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Seventh Circuit Review

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Plain Error Review Is Just Plain Confusing: How The Confused State Of Plain Error Review Led The Seventh Circuit To Get It Wrong, April Ramirez

Seventh Circuit Review

Normally, if a defendant fails to make a timely objection to a perceived error during trial, he forfeits his right to appeal the error. Federal Rule of Criminal Procedure 52(b) however, allows for an exception to this general rule. Rule 52(b) is a codification of a common law standard which allowed a court to address an error not timely objected to. This type of appellate review is known as plain error review. The original standard, which Rule 52(b) is based on came from United States v. Atkinson. The United States Supreme Court in Atkinson stated that courts, in the public …

Reasonable Response: The Achilles' Heel Of The Seventh Circuit's "Deliberate Indifference" Analysis, Meaghan A. Sweeney

Seventh Circuit Review

Prisoners who believe their constitutional rights were violated through deficient medical care can pursue a cause of action under 42 U.S.C. § 1983. To prevail on this claim, the prisoner must show that a medical provider acted with deliberate indifference towards a serious medical condition. Ordinary medical negligence is not a constitutional claim simply because the victim is a prisoner. Yet, circuits are split on exactly what physician behavior constitutes deliberate indifference. Courts have given varying degrees of deference to a physician's case-specific medical determination. Courts debate whether palliative care—relieving pain without an effort to cure—is enough; and whether constitutionalizing …

Married On Saturday, Fired On Monday: The Seventh Circuit Attempts To Navigate Lgbt Rights After Obergefell, Symone D. Shinton

Seventh Circuit Review

Title VII of the Civil Rights Act was not enacted to protect the LGBT community and has never been consistently enforced to prohibit sexual orientation discrimination. Although some courts have stretched to include protections for the LGBT community under this statute, that federal law fails to protect the LGBT community from workplace discrimination has largely been taken for granted.

But last summer the Supreme Court of the United States held that persons cannot be denied the fundamental right to marry merely because they are not heterosexual. And so the tension occurred: a same-sex couple may marry on Saturday, but their …

Lewis'S Shifting ConcepcionS: The Seventh Circuit's Struggle In Applying Class Action Preemption In Employment Contracts, Matthew Hamielec

Seventh Circuit Review

Class actions and arbitrations have has existed since the United States' nascence. Since the mid-twentieth century, both Congress, through statutes like the Federal Arbitration Act ("FAA"), and the Supreme Court, in interpreting such statutes as favoring arbitration, have fostered arbitration's growth. While businesses incorporated arbitration provisions into various contracts thinking they would arbitrate with claimants individually, plaintiffs' attorneys pushed for courts' allowance of class arbitration, a class proceeding conducted within an arbitration's confines. Corporations litigated class arbitrations' legitimacy; their efforts culminated in American Express Co. v. Italian Colors Restaurant, where a divided Supreme Court upheld individual arbitration provisions in …

Storming The Persian Gates: The Seventh Circuit Denies Attachment To Iranian Antiquities, Claire E. Stephens

Seventh Circuit Review

When an American citizen is injured in a terrorist attack on foreign soil, the victim has a limited ability to sue a foreign state in the United States. Even more limited is the victim's ability to execute a judgment against the foreign state. The Foreign Sovereign Immunities Act permits plaintiffs to execute a judgment against a foreign state only in limited and explicitly stated circumstances.

In Rubin v. Islamic Republic of Iran, the Seventh Circuit considered such a claim. The plaintiffs, seven American victims of a Hamas terrorist attack in Israel, sought to attach Iranian antiquities located in the …

The Seventh Circuit Justifies Lifetime Gps Monitoring By Calling It Prevention, Andrea R. Torres

Seventh Circuit Review

In 2006, the Wisconsin Legislature enacted a law requiring the lifetime GPS monitoring of serious sex offenders to discourage recidivism. Sexual abuse has devastating consequences on a child, and the crime often goes unreported because children tend to be afraid of their abusers, worried about their parents' reactions, or unable to describe the events. Despite having the best interests of children in mind, these GPS monitoring laws have the potential to infringe upon the constitutional rights of offenders.

In Belleau v. Wall, the Seventh Circuit reviewed Fourth Amendment and Ex Post Facto Clause implications of this statute. Michael Belleau …

Erisa Remedies: Rethinking Indemnification And Contribution For Co-Fiduciaries, Nicholas L. Debruyne

Seventh Circuit Review

The Employee Retirement Income Security Act ("ERISA") is a federal law that protects participants of employee benefit plans. Congress attempted to achieve this by assigning duties to co-fiduciaries that are responsible for managing plan assets. Despite allocating a variety of obligations among co-fiduciaries, ERISA does not specify whether co-fiduciaries can seek contribution or indemnification as an equitable remedy. To date, the circuit courts are split as to whether such equitable remedies should be implied under ERISA.

In Chesemore v. Fenkell, the Seventh Circuit incorrectly held that ERISA authorized the district court to provide contribution or indemnification to co-fiduciaries. The …

Social Cost Of Carbon: Can We Afford It?, Kita

Seventh Circuit Review

Environmental regulations that are passed by governmental agencies must ensure that the benefit of the regulation outweighs the burden. The failure for the benefit to outweigh the burden will result in the nullification of environmentally beneficial regulations. The methodology to measure the environmental impact of a regulation is difficult to understand and in some cases highly controversial. One example of this is the use of the social cost of carbon. The social cost of carbon is used to measure carbon reduction. The use of the social cost of carbon can help regulations succeed cost-benefit scrutiny, which would invalidate the regulation. …

Horsing Around With Dobson And Chevron: Tax Deference In Roberts V. Commissioner, Megan Heinz

Seventh Circuit Review

In the late 1990's and 2000's, Merrill C. Roberts of Indiana ventured into horse racing. Eventually he chose to deduct losses associated with his horse racing as "ordinary and necessary business expenses." The IRS issued a notice of deficiency to Roberts, contending that he was liable for taxes and penalties for those years because he was engaged in horseracing as a hobby rather than a business. He therefore could not deduct expenses associated with the activity under Section 183 of the Internal Revenue Code.

The Tax Court analyzed the case using factors set forth in Treasury Regulation Section 1.183-2, which …

Rights Of Custody: Results May Vary, David E. Braden

Seventh Circuit Review

The Hague Convention on the Civil Aspects of International Child Abduction (Convention) protects parents with primary custody rights from parental abduction or retention of their children in another country. However, as more couples in the United States forgo marriage but continue having children, these couples-who often prefer informal parenting arrangements-do not often obtain court orders that identify their custody or visitation rights. Yet if an unmarried parent relocated to another country without the other parent's consent, the parties would have to rely on the state's default custody rules to determine where the custody battle should ensue.

For example, Mexican jurisdictions …

Selling The Footlong Short: How Consumers Inch Toward Satisfaction In Costly Food Class Action Litigation, Erica A. Burgos

Seventh Circuit Review

Food and beverage class action litigation has increased tremendously over the last five years. While many have ridiculed these lawsuits as ploys to extort money from wealthy food producers, plaintiff consumers maintain that the surge of food litigation suits evidence their growing desire for transparency. Many food-based class actions allege companies are purposefully deceiving consumers with misleading marketing campaigns. Defendants argue that a reasonable consumer should know better than to take their advertising at face value. Even still, defendants are often eager to resolve conflicts without admitting liability and, in turn, rush to settle the matter. Courts are then faced …

Crediting The Incredible: How The Seventh Circuit Uses Procedure To Mask Its Improper Perfunctory Grant Of Deference To Chicago’S Law Enforcement Officers, Ava B. Gehringer

Seventh Circuit Review

In January 2017, the Department of Justice released a Report after investigating the Chicago Police Department and its in-house accountability agencies tasked with detecting and deterring police misconduct, concluding that there is reasonable cause to believe that the CPD routinely engages in unlawful patterns and practices in violation of the Fourth Amendment. Moreover, the DOJ found that attempts by the CPD’s agencies to hold officers accountable for misconduct have been frustrated by the “code of silence” and “pervasive cover-up culture” among CPD officers. As a result, the burden of deterring police misconduct has effectively fallen on the victims themselves. Yet …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

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Tetzlaff: Has The "Undue Hardship" Test Become Undue?, Alex J. Beehler

Seventh Circuit Review

As the wage-market remains stagnant, and student indebtedness continues to rise, many graduates struggle to balance their student loan debt. Generally, when a debtor files for bankruptcy, her student loan debt is not dischargeable. However, under 11 U.S.C. § 523(a)(8), debtors can discharge their student loans through bankruptcy if they can prove that maintaining those student loan debts would impose an "undue hardship" upon themselves. Unfortunately, Congress did not define what "undue hardship" meant when enacting the bankruptcy code. Courts have since been left to interpret the definition of "undue hardship," and many do so in different ways.

Across the …

Is The Injury Real?: The Seventh Circuit Extends Article Iii Standing To Data Breach Victims, Emily P. Linehan

Seventh Circuit Review

Data breaches are becoming a more frequent and more troubling part of modern life. When customer or employee information is stolen en masse, lawsuits often follow. Courts have frequently dismissed such cases very early for want of Article III standing. For purposes of standing, courts are faced with the question of whether or not the fact of a breach is sufficient for plaintiffs to bring lawsuits against the credit card companies, employers, or stores that, as victims of a cyberattack, have compromised the information of hundreds or thousands. But the real victims are those whose personal information has been stolen. …

Remittitur In Civil Rights Cases: Where The Seventh Circuit Went Wrong In Adams V. City Of Chicago, Kelsey N. Weyhing

Seventh Circuit Review

This nation is currently engaged in vigorous discussion about how to address brutality and targeting of minorities committed by law enforcement. In some cases, even where liability is admitted as to racially targeted policing, a court may significantly reduce the amount of damages awarded by a jury to victims of police brutality through use of a procedure call “remittitur.” Remittitur occurs when a trial judge determines that a jury award is excessive, and offers the plaintiff the option of accepting a reduction in the jury verdict or proceeding to a new trial. Although the Seventh Amendment provides that “no fact …

Impunity For Snake Oil Merchants?: The Seventh Circuit Upholds The Class Action As A Vehicle For Consumer Protection, Stephen Pigozzi

Seventh Circuit Review

The class action is often the only way for victims of consumer fraud to pursue a remedy. Several federal circuit courts have recently adopted the heightened ascertainability requirement—a requirement that makes certifying a consumer class almost impossible. A plaintiff can only meet the heightened ascertainability requirement by showing that members of her proposed class can be identified in a reliable and administratively feasible way. This typically requires documentary proof of class membership. For classes made up of purchasers of deceptive low-cost products who have not kept their receipts, heightened ascertainability has served as an insurmountable barrier to certification.

In Mullins …

"Equity Will Not Enjoin A Libel": Well, Actually, Yes, It Will, Ann C. Motto

Seventh Circuit Review

The First Amendment prohibits prior restraints on speech. Indeed, prior restraints are the most serious and the least tolerable infringements on First Amendment rights. Because of this, for nearly 200 years, courts stood by the maxim that "equity will not enjoin a libel"; traditionally, money damages were the only remedy available to a defamed plaintiff. However, there is a modern trend among some state and federal courts allowing the issuance of a narrow, permanent injunction against statements that have been adjudicated defamatory.

In December 2015, the Seventh Circuit Court of Appeals in its decision McCarthy vs. Fuller became the second …

Deference To The Lower Court: How The Seventh Circuit Improperly Granted Habeas Corpus Relief In Jensen V. Clements, David J. Welch

Seventh Circuit Review

As Justice Blackstone once opined, a writ of habeas corpus, oft referred to as the “great Writ,” is “another Magna Carta” established to safeguard people imprisoned in violation of the law. Codified under 28 U.S.C. § 2254, the writ compels a judicial body to review the legality of a state prisoner’s conviction. A granted writ of habeas corpus may require the court to set aside or vacate the conviction or detention. If a petitioner’s case has already been adjudicated on the merits in state court, then the writ cannot be granted. However, if the petitioner can show that either the …

Filming Police & Legal Dramas: Examining The Influence Of Television Programs On The Legal Profession And Law Enforcement, Ryan D. Suniga

Seventh Circuit Review

Criminal trials make for inherently compelling television. There are very few things as dramatic as watching an individual being forced to defend their liberty. Because of the spectacle associated with criminal proceedings, the legal drama has evolved into a staple of television programing. Media programing like Serial and Making a Murderer can have profound effects on the operation and integrity of criminal proceedings. While televising criminal justice proceedings adds a level of accountability to those procedures, it also creates an opportunity for abuse by allowing the media to negatively influence individuals vital to the integrity of the criminal justice system …

A Proposal For Eliminating Adjudicative Loopholes Under Statutory Law Of Trade Secrets In The Seventh Circuit, Anna A. Onley

Seventh Circuit Review

Today, when 70% of business value is derived from intangible assets, and trade secret misappropriation (TSM) is the most frequently litigated form of intellectual property protection, it is critical to ensure that judicial remedies for misappropriation of intellectual property remain adequate without encouraging abusive litigation. With this goal in mind, in 1979, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Trade Secrets Act (UTSA) in order to ensure a uniform and consistent treatment of trade secrets among the states. The Uniform Act displaced business torts claims that arise in common law, but only if those claims …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

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"Googling" Your Way To Justice: How Judge Posner Was (Almost) Correct In His Use Of Internet Research In Rowe V. Gibson, M. Cristina Martin

Seventh Circuit Review

The Internet is a temptation which many courts have been unable to resist. Over the past twenty years, judges at trial and appellate levels have increasingly used Internet research in crafting their judicial opinions. Judge Richard Posner of the Seventh Circuit is a huge proponent of this proposition, and in August 2015, he authored an opinion which took this independent Internet research to a new level. In Rowe v. Gibson, Judge Posner's opinion reversed summary judgment for a pro se litigant partly based on independent Internet research performed by the court. His justification for using this Internet research was …

The Seventh Circuit Finds The Fundamental Right To Marry Includes The Right To Choose One's Spouse, Even In Prison, Lauren B. Wright

Seventh Circuit Review

In recent years, the Supreme Court has continuously reiterated the importance of the right to marry, finding it to be a fundamental right protected by the Constitution. Activists across the nation have celebrated the Court's continued protection of this fundamental right as it has expanded the rights of same-sex couples. What has received somewhat less attention is how the Court's right to marry doctrine has affected a different segment of the population—prisoners. In the United States, there are currently 2.2 million people serving time in our nation's prisons or jails. For many of us, prisoners are people we would rather …

Who Are "The People?": The Seventh Circuit Extends Second Amendment Rights To Undocumented Immigrants, Patrick W. Etchingham

Seventh Circuit Review

Undocumented immigrants within the United States are human. Whether they exist as "people" protected by the Bill of Rights is another question entirely. The Second Amendment states "the right of the people to keep and bear arms, shall not be infringed." The phrase "the people" appears in the First, Second, Fourth, Ninth, and Tenth Amendments to the United States Constitution, among other places in the United States' most sacred documents. However, courts have rarely defined "the people," except in the Fourth and—recently—Second Amendment contexts. In United States v. Verdugo–Urquidez, the Supreme Court held that the Fourth Amendment protects "people," …

Post-Conviction Relief: The Seventh Circuit Applies Savings Clause To Save Death Row Prisoner, Allison A. Evans

Seventh Circuit Review

A writ of habeas corpus is often the last resort—the final "Hail Mary"—for prisoners seeking relief. Dubbed the "Great Writ," a writ of habeas corpus is used to bring a prisoner before the court to determine the legality of the prisoner's incarceration or detention. This writ, utilized since our country's inception, is protected by the Constitution, and is available to all prisoners, both state and federal.

Federal prisoners seeking habeas corpus relief must proceed under 28 U.S.C. § 2255. Section 2255 permits a federal prisoner to move to vacate or set aside his sentence upon the grounds that the sentence …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

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Preface, Mckenna Prohov

Seventh Circuit Review

No abstract provided.

The Twenty-Five-Year Struggle For Marriage Equality: What Impact Does The Seventh Circuit’S Jurisprudence Have On Lgbt Civil Liberties?, Elly Drake

Seventh Circuit Review

Proponents fighting for the recognition of same-sex marriage as well as the legal ability to enter into the institution of marriage have typically argued that same-sex marriage bans violate the Fourteenth and Fifth Amendments of the United States Constitution. More specifically, they argue that the bans infringe upon an individual’s fundamental right to marry, discriminate on the basis of sex, and discriminate on the basis of sexual orientation.

State and federal courts have struggled with analyzing the merits of these claims and have been unsure of how to frame the legal issues. The courts have debated whether there is a …