Seventh Circuit Research Articles

Bankruptcy Claims of Illinois Tax Purchasers After Expiration of the Redemption Period and Before Recording of the Tax Deed

In Illinois, if real property owners fail to timely pay their property taxes, the county conducts a sale of the delinquent taxes to third parties. In such property tax sales, the county receives the amount of the taxes due and shifts the payment risk to a third-party “tax purchaser.” In exchange, the tax purchaser receives a “Certificate of Purchase” that entitles the holder to repayment of the amount of delinquent taxes paid to the county plus interest, and costs, fees and penalties set by statute. Additionally, a contingent right is conveyed to the tax purchaser who purchased the delinquent taxes: should the property owner fail to redeem the delinquency by the statutorily-determined deadline, the tax purchaser may petition an Illinois court to order the county to issue a tax deed. For more than 15 years, bankruptcy courts applying Illinois law treated the redemption deadline as demarcating the debtor’s right to treat the redemption amount as a claim in a bankruptcy plan. But two Seventh Circuit holdings over the past decade abrogated the previous approach that recognized a distinction before and after the redemption deadline. The consequent appeals court jurisprudence has shifted the focus to the recording date of the tax deed. As recently as April 2019, the Bankruptcy Court in the Northern District of Illinois declined a tax purchaser’s request to reconsider and reverse the revised approach. Consequently, Illinois tax purchasers should expect courts to allow chapter 13 debtors to treat delinquent taxes underlying a Certificate of Purchase as a claim in a bankruptcy plan — even after the statutory period to redeem the delinquent taxes has expired.

Accommodation for Patients with Mental Illness Under the Americans with Disabilities Act and the Rehabilitation Act

In Reed v. Columbia St. Mary's Hospital , 915 F.3d 473 (7th Cir. 2019), the Seventh Circuit Court of Appeals reversed and remanded the U.S. District Court for the Eastern District of Wisconsin's grant of summary judgment dismissing Linda Reed's claims of intentional discrimination and failure to

The Long Road Back to Skokie: Returning the First Amendment to Mask Wearers

In 1978, when the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This essay seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans – rooted in repudiating the Ku Klux Klan – as well as the doctrinal steps taken over the past 40 years to restrict the First Amendment claims of mask wearers. It also highlights the dangers posed by the current, state-friendly mask law doctrine in an age of technological growth, mass-surveillance, and a move to anoint Antifa as the new Ku Klux Klan. The essay ends with a call for courts to restore mask wearing to its rightful place in the First Amendment pantheon.

Millstones and Ministry: Generational Transmission As the Unifying Factor in Ministerial Exception Jurisprudence for Teachers Post-Hosanna-Tabor

The Ninth Circuit created a circuit split in June 2019 when it denied a petition for a rehearing en banc of Biel v. St. James Sch., 911 F.3d 603 (9th Cir. 2018). The Seventh Circuit and the Ninth Circuit now have produced discordant holdings on how to apply Hosanna-Tabor to teachers at religious schools, raising the question of whether Biel will find its way back to the Court. In the seven years since that landmark religious freedom decision, the majority of lower courts have held that a teacher’s religious functions at a religious school are sufficient to make that teacher a minister, following the words of Justices Roberts and Alito in Hosanna-Tabor. This emerging consensus holds that (1) religious schools should be free to determine what teachers give religious instruction to the younger generation in the faith, and (2) religious schools should be free to determine what constitutes that religious instruction. Using when applicable the four factors utilized by the Court in Hosanna-Tabor, lower courts have engaged in a totality-of-the-circumstances test, giving special weight to a teacher’s religious function at a school in transmitting the faith to the next generation. But, the consensus is by no means unanimous. One state court and the Ninth Circuit have forged their own path. The Ninth Circuit’s creation of a function-plus-one test flouts the consensus practiced by the other courts and used by the Seventh Circuit. The Ninth Circuit’s actions have now led to a circuit split.

Grounded on Newly Discovered Evidence

Though amended several times, Federal Rule of Criminal Procedure 33 has always provided a period of years to move for a new trial on the basis of “newly discovered evidence,” while requiring that other new trial motions be filed within days after verdict. The circuits disagree, however, as to what kinds of claims can be raised in a “newly discovered evidence” motion, and, assuming that such a motion is not limited to evidence going to the merits of the charges, as to the standard that must be met to obtain relief when the evidence concerns an asserted violation of the defendant’s rights. For example, although the Supreme Court has recognized that the effective assistance of counsel is a crucial safeguard against wrongful conviction, several circuits hold that ineffective-assistance claims cannot be raised in “newly discovered evidence” motions. Another circuit, the Eighth, interprets Rule 33’s “newly discovered evidence” provision to permit no relief on the basis of evidence purportedly demonstrating that the trial judge should have recused herself; it rests that interpretation on the general requirement, applicable where the new evidence concerns the merits of the charges, that the evidence show a likelihood of acquittal at a new trial. For many years, the Seventh Circuit adhered to a uniquely narrow view of the claims cognizable in a “newly discovered evidence” motion. It recently reversed its position on that issue, but seemed to suggest that to obtain relief a defendant generally must show a probability of acquittal at a retrial. This article maintains that Rule 33 should be construed to permit a defendant to move for a new trial, on the basis of evidence purportedly demonstrating a violation of his or her constitutional rights, if the evidence is newly obtained and could not have been obtained earlier through due diligence, and to obtain relief without having to show a likelihood of acquittal at a new trial. The article argues that a broad approach to cognizability is supported by the text and original understanding of the Rule, the fundamental nature of nearly all constitutional rights that might be the basis for a new trial motion resting on newly obtained evidence, and by the limitations on pretrial discovery in criminal cases. The article further argues that the finality and other considerations relied on in decisions refusing to entertain ineffective-assistance claims do not justify forcing a defendant to litigate such claims in a motion under 28 U.S.C. § 2255. A motion under that statute is not heard until after sentencing and appeal; it may have to be litigated by an indigent defendant without counsel; and its denial is not appealable as of right. As to the standard a defendant should have to meet to obtain a new trial, the article notes that requiring a showing of a likelihood of acquittal at a retrial conflicts with the Supreme Court’s decisions involving prosecutorial suppression of exculpatory evidence, which do not demand such a showing. Requiring a showing of a likelihood of acquittal is also unsound in principle, as newly unearthed evidence may show a trial was unfair, without indicating what the result might be without the unfairness.

Deliberate Indifference and Negligence Claims in a Correctional Facility

In Wilson v. Adams , 901 F.3d 816 (7th Cir. 2018), the Seventh Circuit Court of Appeals affirmed the district court's dismissal of a prisoner's Eighth Amendment claims and state-law negligence claim. The court held that insufficient evidence was presented, both in the medical records and in the form

Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance

Making a Murderer, the Netflix documentary sensation, introduced the world to two unlikely protagonists, Steven Avery and Brendan Dassey of Manitowoc, Wisconsin. Both were convicted of a 2005 homicide and received life sentences. Avery was the main focus of the series, but it was Brendan, a developmentally-delayed sixteen-year-old, who won the heart and outrage of viewers. The primary piece of evidence against Brendan was a “confession” cruelly extracted by law enforcement. The voluntariness of that confession was litigated in state and federal courts for over a dozen years. Tragically, most of the courts, including the final Seventh Circuit Court of Appeals en banc majority, were completely oblivious to fact that Brendan’s had the kind of severe communication and language impairment which would have left him helpless against the out-of-control interviewing style used by law enforcement. This article examines what the courts overlooked. In order to fully assess the interviews and their impact, the co-authors had to do an under the hood analysis of Brendan’s language and communication skills as well as the communication of law enforcement. The co-authors, a clinical law professor and a speech language pathologist, suspected that Brendan suffered from a language impairment (disabling deficiencies in oral language competency), and we were right. The court file contained school records and assessments that placed Brendan’s language and communication skills in the lowest percentile of all sixteen-year-olds. This impairment had a profound impact on all aspects of Brendan’s functioning. The other part of the equation was more complicated, but equally revealing. With the assistance of a language transcription company we closely analyzed law enforcement communication, and how that communication would affect someone like Brendan. The results were alarming. Almost everything the two officers did in the course of interrogating Brendan violated the most minimal standards for interviewing any juvenile, but especially one with underdeveloped language and communication skills. By the time we finished our review, we were confident that the verbal behavior of law enforcement throughout the interrogations of Brendan, coupled with his poor ability to linguistically cope and his age, made him a prime candidate for unwillingly—and unwittingly—confessing to a crime he did not commit. This article describes our findings. It shows how law enforcement essentially abused Brendan with a chaotic mess of verbiage. And how, up against such a relentless verbal torrent, Brendan never stood a chance. The article also analyzes the myriad ways that the courts were simply wrong in their assumptions about Brendan, communication, and human behavior. On a larger scale, we believe that this article, and the process that created it, can provide a prototype for future cases. Brendan Dassey’s impairment is not unique, and within the criminal justice system, it is not even unusual. Nor, unfortunately, are egregious police interviewing “techniques.” The use of speech-language expertise and discourse analysis could be useful to prevent the kind of grotesque injustice done to Brendan Dassey.

Religious Housing Benefit Held to Have Secular Purposes, Be Constitutional

The US Court of Appeals for the Seventh Circuit, by decision dated March 15, ruled that the federal tax rental allowance exclusion available for ministers is not unconstitutional as a violation of the Establishment Clause because the provision has secular purposes and passes a historical significance test (Gaylor v. Mnuchin).

Caught by the Cat's Paw

Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the “cat’s paw,” formally recognized by the Supreme Court in Staub v. Proctor Hospital. With its name coined by Judge Richard Posner and drawn from a fable, the concept of cat’s paw has taken ground quickly, discussed in hundreds of cases. This Article argues that the cat’s paw doctrine is a mistake, and the courts should abolish it. Before the Supreme Court recognized it as a separate doctrine, the Supreme Court decided numerous cases with facts that could now be called “cat’s paw” cases. The Supreme Court did not need or even mention the need for a new doctrine to adjudicate those cases. Strangely, the Supreme Court does not cite to any of these cases in Staub. Indeed, these Supreme Court cases are going to cause a judicial headache as lower courts try to reconcile pre-Staub jurisprudence with the court-created cat’s paw doctrine. The current cat’s paw doctrine muddles rather than elucidates complex concepts of intent, causation, and agency liability. Before cat’s paw doctrine becomes further entrenched, this Article provides a new and more complete history of the doctrine. This new history shows that courts did not need the cat’s paw doctrine prior to its creation. Even the Seventh Circuit decision that coined the phrase “cat’s paw” did not rely on cat’s paw to resolve the case. Importantly, there is only one way to reconcile Staub with several other canonical Supreme Court cases — to read it as simply recognizing one set of facts under which a plaintiff could prevail under federal discrimination law. Some lower courts are interpreting Staub to place significant limits on the scope of discrimination law. However, using cat’s paw to limit the scope is inconsistent with numerous Supreme Court cases, as well as the text and purposes of the discrimination statutes. Cat’s paw doctrine should be abolished while it is in its infancy because it is not needed and will likely lead to decades of confusion in employment discrimination jurisprudence.

College Athletics: The Chink in the Seventh Circuit’s 'Law and Economics' Armor

If any court is linked to the “law and economics” movement, it is the Seventh Circuit, home of former Judge Richard Posner, the “Chicago School,” and analysis based on markets and economics. It thus comes as a surprise that in college-athletics cases, the court has replaced economic analysis with legal formalisms. In adopting a deferential approach that would uphold nearly every rule the NCAA claims is related to amateurism, the court recalls the pre-Chicago School era, in which courts aggressively applied “per se” illegality based on a restraint’s form, rather than substance. While the Seventh Circuit’s detour of deference has taken several stops, this Essay focuses on the most recent, the 2018 decision in Deppe v. NCAA. In Deppe, a college football punter who believed he would receive an athletic scholarship transferred after learning that he would not. Pursuant to the NCAA’s “year in residence” rule, the punter was forced to sit out for one year before he could play for his new school. The punter claimed that the NCAA’s rule violated antitrust law. But the district court dismissed the claim, and the Seventh Circuit affirmed, finding that the rule was “presumptively procompetitive.” The Seventh Circuit’s ruling suffered from four critical flaws. First, the court misread antitrust precedent, relying on dicta from a decades-old Supreme Court case addressing a different issue to manufacture a wholly new analytical framework. Second, the court misconstrued antitrust law by neglecting the longstanding “Rule of Reason” analysis that involves burden shifting and emphasizes consumer welfare. Third, the Seventh Circuit ignored the procedural setting of a motion to dismiss, making up facts benefiting the defendant rather than — as hornbook law makes clear — applying facts in the light most favorable to the plaintiff. And fourth, the court neglected the economics that would have shown the anticompetitive nature of the year-in-residence restriction on student-athletes’ movement between schools. In short, the court upheld a restraint that could harm student-athletes, colleges, and sports fans by applying unsupported rigid rules rather than considering a market’s economic realities. The Seventh Circuit would benefit from returning to its law and economics roots.

Sexual Orientation Discrimination As a Form of Sex-Plus Discrimination

This Article examines whether sexual orientation discrimination claims are a form of sex-plus discrimination under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment on the basis of “sex.” Until very recently, every United States Court of Appeals to have interpreted Title VII’s prohibition of sex discrimination had determined that it does not encompass discrimination claims on the basis of sexual orientation. Times, and judicial interpretations, are changing. In April 2017, the United States Court of Appeals for the Seventh Circuit overturned decades of precedent by holding that sexual orientation discrimination claims are indeed encompassed within Title VII’s prohibition of sex discrimination, a decision followed only months later by the Second Circuit Court of Appeals. Although there is little mention of sex-plus discrimination in these watershed cases, this Article shows how aspects of the sex-plus doctrine are interwoven throughout the majority and concurring opinions in those cases. From there, this Article argues that sex-plus theory is a valid basis upon which to recognize sexual orientation discrimination claims under Title VII, and contends that as other courts revisit whether Title VII applies to such claims, those courts should phrase the issue in sex-plus terms.

College Athletics: The Chink in the Seventh Circuit's "Law and Economics" Armor

If any court is linked to the “law and economics” movement, it is the Seventh Circuit, home of former Judge Richard Posner, the “Chicago School,” and analysis based on markets and economics. It thus comes as a surprise that in college-athletics cases, the court has replaced economic analysis with legal formalisms. In adopting a deferential approach that would uphold nearly every rule the National Collegiate Athletic Association (NCAA) claims is related to amateurism, the court recalls the pre- Chicago School era, in which courts aggressively applied “per se” illegality based on a restraint’s form, rather than substance. While the Seventh Circuit’s detour of deference has taken several stops, this Essay focuses on the most recent, the 2018 decision in Deppe v. NCAA.

Death as Divorce for the Abandoned Spouse: Davis V. Combes and the Cautious and Gender-Sensitive Judiciary

Davis v. Combes is a Seventh Circuit decision by Judge Diane Wood involving a decedent who surprises her surviving family by secretly transferring assets to her sister. This Essay suggests that the case offers an opportunity to think about alternatives to forced heirship in American law. It discusses the choice among three ways to disappoint or even cheat an abandoned spouse. These are: (1) Divorce, followed by a battle over assets and future earnings; (2) Death – where the decedent attempts to dis-inherit the surviving spouse; (3) Death – where there is no will or simply few assets, and where the abandoned spouse is surprised to learn that she or he has been removed as the beneficiary of the insurance policy. In sum, one can divorce, dis-inherit, or dis-insure, with the latter being the subject of the case under discussion. I argue that for reasons of gender equality or partnership, the three cases should be treated alike as much as possible.

Violence in the Streets? Probably Not. Can State Actors Satisfy the Heightened Tiers of Scrutiny Standards of Review Using Contemporary Criminological Studies in Heller/McDonald Challenges?

This article responds to various claims by gun-control advocates that there are highly negative, even catastrophic, consequences in America when individual States adopt a “Shall Issue” or “Right-to-Carry” (“RTC”) regime for issuing a Concealed Handgun License (“CHL”) to all law-abiding, qualified applicants. In contrast to these fears, law enforcement officers strongly support issuance of CHLs to qualified, law-abiding citizens. The most distinguished, non-partisan research institutes in the country have concluded that there is no good evidence that the enactment of an RTC law increases firearms violence. In addition, an inherent shortcoming of nearly all research on RTC laws is that it fails to focus on handgun crime and is therefore muddled by the data on other types of violence (i.e., suicides, knife violence). This article also addresses and rebuts the speculative assertions that RTC laws will lead to increases in other types of crime. The fundamental error of opponents of RTC laws is that they view restrictions on gun ownership as a matter of social policy subject to utilitarian-inspired cost benefit analyses instead of a fundamental right under the U.S. Constitution—namely, the Second Amendment right to keep and bear arms. Properly viewed, social science research on the consequences of RTC laws should be irrelevant because the Constitution expressly protects the right to bear arms. Therefore, as the D.C. Circuit concluded, laws that bar typical law-abiding citizens from carrying firearms in public for self-defense are categorically unconstitutional. See Wrenn v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017). But even if the social science were relevant, the available evidence fails to meet the requirements that would apply under a heightened standard of constitutional scrutiny to justify laws that meaningfully restrict the right of law-abiding citizens to carry firearms in public for self-defense. As Judge Richard Posner of the Seventh Circuit — no fan of the Heller decision — concluded after a thorough review of the evidence, “the theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense.” Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). In drafting this article, I have tried to write from the perspective of an attorney seeking to litigate questions about whether the government could satisfy a standard of review such as strict or intermediate scrutiny. This constitutional question may become a purely academic one once the U.S. Supreme Court rules in New York State Rifle & Pistol, Inc. v. New York City, 18-280. The tiers of scrutiny judicial review standards, including strict and intermediate scrutiny, should be rejected by the Supreme Court in that case. Nevertheless, the exercise undertaken in this article is warranted because several lower federal courts have embraced the tiers of scrutiny review standards in constitutional challenges to gun control laws under the Second Amendment — despite the Supreme Court’s decision in District of Columbia v. Heller, which expressly rejected the use of such balancing tests by courts. Regardless, I have not attempted to become (nor do I claim to be) a criminologist or statistician, but instead I have approached the available data as a reasonably informed professional interested in the subject matter who desires to obtain an understanding of the status of statistical proofs and the effect of right to conceal carry laws, if any, on public safety.

Bankruptcy Claim Dischargeability and Public Externalities: Evidence from a Natural Experiment

In 2009, the Seventh Circuit ruled in U.S. v. Apex Oil that certain types of injunctions requiring firms to clean up previously released toxic chemicals were not dischargeable in bankruptcy. This was widely perceived to represent a split with Sixth Circuit precedent, although Supreme Court cert was denied. Numerous legal commentators wrote of the significance of this decision in strengthening incentives for firms, and their creditors, to reduce the likelihood of costly environmental damage that would no longer be dischargeable in the event of bankruptcy. I show using difference in differences and triple difference methodologies that companies whose operations are confined to the Seventh Circuit (and thus likely to file for bankruptcy there) responded by reducing the volume of toxic chemicals they release on-site by approximately 15%. In place of these releases, firms substituted off-site treatment by specialized facilities generally considered to be safer for the environment. I also show evidence of a tightening of credit to impacted firms, helping shed light on the mechanism of influence via pressure from creditors. These results point to important ways in which bankruptcy law and other legal rules that impact recovery for firms’ creditors can work to shape the positive or negative externalities those firms generate.

Rubin v. Islamic Republic of Iran (U.S. Sup. Ct.)

On February 21, 2018, the U.S. Supreme Court affirmed the Seventh Circuit's decision in the case of Rubin v. Islamic Republic of Iran, concluding that 28 U.S.C. §1610(g) does not provide a freestanding basis for parties holding a §1605A judgment to attach and execute against the property of a foreign state. Instead, §1610(g) may be used to identify property that would be available for attachment and execution to satisfy a §1605A judgment, but a separate provision within §1610 must first apply to overcome execution immunity.

Lack of Written Consent for the Administration of Antipsychotics in Psychiatric Treatment Facilities

In Johnson v. Tinwalla 855 F.3d 747 (7th Cir. 2017), the Seventh Circuit Court of Appeals considered whether there was a violation of the Fourteenth Amendment and Illinois law when Dr. Tinwalla, a psychiatrist, prescribed antipsychotic medication to Terry Johnson, an inmate, without consent and in

Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections

The Equal Employment Opportunity Commission (EEOC) and the Seventh Circuit have taken the position that Title VII’s bar to employment discrimination “because of * * * sex” applies to discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons. This interpretation follows from the ordinary meaning of the statute, read as a whole and in light of its purpose. If an employer fires a woman because she is married to another woman, rather than a man, the employer has, literally, acted “because of” her sex (if she had been a man, marriage to a woman would have been fine) and because of the sex of her partner. It is hard to deny that “sex” is not at least one “motivating factor” in the employment decision, which is all that the current version of Title VII requires for liability. Moreover, this reading of Title VII accords with its purpose, which is to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities. Treatment of anti-gay discrimination as a form of sex discrimination is not a new idea, but for several decades most federal judges have rejected it, and most Members of Congress have ignored it. This is an idea that has ripened over time, however. New circumstances have rendered the argument not only plausible but compelling. The biggest new development has been social facts and assumptions about sex minorities: In 1964, employees thought to be “homosexuals” were outside the scope of the merit-based workplace, because Americans believed them to be mentally ill, psychopathic, and predatory. Today, those views have been discredited, and this connects with a second new circumstance, a radically different constitutional baseline. As late as 2003, “homosexuals” could constitutionally be considered presumptive criminals, but the Supreme Court has for twenty years been developing a constitutional norm that gay people cannot be excluded from the law because of who they are. Indeed, the Court has ruled that the constitutional right to marry applies to same-sex (i.e., “homosexual”) couples. It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. A third new development has been the formal evolution of Title VII itself. Judges as well as commentators have largely ignored the “statutory history” of Title VII — its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court. The Trump Administration and other skeptics of a broad reading of sex discrimination maintain that Title VII divides the world into males and females and does nothing more than require employers to apply the same rules to both sexes; anti-homosexual workplace exclusions or harassment operates equally on both sexes (i.e., both lesbians and gay men are harmed). But the Supreme Court has authoritatively interpreted Title VII to bar gender stereotyping, which also operates to protect both male and female employees alike. Congress ratified and expanded upon that interpretation in its 1991 Amendments to Title VII, which also reaffirmed its statutory mission to ensure a merit-based workplace free from sex-based decision making, even when sex is but one “motivating factor” in the discrimination. Because LGBT persons are gender minorities and because anti-LGBT discrimination is rooted in rigid gender roles, Title VII today bars discrimination because of the sex of the employee’s partner/spouse, just as it bars discrimination because of the race or religion of his or her partner/spouse.

Amicus Brief of CancerLINC and National Coalition for Cancer Survivorship, et al., in Golden v. Indianapolis Housing Agency (U.S. Supreme Court, No. 17-1113)

In a series of cases, the U.S. Court of Appeals for the Seventh Circuit has held that a person needing a multi-month leave from work to treat and to recover from an illness is categorically not disabled and thus not eligible for the employment protections of the Americans with Disabilities Act (ADA). See, e.g., Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017). Specifically, the Seventh Circuit has erected a per se rule that anyone needing a temporary, multi-month leave of absence is never a qualified “individual with a disability” under the ADA, see 42 U.S.C. § 12111(8) — stopping the typical ADA analysis at its threshold and thus failing to account for the ADA’s flexible, case-by-case inquiry into whether a given workplace accommodation is “reasonable” and whether the accommodation would impose an undue hardship on the employer. See, e.g., U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405-06 (2002). A pending petition for a writ of certiorari in Golden v. Indianapolis Housing Agency, No. 17-1113 (U.S.), challenges the Seventh Circuit’s rule. Two national non-profit organizations — CancerLINC and the National Coalition for Cancer Survivorship — and three individual cancer survivors and advocates have filed the attached amicus brief in support of the Golden petition. The amicus brief explains in detail, through use of medical and other literature, why the Seventh Circuit’s rule would eliminate coverage for large numbers of people in treatment for cancer. (For instance, data show that the average length of absence from work for cancer treatment is about five months.) The brief also explains that treatment for other serious medical problems — for instance, certain kinds of heart and kidney disease — have similar recovery times, and so many other patients also would lose ADA coverage under the Seventh Circuit’s rule. The brief shows that the Seventh Circuit’s rule runs headlong into the ADA’s text and history. When Congress first considered the ADA, it heard about employment discrimination from cancer survivors and then indicated that cancer survivors were covered by the Act. After the ADA’s passage, however, some courts excluded cancer survivors from ADA coverage. Congress responded in 2008 with the ADA Amendments Act to clarify that the ADA covers cancer survivors. Congress expressly include people with impairments to “normal cell growth,” 42 U.S.C. § 12102(2)(B), and impairments “in remission,” id. § 12102(4)(D) — both references to cancer. As the amicus brief explains, if the Seventh Circuit’s rule remains in place, these important statutory changes would have little practical effect. Notably, the first-line drafters and researchers of this amicus brief are law students in Georgetown Law’s Appellate Courts Immersion Clinic, Cole Kroshus and Genevieve Mesch.

Brief of Professor William S. Dodge as Amicus Curiae in Support of Plaintiffs-Appellants, Simon v. Republic of Hungary

This amicus brief was filed with the D.C. Circuit in Simon v. Republic of Hungary, a case brought by Holocaust survivors under the expropriation exception of the Foreign Sovereign Immunities Act. The district court adopted a doctrine of prudential exhaustion, articulated by the Seventh Circuit, and held that plaintiffs were required to exhaust their domestic remedies in Hungary before bringing suit in the United States. The amicus brief argues that the district court erred in adopting prudential exhaustion as an available ground for dismissal in suits brought under the FSIA. First international law does not require exhaustion of local remedies before filing suit in the domestic courts of another country. The local remedies rule in customary international law requires exhaustion as a precondition only to exercising diplomatic protection or filing claims before an international tribunal. Second, international comity does not require extending an exhaustion requirement to suits brought in domestic courts. Applied to international proceedings, the local remedies rule only delays access, because decisions of domestic courts have no res judicata effect in subsequent international proceedings. Applied to U.S. domestic courts, by contrast, an exhaustion requirement effectively forecloses access to a plaintiff’s preferred forum, because a foreign court’s decision on the merits binds a U.S. court as res judicata. Third, recognizing a doctrine of prudential exhaustion runs against the “virtually unflagging” obligation of the federal courts to exercise jurisdiction. Declining to exercise jurisdiction on grounds of prudential exhaustion is particularly inappropriate for claims brought under the FSIA because Congress has expressly incorporated an exhaustion requirement for one of the FSIA’s exceptions but not for the others.