What's Law Got to Do with It? Confronting Judicial Nullification of Domestic Violence Remedies

49 Pages Posted: 6 Aug 2014

Date Written: August 5, 2013


The central focus of this article is to empirically examine how well a specialized domestic violence courthouse in Cook County, Illinois implements a comprehensive domestic violence statute that provides a very broad range of remedies to a wide class of DV survivors seeking orders of protection. Where the courthouse falls short, this article will explore why, what can be done, and implications for other jurisdictions seeking to implement similar resources for survivors of domestic violence. The results from this empirical study are mixed. On the positive side, the data reflect that judges are properly applying many important aspects of the order of protection legislation, and granting a high percentage of emergency orders of protection. On the negative side, the data also reflect that judges fail to grant certain very important remedies provided for in the legislation, even when survivors sought the remedies and appeared to have met the statutory conditions for them. Judges also fail to specify reasons for denial of remedies as required by the legislation. This article argues that these failures are a form of “judicial nullification” and, argues that, counter-intuitively, this problem may be exacerbated by the specialized nature of this court. A second important finding from the data is that the vast majority of petitioners are pro se and that they often fail to seek some of the remedies under the protective legislation that their factual situation suggests they could benefit from. Section I of this article explains, through a review of the Illinois Domestic Violence Act (“IDVA”), what remedies are available under an order of protection and what types of abuse and relationships can trigger this protection. Section II reports on the methods and types of data collected in the empirical study and the findings. Section III discusses the remedies that the judges never or rarely grant, and explores the philosophical, practical, and psychological underpinnings for the “judicial nullification” phenomenon and how to address it. Section III also explores why pro se petitioners fail to seek remedies they could benefit from and ways to address this applying an empowerment model of assistance. Section IV considers how this study may generalize to other jurisdictions.

Keywords: Domestic Violence; Judicial Nullification; Empirical Study; Orders of Protection

Suggested Citation

Stark, Debra Pogrund, What's Law Got to Do with It? Confronting Judicial Nullification of Domestic Violence Remedies (August 5, 2013). Northwestern Journal of Law and Social Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2476673

Debra Pogrund Stark (Contact Author)

The John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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