Seventh Circuit Research Articles

The Fourth Amendment in an Age of New Technologies: Circuits Split Over Warrantless Gps Tracking

On August 6, 2010, the District of Columbia Circuit Court held in United States v. Maynard that law enforcement agents’ use of a Global Positioning System (GPS) device to monitor the location of a car on public roads constitutes a Fourth Amendment search and seizure when conducted over a long period of time. Thus, the D.C. Circuit held that police must obtain a warrant before using GPS device to monitor vehicles.The D.C. Circuit decision directly contradicts a recent decision in the Eight Circuit and a 2007 decision in the Seventh Circuit, respectively United States v. Marquez and United States v. Garcia. Additionally, last month the Ninth Circuit refused to re-hear a ruling upholding the warrantless use of GPS devices in United States v. Pineda-Moreno over the dissent of five judges. The Circuit sets up a potentially landmark Supreme Court decision and the reexamination of United States v. Knotts which held that law enforcement agents’ use of a beeper device to aid the tracking of a suspect to his drug lab was not a search within the meaning of the Fourth Amendment. The D.C. Circuit refused to apply Knotts to law enforcement agents’ use of a GPS device, determining Knotts reserved the question at issue, while the Seventh, Eighth, and Ninth Circuits found Knotts controlling.This Comment will first examine the history of the Supreme Court’s Fourth Amendment landmark decisions, examining United States v. Katz, Kyllo v. United States, and Knotts. Second, this Comment will discuss the Seventh, Eighth, and Ninth Circuits’ rulings that law enforcement agents use of a GPS tracking device does not require a warrant and the D.C. Circuit’s contradictory ruling that requires a warrant.Third, this Comment will analyze the current state of the law, determining that while Knotts is distinguishable, the Court must decide whether law enforcement agents’ use of a GPS tracking device requires a warrant within the framework handed down in Knotts. This Comment will especially focus on the D.C. Circuit’s contrasting decision in United States v. Maynard and its potential to reshape Fourth Amendment jurisprudence.Fourth, this Comment will argue that under the Knotts framework, the Supreme Court should rule that the warrantless use of a GPS tracking device to track a suspect’s movements outside his home does not constitute a “search” or “seizure” within the meaning of the Fourth Amendment, and examine the potential impact of the Supreme Court’s acceptance of the flawed reasoning in Maynard. In conclusion, this Comment will emphasize the magnitude of the potential Supreme Court decision and analyze its effects on law enforcement as well as individual privacy.

Unequal Application of RLUIPA's 'Equal Terms' Provision

This Comment addresses the current split between the United States Court of Appeals for the Eleventh Circuit, the Third Circuit, and, most recently, the Seventh Circuit regarding the equal terms provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The equal terms provision is within the land use provisions of RLUIPA. Even though these land use provisions implicate important issues, such as the extent to which state and local governments can exclude religious establishments from commercial districts, the United States Supreme Court has not addressed the equal terms provision. Since the Supreme Court has not addressed the issue, lower federal courts are left to rely upon their own case by case analysis without any guidance from the Court. The recent three way split among the circuits shows that, not only are lower federal courts interpreting the equal terms provision differently, but that the Supreme Court should address this RLUIPA provision to avoid more confusion among circuits.The equal terms provision of RLUIPA provides that the government cannot prefer secular institutions or assemblies over religious assemblies when dealing with land use regulations. Courts’ interpretation of this provision, regardless of its scope, affects the ability of religious institutions to locate in densely populated areas and convenient locations. As many cities attempt to revitalize the economies of urban districts and engage in city projects to increase commercial activity and city productivity, the equal terms provision interpretations are becoming more important. For example, in New York, the zoning commission recently refused to allow a religious institution to build in a particular zone stating that the issue was the traffic and other half was the church’s tax exempt status. Although a few articles have been written on the split between the Eleventh and Third Circuit, the recent Seventh Circuit’s choice to deviate from both circuits’ standards and create its own for interpreting the equal terms provision further shows that the Supreme Court must address this important provision. The lack of governing precedent on the issue has led to a doctrinal circuit split between the Eleventh, Third, and Seventh Circuits. The circuits have differing interpretations as to the meaning of the equal terms provision and disagree as to what standard of should be used when deciding whether a secular institution (or assembly) is treated more favorably than a religious institution (or assembly). Further, the circuits also differ as to what of scrutiny should be applied when local and state governments implement regulations that favor secular institutions or assemblies over religious ones. This Comment argues that the United States Supreme Court should address and interpret the equal terms provision of RLUIPA, and recommends an the Court should adopt. Specifically, it recommends that the Eleventh Circuit’s should be adopted. Further, it discusses the Eleventh, Third, and Seventh Circuit approaches. The analysis of the Seventh Circuit is in-depth, and most critiqued, since it was only recently articulated in July 2010. The Author argues for the adoption of the Eleventh Circuit to the of for determining whether a secular assembly is treated more favorably than a religious one, and that the Eleventh Circuit’s level of scrutiny that federal courts should apply to governmental regulations favoring secular assemblies should be adopted. The Eleventh Circuit’s comparison by category approach allows for protection of religious establishments from discrimination, and also further congressional intent behind the equal terms provision. Moreover, the Third and Seventh Circuit approaches allows creators of land use regulations to manipulate these regulations in ways in a way the permit discriminatory land use provisions that should be invalidated under RLUIPA. Further, the Eleventh Circuit’s strict scrutiny requirement is preferable to the other circuits’ scrutiny levels, because it allows the occasional statute truly designed to further a compelling governmental interest to survive an equal terms provision challenge.This Comment first outlines Supreme Court religious exercise jurisprudence prior to RLUIPA’s enactment. Next, it discusses RLUIPA and its relevant portions, and addresses the different approaches from the Eleventh, Third, and Seventh Circuits. Then, it discusses why the Eleventh Circuit is preferable to the Third and Seventh Circuit approaches. Finally, it explains why a Supreme Court precedent on this issue, regardless of which is chosen, is imperative.

Extracting Lessons from Illinois' 2010 Special Election Fiasco: A Closer Look at the Seventh Circuit's Decision in Judge v. Quinn and the Special Election Requirement of the Seventeenth Amendment

Extracting Lessons from Illinois' 2010 Special Election Fiasco: A Closer Look at the Seventh Circuit's Decision in Judge v. Quinn and the Special Election Requirement of the Seventeenth Amendment

The Supreme Court’s Impact on Securities Class Actions: An Empirical Assessment of Tellabs

How does Supreme Court precedent affect lower court decisions when there is asymmetric probability of appellate review? Using securities fraud class actions filed between 2003 and 2007, we study the impact of a widely-followed Supreme Court decision from that period, Tellabs, Inc. v. Makor Issues & Rights, Ltd. Tellabs clarified the law with respect to one of the most contested issues in securities litigation: pleading scienter. The Tellabs decision reversed a lenient Seventh Circuit reasonableness standard for pleading scienter, but replaced it with a standard that is nonetheless relatively generous to plaintiffs. Would the Supreme Court’s directive cause the dismissal rates in the lower courts to converge? Looking at opinions resolving motions to dismiss decided before and after that decision, we find that Tellabs correlates with a significantly lower dismissal rate on scienter grounds in circuits previously applying a higher preponderance standard for scienter, particularly the Ninth Circuit. By contrast, we find no significant shift in the courts previously applying the lower reasonableness standard in our basic model. Looking at judicial characteristics that might explain the higher dismissal rates in the preponderance circuits, we find that judges who have substantial business caseloads or who were nominated by Republican presidents became substantially less likely to dismiss on scienter grounds after Tellabs. Consistent with the greater difficulty involved in obtaining dismissal, Tellabs correlates with an increase in low value settlements in the Ninth Circuit. Conversely, Tellabs also correlates with a decrease in low value settlements in circuits that previously applied the more lenient Seventh Circuit standard. Overall, we conclude that Tellabs led to increased uniformity in how lower courts apply pleading standards, but its effect is muted by the asymmetry of the right to appeal.

Billy-Bob Teeth Saves Porn Star: Coping with Defective Work-for-Hire Registrations

This paper begins by briefly reviewing statutory provisions that determine initial copyright ownership, govern title transfers, establish requisites to infringement litigation, and bar untimely suits.It then examines Billy-Bob Teeth and Jules Jordan Video and explains how, in the latter case, the Ninth Circuit applied rationales adopted by the Seventh Circuit in the former case to overturn a JMOL unfavorable to an adult film star.The third part of the paper reviews use of the copyright statute of limitations to resolve competing ownership claims.The last part of the paper, flagging important differences between § 201(b) and § 204(a), explains why one approach used by the Seventh Circuit to clear title was inappropriately applied by the Ninth Circuit. It concludes that, had the copyright statute of limitations been pled in the later case, the opportunity to misapply § 204(a) should not have arisen. Summary judgment would have been warranted on § 507(b), and that would have made it unnecessary for the Ninth Circuit to offer three alternative ways to extricate a copyright owner from the horns of a dilemma.A version of the paper, citing later copyright and patent opinions refusing acceptance of nunc pro tunc agreements, is published in 9 U.N.H. L.Rev. 409 (2011).

Miami Arbitration Reports: Unique Cases to Give Readers aBroader Understanding of Arbitration

ABSTRACT: This edition of MAR capitalizes on some unique cases to give readers a broader understanding of arbitration. First, we look at the scope of the arbitral clause within employment arbitration. The Fifth Circuit uses a factually challenging case to draw a bright-line rule and cir­cumscribe even the broadest of clauses. Second, Erica Franzetti from Crowell & Moring helpfully synthesizes the development of a recent line of cases on 28 USC 1782. As our first special contributor, she provides a timely analysis of a fascinating subject. Third, a domestic arbitration gives the Seventh Circuit a chance to expand the scope of 9 USC 5 in the context of the selection of an arbitrator. And finally, the Second Circuit looks at an attempt to confirm an arbitral award against a foreign state. It lays out some helpful rules in the context of personal jurisdiction, and pens an opinion opening interesting questions of due process and the interpretation of the Foreign Sovereign Immunities Act.

Far from the Final Stitch? American Needle and the Perpetuating Saga of the Single Entity Defense

For decades professional sports leagues have claimed the single entity defense as a means to avoid antitrust scrutiny under the Sherman Act. While Judge Easterbrook opened the door slightly in Chi. Prof'l Sports Ltd. v. NBA, this Comment analyzes the Supreme Court's outright rejection of the single entity defense in American Needle v. National Football League. It traces the relevant litigation through the federal district court, U.S. Court of Appeals for the Seventh Circuit, and Supreme Court levels. This Comment concludes by positing the implications of the Supreme Court's decision upon a number of interested groups: the NFL itself, professional sports leagues, and other industries and joint ventures.

What They Meant to Say: The Courts Try to Explain Branzburg v. Hayes

Part I: Introduction For close to forty years, fate of journalists wishing to conceal identities of confidential sources from government bodies with subpoena power has depended upon how one heavily divided United States Supreme Court opinion is interpreted. The Court's 5-4 decision in Branzburg v. Hayes1 in 1972 represents its last word - so far2 - on whether journalists have a constitutional right under First Amendment press clause3 to refuse to identify sources of information to grand juries, prosecutors, criminal defendants, civil litigants, legislators, and others. With prospects for a federal journalist's shield law still uncertain at this writing,4 journalists may continue to rely on interpretations of Branzburg for protection for some time. Because Branzburg decision was closely divided, lower court interpretations have focused on a brief concurring opinion by Justice Lewis Powell.5 The Powell concurrence is not necessarily a ringing endorsement of majority opinion, but it also stops short of endorsing either dissent. Lower federal courts and some state courts have resolved resulting confusion through ad hoc decision-making, while other states have created shield statutes that protect journalists to varying degrees. But recently in federal courts, journalists' protection, already uncertain, has been thrown into further disarray by a parade of negative decisions.0 The parade began with a strongly worded United States Court of Appeals decision in 2003 criticizing thirty years of federal appellate precedent that provided limited protection to journalists and sources.7 The Seventh Circuit's 2003 opinion accused other federal courts of badly misreading Branzburg, which three-judge panel said provided no support for any type of constitutional privilege.8 The Seventh Circuit's McKevitt opinion indicated that more than thirty years after Branzburg was decided, lower courts still were unsure what it meant. Although passage of a federal shield law would help clarify journalists' right to conceal confidential sources, it would still leave unresolved two other issues that are associated with Branzburg - extent to which press newsgathering activities are protected by First Amendment and reach of generally applicable laws into newsgathering and publication. Because Branzburg still matters to media, this article will attempt to make sense of it by using a comprehensive approach. All Supreme Court opinions that have cited Branzburg in First Amendment contexts will be examined, as well as a few non-media cases in which Court discussed Branzburg at some length. Also, article will briefly examine federal and state appellate court cases and federal trial court opinions that discussed Branzburg's meaning to some extent. The goal is to gain a complete picture of how this pivotal case in First Amendment law has affected press rights. Part II: Origins of Case The cases consolidated in Branzburg v. Hayes had origins in many years of journalistic practice, centuries of Anglo-American legal tradition, and turbulent 1960s. sl Before examining backgrounds of specific cases, it would be helpful to briefly sketch larger issues at stake. THE PROBLEM OF PRIVILEGE It has long been a maxim of English and American law that privileges excusing people from providing in court are disfavored because they hamper search for truth. Famously, during a debate on whether privileges to excuse witnesses should be curtailed, Lord Hardwicke in 1742 said on floor of Parliament that the public has a right to every man's evidence in courts of law.10 That phrase has survived to this day as a description of Anglo-American law's attitude toward privileges.11 Nevertheless, it also is widely accepted in law that some relationships between persons are irreparably damaged if one party cannot rely on promises of confidentiality from other. …

In Rob We Trust

In 1990, the Illinois legislature changed the name and wording of its meditation statute. Silent Reflection Act, which dates back to 1969, changed to Silent Reflection and Student Prayer Act. The 1969 version provided that public school teachers observe a period of silence. ... not as a religious exercise but ... as an opportunity for or for reflection on the anticipated activities of the The amended version added this provision: Student ... [S]tudents in the public schools may voluntarily engage in individually initiated, nondisruptive that, consistent with the Free Exercise and Establishment Clauses of the United States and Illinois Constitutions, is not sponsored, promoted, or endorsed in any manner by the school or any school employee. In 2007, the legislature amended the first sentence so that public school teachers shall observe a period of silence, thus making it mandatory. As a result, Township High School District 214 in the northern Chicago suburbs began implementing the new law by announcing a moment of at the start of each school day. Robert I. Sherman, on behalf of his daughter, who was a in the district, sued both the district and the state in federal court, claiming the statute violated the Establishment Clause and was unconstitutionally vague. The Court's Rulings On Nov. 15, 2007, the federal district court granted Sherman's motion for a preliminary injunction and denied the defendants' motion for dismissal. (1) Soon thereafter, the court granted the motion for two organizations to appear as amici curiae--the ACLU of Illinois for the plaintiff, Sherman, and the Alliance Defense Fund for the defendants. On March 28, 2008, the court granted Sherman's motion to certify the suit as a bilateral class action, which means that it affected students generally and Illinois districts generally. (2) The defendants submitted expert reports to the court on the effects of the statute on schoolchildren of various ages. In addition, the state superintendent provided results of a survey he conducted of the 873 districts in Illinois on how they interpreted and observed the statute's mandates. On Jan. 21, 2009, the court issued a summary judgment in Sherman's favor. (3) First, the court concluded that the amended statute violated the Establishment Clause for two alternative reasons: 1) The plain language suggests an intent to force the introduction of by requiring the teacher to explain to students the limited boundaries of silent prayer and silent reflection, and 2) the legislative history evidences this fatal intent by first adding student prayer to the title of the act and then changing the primary provision from permissive to mandatory. The court also concluded that the act was unconstitutionally vague because it provides no direction as to how the 'period' of silence would be implemented, how long the period should last, and whether pupils would be permitted to pray in a manner that was either audible or required movement. In reaching its conclusions about the Establishment Clause, the court credited the plaintiff's expert, a child and adolescent psychiatrist who opined that elementary school students will not understand reflection in relation to prayer; middle school students will be subjected to peer pressure to pray; and that high school students may act out in defiance. Conversely, the court found the defendant's expert report of negligible value because the psychologist had little experience with children and adolescents, and her opinion that some students could benefit from the statute didn't change the applicable analysis under the Establishment Clause. The defendants' appeal is pending at the Seventh Circuit. The odds appear to favor Sherman's side, but objectivity and certainty are difficult in religion cases. …

Book Reviews

Marc Levinson of Council on Foreign Relations reviews “Uncommon Sense: Economic Insights, from Marriage to Terrorism” by Gary S. Becker, Richard A. Posner,. The EconLit Abstract of the reviewed work begins “Presents a collection of articles from the joint opinion blog of Gary S. Becker and Richard A. Posner on a range of contemporary issues in economic policy. Focuses on topics in sex and population; property rights; universities; incentives; jobs and employment; environment and disasters; crime and punishment and terrorism; and the world. Becker is University Professor in the Department of Economics, the Department of Sociology, and the Graduate School of Business at the University of Chicago. Posner is a judge of the U.S. Court of Appeals for the Seventh Circuit and senior lecturer in law at the University of Chicago. Index.”

The Demise of the 'You Break It, You Bought It' Rule in the Seventh Circuit: Lost Profit and Overhead Damages under the UCC

When a manufacturer suffers a complete loss of goods due to another’s breach of contract, whether the breach causes the loss through contamination, fire or other mechanism, case law interpreting the Uniform Commercial Code historically has allowed the manufacturer to recover as part of its damages both the overhead cost incurred to manufacture the destroyed goods and the profit the manufacturer would have realized from the sale of the goods in the absence of the breach. Overhead has been held to be recoverable because in a real economic sense, overhead items such as administrative salaries and rent are costs that have been wasted when the goods cannot be sold profitably. Although such items of overhead do not increase as a direct result of the manufacture of the destroyed goods, courts have reasoned that they are compensable because those resources could have been put to another profitable use had there been no breach and there are fewer transactions over which to spread the overhead costs. Lost profits have also traditionally been recoverable by the manufacturer to compensate it for the profit it would have realized on each sale had there been no breach. The United States Court of Appeals for the Seventh Circuit, however, recently departed from this precedent in Nycomed US Inc. v. Abbott Laboratories. This paper addresses how this decision marks a significant change from prior case law and calls into serious question whether the right to recover overhead and lost profits survives in the Seventh Circuit in a majority of cases. It also addresses the dilemma created for a diligent manufacturer: whether to mitigate by speedily replacing a destroyed inventory, and thereby lose the ability to recover the wasted overhead and lost profits, or stand by and risk a defense of failure to mitigate, thus compromising the chance for recovery.

A Clerk’s View

A Clerk’s View CLIFF SLOAN One enduring challenge ofbeing a law clerk for Justice Stevens was trying to prove, at least to yourself, that the Justice actually needed a clerk. He could do it all himself—and he frequently did. It wasn’tjust the fact that he drafted his own opinions, although that was definitely part ofit. (What exactly do you say as a young, recent lawschool graduate when he gives you his polished and carefully conceived draft? “Good effort, Justice, I think you’re coming along nicely”?) And it wasn’t just the fact that he would read the same mountain of briefs as you and then come up with an insight that nobody had seen and that irrevocably turned the case on its side for all concerned, including the lawyers and the other Justices. It was also the fact that he already pos­ sessed a vast, intimate, and easy knowledge of seemingly all legal subjects, including, of course, the decisions ofthe Supreme Court. In his modest, genial manner, he always assumed that everybody shared that same familiarity. I remember him commenting collegially that it was redundant to include the year of the decision in Supreme Court case citations. If you knew the reporter volume number, then, of course, you already knew the year. My co­ clerk and I nodded sagely. Justice Stevens’ profound and lasting con­ tributions to the Court’s jurisprudence have been chronicled elsewhere,1 and they will en­ dure for generations. He is the “rule of law” Justice, and he blazed trails on issues rang­ ing from civil liberties and national security2 to the presidency,3 the right to liberty,4 the First Amendment in cyberspace,5 and numer­ ous other areas.6 From a former clerk’s per­ spective, he stands for all ofthat and for some­ thing more—an example about how to live a life. Justice Stevens taught us to do the right thing. Not in a preachy, self-righteous way, but rather through his own habits and practices. Every case is important—because that’s the right thing to do. A judge gives every case a fair hearing, with his or her all—because that’s the right thing to do. You come to your own views carefully and honestly, and then you lay them out for the world to see—because that’s the right thing to do. Justice Stevens frequently tells a story from his time on the Seventh Circuit in the early 1970s. Father James Groppi, an an­ tipoverty protestor, led a group that disrupted A CLERK’S VIEW 199 Members of the Supreme Court posed underneath a portrait of Abraham Lincoln in the East Room of the White House in 1985 with Ronald Reagan. Justice Stevens is at left wearing his signature bow tie. Justice Stevens and Chief Justice Roberts were photographed on the day of Roberts' investiture in 2005. Stevens had sworn in Roberts at a White House ceremony several days earlier. 200 JOURNAL OF SUPREME COURT HISTORY Justice Stevens served on the Supreme Court for almost thirty-five years, having been appointed by Gerald Ford in 1975. Only William 0. Douglas and Stephen J. Field had longer tenures. the Wisconsin legislature by occupying the floor of the Assembly. Groppi was cited for contempt and jailed, without any procedu­ ral safeguards. Then-Judge Stevens dissented from the Seventh Circuit’s en banc decision to uphold the contempt punishment, and he wrote extensively on the lack ofdue process.7 At the time, he felt certain that his dissent meant that he was giving up any chance of going on the Supreme Court. This was the height of ten­ sions over unlawful and disruptive protests, after all, and President Nixon was in office. Dissenting on behalf of a notorious protestor was no way to advance a judicial career. But Justice Stevens knew what he had to do. In the end, Justice Stevens’ position was unani­ mously approved by the Supreme Court,8 and his courageous dissent was hailed as one of his important contributions when he was nom­ inated to the Court. I know more than one clerk who has made a life decision to follow his...

Mutual fund advisers fees and executive compensation

The case of Jones v. Harris (2008a) that is currently before the Supreme Court poses issues with regard to mutual fund managers' fees and expense (Advisory Fees). However, the case may signal the direction courts will take in reviewing management compensation of large corporations as well. Advisory Fees pose a number of fundamental issues that appear in many fiduciary relationships. First, why do the fees and compensation of fiduciaries raise unique problems? Second, what are the solutions to the fee problem? Third, what is the role of the courts in the determination of Advisory Fees? Fourth, what are the tests that the courts or the boards of the mutual funds should apply in determining Advisory Fees? Fifth, how did the Seventh Circuit decision in Jones v. Harris determine these questions? Sixth, what are the implications of Jones v. Harris? In conclusion, by analyzing these questions we might uncover guidelines to the issues with regard to corporate executive compensation as well.

Myths About Mutual Fund Fees: Economic Insights on Jones v. Harris

Mutual funds stand ready at all times to sell and redeem common stock to the investing public for the net value of their assets under management. In the language of transaction cost economics, they are open-access common pools subject to virtually free investor entry and exit. The Investment Company Act (1940) requires mutual funds to be managed by an outside advisory firm pursuant to a written contract, which normally pays the adviser a small share of net asset value, say, one-half of one percent per year. Following 1970 amendments to the Investment Company Act imposing a fiduciary duty on advisers with respect to their receipt of compensation, a large number of private civil suits attempting to recover excessive fees have been filed against advisory firms. By failing to account for the transaction costs inherent in mutual fund organization, Congress, securities regulators, financial scholars, and even courts have misidentified a conflict of interest with respect to fund advisory fees, encouraging these frivolous suits. With free investor entry and exit and rational expectations, fund flows endogenize investor returns. Regardless of the level of the advisory fee, any expected abnormal return to a manager’s superior stock-picking skill will be competed away by investors chasing the prospect of capturing the associated rents. With shareholders having a common claim to fund assets, all expected rents will be either transferred to the manager in the form of higher total fee payments on a larger asset base or dissipated by added administrative costs. As a first approximation, the level of advisory fees is therefore irrelevant to fund shareholders. The best they can expect from placing their money in a managed fund is a normal competitive return after adjusting for risk and other factors. With the U.S. Supreme Court having recently granted certiorari in an excessive fee case appealing an arguably maverick opinion by Judge Frank Easterbrook of the Court of Appeals for the Seventh Circuit, it is essential that various myths about mutual fund fees be exposed to careful economic analysis.

American Needle, Dagher, and the Evolving Antitrust Theory of the Firm: What Will Become of Section 1?

This summer, on the last regularly scheduled sitting of its October 2008 Term, the Supreme Court granted certiorari in a case that could have far-reaching consequences throughout the law of Sherman Act Section 1. In the case under review, American Needle, Inc. v. NFL, the Seventh Circuit, by unanimous panel decision, entered a striking ruling in the long-running debate over whether professional sports leagues can be “single entities” under Copperweld. The court not only said yes, but did so in what is possibly the most likely context in which the member teams could have competed with one another - the licensing of their trademarked logos to makers of sports memorabilia. The Supreme Court granted certiorari on the question whether defendant National Football League acts as a single entity as to this conduct. Among the decision’s most important consequences will be what it has to say about another recent decision, the underappreciated 2006 ruling in Texaco Inc. v. Dagher. If the Court reverses in American Needle, it may signal that Dagher is to be a narrow decision, limited to a fairly peculiar set of facts. If the Court affirms, and particularly if it does so in explicit reliance on Dagher, then American Needle could, as a practical matter, do significant damage to the enforceability of Section 1 of the Sherman Act; it could in effect immunize significant swaths of concerted conduct among competitors. It would imply that comparatively unintegrated arrangements, like trademark licensing agreements among the NFL member teams, are just as “economically integrated” as the defendants’ joint venture in Dagher. In short order we would see horizontal arrangements throughout the economy purporting to have “integrated” around some shared common purpose. Currently, no Supreme Court case gives very clear guidance as to how courts are to distinguish the actions of “integrated” joint ventures from those subject to at least rule of reason analysis under Section 1, and as will be suggested below, it is hard to imagine how those lines could be drawn. So as a worst-case scenario, the effect of affirmance of the Seventh Circuit’s decision in reliance on Dagher could be something like repeal of Section 1 as to wide-ranging horizontal conduct, other than the hardest-core, naked price fixing and market allocations.

Licensing Facially Religious Government Speech: Summum’s Impact on the Free Speech and Establishment Clauses

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment — that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause — the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision on the Free Speech and Establishment Clauses. This paper analyzes the interaction between Summum’s “recently minted” government speech doctrine and the Establishment Clause. In particular, with respect to the Free Speech Clause, I argue that Summum resolves an ongoing Circuit split regarding a common medium of expression — specialty license plates. Recently, six Circuits have reached at least three different conclusions with respect to the status of specialty license plates, and two other Circuits have addressed the First Amendment issue in passing. In addition, a petition for writ of certiorari has been submitted seeking Supreme Court review of a 2008 Seventh Circuit case dealing with this very issue. I maintain that Summum’s new test for government speech is inconsistent with the test that the majority of Circuits has applied to specialty plates. Whereas the majority considers whether a reasonable observer would identify the government as the speaker, Summum focuses on the level of control that the government has over the specialty plate program. Under Summum’s “control” test, many (and possibly all) specialty plate programs — as well as many other forms of speech that are subject to government control — are government speech and, therefore, are exempt from First Amendment scrutiny. Moreover, I contend that Summum’s control test necessarily alters the Court’s analysis of facially religious government speech under the Establishment Clause. Although the Establishment Clause still applies to government speech, the endorsement test does not. To understand why, the paper explores the effect of the government speech doctrine on an issue of first impression — a specialty license plate containing the phrase “I Believe” and a picture of a cross superimposed on a stained glass window. Although the lower court concluded that the plate violated the endorsement test, Summum changes the analysis. Under Summum, the government has the right to say what it wants even though the government’s intended message may differ significantly from the message that observers ascribe to the government. As a result, when dealing with government speech, Justice O’Connor’s “reasonable observer” test focuses on the wrong party — the reasonable observer instead of the government speaker. That is, when determining whether facially religious government speech violates the Establishment Clause post-Summum, the Court must determine whether the government actually has an improper religious motive, not whether a reasonable person interprets the message as impermissibly religious. I conclude that a majority of the current Court is apt to apply the control test and hold that the “I Believe” specialty plate is constitutional.

Voting with their Feet and Dollars: The Role of Investors and the Influence of the Mutual Fund Market in Regulating Fees

This Note discusses the Seventh Circuit decision in Jones v. Harris Associates, a case which was granted certiorari by the Supreme Court. Oral argument was heard on November 2, 2009 and a decision in the case is expected in early 2010. The Note weighs the standard promoted by Jones for consideration of mutual fund management fees under Section 36(b) of the Investment Company Act of 1940 against the precedential Gartenberg standard of the Second Circuit, which has stood for over 25 years. The Jones standard provides a more accurate interpretation of Section 36(b) and appropriately reflects the state of the mutual fund industry today -- an industry in which competition exists between advisers. Finally, the Note suggests that the Jones standard may be further enhanced through equipping the average mutual fund investor to more actively participate in creating competition by providing the investor with disclosure in his or her account statements of the actual fees paid by the investor.

The Supreme Court's Impact on Securities Class Actions: An Empirical Assessment of Tellabs

How does Supreme Court precedent affect lower court decisions when there is asymmetric probability of appellate review? Using securities fraud class actions filed between 2003 and 2007, we study the impact of a widely-followed Supreme Court decision from that period, Tellabs, Inc. v. Makor Issues & Rights, Ltd. Tellabs clarified the law with respect to one of the most contested issues in securities litigation: pleading scienter. The Tellabs decision reversed a lenient Seventh Circuit reasonableness standard for pleading scienter, but replaced it with a standard that is nonetheless relatively generous to plaintiffs. Would the Supreme Court’s directive cause the dismissal rates in the lower courts to converge? Looking at opinions resolving motions to dismiss decided before and after that decision, we find that Tellabs correlates with a significantly lower dismissal rate on scienter grounds in circuits previously applying a higher preponderance standard for scienter, particularly the Ninth Circuit. By contrast, we find no significant shift in the courts previously applying the lower reasonableness standard in our basic model. Looking at judicial characteristics that might explain the higher dismissal rates in the preponderance circuits, we find that judges who have substantial business caseloads or who were nominated by Republican presidents became substantially less likely to dismiss on scienter grounds after Tellabs. Consistent with the greater difficulty involved in obtaining dismissal, Tellabs correlates with an increase in low value settlements in the Ninth Circuit. Conversely, Tellabs also correlates with a decrease in low value settlements in circuits that previously applied the more lenient Seventh Circuit standard. Overall, we conclude that Tellabs led to increased uniformity in how lower courts apply pleading standards, but its effect is muted by the asymmetry of the right to appeal.

Supreme Court Amicus Merits Brief of Law Professors in Support of Petitioners, Jones v. Harris Associates, No. 08-586

Amici curiae law professors filed this brief to urge the Court to reverse the Seventh Circuit and to apply a fiduciary standard under Section 36(b) of the Investment Company Act with modest scope but forceful effect to counterbalance the structural and behavioral vulnerabilities preventing market forces alone from imposing competitive discipline upon mutual fund advisory fees. The brief addresses the Seventh Circuit's decision to disavow the long-established Gartenberg precedent and to hold, instead, that so long as an adviser make[s] full disclosure and play[s] no tricks, a plaintiff cannot prevail in a Section 36(b) action. Amici argue that the Seventh Circuit's decision disregards Section 36(b)'s legislation, legislative history, and judicial precedent. With a greater appreciation for the unique structure and operation of mutual funds, the Supreme Court should emphasize comparisons between retail and institutional fees in the Section 36(b) fiduciary duty. Amici: Barbara Bader Aldave, William Birdthistle, Barbara Black, Douglas Branson, James Cox, Steven Davidoff, Lisa Fairfax, James Fanto, Jesse Fried, Theresa Gabaldon, Joan MacLeod Heminway, Donald Langevoort, David Millon, Lawrence Mitchell, Charles Murdock, Donna Nagy, Elizabeth Nowicki, Alan Palmiter, Frank Partnoy, Margaret V. Sachs, William Sjostrom, Marc Steinberg, Ahmed Taha, Steven Thel, Randall Thomas, Manning Warren

Constitutional Cases Involving Teachers

law of public employment has come long way since 1892. That's when Oliver Wendell Holmes made his infamous statement, The petitioner may have constitutional right to talk politics, but he has no constitutional right to be policeman. (1) Back then, public employment was seen as privilege, not right. Today, it's clear that public employee does not shed his constitutional rights at the workplace door. While public employees have more rights than they did in the 19th century, their legal protections have been decreasing in the past two decades. Public employees' constitutional rights reached peak during the 1960s and 1970s. Since then, the Supreme Court has been diluting their rights. Some of the most significant court decisions shaping the employment environment for public school teachers have come in the areas of freedom of expression, procedural due process, and search and seizure. FREEDOM OF EXPRESSION landmark case in terms of setting constitutional standards for teacher employment came in 1968 in Pickering v. Board of Education, in which the Supreme Court ruled that a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. (2) In Pickering, the Court ruled that public employer had to show compelling state before firing teacher for speaking about matters of public concern. In such case, the court must balance the rights of the employee against the public employer's right to run an efficient workplace. Pickering represents the closest that the free speech rights of teachers approached those of the general public. In 1983, the Supreme Court clarified public employees' free speech rights in Connick v. Myers. (3) Court ruled that when public employee speaks out on matter of private or personal interest and not as citizen on matters of public concern, the speech is not protected by the First When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. In the school setting, courts assess whether teacher's speech is made mostly in the teacher's role as citizen or as an employee of the school. (4) But even teacher whose speech is matter of public concern can be disciplined if such speech disrupts the school environment. In 2006, the Supreme Court ruled in Garcetti that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (5) Some scholars have argued that this new employer-friendly rule constitutes sharp break from the traditional Pickering test and discourages public employees from speaking out. Subsequent cases involving teachers illustrate how the Garcetti ruling is weakening the First Amendment rights of teachers both inside and outside the classroom. In Michigan case, the court upheld the termination of teacher who wore t-shirt complaining of lack of contract. Citing Garcetti, the court simply ruled that the t-shirt caused disharmony in the workplace. (6) Similarly, the Seventh Circuit ruled in 2007 that an Indiana teacher who was dismissed for sharing her views against the war in Iraq in class discussing current events was unprotected by the First (7) In 2008, school psychologist sued her school district, alleging that the district retaliated against her after she spoke about noncompliance with the Individuals with Disabilities Education Act (IDEA). A federal district court ruled that she was speaking as an employee rather than as citizen. Citing Garcetti, the court concluded, Plaintiff has not alleged that she was speaking as citizen when she voiced her concerns about alleged IDEA violations. …