Seventh Circuit Review

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Volume 14 (Fall 2018)

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

Civil Procedure

“Traditional Principles of Equity?” How Seventh Circuit False Advertising Precedent Minimizes the Burden on Plaintiffs Who Move for Preliminary Injunctions

Joseph P. Trunk
14 Seventh Circuit Rev. 1 (2018) [Full Article] [Audio Synopsis]

Abstract: Companies advertise to gain a competitive edge, but sometimes these advertisements can be deceiving and harm consumers. Under the Lanham Act, plaintiffs can move for preliminary injunctions to stop or modify advertisements before a full trial on the merits of their false or deceptive advertising claims. Seventh Circuit Lanham Act precedent minimizes the burden on plaintiffs who move for preliminary injunctions. If the Seventh Circuit reversed this precedent, the burden on plaintiffs at this stage of the litigation would align both with equitable and economic principles.

The Seventh Circuit recently upheld a preliminary injunction in Eli Lilly & Co. v. Arla Foods Inc., a false advertising case. However, the court relied on outdated precedent, potentially preventing itself from reaching an economically-sound decision. Together, Professor John Leubsdorf and Judge Richard Posner pioneered an economic approach to preliminary injunctive relief. Their approach guides district courts through a more reasoned economic analysis of the traditional preliminary injunction factors.

In light of this economic view, Seventh Circuit false advertising precedent prevents courts from considering the economic impact of their decisions prior to a trial on the merits. First, the Seventh Circuit presumes irreparable harm in Lanham Act cases. Typically, the plaintiff has the burden of showing irreparable harm, and the Seventh Circuit’s presumption of irreparable harm eases the plaintiff’s burden on a motion for a preliminary injunction. Second, while the Seventh Circuit requires proof of actual consumer confusion or deception at trial, this evidence is not required at the preliminary injunction stage. This Comment will argue that in order to accurately understand the economic impact of a preliminary injunction on both the plaintiff and defendant, the Seventh Circuit should eliminate the presumption of irreparable harm and require proof of actual consumer confusion or deception at the preliminary injunction stage.


Constitutional Law

I Might Stay Awhile: The Fundamental Right to Vote in a Residency vs. Domicile

Bryant L. Roby Jr.
14 Seventh Circuit Rev. 38 (2018) [Full Article] [Audio Synopsis]

Abstract: The right to vote is a vital aspect of the United States Constitution, and it is a fundamental right that is uniformly cherished throughout the nation. Yet, the right to vote is not fundamental for citizens residing in U.S. territories. The Seventh Circuit upheld this principle in Segovia v. United States. This resulted in the court using a rational basis test instead of strict scrutiny to analyze the Plaintiff’s Equal Protection Claim. The court first held that the plaintiffs lacked standing to bring the case under the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”). In turn the court used rational basis to analyze the Illinois Military Overseas Voter Empowerment Act ("Illinois MOVE”), and limited voting rights for many United States citizens living abroad. As a result, non-resident U.S. citizens are not receiving absentee ballots depending upon which U.S. territory they reside in. For instance, a U.S. citizen in the American Samoa can receive an absentee ballot but a citizen in Puerto Rico cannot. This arbitrary infringement of voting rights is based on the underinclusive definition of United States in the UOCAVA.

That said, the plaintiffs could have established they had a fundamental right to vote by arguing that they were citizens of Illinois. The Constitution clearly asserts that the fundamental aspect of voting is embedded in a person being a citizen of a state. Although, the Citizenship Clause of the Fourteenth Amendment states that a person is a citizen of the state where they reside, the definition of reside relates to domicile, and courts look to a person’s domicile to determine state citizenship. So, if a plaintiff had been able to establish they are domiciled in Illinois they would have a fundamental right to vote, and the infringement would be subject to strict scrutiny. Accordingly, the issues in Segovia of standing, or the rationality of Illinois MOVE would have been of little consequence. The arbitrary distinction between similarly situated U.S. territories like Puerto Rico and the American Samoa would not survive a strict scrutiny analysis, and it would likely result in voting legislation that properly addresses the right to vote for citizens in U.S. territories.


Anything but Established: The Seventh Circuit’s Desertion of Supreme Court Establishment Clause Jurisprudence

Samantha M. Ruben
14 Seventh Circuit Rev. 68 (2018) [Full Article] [Audio Synopsis]

Abstract: Establishment Clause jurisprudence is anything but “established.” The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” There are four primary methods that the Supreme Court created to analyze whether the Establishment Clause has been violated: the Lemon test, Endorsement Test, Coercion Test, and the historical approach. The Supreme Court has never adopted one clear test, leaving the circuit courts to decide which one to use.

Despite the Court creating the most recent Establishment Clause test in Town of Greece v. Galloway, the historical approach, the Seventh Circuit continues to solely apply the other three tests. In holding that a holiday show did not violate the Establishment Clause, the Seventh Circuit in Freedom from Religion Foundation v. Concord Community Schools applied the Lemon test, Endorsement Test, and the Coercion Test, but not the historical approach. Recently, the Eighth Circuit became the first circuit court to completely abandon the Lemon test, signaling a major doctrinal shift.

The Supreme Court in Town of Greece overtly gave greater weight to history by mandating historical practices be analyzed in Establishment Clause cases, and therefore courts must look to history. As this Note will argue, the Seventh Circuit should have applied the historical approach when deciding Concord. The language in Town of Greece directs lower courts to examine the history of a practice when evaluating whether there has been a violation of the Establishment Clause. If history can demonstrate that a practice is well-settled in American history, no further test is necessary. But if history cannot resolve the issue, only then may courts turn to the other Establishment Clause tests set forth by the Supreme Court.


Grin and “Bare” It: The Seventh Circuit’s Stamp of Approval on Unreasonable Fourth Amendment Violations

Ashley L. Surinak
14 Seventh Circuit Rev. 98 (2018) [Full Article] [Audio Synopsis]

Abstract: The Fourth Amendment guarantees the people’s right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Originally conceived as a property-based protection against arbitrary invasions by officials during the colonial era, the Fourth Amendment has since been interpreted to guarantee a reasonable expectation of privacy in other areas, too. In fact, since the 1960s, courts interpreted the Fourth Amendment with a keen awareness of advancing technology. Courts have done so in order to navigate the scope of the Amendment’s protections as the government’s prying eye and uninvited ear threatened the sanctity of protected areas from afar, especially the home. Even after determining whether something was a search, a more formidable, subjective question remains: is the search unreasonable? The line separating what is reasonable from what is unreasonable is blurred, at best.

This blurring was evident in Naperville Smart Meter Awareness v. City of Naperville. The City of Naperville received a grant from the Federal Government to upgrade its electrical grid and used a portion of that grant—with no input from its citizens whatsoever—to install “smart meters.” Smart meters are digital electric meters that record usage in set intervals; in the City of Naperville’s case, every fifteen minutes. The Seventh Circuit held that while the smart meter data recording was undeniably a search, it was reasonable in consideration of local and Federal Government interests and consumer-related benefits, such as reduced labor costs. The most noteworthy part of the opinion is the Seventh Circuit’s note immediately preceding the conclusion. The court qualified its holding as particular to the circumstances of this case, cautioning that even something such as a shorter interval collection could change the outcome. The note echoed the arbitrariness of the Supreme Court’s recent decision in Carpenter v. United States, where the Court drew the constitutional line of reasonability at a six-day period of cell-site location information.

This Comment argues that the Seventh Circuit’s determination that fifteen-minute data collection intervals are reasonable, while noting that a shorter interval might not be, is precarious in consideration of Fourth Amendment precedent and fails to apply strict scrutiny analysis where a fundamental liberty is concerned. It reflects the same ill-defined line drawn in Carpenter, thus indicating a more systemic problem. After all, longstanding precedent establishes that neither the quality nor quantity of information obtained matters; all details within a home are intimate for the purposes of Fourth Amendment analysis. Any attempts to identify categories of information that are inherently reasonable or unreasonable, or drawing a line at fifteen minutes instead of fourteen minutes, inserts subjectivity into an area where Fourth Amendment protections of a home were intended to remain absolute. Smart meter technology will become more prevalent across the country in the next couple of years. Any treatment of the smart meter technology at this point—where the Seventh Circuit is the first to issue an opinion regarding the meters—is critical, and should be prospective as to the direction this technology is headed in, and not necessarily where it has been or currently stands.


Criminal Procedure

Combating the Opioid Crisis: How a Discretionary Departure May Encourage Application of the “Death Results” Sentencing Enhancement

Mara A. Somlo
14 Seventh Circuit Rev. 130 (2018) [Full Article] [Audio Synopsis]

Abstract: In March 2018, the National Institute on Drug Abuse declared the misuse of and addiction to opioids a national crisis. With the number of drug overdose deaths exceeding 72,000 in 2017, then–U.S. Attorney General Jeff Sessions instituted a policy instructing federal prosecutors to pursue the most serious, readily provable offense. To combat the opioid epidemic, federal prosecutors can seek the “death results” sentencing enhancement, which creates a mandatory minimum sentence of twenty years when a defendant commits a drug offense and death or serious bodily injury results from the use of the drug. This sentence is significantly longer than the statutory penalty for simple drug distribution.

The Seventh Circuit, in United States v. Harden, considered as a matter of first impression whether the “death results” enhancement requires the government prove the drug user’s death was reasonably foreseeable to the defendant. It held the death need not be foreseeable because the statutory language does not call for a finding of proximate cause. While the Seventh Circuit reached the right decision in Harden, court precedent applies two very different approaches to two substantially similar fact patterns, leaving some courts asking for discretion.

While the legal reasoning as to why the government need not prove foreseeability is sound, judges should be able to depart from the mandatory minimum in cases where the sentence would be a miscarriage of justice. Granting a judge discretion in the form of a downward departure will not inhibit narcotics prosecutions and may in fact improve the opioid crisis. Prosecutors will not have to prove the death was foreseeable. Defendants with cases that teeter the line between accidental and criminal conduct will have an avenue of relief. Defendants with cases warranting the mandatory minimum sentence will receive them. Those who don’t can be directed to addiction programs and assist law enforcement in pursuing their supplier, which in turn decreases the number of addicts while continuing to pursue investigations that warrant the use of these resources.


Do an Attorney’s Actions Constitute His Client’s Intent?: The Seventh Circuit’s Broadening of the Principles of Waiver

Alice Ward
14 Seventh Circuit Rev. 167 (2018) [Full Article] [Audio Synopsis]

Abstract: A defendant waives his right to an argument only when he intentionally chooses not to make that argument. Waiver precludes appellate review and extinguishes error. When a defense lawyer does not make an argument due to oversight or negligence, the defendant forfeits that right, and the defendant’s appeal of that issue is subject to plain error review. In United States v. Scott, the Seventh Circuit analyzed whether a criminal defendant had waived his rights to allocute and challenge his sentence of supervised release imposed at a revocation hearing. The district court judge imposed a sentence of thirty-six months supervised release to Scott at his revocation hearing. The judge asked if Scott had anything to say and his attorney responded that they had no objection to the sentence of supervised release. Scott then attempted to speak and was silenced by his attorney who, after speaking with Scott, advised the court that Scott had nothing to say. The Seventh Circuit affirmed the district court’s finding that Scott had waived his right to allocute and could no longer challenge the sentence imposed to him at his revocation hearing. However, Chief Judge Wood dissented, finding that the defendant did not waive his right to allocute or challenge his sentence. The dissent would have remanded to the district court for a new sentencing hearing where the proper sentencing guidelines calculations would be performed prior to the imposition of a new sentence.

This Note argues that the court ignored its previous decisions requiring that waiver be intentional when finding that Scott waived his right to allocute or challenge his sentence. Further, it argues that while purporting to avoid interference with the attorney-client relationship, the majority ignored facts in the record indicating that Scott disagreed with his first attorney’s decisions and that there was no tactical reason to not object to the thirty-six months of supervised release. This Note concludes by finding that the line-by-line analysis of the revocation hearing performed by the dissent was more consistent with circuit precedent and the court should have remanded to the district court for a sentencing guidelines calculation to be performed and Scott given the opportunity to allocute.


Immigration

Sanctuary Jurisdictions: In a System of Checks and Balances Who Has the Authority to Defeat Them?

Susana A. Sandoval Vargas
14 Seventh Circuit Rev. 186 (2018) [Full Article] [Audio Synopsis]

Abstract: During President Trump’s campaign, he vowed to deport the “bad hombres”—all immigrants with serious criminal records. His administration, however, is deporting more than just Mexican “criminals, drug dealers, and rapists.” The Department of Justice, under President Trump, has aggressively enforced federal immigration laws, invoking great fear in immigrant communities across the nation. In response to this hardline position on immigration enforcement, several jurisdictions throughout the United States declared themselves “sanctuaries,” or reaffirmed their already in-place sanctuary status. Generally, sanctuary jurisdictions limit the enforcement of federal immigration laws against immigrants with strong ties to the community that have no serious criminal record. However, sanctuary policies vary from jurisdiction to jurisdiction.

Sanctuary jurisdictions have become a target because they threaten the Trump Administration’s immigration enforcement agenda. President Trump and former U.S. Attorney General Jeff Sessions had tried conditioning federal funding, attempting to force sanctuary jurisdictions to cooperate in the enforcement of federal immigration laws. At the intersectionality of a broken immigration system and the principles of separation of powers and federalism lies a very important question: does the Executive Branch have the power to do this?

Separation of powers is a core principle of this nation’s government. The framers of the U.S. Constitution specifically built a system of checks and balances to prevent any one branch from becoming too powerful. The U.S. Constitution leaves no doubt that the power of the purse belongs to Congress, and not the Executive Branch. While Congress can, it has not authorized the Executive Branch to condition federal grants in this manner. In fact, Congress has consistently refused legislation that ties federal funding to immigration laws. Plain and simple, President Trump and the U.S. Attorney General’s actions violated the U.S. Constitution’s principle of separation of powers. Multiple federal courts have found these orders at least partially unconstitutional on this ground, including the Seventh Circuit in its recent City of Chicago v. Sessions decision. The Seventh Circuit described the Executive Branch’s actions as a “usurpation of power.” Judge Rovner stressed, “We are a country that jealously guards the separation of powers, and we must be ever-vigilant in that endeavor.” I could not agree more with the Seventh Circuit: no one branch should have all that power. If the federal government wants state and local governments to enforce federal law, the branches must work together to pass non-xenophobic legislation that fixes our immigration system.


Labor & Employment Law

You’re Hot Then You’re Cold, You’re Yes Then You’re No: How Inconsistency in the Courts Leaves Employers and Employees Vulnerable

Andrea Mireles
14 Seventh Circuit Rev. 209 (2018) [Full Article] [Audio Synopsis]

Abstract: While federal labor and employment laws try to categorize employers and employees, the lines remain blurry. Via unhelpful definitions, inconsistent application or ever-changing tests, employers and employees are often left vulnerable under these statutes—the employer because it is not clear whether he is liable under the law, and the employee because it is not clear whether he is protected under the law. In this Note, I discuss the Seventh Circuit’s recent case regarding an indirect employer and how to establish an employment relationship under the ADA.

This Note suggests that the Seventh Circuit did not properly apply a five-factor test when analyzing this employment relationship, and in fact, the court should not have granted summary judgment for the defendant employer because there was a genuine dispute of material fact. Finally, this Note sheds light on the consequences of inconsistency in the courts when using several standards to establish an employment relationship.