Seventh Circuit Review

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 However, the court relied on outdated precedent, potentially preventing itself from reaching an economically-sound decision.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.

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.

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.

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.

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.

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.

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.

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.