedure, Pleading, Choice of Law, Experts
Abstract: A natural father is usually afforded under American law the unique "opportunity... to develop a relationship with his offspring" born to an unwed mother as a result of consensual sexual intercourse. This paternity opportunity interest often merits federal constitutional due process protection. Its enforcement, however, is often impaired by unfair state paternity designation procedures, especially in birth certificate settings. Inadequate procedures cause systematic losses of parental rights for "many responsible" natural fathers. Under Section 5 of the Fourteenth Amendment, Congress can act to enforce better male parental rights. It should now unify certain birth certificate practices for all children born in the United States to unwed mothers. In particular, Congress should improve the procedures for locating and educating natural fathers eligible for parental rights. It can do so by amending the federal Social Security Act provisions, added in 1996, on voluntary acknowledgments of paternity (or parentage).
paternity, family law, births, birth certificate
Abstract: In newborn adoptions in the United States, the participation rights of too many unwed, fit biological fathers are unfairly considered. Some fathers have little or uncertain information about their children prior to or at birth through no fault of their own, yet are denied participation rights. Other fathers have little guidance on the steps necessary under law to prompt an opportunity to participate. Governments do little truly to inform and guide, though the parental opportunity interest involves "one of mankind's most important rights," often accorded federal constitutional protection. As a matter of public policy, American state governments should treat unwed biological fathers more fairly by reforming their laws on participation rights in newborn adoptions.
Family Law, Adoption, Paternity, Genetic Ties
Abstract: The Illinois laws guiding lawyer civil claim settlement authority are not well settled and should be reexamined to provide lawyers with clear standards when they agree to a settlement on behalf of their clients. A comprehensive rule making initiative pursued by the Illinois Supreme Court is the best vehicle to settle the principles of lawyer conduct. In undertaking such an initiative, the Illinois Supreme Court should clarify issues of actual authority, apparent authority, burdens of proof, and open court presumptions. Furthermore, the Illinois Supreme Court should address other laws directly impacting upon, but unrelated to, lawyer settlement authority, including laws regarding choice of law, separation of powers, required writings, compelled attendance and judicial enforcement issues. The principles governing civil claim settlements will become clear and settled only after such a comprehensive revision is complete.
Civil Procedure, Professional Responsibility, Lawyer Conduct, Settlement
Abstract: While often presumed or declared to be quite settled, many of the guidelines on lawyer civil claim settlement authority are unsettled, leaving unresolved questions for lawyers, clients, and the courts. The upcoming publication and general circulation by the ALI of The Law Governing Lawyers will help, as may any attention directed toward settlements by the ABA Ethics 2000 Commission, now at work considering possible alterations of the Model Rules of Professional Conduct. Recent experience suggests that state and federal court rulings are not likely to settle much of the present uncertainty.
Our review of the prevailing lawyer civil settlement guidelines suggests the need for certain new initiatives. First, the guidelines should predominantly originate in state supreme courts. At the very least, their general parameters should usually appear in written rules on the professional conduct of lawyers. For now, federal courts should defer to these state rules unless there are very significant federal interests.
Second, as a starting point, state courts should carefully consider the ALI pronouncements in The Law Governing Lawyers. Lawyers generally are not like other agents nor are lawyer retainer and subsequent legal service agreements generally like other contracts. Unlike most other agents, the conduct of lawyers with third persons on behalf of clients is governed not only by the directives of clients, but also by mandatory professional conduct standards. Furthermore, unlike most other contracts, lawyer-client legal service agreements are constrained by public policies found in these same standards, including obligations on information disclosure (from lawyer to client) and on confidentiality (by the lawyer). Thus, lawyers should keep clients informed of settlement talks even if the relevant legal services agreement does not expressly indicate such an obligation. Moreover, lawyers should not reveal the nature of their delegated authority to the adversaries of their clients even when these adversaries have good reason to know.
In employing the ALI pronouncements, sensitivity to terminology will be necessary. Distinctions between delegated and undelegated authority, as well as between the varying forms of both delegated and undelegated authority should be set forth. These distinctions need not appear in written laws, but rather may be recognized in accompanying commentaries (which hopefully will dispel any notions that clients always make the civil claim settlement "decisions").
Third, in civil claim settlement settings involving the interests of two or more American governments, issues of lawyer civil claim settlement authority should normally be resolved with the lawyer professional conduct laws of the state where the relevant civil claim is pending. Otherwise, the choice of law standards in Model Rule 8.5(b) should resolve this issue.
Fourth, when the general written rule (or code) provisions on lawyer conduct are supplemented (and, at times, overridden), the general laws should cross-reference, to the extent feasible, the special laws so there can be appropriate integration of all applicable standards.
Professional Responsibility, Civil Procedure, Settlement, Lawyer Ethics
Abstract: Written civil procedure laws on pretrial conferences in civil actions in Illinois trial courts historically have spoken chiefly to trial preparation. More recently, such laws have recognized explicitly case management and settlement objectives. Trial preparation and case management conference procedures are described better in Illinois Supreme Court Rules and understood better in the legal community. Comparable guidelines and understanding of settlement conference procedures are lacking. Confusion has arisen in several areas of significant practical import, including judicially compelled and invited participation in settlement conference talks, procedural requisites for enforceable agreements arising during such talks, and same and later case enforcement jurisdiction. Amendments to Illinois Supreme Court rule 218 addressing settlement conferencing and its aftermath would promote the more "convenient administration of justice" in the Illinois circuit courts. In particular, lawmakers should consider possible changes that speak to compelled and invited attendance, the procedural requisites necessary for valid contracts, and same and later case enforcement of settlement contracts. Fortunately, there are good models available from other American states. Amendments to Rule 218 should not alter dramatically current Illinois court practices, but rather would clarify and unify settlement conference procedures.
Civil Procedure, Settlement, Trial Judges, Case Management, Pre-trial Conference
Abstract: Generally, Illinois courts cannot decide moot questions, that is, questions whose answers will not alter case outcomes. Occasionally, however, exceptions are made that allow moot questions to be determined. Five mootness exceptions for civil appellate cases were explored in In re Alfred H.H., 233 Ill.2d 345 (2009), where the court decided that evaluations of the established exceptions usually “must be conducted on a case-by-case basis.” Per se exceptions are now disfavored. Exceptions are more likely employed where appeals involve decisions on legal issues creating uncertainties, requiring more authoritative bases, or continuing to cause harm.
appeals, justiciability, civil procedure, judicial review, mootness
Abstract: Effective December 1, 2006, the Federal Rules of Civil Procedure address formal discovery of "electronically stored information" (esi), a term replacing, at times, the phrase "data compilations." The new federal rules emerged as esi has important differences from information recorded on paper and as these differences were causing problems that could be diminished with new written guidelines. While no comparable Illinois rules have yet emerged, when they do they should not simply follow the F.R.C.P. New Illinois laws must take account of the differences between federal and state civil litigation practices in such areas as information preservation, attorney-client privilege, work product, and the allocation of civil procedure lawmaking authority. Until they are formulated, Illinois circuit judges should seek, when possible, to employ case management conference orders, founded on party agreements under Illinois Supreme Court Rule 218, to handle esi discovery.
civil procedure, e-discovery, Illinois courts, esi
Abstract: A voluntary dismissal by a plaintiff of a claim in a pending civil action can often lead to a refiling of the very same claim by the same plaintiff in a second case long after the running of the statute of limitations on the claim. The limitations period is avoided because a procedural law permits such a refiling within a certain period of time after the voluntary dismissal. Such a late filing can harm a defendant who was unaware of the first civil action. Thus, such a refiling should only be permitted when the defendant had notice of the first case. Unfortunately, in Case v. Galesburg Cottage Hospital, in December, 2007 the Illinois Supreme Court permitted such a late filing as long as there was no lack of diligent service of process in the first action and there was diligent service of process in the second action. The court should have considered the lack of notice to the defendant of the first action and any harm this caused that defendant in responding in the second action. It should have focused on notice, not service.
Civil Procedure, Voluntary Dismissal, Refiled Claims, Limitations, Service of Process, Notice
Abstract: In Medical Alliances, LLC v. Health Care Service Corp., 863 N.E.2d 1169 (Ill. App. 2d 2007), the court ruled that a law firm could not be sanctioned under Illinois Supreme Court Rule 137 for the filing of a frivolous pleading by a law firm member. The split among Illinois appellate courts on the issue continues. Unlike Rule 137, law firms can definitely be sanctioned under Federal Civil Procedure Rule11. Illinois judicial rulemakers should now allow law firm sanctions thorugh amendments to Rule 137, itself added and modeled in 1989 on the 1983 amendments to Rule 11. In the absence of Rule 187 authority, inherent sanctioning power is available against law firms for pleading and other civil litigation misconduct in the Illinois circuit courts.
Rule 11, Rule 137, law firm sanctions, civil procedure, frivolous pleading
Abstract: In the case involving the parentage of Dannielynn, born to Anna Nicole Smith in the Bahamas not long before Anna's passing, the public was wrong to assume that legal paternity for custody purposes would necessarily be determined by genetic ties; that there could be, at least at the outset, only one legal father; and, that legal paternity determinations in probate and custody proceedings would be the same. Employing Illinois law based on Dannielynn's assumed birth in Illinois, the confusion over American paternity laws is demonstrated.
Had Dannielynn been born in Illinois rather than in the Bahamas, inquiries into initial legal paternity and its later possible override seemingly would have yielded different results depending on the paternity establishment mechanism employed (birth certificate, marital presumption, lawsuit); the purpose for establishing paternity; and, whether the initially-designated legal father wished to continue to parent. Neither DNA nor birth into a married family would always be dispositive. The differing possible results suggest the need for paternity procedure reforms in Illinois and elsewhere.
paternity, birth, marital presumption, family law
Abstract: In Vision Point of Sale, Inc. v. Haas, 875 N.E.2d 1065 (Ill. 2007), the Illinois Supreme Court answered in the negative the following certified question: "In determining whether 'good cause' exists under Supreme Court Rule 183 for the grant of an extension of time to remedy an unintentional noncompliance with a procedural requirement, may the court take into consideration facts and circumstances of record that go beyond the reason for noncompliance?" The question arose in a case involving noncompliance with a deadline for responses to requests to admit. In answering no, while the court suggested that good cause for noncompliance may encompass some, but not all, attorney acts of mistake, inadvertence or neglect, unfortunately it was otherwise murky on what attorney conduct satisfies good cause. It said such a "determination is fact-dependent" and "rests within the sound discretion" of the trial court.
The following guidelines are suggested for such "good cause" inquiries: (1) favor extensions requested before, not after, the relevant time period has expired; (2) avoid punishing clients for attorney mistakes; (3) do not employ local rules that impose significant burdens on the parties and go beyond statewide norms.
civil procedure, Rule 183, attorney mistakes, vision point
Abstract: The 2008 Allerton Conference of the Illinois State Bar Association was devoted to possible new civility/professionalism initiatives for civil litigation. In this paper the conference reporter summarizes the discussions and recommendations. Conference panelists addressed such topics as whether recent changes in legal practice have prompted greater incivility; who should promulgate any new initiatives; how to handle lawyers who act unprofessionally beyond disciplinary, sanction and malpractice proceedings; free speech rights and other constraints on new civility initiatives; and, expanded civility training for law students and new lawyers. At the close of the panels attendees were questioned about possible new civility initiatives. Most attendees opined that no single entity (i.e., Supreme Court, Commission on Professionalism, local courts, state or local bar associations) should maintain exclusive, or even primary, responsibility. They supported additional statewide training for law students as well as new and experienced lawyers. There was strong support for expanding both law student certification standards and the mandated skills courses for all new lawyers in order to promote professional conduct. Finally, there was strong support for continuing with civility pledge opportunities as well as for establishing new intermediary programs for lawyers and judges who acted unprofessionally.
Professionalism, Civil Litigation, Civility, Litigation Misconduct
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