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Seventh Circuit Review

Volume 10, Issue 1 (Fall 2014)

Introduction (contains Table of Contents, Masthead, About the Seventh Circuit Review, and Preface)

Bankruptcy Law

Seventh Circuit Holds That Bankruptcy Trustee's "Strong-Arm" Powers Are Not Strong Enough for the IRS
Paul T. Geske
10 Seventh Circuit Rev. 1 (2014) [Full Article]  [Audio Synopsis]

Abstract: In 2014, the U.S. Court of Appeals for the Seventh Circuit confronted, for the first time, the issue of whether a bankruptcy trustee can claw back assets that a bankrupt debtor fraudulently transferred to the federal government. Generally, government entities are immune to suit due to sovereign immunity, but the Bankruptcy Code abrogates federal sovereign immunity as to a number of Code provisions. One such provision is Section 544(b), often referred to as the source of the bankruptcy trustee's "strong-arm" powers. The strong-arm powers allow trustees to avoid transfers that would be fraudulent and voidable under state law. However, these powers are subject to the limitation that there must actually be some creditor of the debtor who has standing outside of bankruptcy to invoke state law and avoid the transfer at issue. [Read more...]

Constitutional Law

Marriage Solemnization and the First Amendment's Neutrality Principle: Who May Solemnize a Marriage?
Claudia L. Cortes
9 Seventh Circuit Rev. 32 (2014) [Full Article]  [Audio Synopsis]

Abstract: The most fundamental principle of the Establishment Clause is government neutrality towards religion. Pursuant to this principle of neutrality, the government may accommodate religious beliefs, but it can neither prefer religion over non-religion nor favor certain religious beliefs. In most states, a marriage does not become legal upon the state's mere issuance of a marriage license. Instead, marriage solemnization is required to create a legally recognized marriage. Marriage solemnization refers to a ceremony or a ritual by which two individuals take on their new status as husband and wife as well as to the set of procedures that must be completed following the ceremony to finalize the marriage. A marriage may only be solemnized by a state-authorized individual. Indiana's Marriage Solemnization Statute, aside from vesting certain government officials with the power to solemnize a marriage, authorized religious clergy and certain religious denominations to solemnize a marriage during their religious ceremonies. The Solemnization Statute provided that anyone who solemnized a marriage without the authority to do so committed a Class B misdemeanor. [Read more...]

Unreasonable Religious Accommodation?: Fighting Irish Challenge the Opt-Out Form to the Affordable Care Act's "Contraceptive Mandate"
Emily A. Herbick
10 Seventh Circuit Rev. 88 (2014) [Full Article]  [Audio Synopsis]

Abstract: The Patient Protection and Affordable Care Act of 2010 (ACA) has been controversial from its inception, especially in regard to the "contraceptive mandate," which requires certain employers with group health plans to provide contraceptive coverage for their female employees without cost-sharing. In order to respect both the federal statutory right to contraceptive coverage and the religious rights of employers who provide health insurance for their employees, regulations were promulgated that provided exceptions to the contraceptive mandate. For example, religious employers who incorporate as non-profits are exempt from providing contraceptive coverage to their employees under the ACA. To receive this accommodation, a religious non-profit must simply fill out a two-page self-certification form stating its religious exemption and send it to its health insurers or third-party administrators for its health insurance plan. The health insurer or third-party administrator would then have to foot the bill and provide contraceptive coverage for the religious non-profit's female employees. [Read more...]

Criminal Procedure

Plead Guilty, You Could Face Deportation: Seventh Circuit Rules Misadvice and Nonadvice to Non-Citizens Has Same Effect Under the Sixth Amendment
Dana Cronkite
10 Seventh Circuit Rev. 145 (2014) [Full Article]  [Audio Synopsis]

Abstract: The Sixth Amendment right to assistance of counsel has evolved since its inception. Originally, the right only meant that criminal defendants in federal cases were entitled to assistance of counsel of their choosing. The right was eventually applied to state criminal proceedings, and later interpreted to mean that criminal defendants had a right to effective assistance of counsel. This right is imperative in protecting a defendant's fundamental right to a fair trial. In 1984, the Supreme Court laid out a two-part test to determine whether a defendant's Sixth Amendment rights were violated by ineffective assistance of counsel. This test, known as the Strickland test, was used exclusively to analyze ineffective assistance of counsel claims until 2010. Under the Strickland test, a defendant must show: (1) ineffective counsel whose conduct fell below an objective standard of reasonableness and (2) that counsel's deficient performance resulted in prejudice to the defense. [Read more...]

Katz and Dogs: The Best Path Forward in Applying United States v. Davis' Good Faith Exception to the Exclusionary Rule and How the Seventh Circuit Has Gone Astray
Arlo Walsman
10 Seventh Circuit Rev. 170 (2014) [Full Article]  [Audio Synopsis]

Abstract: Sometimes, law enforcement officers violate the Fourth Amendment and in the process find and seize evidence they wish to use in a subsequent criminal prosecution. In these circumstances, a question that has long troubled courts, and a question that is becoming more and more difficult to answer, is whether such evidence should be admissible at trial. [Read more...]

Intellectual Property Law

KA BOW! Seventh Circuit Knocks Down Trademark Claim
Sarah B. Virani
10 Seventh Circuit Rev. 229 (2014) [Full Article]  [Audio Synopsis]

Abstract: Integral to the success of a business is its ability to protect its trademark. When another individual or business infringes upon a business's trademark, the infringed user can bring a claim under the Lanham Act, which codifies federal trademark law, in part to protect consumers from confusion as to the source of a product or service. An essential question is whether a trademark holder may, under the Lanham Act, bring a successful claim for trademark infringement against another for a fictional product. [Read more...]

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