Seventh Circuit Review
Volume 10, Issue 1 (Fall 2014)
Introduction (contains Table of Contents, Masthead, About the Seventh Circuit Review, and Preface)
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...]
The Seventh Circuit held that because any state law creditor would be barred by sovereign immunity from recovering assets from the IRS outside of bankruptcy court, the trustee is also barred inside bankruptcy court, in spite of the Bankruptcy Code's explicit abrogation of sovereign immunity. This counterintuitive holding parts ways with every other court to have considered this issue. The Seventh Circuit reasoned that it was simply relying on the plain meaning of the relevant Code provisions, but so did prior courts—and they nonetheless reached an opposite result. This article argues that the Seventh Circuit's plain meaning approach creates ambiguity and renders the Code partly meaningless. Why would Congress abrogate sovereign immunity as to a section of the Code, knowing that the abrogation would have no effect? The Seventh Circuit's approach also fails to give credence to Congress' intent and the purpose of the Code provisions when viewed holistically. The Seventh Circuit's decision should therefore be overruled, and not followed by other circuits.[Condense Abstract]
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...]
Leaders of Center for Inquiry, Inc. ("CFI"), a not-for-profit secular humanist group which promotes ethical living and the pursuit of fulfilling lives without reliance on religion, could not solemnize a marriage during CFI's marriage ceremonies because CFI is not a religion and its leaders are not members of the clergy. CFI thus challenged Indiana's Solemnization Statute under the Establishment Clause, arguing, inter alia, that the Statute violated the First Amendment's neutrality principle because the Statute preferred religion over parallel secular beliefs that function as a "religion" in the lives of individuals. The State of Indiana, however, maintained that the Solemnization Statute was consistent with the neutrality principle as it simply accommodated religion by conferring solemnization authority upon religious leaders, who perform marriages under the commands of their religions. CFI, being a secular, non-religious organization and having no stance on marriage, could not be said to require a religious accommodation. Further, Indiana explained that, under Supreme Court precedent, religious accommodations need not be extended to secular groups to comply with Establishment Clause.
In addressing CFI's challenge in Center for Inquiry, Inc. v. Marion Circuit Court Clerk, the Seventh Circuit correctly held that Indiana's Solemnization Statute violated the First Amendment's neutrality principle because it preferred religion over equivalent secular beliefs. This Note explains that, in concluding that CFI's beliefs were the equivalent of religion, the Seventh Circuit properly employed a broad definition of religion, which has strong roots in Supreme Court's and Seventh Circuit's jurisprudence. This Note also defends the Seventh Circuit's omission of Supreme Court precedent that arguably supports a narrower definition of religion as even a reference to such precedent would have caused confusion as to what is generally regarded as the proper test for ascertaining what qualifies as a religion for First Amendment analysis. Lastly, this Note discusses Supreme Court precedent not addressed by the Seventh Circuit that appeared to support Indiana's contention that it was not obliged to include CFI in the Solemnization Statute to comply with the neutrality principle. This Note explains that such a precedent did not require a different outcome.[Condense Abstract]
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...]
Religious non-profits have taken issue with this accommodation, arguing that the self-certification requirement violates their religious rights under the Religious Freedom Restoration Act of 1993 (RFRA). RFRA proscribes the federal government from substantially burdening a person's exercise of religion unless the government can demonstrate that its action is (1) in furtherance of a compelling governmental interest and (2) the least-restrictive means of furthering that compelling governmental interest. Religious non-profits across the country have flooded the courts with RFRA challenges to the self-certification opt-out form to the contraceptive mandate.
In University of Notre Dame v. Sebelius, the Seventh Circuit was faced with an unprecedented request for preliminary injunction regarding the accommodation to the ACA's contraceptive mandate, which exempts the Catholic institution from providing contraceptive coverage to its students and employees provided it complies with the self-certification requirement. Notre Dame claimed that the accommodation process, in and of itself, was a violation of the RFRA. The issue is whether requiring Notre Dame to fill out the two-page self-certification form and send it to its health insurer and third-party administrator in order to opt out of providing contraceptive coverage to its students and employees as required by the ACA imposes a substantial burden on its religious rights under the RFRA. The answer is no. The Seventh Circuit correctly upheld the denial of Notre Dame's request for preliminary injunction, finding that the self-certification requirement did not violate the university's religious rights and thus Notre Dame failed to show a likelihood of success on the merits as required under the standard for granting a preliminary injunction.
This Comment discusses (1) the history of the RFRA and religious accommodation; (2) the ACA's contraceptive mandate and religious accommodation; (3) the merits of the Seventh Circuit's decision in Notre Dame; (4) applicable Supreme Court cases decided after Notre Dame; and (5) why the Seventh Circuit correctly decided Notre Dame. This Comment will argue that the Seventh Circuit correctly decided Notre Dame because the university failed to make a cognizable RFRA claim for the following two reasons: (1) the self-certification requirement is not a substantial burden on the university's religious rights and (2) it is the least-restrictive means of furthering a compelling governmental interest. As such, Notre Dame has failed to show a likelihood of success on the merits, and the Seventh Circuit properly affirmed the denial of its request for injunctive relief.[Condense Abstract]
Plead Guilty, You Could Face Deportation: Seventh Circuit Rules Misadvice and Nonadvice to Non-Citizens Has Same Effect Under the Sixth Amendment
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...]
Courts have limited criminal defendants' right to effective assistance of counsel through use of the collateral consequences doctrine. This doctrine distinguishes between direct consequences of a criminal conviction, which include penal sanctions, and collateral consequences, which include civil sanctions. Direct consequences give rise to ineffective assistance of counsel claims because a defendant's liberty is at stake. Collateral consequences are indirect consequences of a criminal conviction, and therefore do not give rise to ineffective assistance of counsel claims. Deportation has long been understood to be a collateral consequence. Based on this classification, until 2010, non-citizens were unable to bring ineffective assistance of counsel claims when their attorneys did not inform them that deportation was a risk of accepting a plea bargain.
In 2010, the Supreme Court decided Padilla v. Kentucky. Padilla determined that under the Sixth Amendment, non-citizens have the right to be informed of deportation risks associated with accepting plea bargains. Non-citizens are entitled to know of this risk because deportation is such a severe consequence. The right to be informed of potential deportation is incorporated into the right to effective assistance of counsel under the Sixth Amendment and does not apply retroactively. Post-Padilla, the issue has arisen as to whether the rule only applies to situations when a lawyer completely fails to inform his client of the deportation risk, or if it also applies when a lawyer provides false advice or misadvice on the subject. In Chavarria v. United States, the Seventh Circuit determined that the Padilla rule applies both to an attorney's misadvice and nonadvice. This Comment (1) discusses the history of deportation-related ineffective assistance of counsel claims; (2) discusses the Seventh Circuit's decision in Chavarria; and (3) argues that Chavarria was correctly decided although the outcome is contrary to Padilla's intent.[Condense Abstract]
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
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...]
In Weeks v. United States and Mapp v. Ohio, the Supreme Court established that evidence seized in violation of the Fourth Amendment was not admissible in federal and state prosecutions. This rule has become known as the exclusionary rule. However, in a line of cases beginning with United States v. Leon, the Court has held, in a variety of different circumstances, that evidence should not be excluded if officers are acting in "good faith" or "objectively reasonably," even when those officers' actions violate the Fourth Amendment.
The most recent case in this line of good faith exception cases is Davis v. United States, where the Court held that "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." Because of the potential breadth of its holding, Davis is an incredibly important case in Fourth Amendment jurisprudence, and it has already led to a great variety of interpretations in lower courts.
The first question that has led to a variety of different interpretations has been what exactly constitutes binding precedent? The second question has been, if there is binding precedent available, what are the limits of officers' good faith reliance on that precedent? Or, as one federal court has phrased the issue, "[t]he scope of [the] reasonable-reliance-on-precedent test turns on two subsidiary questions: what universe of cases can the police rely on? And how clearly must those cases govern the current case for that reliance to be objectively reasonable?"
This Comment examines the variety of different ways courts have applied Davis' holding in answering these the above two questions. After this analysis, this Comment suggests the best path forward for courts when interpreting and applying Davis. Finally, this Comment discusses the Seventh Circuit's interpretation of Davis in a 2014 case, United States v. Gutierrez, and how the court went astray from this best path.[Condense Abstract]
Intellectual Property Law
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...]
The Seventh Circuit addressed this matter in Fortres Grand Corporation v. Warner Bros. Entertainment, in which the owner of computer software that removes private data from public computers filed suit against Warner Bros. for unauthorized use of its trademark, "Clean Slate," in the film The Dark Knight Rises. In the film, "the clean slate" describes a hacking program that enables Catwoman to rid databases of all evidence of her criminal past. The Seventh Circuit, applying the theory of reverse confusion, held that Fortres Grand did not sufficiently allege that Warner Bros. use of the phrase "clean slate" was likely to cause confusion among consumers as required under the Lanham Act. This Note contends that while the First Amendment protects artistic works from trademark infringement lawsuits, businesses must still protect their trademarks with claims based on the Lanham Act.[Condense Abstract]
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