Law Commons^™

Editor Preface, Melissa Bulshteyn

Seventh Circuit Review

No abstract provided.

Facebook Message Not Delivered: Employers May Challenge Authorization Of Flsa Collective Action Notice Arbitration-Bound Employees, Roberto Martinez

Seventh Circuit Review

When a plaintiff seeks to send notification of his Fair Labor Standards Act claim to a collective class of potential plaintiffs, the district court must authorize which recipients may receive this notice. Ordinarily, the court determines that employees of the same position or under the same employer receive collective action notice, but may a district court authorize mailing of notice to employees proven to have signed mandatory arbitration agreements? In Bigger v. Facebook, Inc., the Seventh Circuit Court of Appeals held that if a defendant-employer proves that specific employees have entered mandatory arbitration agreements, they may not receive FLSA court …

Standing On One Leg: Balancing College Students' Free Speech With Article Iii Requirements In The Seventh Circuit, Mary J. Goers

Seventh Circuit Review

First Amendment free speech protections are all the rage across college campuses. Students and administrations have done their best to toe the line and create equitable, safe spaces for students to freely debate and converse about political and controversial topics. Administrations implement policies that aid students in addressing issues of racism, bias, and bigotry on campus, however some students feel as though these policies are a free speech attack. While this may be true, Free Speech, Inc. v. Killeen, a recent Seventh Circuit decision, discussed standing as a procedural roadblock for students who claimed their speech was chilled by administrative …

“Traditional Principles Of Equity?” How Seventh Circuit False Advertising Precedent Minimizes The Burden On Plaintiffs Who Move For Preliminary Injunctions, Joseph P. Trunk

Seventh Circuit Review

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. …

Grin And “Bare” It: The Seventh Circuit’S Stamp Of Approval On Unreasonable Fourth Amendment Violations, Ashley L. Surinak

Seventh Circuit Review

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 …

Anything But Established: The Seventh Circuit’S Desertion Of Supreme Court Establishment Clause Jurisprudence, Samantha M. Ruben

Seventh Circuit Review

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 …

I Might Stay Awhile: The Fundamental Right To Vote In A Residency Vs. Domicile, Bryant L. Roby Jr.

Seventh Circuit Review

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 …

Combating The Opioid Crisis: How A Discretionary Departure May Encourage Application Of The “Death Results” Sentencing Enhancement, Mara A. Somlo

Seventh Circuit Review

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 …

Do An Attorney’S Actions Constitute His Client’S Intent?: The Seventh Circuit’S Broadening Of The Principles Of Waive, Alice Ward

Seventh Circuit Review

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 …

Sanctuary Jurisdictions: In A System Of Checks And Balances Who Has The Authority To Defeat Them?, Susana A. Sandoval Vargas

Seventh Circuit Review

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 …

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

Seventh Circuit Review

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 …

Editor Preface, Eva Dickey

Seventh Circuit Review

No abstract provided.

To 13(B) Or Not To Be? How The Seventh Circuit’S Narrow Interpretation Of Remedies Under Section 13(B) Of The Ftc Act Leaves The Ftc Vulnerable, Jamie N. Noonan

Seventh Circuit Review

The Federal Trade Commission (“FTC”) has been the most efficient regulator of commerce for over a century. It serves as the primary line of defense against anticompetitive, deceptive, and unfair business practices. Between July 2017 and July 2018 alone the FTC obtained a total of 114 court orders totaling $563 million and led refund programs that delivered $2.3 billion in refunds to wronged customers. To continue obtaining such results and ensuring a fair marketplace, the FTC requires a broad range of enforcement powers. But key FTC enforcement powers under Section 13(b) of the FTC Act—the primary provision that the FTC …

Exposing The Unconstitutionality Of The Illinois Firearm Concealed Carry Act, Adam J. Share

Seventh Circuit Review

While the right to bear arms may be controversial, it is nonetheless provided by the Second Amendment to the United States Constitution. States are lawfully able to limit people’s right to bear arms to an extent but must not go so far where a State’s limits ultimately infringe upon that right. The Seventh Circuit in Culp v. Raoul pushed the limits to which a State may restrict a person’s Second Amendment right. In Culp, the court determined whether the Illinois Firearm Concealed Carry Act was constitutional. The Illinois Firearm Concealed Carry prohibits nonresidents from applying for an Illinois concealed …

Chasing Title Ix: Examining The Circular Effects Of Title Ix From An Unpopular Perspective, Mitchell W. Bild

Seventh Circuit Review

The rise in sexual misconduct awareness campaigns, particularly on college campuses, has brought a traditionally-taboo subject to the fore of national discourse. Accordingly, the federal government has required public institutions of higher education to respond aggressively to accusations of sexual misconduct by expanding the reach of Title IX’s prohibition on sex discrimination and relaxing adjudicative procedures. To enforce these changes, the U.S. Department of Education threatened to withdraw federal funding from institutions that failed to comply with its mandates after engaging in public investigations, therefore resulting in financial and reputational ruin. This aggressive practice has resulted in a systematic and …

Unreasonable: Judge Easterbrook, The Seventh Circuit, & The Deterioration Of Fourth Amendment Protection For Convicted Prisoners, Clayburn E. Arnold

Seventh Circuit Review

How limited are the constitutional rights of convicted prisoners? In a line of cases authored by Judge Easterbrook, the Seventh Circuit has allowed greater intrusion on Fourth Amendment privacy rights of prisoners than any other circuit. Today, even arbitrary and degrading visual body-cavity searches are deemed constitutional under this line of precedent. The deference to prison officials—who lack any meaningful oversite—is unwise, and leaves prisoners without a necessary protection against abuse. The Court should employ a workable standard that respects the rights of prisoners and protects them from abuse. Considering dignity within the realm of Fourth Amendment protections would meet …

When Insurance Companies Meet Their Match, The Seventh Circuit Resolves Ambiguous Replacement-Cost Policy Language, Sarah G. Anderson

Seventh Circuit Review

Disaster strikes and you, as a homeowner, are left with a partially damaged building. That is the first mess. The next mess? Arguing with your insurance company over your replacement-cost policy language. In cases of partial damage to property, replacement cost policies have often been ambiguous regarding what property the insurer will actually replace. If the siding on your house was damaged, you might wonder if the insurance company is replacing the siding on the whole house or just the siding on the side that was damaged? The insureds will argue that entire replacement should occur—for example, all the shingles …

Jurisdiction Means Jurisdiction Not Claims-Processing: The Seventh Circuit’S Flawed Approach To Pereira V. Sessions In Ortiz-Santiago V. Barr, Mayra Gomez

Seventh Circuit Review

“Jurisdiction is [not necessarily] a word of too many meanings.” Jurisdiction, in its most basic terms, refers to a court’s adjudicatory authority over a case or individual. However, courts’ holdings distinguishing between what is a jurisdictional rule and what is a claims-processing rule have left immigrants even more vulnerable to judges’ discretion. In Santiago-Ortiz v. Barr, the Seventh Circuit held that incomplete charging documents known as notices to appear do not present a jurisdictional question, but rather, a claims-processing one, violations of which can be forfeited if not raised in a timely manner. While some may refer to this distinction …

“Dude, Where’S My Car?” A Look At How The Seventh Circuit Addresses Chicago’S Vehicle Immobilization Practices That Drive Its Residents Into Bankruptcy, Steven L. Yachik

Seventh Circuit Review

Bankruptcy is largely a collective process that furthers two goals—the equitable distribution of the debtor’s assets on account of his liabilities and either granting the debtor a fresh start, or the rehabilitation of the debtor by utilizing his income and property to reorganize his affairs. The most significant tool available to further these goals is the automatic stay, which is widely recognized to enjoin most collection efforts against the debtor and prevent the chaotic scramble for the debtor’s assets would otherwise occur between his creditors. However, the debate has intensified the automatic stay is just a “stay”, or whether it …

Piercing The Bubble: Why Bubble Zone Regulations Are Content Based Restrictions On Speech, Hubert J. Zanczak

Seventh Circuit Review

While the Due Process Clause provides a right to privacy, including the right to access to abortion, the First Amendment provides the right to speak publicly against abortion. The clash between those two constitutional rights is most evident outside of abortion clinics, where protestors frequently gather to protests, or “counsel,” those seeking abortions. To ensure that those who wish to speak against abortions are not effectively prohibiting other's right to access to abortions, many municipalities have enacted strict restrictions on the ability to congregate and protests outside of reproductive healthcare facilities. By design, and in their effect, the laws target …

The Anatomy Of Violent Crime: How Judicial Analysis For “Crimes Of Violence” Impacts Juveniles When Applied To The Federal Juvenile Delinquency And Transfer Statute, Anna Derkacz

Seventh Circuit Review

In 1984, the Comprehensive Crime Control Act revolutionized sentencing in the federal system by imposing mandatory minimum sentences for offenders who committed criminal offenses, increasing penalties for repeat offenses considered to be violent crimes. Since then, courts across the country have labored over defining what constitutes a “violent crime.” In the federal court system, juveniles can be transferred to adult proceedings under The Juvenile Transfer Statute. This statutes gives the government authority to transfer minors to adult court if he or she meets three conditions, one of which is whether the juvenile has a prior conviction of a “violent crime.” …

The Cost Of Obeying The Law?: The Seventh Circuit Rejects The Bona Fide Error Defense From A Debt Collector Who Followed The Then-Binding Law, Jun Qiu

Seventh Circuit Review

It is expected that people should follow the law, which includes the statutes themselves and the judicial rulings interpreting those statutes. However, if the binding judicial interpretation changes, should the parties be liable for their behavior following the old binding judicial interpretation of a federal statute at the time when it was still in effect? Or, should there be any defense that would allow the parties to shield themselves from liability for a good-faith reliance on the old binding judicial interpretation?

Stranded At Sea: The Seventh Circuit And The Rule 11 “Safe Harbor” Rule, Daniel Ristau

Seventh Circuit Review

When lawyers pursue frivolous claims, they invite sanctions. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that the pleadings and motions they submit are meritorious. Since 1993, attorneys have been required to serve opposing counsel with a motion—to fire a warning shot—when they intend to file for sanctions. This provides attorneys an opportunity to seek “safe harbor” and avoid sanctions by withdrawing or amending actions brought for an improper purpose.

Your Supervisor As Your Chattel: Broadening The Scope Of Negligent Hiring And Retention In Illinois, Philip F. Vieira

Seventh Circuit Review

In Illinois, employers have a duty to act reasonably in hiring and retaining their employees. An employer who negligently hires or retains an employee may be liable for injuries caused by that employee even if the employee is acting outside the scope of employment. Of course, this doctrine has to have some limit. Otherwise, employers would be responsible for practically any injury committed by one of its employees, even if it is only tangentially related to the fact of employment. However, courts have struggled to define that outer limit. Particularly when faced with horrific injuries, courts may be tempted to …

Mirror, Mirror On The Wall, Are They Trainees And Not Employees At All? The Legality And "Economic Reality" Of Unpaid Internships, Beatriz Carrillo

Seventh Circuit Review

The number of unpaid internships has skyrocketed over the past years as employers seem to prefer those with experience in the field. “Experience” has become the currency that college students seek to open the door to future employment. Unpaid interns have become the modern-day equivalent of entry-level employees. However, they are not paid for the hours worked and lack the normal employment protections offered to employees, such as FLSA and Title VII protections. The court's interest recently has been sparked to define the roles of interns in the labor force and has started to shape intern’s legal protections. As a …

The “Animus” Briefs: Attacks On The Seventh Circuit’S Sound Analysis Of Transgender Bathroom Rights In Public Schools, Brennan B. Hutson

Seventh Circuit Review

You have probably heard about state legislatures floating the idea of “bathroom laws” that would prohibit transgendered individuals from using the bathroom of their gender identity in public places. Although no state has actually signed such legislation into law, the spirit of those anti-transgender laws has been carried out in smaller governmental entities: public schools. Unlike a hypothetical state law, which would be nearly impossible to enforce without state officials performing inspections of genitals, a school policy is truly enforceable and has real effects.

Outgrowing Its Usefulness: Seventh Circuit Limits The Application Of The Common Actor Inference In Title Vii Discrimination Cases, Michael G. Zolfo

Seventh Circuit Review

Can a person harbor discriminatory views toward protected minority groups, yet still hire a member of that group as an employee? Under Title VII jurisprudence, the “common actor inference” holds that if the same supervisor hires and fires an employee in a short time period, that supervisor likely did not have a discriminatory reason for the employment decision. The common actor inference has been accepted and used across all U.S. Circuit Courts of Appeal, but was recently criticized and limited by the Seventh Circuit.

Baby Got (A Broken) Back, But No Remedy: The Seventh Circuit’S Refusal To Provide A Remedy For Eighth Amendment Violations, Timothy Lavino

Seventh Circuit Review

Since 1871, individuals have been able to bring a cause of action against state officials who violate the individual’s constitutional rights. However, it wasn’t until the 1965 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that the U.S. Supreme Court created a cause of action for individuals whose Fourth Amendment rights were violated by federal officials. Since 1965, this cause of action, known as a Bivens action, has been extended to violations of the Fifth and Eighth Amendments.

Neither Cruel Nor Unusual: An Hour And A Half Delay In Treatment Can Now Amount To Deliberate Indifference, Monica J. Raven

Seventh Circuit Review

The Eighth Amendment of the U.S. Constitution proscribes cruel and unusual punishment. To state a cognizable claim, a plaintiff must allege that a prison official or medical professional was deliberately indifferent to his or her objectively serious medical need. In Lewis v. McLean, the Seventh Circuit analyzed whether a nurse and prison official’s hour and a half delay in treatment created a triable issue as to whether they acted with deliberate indifference. The plaintiff alleged that the defendants showed deliberate indifference to his severe back pain by delaying his access to medical care. The defendants, on the other hand, …

Between Scylla And Charybdis: Ezell V. City Of Chicago (Ezell Ii) And How The Seventh Circuit Continues To Narrow Chicago’S Constitutional Path Forward On Gun Control, Christopher Gerardi

Seventh Circuit Review

It has been less than a decade since the Supreme Court reset the landscape of gun rights by recognizing, for the first time, that the Second Amendment protects an individual’s right to keep and bear arms unconnected with any militia service. The Court was notably silent as to which standard of review lower courts should apply to the inevitable wave of Second Amendment challenges to federal, state, and local gun control legislation. In the absence of guidance from the Supreme Court, the majority of the Federal Circuit Courts of Appeals have adopted a two-step means-end test similar in many respects …