Law Commons^™

Comment: The Unjust Side Of Civil Asset Forfeiture In Illinois: Innocent Victims And Corrupted Incentives, Sarah Farwick

Northern Illinois University Law Review

Under the broad scope of modern civil asset forfeiture, law enforcement agencies routinely deprive citizens of their property without ever formally charging them with a crime. This system diminishes the ideal values of American justice, yet the Supreme Court has long held that civil asset forfeiture is constitutional, leaving prospects of judicial reform unlikely. Therefore, it is crucial that individual states take action to protect their citizens by abolishing the use of civil asset forfeiture. In 2017, the Illinois General Assembly attempted to reform its civil asset forfeiture system, but upon close analysis and application of the statute, it is …

A New Approach To Felony Murder In Illinois, Jason M. Cieslik

Northern Illinois University Law Review

In August of 2019, six teenagers drove to a rural area of Lake County, Illinois, in a stolen vehicle with the intention of burglarizing vehicles. Startled, the homeowner retrieved his gun, went out on the porch, and observed one of the teens approaching him, with what the homeowner determined to be a weapon. The homeowner fired his gun and killed one of the teens. The remaining five teens were charged with felony murder. At the time of this incident, Illinois applied the “proximate-cause theory” to felony murder. In response, the General Assembly amended the felony-murder rule with the intent to …

Real Harm In A Virtual World: Establishing Federal Standing In The Seventh Circuit Under Illinois’S Biometric Information Privacy Act, Julia Lobo

Northern Illinois University Law Review

Illinois became the first state to regulate the collection and use of biometric information by private entities when it enacted the Biometric Information Privacy Act in 2008. In the years since, more and more businesses have begun to collect biometric information from their employees and customers. As lawmakers in other states and in Congress look to enact legislation to protect biometric privacy rights, their drafting choices may be informed by three recent Seventh Circuit decisions analyzing when a plaintiff alleging a violation of the Biometric Information Privacy Act has, or has not, established Article III standing as required to proceed …

Illinois Childcare Parentage Law (R)Evolution, Jeffrey A. Parness

College of Law Faculty Publications

State childcare parentage laws, that is, laws designating parents for custody, visitation, parental responsibility allocation, parental decisionmaking and/or support purposes, have evolved dramatically in the past half century. The (r)evolution is due to major changes in both reproductive technologies and human conduct. Yet the (r)evolution is incomplete.

The (r)evolution is especially incomplete in Illinois. Recent statutory amendments in Illinois chiefly reflect the work of the National Conference of Commissioners on Uniform State Laws in its 2000 model Uniform Parentage Act, not its 2017 Uniform Parentage Act. The latter better addresses the effects on childcare parentage of the changes in …

State Prisons Turning Into De Facto Mental Health Institutes: A Comparative Look At The Illinois And Nebraska State Prison Systems, Margaret Kramer

Northern Illinois Law Review Supplement

This Comment discusses the systems of approaching mental health in Nebraska and Illinois state prison systems. Starting with how prison systems became some of the largest de facto mental health institutes in the country after deinstitutionalization happened on a national scale. It will then provide the guidelines and regulations in place for both Nebraska and Illinois. This Comment will then discuss what regulations would be most beneficial and how some of these can help in continuing after an individual is released from prison.

Illinois Supreme Court Rule 352(A): An Attempted Revival Of The Appellate Oral Argument, Laura Peters

Northern Illinois University Law Review

Though long considered a bedrock of the American legal system, oral argument has steadily lost popularity in appellate courts across the country. Due in large part to ever-increasing caseloads and limited judicial resources, most jurisdictions now favor the expediency of written briefs over oral argument to decide appeals. While written briefs have their place, oral argument offers an inimitable opportunity for lawyers and judges to directly converse. As such, the practice of oral argument at the appellate level should be preserved. The Illinois Supreme Court took a step towards revitalizing appellate oral argument with its revised Rule 352(a). However, the …

Moving Forward From The Scoop Era: Providing Active Efforts Under The Indian Child Welfare Act In Illinois, Cassandra Crandall

Northern Illinois University Law Review

This Comment argues that Illinois should adopt the view that active efforts are a higher standard than reasonable efforts and implement procedures encouraging state agencies and courts to implement these requirements. Following the Supreme Court's rationale in Mississippi Choctaw Band of Indians v. Holyfield, one of the only Supreme Court cases addressing the ICWA, this Comment argues that a uniform definition and application of "active efforts" should exist in every jurisdiction. Furthermore, this Comment emphasizes that "active efforts" require more than "reasonable efforts," and that these standards are different. Part I of this Comment reviews the history of the ICWA. …

Confidentiality And Client Communications In Illinois, Jeffrey A. Parness

College of Law Faculty Publications

Some 30 years ago, the Illinois Supreme Court, in In re Himmel, recognized that no discovery/evidentiary privilege would attach to nonconfidential attorney-client communications. Some communications would be nonconfidential if made in the presence of those who were not "agents" of either the attorney or client. As to the client in Himmel, neither the client's mother nor her fiancé were deemed the client's agents so that there was no privilege. But in so ruling, the court failed to clearly describe in detail the substantive circumstances of client agency or the procedures necessary for establishing such agency. And since then, …

Of Dangers, Conditions, Children, And Maturity: A Plea For A Comprehensible Standard In Long-Standing Rules, Maureen Straub Kordesh

Northern Illinois University Law Review

This Article explores the common law doctrine of attractive nuisance in Illinois and proposes a more detailed explication of the rule. The doctrine lies in the junction between tort and contract, which might account for the incompleteness of its presentation. It argues that because law students are a significant audience for case law, the language of such rules should be as detailed and clear as possible.

Grandparent Childcare In Illinois, Jeffrey A. Parness, Deven Tlanda

College of Law Faculty Publications

In 2002 in Wickham v. Byrne, the Illinois Supreme Court recognized that in "most cases, the relationship between a child and . . . grandparents is a nurturing, loving relationship that provides a vital connection to the family's history and roots." Yet, it also said that given the "fit parent's constitutionally protected liberty interest to direct the care, custody, and control of his or her children . . . parents - not judges -should . . . decide . . . with whom their children will associate." Thus, the "human conflict" between parents and grandparents was found to have "no …

Contextual Parentage, Jeffrey A. Parness

College of Law Faculty Publications

A parentage determination can be used in a dispute over child custody/visitation/parental responsibility allocation opportunities, over child support duties, over heirship in probate, or over standing to pursue tort remedies.

Presuit Discovery And Evidence Preservation In Illinois Circuit Courts, Jeffrey A. Parness, Jessica Theodoratos

College of Law Faculty Publications

Once a civil action has been commenced in an Illinois Circuit Court, lawyers and their clients who are parties must preserve evidence relevant to the pending claims. Under Professional Conduct Rule (RPC) 8.4(d), lawyers may not "engage in conduct that is prejudicial to the administration of justice." Under RPC 8.4(a), a lawyer must not assist or induce others to engage in such conduct. Further, RPC 3.4(a) demands that a lawyer not act in ways that "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value."

Division In The Illinois Appellate Court: What Is The Appropriate Standard Of Review For Alleged Prosecutorial Misconduct During Closing Argument?, Ryan T. Harding

Northern Illinois University Law Review

The Illinois Appellate Court is divided on whether to apply de novo review or an abuse of discretion standard when evaluating alleged prosecutorial misconduct during closing argument. This article concludes that de novo review is the proper standard of review under current Illinois law. However, as a matter of policy, this article recommends that (1) abuse of discretion review should normally apply to the trial court's determination that a defendant was not substantially prejudiced by the State's closing argument; (2) de novo review should apply when the trial court's determination that a defendant was not substantially prejudiced turned on a …

Persuading A State To Budge It: Benefits, Consequences, And Obstacles To State Budget Default Rules, Margaret Nunne

Northern Illinois University Law Review

The Illinois legislature's budget impasse has led to a series of measures cobbled together to keep the state operational and state employees paid. Late budgets, impasses, and failed budgets lead to government shutdowns. Government shutdowns mean government services can be put at risk, which, in turn, can harm the public. In considering the future, as politicians continue to or refuse to negotiate, default budget rules have been used to some success in other states by preventing a complete shutdown of the state in the face of an impasse. However, the use of the rule can cause different problems and may …

Vol. 8 No. 2, Spring 2017; Injuries From Foul Balls, Broken Bats, And Railing Fall-Overs: Who Is Liable?, Jennifer Beebe

Northern Illinois Law Review Supplement

Every Major League Baseball season ends with multiple injuries, if not casualties, resulting from flying baseball bats and baseballs entering the stands at unimaginable speeds, or eager spectators falling over the railings trying to catch a souvenir. The Illinois Baseball Facility Liability Act addresses who is liable when these unfortunate situations occur. However, the Act fails to give concrete safeguards that could be implemented in professional baseball stadiums to help alleviate some of the injuries that continue to occur. Additionally, the Act fails to give those unfortunate victims of these injuries or casualties a clear idea as to when they …

Vol. 8 No. 1, Fall 2016; Respite For Tantalus: Illinois’S Sexually Violent Persons Commitment Act – Due Process In (In)Action, Brian E. Wilson

Northern Illinois Law Review Supplement

Under current Illinois law, criminals who have been adjudicated guilty of committing certain types of sex offenses can, at any point during their incarceration, be involuntarily committed indefinitely. They are sent to the Treatment and Detention Facility in Rushville, Illinois, where they are to undergo treatment for various disorders, and are not released until the Department of Human Services determines they no longer present a danger of re-offending. While this is the intent of the law, in practice this secondary commitment is violating these offenders' Due Process rights. This Comment examines the Sexually Violent Persons Commitment Act in Illinois; its …

Vol. 6 No. 2, Spring 2015; Homeless Bill Of Rights: How Legislators Get To Feel Pro-Homeless Without Effort Or Money, Hailey Rehberg

Northern Illinois Law Review Supplement

In 2013, Illinois became the second state in the nation to enact a homeless bill of rights to protect homeless persons from discrimination in the right to use and move freely in public spaces in the same manner as any other person, the right to equal treatment by State and municipal agencies, the right not to register to vote and to vote, the right to have personal information protected, and the right to have a reasonable expectation of privacy in his or her personal property. Though legislation to protect the rights of homeless people is necessary, the Illinois Homeless Bill …

Vol. 3 No. 2, Spring 2012; Illinois Supreme Court: Overturn Thompson V. Gordon And Protect Design Professionals From Unbargained-For, Extra-Contractual Obligations, Daniel Nunney

Northern Illinois Law Review Supplement

This Note addresses how Illinois courts conduct contract interpretation and define the scope of contractual duties for design professionals. It discusses how the appellate court in Thompson v. Gordon improperly interpreted the contract in question, and how the court incorrectly followed applicable Illinois precedent when defining the scope of contractual duties for an engineer. It addresses the short- and long-term practical impacts of the Thompson decision, and also addresses a number of policy considerations associated with the majority's ruling. In sum, this Note advocates that it was necessary for the Illinois Supreme Court to overturn the Thompson decision.

Drivers License Suspension For Offenses Not Involving A Motor Vehicle In Illinois: An Irrational Application Of The Rational Basis Test, Colby Hathaway

Northern Illinois University Law Review

The focus of this Comment is to look at how the court system in Illinois has treated substantive due process challenges to state statutes that require revocation or suspension of a driver's license when no motor vehicle was involved in the offense. The Supreme Court of Illinois has heard several cases on this issue, and the results have been inconsistent. The Court first held that license revocation for those charged with delivery of a controlled substance was unconstitutional, and then later held that license suspension for consumption of alcohol by a minor was constitutional. This inconsistency has also given rise …

Extracting Lessons From Illinois' 2010 Special Election Fiasco: A Closer Look At The Seventh Circuit's Decision In Judge V. Quinn And The Special Election Requirement Of The Seventeenth Amendment, Furqan Mohammed

Northern Illinois University Law Review

This Note discusses the recent Seventh Circuit decision in Judge v. Quinn, in which the Seventh Circuit unanimously set aside Illinois' Election Code under the Seventeenth Amendment because of the manner in which they filled vacant seats for U.S. Senator. This issue arose when then-Senator Barack Obama resigned from the Senate in November, 2008, to become President. When he resigned, Roland Burris was appointed to fill the seat. Illinois was not planning to hold a special election to fill Obama's seat because under Illinois Election Code, a special election to fill a vacant senate seat could only occur with the …

Vol. 2 No. 1, Spring 2011; The Times They Are A Changin': Enactment Of Historic Civil Union Act Is The Right Step For Illinois, Shannon R. Barnaby

Northern Illinois Law Review Supplement

This Comment analyzes the recent passage of Senate Bill 1716, the Illinois Religious Freedom Protection and Civil Union Act, which extends the “same [state] legal obligations, responsibilities, protections, and benefits” to same- sex couples as are available to heterosexual couples. This Comment begins by discussing the background of legal recognition for same-sex unions. Next, this Comment discusses the challenges that same-sex partners and their children were confronted with due to the lack of legal recognition of their relationships and then delves into counter-arguments to such recognition. Moreover, this Comment argues that the legislature took the correct and honorable action in …

A New Leader In The World Of Legalized Gambling: What The Illinois General Assembly Should Do To Protect Pathological Gamblers From The Rapidly Expanding Industry, Matthew J. Dowd

Northern Illinois University Law Review

This Comment addresses the increasingly recognized disorder of pathological gambling and the lack of consideration it receives from the Illinois General Assembly as gambling in Illinois continues its trend of rapid decriminalization. The Comment first analyzes the well-documented individual and communal problems that are associated with pathological gambling and then examines the historical movement toward dependence on gambling revenues in Illinois. A close examination of gambling legislation in Illinois, Indiana, and New Jersey, and the interpretation of that legislation within those respective courts, reveals that pathological gamblers receive very little statutory protection from the abusive and negligent conduct of casinos. …

Voluntary Dismissals And The Evolution Of Illinois' Rule Against Claim Splitting, Robert A. Cohen

Northern Illinois University Law Review

Under Illinois' rule against claim-splitting, a plaintiff is generally prohibited from maintaining separate and subsequent lawsuits where it raises different theories or different prayers for relief which arise out of the original cause of action. Recently, the rule has been applied harshly in multiple-count actions where a plaintiff has invoked a statutory voluntary dismissal after a partial adjudication. The Illinois Supreme Court has held that such litigation conduct amounts to claims-splitting but it adopted exceptions where the rule is relaxed. Unfortunately for practitioners, it appears that the court failed to adhere to its own test. Their resulting interpretation has led …

At Issue Waiver Of The Attorney-Client Privilege In Illinois: An Exception In Need Of A Standard, Kevin Bennardo

Northern Illinois University Law Review

This essay analyzes the "at issue" exception to the attorney-client privilege and suggests the adoption of a specified standardized test for finding the exception in Illinois. In general terms, at issue waiver of the attorney-client privilege occurs when a party pleads a claim or defense that places at issue the subject matter of privileged material over which she has control. Throughout the years, United States jurisdictions have employed four approaches for testing the application of the at issue exception, although recently the focus has been on two primary tests (the Hearn test and the anticipatory waiver test). Illinois courts have …

Getting Ready To Settle: The Exclusion Of Settled Defendants And Ready V. United/Goedecke Services, Inc.'S Impact Upon Statutory Interpretation In Illinois, Jason Meares

Northern Illinois University Law Review

In Ready v. United/Goedecke Services, Inc., the Illinois Supreme Court held that settled defendants are not to be considered when apportioning liability between parties to a suit. In so holding, the court manipulated several tenets of statutory construction in novel ways. This Note analyzes the court's reasoning, the practical implications of the decision for plaintiffs and defendants, as well as the uncertain future of statutory interpretation in Illinois courts.

Out-Of-State Wine Retailers Corked: How The Illinois General Assembly Limits Direct Wine Shipments From Out-Of-State Retailers To Illinois Oenophiles And Why The Commerce Clause Will Not Protect Them, Christopher G. Sparks

Northern Illinois University Law Review

481 In 2005, the U.S. Supreme Court in Granholm v. Heald reexamined the interplay between the dormant Commerce Clause and the Twenty-first Amendment to the U.S. Constitution. Granholm caused many states, including Illinois, to reexamine their regulation of liquor distribution and the shipment of wine into their jurisdictions. Based on Granholm, Illinois created a new winery shipper's license to enable out-of-state wineries could ship to Illinois consumers; however, in its creation, Illinois removed the longstanding ability of out-of-state wine retailers to ship to Illinois consumers. This Comment examines the implications of the dormant Commerce Clause on Illinois' new license in …

Protective Privilege Versus Public Peril: How Illinois Has Failed To Balance Patient Confidentiality With The Mental Health Professional's Duty To Protect The Public, Mary I. Wood

Northern Illinois University Law Review

Mental health professionals face conflicting duties when their patients make threats of violence toward readily identifiable third parties: the duty to protect intended victims and the duty to maintain the confidentiality of patients. The seminal 1976 case, Tarasoff v. Regents of University of California, underscored the tension between these duties--unnecessary breaches of confidentiality may erode the therapeutic doctor/patient relationship and lead to liability for the doctor, but lack of action may cause devastating consequences for the victim. In the wake of the Tarasoff decision, most states enacted statutes codifying a mental health professional's duty to protect third parties from potentially …

Mental Health And The Law: Where Necessity Is The Mother Of Invention (Patent Pending), William W. Wood

Northern Illinois University Law Review

Mental health professionals, most notably the psychiatrists and other clinicians who work in the State of Illinois Operated Inpatient Psychiatric Treatment Facilities, are often frustrated by an inability to treat individuals who have been admitted to the state hospital. Recent changes to the Illinois Mental Health Code have made admission, but not treatment, easier for persons who have a severe mental illness. As treatment innovations develop, the interface of the legal system with the mental health system becomes increasingly important in balancing the often seemingly disparate and opposing goals of both treating persons with mental illnesses and ensuring that their …

The Federalization Of Punitive Damages And The Effect On Illinois Law, Frank A. Perrecone, Lisa R. Fabiano

Northern Illinois University Law Review

Punitive damages have traditionally been a matter of state law, left to state courts and legislatures to review and regulate. But in the midst of the tort reform movement of the 1990s, the United States Supreme Court took sides in the policy debate, fashioning a novel substantive due process right limiting punitive damage awards and suppressing the power of juries to punish and deter egregious conduct. This article traces the evolution of the federalization of punitive damages based on questionable authority, criticizes the Supreme Court's intrusion into an area of state law, demonstrates how Supreme Court precedent has been misapplied …

Effective Implementation Of The Trafficking Of Persons And Involuntary Servitude Articles: Lessons From The Criminal Justice System Response To The Illinois Domestic Violence Act, Alison L. Stankus, Jennifer A. Kuhn

Northern Illinois University Law Review

When the Illinois Domestic Violence Act was enacted in 1986, the General Assembly acknowledged that "the legal system has ineffectively dealt with family violence in the past . . . and has not adequately acknowledged the criminal nature of domestic violence; that, although many laws have changed, in practice there is still widespread failure to appropriately protect and assist victims." However, despite these stated purposes, the criminal justice system response to the Act in the last twenty years has been slow to correct this failure. In 2006, the Trafficking of Persons and Involuntary Servitude Articles were added to the Illinois …