Seventh Circuit Research Articles

Briefly Noted

On August 6, 2021, the U.S. Court of Appeals for the Seventh Circuit issued its judgment in Scalin. The case involved descendants of Jewish people in France who were sent to concentration camps on trains operated by the defendant railroad company. The descendants sued the railroad for personal property stolen by the railroad workers an given to the Nazis, arguing that the expropriation exception in the Foreign Sovereign Immunities Act (FSIA) for cases applied and that therefore, the case could be heard by U.S. courts. The district court dismissed the complaint, holding that the plaintiff descendants should pursue their complaint within the French administrative claims framework set up specifically to compensate victims of the Nazi regime. The district court relied on precedent permitting U.S. courts to abstain in favor of compensation systems based in the state where the harm occurred. In the meantime, the DC District Court disagreed with that precedent, holding that abstention is never proper and the Seventh Circuit suspended the appeal while the Supreme Court considered the Philipp case. After that judgment, the plaintiffs in this case asked the Court to remand the case to the district court so that the district court could determine whether any of the plaintiffs' predecessors in interest were not French citizens at the time the property was taken. The Court opined that a remand of this nature would omit consideration of the essential question in this case: “what is the plaintiffs' claim in the first place?” The Court noted that this “is a triple-foreign suit: plaintiffs allege that nationals of a country other than the United States were injured by a foreign entity (SNCF) in a foreign nation (France).” Although one of the plaintiffs is a U.S. citizen, the case nonetheless involves a foreign claim.

Readers of Tea-Leaves: A Common Sense Good-Faith Defense for Private Party Section 1983 Defendants in the Seventh Circuit

Readers of Tea-Leaves: A Common Sense Good-Faith Defense for Private Party Section 1983 Defendants in the Seventh Circuit

The Beginning and End of Our Analysis: The Seventh Circuit's Approach to the Three-Way Circuit Split of Dismissal Authority in Qui Tam Claims

The Beginning and End of Our Analysis: The Seventh Circuit's Approach to the Three-Way Circuit Split of Dismissal Authority in Qui Tam Claims

“Bang!”: ShotSpotter Gunshot Detection Technology, Predictive Policing, and Measuring Terry’s Reach

ShotSpotter technology is a rapid identification and response system used in ninety American cities that is designed to detect gunshots and dispatch police. ShotSpotter is one of many powerful surveillance tools used by local police departments to purportedly help fight crime, but they often do so at the expense of infringing upon privacy rights and civil liberties. This Article expands the conversation about ShotSpotter technology considerably by examining the adjacent Fourth Amendment issues emanating from its use. For example, law enforcement increasingly relies on ShotSpotter to create reasonable suspicion where it does not exist. In practice, the use of ShotSpotter increases the frequency of police interactions, which also increases the risk of Black Americans becoming the victims of police brutality or harassment. Such racialized policing facilitates the status quo of violence and bias against Black Americans. This Article uses recent cases from the D.C., the Fourth, and Seventh Circuits as a foundation to argue that officers arriving on the scene to investigate a gunshot sound they were alerted of via ShotSpotter technology should not be allowed to use the gunshot sound as the basis of reasonable suspicion and subsequent search and seizure. At the heart of this Article is the argument that the use of ShotSpotter technology is unconstitutional under City of Indianapolis v. Edmond because it is not used for a specific law enforcement purpose beyond preventing crime generally. Under the reasoning and result of Edmond, law enforcement is prohibited from using ShotSpotters unless officers have reasons for individualized suspicion. Spending more money on ineffective ShotSpotters placed in “high crime” neighborhoods across America is not the answer to reducing gun violence. As seen with Oakland’s successful Ceasefire program, there are innovative ways to simultaneously build trust in communities and curb gun violence. Indeed, properly designed group violence reduction strategies will foster and maintain dignity for participants in a program tailored to saves lives and promote community healing.

Looking back at the lawsuit that transformed the chiropractic profession part 7: Lawsuit and decisions.

This is the seventh paper in a series that explores the historical events surrounding the Wilk v American Medical Association (AMA) lawsuit in which the plaintiffs argued that the AMA, the American Hospital Association, and other medical specialty societies violated antitrust law by restraining chiropractors' business practices. The purpose of this paper is to provide a summary of the lawsuit that was first filed in 1976 and concluded with the final denial of appeal in 1990. This historical research study used a phenomenological approach to qualitative inquiry into the conflict between regular medicine and chiropractic and the events before, during, and after a legal dispute at the time of modernization of the chiropractic profession. Our methods included obtaining primary and secondary data sources. The final narrative recount was developed into 8 papers following a successive time line. This paper, the seventh of the series, considers the information of the 2 trials and the judge's decision. By the time the first trial began in 1980, the AMA had already changed its anti-chiropractic stance to allow medical doctors to associate with chiropractors if they wished. In the first trial, the chiropractors were not able to overcome the very stigma that organized medicine worked so hard to create over many decades, which resulted in the jury voting in favor of the AMA and other defendants. The plaintiffs, Drs Patricia Arthur, James Bryden, Michael Pedigo, and Chester Wilk, continued with their pursuit of justice. Their lawyer, Mr George McAndrews, fought for an appeal and was allowed a second trial. The second trial was a bench trial in which Judge Susan Getzendanner declared her final judgment that "the American Medical Association (AMA) and its members participated in a conspiracy against chiropractors in violation of the nation's antitrust laws." After the AMA's appeal was denied by the Court of Appeals for the Seventh Circuit in 1990, the decision was declared permanent. The injunction that was ordered by the judge was published in the January 1, 1988, issue of the Journal of the American Medical Association. The efforts by Mr McAndrews and his legal team and the persistence of the plaintiffs and countless others in the chiropractic profession concluded in Judge Getzendanner's decision, which prevented the AMA from rebuilding barriers or developing another boycott. The chiropractic profession was ready to move into its next century.

Litigation on Gender Confirmation Surgery and Hormonal Therapy among Trans Women Prisoners: Views from the U.S. Circuit Courts of Appeals

This article analyzes U.S. Circuit Courts of Appeals’ cases involving Title 42 U.S.C. §1983 actions filed by trans women inmates against corrections and/or medical officers for failure to provide hormone therapy and/or gender confirmation surgery (“GCS”) (N = 24). The courts varied in their decisions. The Ninth Circuit has been more progressive toward trans rights, holding that GCS can be medically necessary depending on the individualized needs of the transgender inmate because there is a medical consensus on the appropriateness of these treatments. The First and Fifth Circuits rejected requests for GCS because of the lack of medical consensus on the necessity of GCS. Both the Seventh and Eleventh Circuits held that failure to provide medically recommended care for a non-medical reason and unexplained delays in treatment can constitute deliberate indifference, violating the Eighth Amendment. Under Tenth Circuit precedent, prison officials are not deliberately indifferent for failing to provide hormone treatments.

Malingering and Sentence Enhancement

In U.S. v. Bowling , 952 F.3d 861 (7th Cir. 2020), Monique Bowling argued (in part) that the district court erred when enhancing her sentence for obstructing justice by malingering. The Seventh Circuit Court of Appeals affirmed the lower court's decision, holding that the district court's finding

Disability and Reproductive Justice

Since at least the 1960s, public debate over abortion rights has frequently turned to issues of disability. Those who argue for liberalization of abortion laws have often been successful by raising the specter of fetal disability — whether caused by Thalidomide, or rubella, or otherwise. Those who agitate for restricting or banning abortion, by contrast, have often argued that pro-choice advocates devalue the lives of people with disabilities. In the spring of 2019, disability and abortion rights collided at the Supreme Court. Indiana had adopted a law “barring the knowing provision of sex-, race-, or disability-selective abortions by abortion providers.” The Seventh Circuit invalidated that law. In Box v. Planned Parenthood of Indiana & Kentucky, the Supreme Court denied certiorari (though it summarily reversed the Seventh Circuit’s invalidation of a separate Indiana law regulating the disposal of fetal remains). Justice Thomas concurred in the denial of certiorari, but he filed a lengthy separate opinion arguing that the ban on selective abortions was constitutional. He argued that “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written in a case in which individuals with developmental disabilities challenged a District of Columbia policy that denied them the right to make decisions about their medical care. The case was Doe ex rel. Tarlow v. District of Columbia. The D.C. Circuit reversed a district court decision enjoining that policy. Judge Kavanaugh’s opinion did not say anything specifically about reproductive rights. He treated the case entirely as one about the (lack of a) right of incompetent persons to consent to medical treatment. But the case itself was very much a reproductive rights case. Two of the three plaintiffs had been forced to have abortions without their consent; they sued precisely to challenge the policy that had taken away their power to choose. Although Kavanaugh had a reputation as a strong “pro-life” judge, here he voted to uphold government decisions to require individuals with intellectual disabilities to have abortions. Debate over disability and reproductive rights has typically focused on the issues raised by Justice Thomas’s opinion in Box — whether fetal disability is an acceptable reason for terminating a pregnancy, and what the law should do about it. Those are important questions. But any full assessment of the intersection between disability and reproductive rights must also address the issues raised by then-Judge Kavanaugh’s opinion in Doe. Disabled people are frequently denied their own rights to conceive, bear, and parent children, whether through forced sterilization or abortion, the denial of assisted reproduction, or the denial of parental rights once their children are born. Some of these practices — notably forced sterilization — are emblematic of the Eugenics Era. But they are not at all confined to the past. Indeed, the practices that prevent people with disabilities from having and raising children — practices like the law Kavanaugh upheld in Doe — are in many ways the disability analogues of the race-based eugenic practices that Justice Thomas himself decried in his Box opinion. This essay offers a fuller consideration of the intersection of disability and reproductive rights. It does so by considering the legal and societal treatment of fetuses and children with disabilities alongside the legal and societal treatment of parents with disabilities. And it does so by bringing to bear insights drawn from two distinct social movements: the disability rights movement, and the reproductive justice movement. The piece argues that, taken together, the disability rights and reproductive justice perspectives offer substantial purchase on the questions raised by Justice Thomas in his Box concurrence. Those perspectives suggest that the questions are serious indeed but that Thomas gave the wrong answer to them. They also suggest that any effort to address the intersection of disability and reproductive rights needs to address the questions raised by then-Judge Kavanaugh’s Doe opinion — and that Kavanaugh, too, gave the wrong answer.

Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split

The natural gas industry is central to the United States economy. However, due to vague regulations and judicial leniency, natural gas pipeline companies have almost zero restraint in exercising eminent domain. Their current operations mirror that of the federal government’s authority to exercise immediate possession. Recently, landowners have contested the pipeline industry’s authority to exercise eminent domain, which has developed into a circuit split. The Fourth Circuit, and the six other circuits that have followed suit, hold that pipeline companies have the substantive right to immediate entry and are entitled to a preliminary injunction before a trial on just compensation. The Seventh Circuit holds that the courts do not have the authority to grant immediate entry, and the pipeline company must complete the entire standard condemnation process before entering the property. In 2019, there were two attempts to bring this issue before the Supreme Court, and both attempts failed. This Note evaluates the most recent attempt in Givens v. Mountain Valley Pipeline, LLC and argues that the Supreme Court should address this issue and adopt the Seventh Circuit approach.

Police Response to Threat by Person with Mental Illness

In King v. Hendricks Cnty. Comm'rs , 954 F.3d 981 (7th Cir. 2020), the Seventh Circuit Court of Appeals considered whether the District Court for the Southern District of Indiana's decision to grant summary judgment in favor of police was correct. Matthew King, father and representative of the

“Habit and creativity in judges’ definition and framing of legal questions”

The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect the development of law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent.

The Humira Patent Thicket and the Noerr-Pennington Doctrine

Humira (adalimumab) is among the best-selling drugs in the United States and around the world. Even though the core patent for Humira expired in 2016, the manufacturer, AbbVie, has continued to increase the price to consumers year-after-year, so that the 2019 average yearly retail price was $84,454. Another 7.5% price increase is expected in the near future. AbbVie’s conduct to promote the rising price of Humira was recently challenged in In Re: Humira® (Adalimumab) Antitrust Litigation, No. 19-cv-1873. In March 2019, a group of indirect payers for Humira (labor unions and health and welfare funds) filed a novel lawsuit in the U.S. District Court for the Northern District of Illinois alleging antitrust activity on the part of AbbVie in violation of Sections 1 and 2 of the Sherman Antitrust Act. The antitrust challenge, which was dismissed by the District Court on the basis of the Noerr-Pennington doctrine, is predicated on AbbVie’s patent thicket that surrounds Humira and on legal settlements it has reached with six biosimilar companies to keep them out of the market until 2023. This article examines In Re Humira and provides a legal rationale for the conclusion that the District Court’s dismissal of the case should be overturned on appeal to the United States Court of Appeals for the Seventh Circuit. The case will be heard on February 25, 2021.

Disrupting Frivolous Defenses

Judge Milton I. Shadur was a disrupter of frivolous defenses. In 2018, Judge Shadur died at the age of 93 after 37 years as a judge of the United States District Court for the Northern District of Illinois. Sua sponte, Judge Shadur reviewed civil answers, and disrupted the pleading of frivolous defenses. Sua Sponte Shadur—as some lawyers called him—rejected answers that departed from or ignored Rule 8 of the Federal Rules of Civil Procedure. In 2001, Judge Shadur issued an Appendix to an order in State Farm v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001) with his expectations regarding how defense lawyers were to answer according to Rule 8 of the Federal Rules of Civil Procedure. As the Appendix makes clear, Judge Shadur disallowed pleaders to dodge Rule 8 by 1) claiming that an allegation called for a legal conclusion, 2) claiming that documents speak for themselves; and 3) demanding strict proof. Judge Shadur also expected that affirmative defenses (Or ADs, as he called them) would be true affirmative defenses and that defense attorneys would support affirmative defenses with foundational or predicate facts. The Appendix, now 20 years old, is living a rich life. Judges have cited Judge Shadur’s order and appendix 233 times. Litigants have cited the case 452 times in trial-court motions and filings as well as 14 times in appellate matters. Westlaw reports 52 citations in secondary sources and another 13 in a directory West calls “Practical Law.” After presenting a minibiography of Judge Shadur, the backstory of State Farm v. Riley, and a gloss on the Appendix, this article tracks Appendix use by federal judges throughout the United States. Specifically, the article focuses on legal conclusions, speaking documents, and affirmative defenses. The article organizes the cases by federal circuit. The organization should be interesting to academics and useful to attorneys preparing F.R.C.P. 12 motions to strike affirmative defenses, motions to deem allegations admitted, or motions for more definite statement. The article first covers the citation of the Appendix first by Judge Shadur himself, next by Northern District of Illinois colleagues, then within the broader Seventh Circuit, and finally outside his Circuit. Last are the few citations in state courts finishing, though, with the epitome of Shadur’s Appendix, which was a rule change by the Arizona Supreme Court in 2018, the year of Shadur’s death. Arizona’s Rule 8 now aligns with Shadur’s Appendix. This article meshes with the empirical analysis of my related article Frivolous Defenses. In that piece, I examine car-crash answers and complaints in the state courts of Colorado, where I live, teach, and have practiced law. For 298 lawsuits, I retrieved and read the complaints and corresponding 356 answers, which number more than 298 because a number of suits had multiple defendants. Frivolous Defenses examines the departures from Colorado’s Rule 8 using, among other things, Judge Shadur’s Appendix and analysis. I welcome comment and suggestions by professors, attorneys, and judges concerning either of these articles.

PULL THE TRIGGER: United States v. Corner and Judicial Discretion in Drug Sentencing Under the First Step Act

ABSTRACT There are drug offenders sentenced under the outdated 100-to-1 powder-to-crack disparity. The ratio represents the amount of powder cocaine versus crack cocaine necessary to trigger the federal mandatory-minimum sentence. The First Step Act of 2018 (“FSA ’18”) makes the Fair Sentencing Act of 2010 (“FSA ’10”) guidelines retroactive. Under FSA ’10, the ratio is 18-to-1. FSA ‘18 provides retroactive relief for drug offenders who did not benefit from FSA ’10. Sentencing reduction under FSA ‘18 is important because the crack-cocaine disparity has had a negative impact on the African American community due to the disproportionate application to Black offenders. Sentencing before the Fair Sentencing Act was widely criticized as racially motivated and lacking empirical support. The progressive legislation is ineffective without proper exercise of judicial discretion. The author uses legislation, scholarly articles analyzing the legislation and its impacts, United States Sentencing Commission (“USSC”) reports, an informal interview with a prior offender, federal court cases, articles by reform advocates, and the appellate court decision in United States v. Corner. The legislation, USSC reports, and scholarly articles indicate lack of empirical support for the 100-to-1 rule. USSC reports continuously advocated for a decreased ratio and support the theory that the disparity is racially motivated. The prior-offender interview provides a first-hand account of the application of the outdated disparity. The reform-advocate articles support the conclusion that the disparity is a grave injustice that was racially motivated. All research indicates the importance of proper application of FSA ’18. The author concludes that the appellate court came to the correct conclusion in determining the level of judicial discretion in drug sentencing. In United States v. Corner, the Seventh Circuit Court of Appeals interpreted FSA ’18 and the discretion vested in district court judges considering sentence reduction. The court concluded that courts must determine offender eligibility and impose a new sentence under the new guidelines. The court held that district court judges maintain discretion to grant the sentence reduction.

An Empirical Analysis of Judge Amy Coney Barrett’s Record on the Seventh Circuit

We use the consensus voting model developed by Fischman to estimate the ideology of Supreme Court nominee Amy Coney Barrett and 13 of her colleagues on the U.S. Court of Appeals for the Seventh Circuit. We reviewed over 1,700 cases, including over 400 involving Judge Barrett, coding their decisions as liberal, conservative, or mixed. On a one-dimensional, liberal-conservative spectrum, Judge Barrett’s voting record during her tenure on the court places her within a group of the circuit’s six most conservative judges, and possibly more conservative than every other judge considered. We conclude with substantial confidence that Judge Barrett’s record over the period is more conservative than the majority of her colleagues on the Republican-appointee-dominated court.

House Judiciary Inquiry into Competition in Digital Markets: Statement of Herbert Hovenkamp

House Judiciary Inquiry into Competition in Digital Markets: Statement of Herbert Hovenkamp

The NCAA’s Transfer Rules: An Antitrust Analysis

In Deppe v. National Collegiate Athletic Association, the Seventh Circuit accepted the NCAA’s argument that its transfer rules are presumptively procompetitive. It also approved the NCAA’s no-poaching agreement. This Article analyzes these NCAA-imposed restraints and finds them inconsistent with current antitrust policy.

God Is My Roommate? Tax Exemptions for Parsonages Yesterday, Today, and (if Constitutional) Tomorrow

In 2019, the Seventh Circuit decided an Establishment Clause question that had been percolating through the courts for two decades. It held that the parsonage allowance, which permits “ministers of the gospel” to receive an untaxed housing allowance, does not violate the Establishment Clause of the Constitution. It grounded its conclusion in part on the “historical significance” test the Supreme Court established in its Town of Greece v. Galloway decision. In coming to that conclusion, the Seventh Circuit cited a 200-year unbroken history of property tax exemptions for religious property. According to the Seventh Circuit, that history demonstrated that both the Founders and subsequent generations of Americans recognized that there was no constitutional problem with exempting parsonages. The court’s historical significance analysis was fundamentally flawed, however. Had the court actually engaged with this history, rather than made the conclusory assertion of consistent and uncontroversial exemption, it would have seen at least two things that complicated its facile conclusion. Significantly, in treating the history of religious property tax exemptions as unbroken and consistent, the court elides the actual history, which was messy and varied. The actual history provides no support for the proposition that the Framers and those who followed viewed property tax exemptions as constitutional. Even if the history were as clean as the Seventh Circuit portrayed it, that history would have been irrelevant to the question of the constitutionality of the parsonage allowance. The Supreme Court did not incorporate the Establishment Clause against the states until 1947, so states faced no Establishment Clause bar to exempting for religious property. And the federal government only made four attempts at taxing property, none of which expressly exempted religious property. In this Article, I explore the historical and current tax exemptions for parsonages, and trace how states arrived at their current exemptions. Ultimately, I conclude that the historical significance test, as applied by the Seventh Circuit, does not support the constitutionality of the parsonage allowance. I further conclude that, given its complexity and the fact that attorneys and judges tend to be poor historians, the historical significance test is not well suited as a jurisprudential tool for analyzing Establishment Clause questions, and that courts should not adopt it.

,,,Picking Up a 7–10 Split: Studying the Seventh Circuit’s Northern Border Opinion for a Tenth Circuit Solution

,,,Picking Up a 7–10 Split: Studying the Seventh Circuit’s Northern Border Opinion for a Tenth Circuit Solution

Admission by Party-Opponent, Fed.R.Evid. 801(d)(2); Government Agent or Employee, Experts, Confrontation Clause

Admission by Party-Opponent, Fed.R.Evid. 801(d)(2); Government Agent or Employee, Experts, Confrontation Clause