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Standing On One Leg: Balancing College Students\u27 Free Speech with Article III Requirements in the Seventh Circuit
Get PDFFirst Amendment free speech protections are all the rage across college campuses. Students and administrations have done their best to toe the line and create equitable, safe spaces for students to freely debate and converse about political and controversial topics. Administrations implement policies that aid students in addressing issues of racism, bias, and bigotry on campus, however some students feel as though these policies are a free speech attack. While this may be true, Free Speech, Inc. v. Killeen, a recent Seventh Circuit decision, discussed standing as a procedural roadblock for students who claimed their speech was chilled by administrative policies. The court held that the free speech organization could not establish a particularized injury in fact, and therefore, lacked standing. Through a careful and nuanced analysis, the court further expounded upon what constitutes an injury in fact under current standing doctrine jurisprudence. Claimed injuries are not injuries under the standing doctrine, and must be distinguished from realized injuries, leaving no room for conjecture or hypotheticals. The Seventh Circuit’s position and adherence to nontheoretical, but actual injury, coincides with courts’ understanding of the standing doctrine since the 1970s and illustrates that the standing doctrine must continue to be a threshold question in First Amendment cases
New Developments in Digital and Wrap Contracts (2019-2020)
No full textThis essay discusses notable legal developments involving digital and other wrap contracts decided in 2019-2020
Workplace Harassment Suits by Ministers against Religious Institutions: Is the Seventh Circuit’s Categorical Bar Constitutionally Required or More than Necessary?
Get PDFAs a rule, the government cannot dictate to a church or religious institution which employees it can hire or fire. This principle, grounded in the Religion Clauses of the First Amendment, is the basis of an exception to employment suits entitled the ministerial exception. The ministerial exception is a judicially created doctrine that insulates religious institutions from employment suits based on wrongful termination against them by their own ministers. However, the Supreme Court left open the question of whether the ministerial exception applies to other types of employment action claims, such as hostile work environment claims. The Seventh Circuit took up this question in Demkovich v. St. Andrew the Apostle Parish, Calumet City. Mr. Demkovich, a gay man, was hired to be the church organist and choir director. Up to and immediately after his wedding to his husband, Mr. Demkovich was subjected to pervasive harassment at the Parish by Reverend Dada, his superior. He was fired soon after his wedding. Because of the Supreme Court’s broad definition of “minister” as was defined in Our Lady of Guadalupe v. Morrissey-Beru, Demkovich was considered a minister for the purposes of the ministerial exception. The Seventh Circuit, after protracted litigation, ultimately held that the ministerial exception is a categorical bar, and not merely cause for analysis, for hostile work environment claims brought by ministers against religious institutions. Therefore, both his wrongful termination and hostile work environment claims were dismissed. This Comment explores the ministerial exception in the context of the Seventh Circuit’s categorical bar on hostile work environment claims. Religious liberty is, of course, of paramount importance to the freedom of every American, religious or not. At the same time, Title VII and the Americans with Disabilities Act also serve important governmental interests by protecting employees from invidious harassment at their place of work. The character of hostile work environment claims is significantly different from the hiring and firing purpose that the ministerial exception was designed to address. Oftentimes, employment claims are the only claims that employees can bring. By deciding that the ministerial exception is a categorical bar to hostile work environment claims, rather than merely a consideration in a case-by-case analysis, incorrectly balances the religious liberty interest against invidious discrimination because, as the District Court noted, many cases that touch upon religion, but do not put religion at issue. Hostile work environment claims do not necessarily pose the threats that the Seventh Circuit sitting en banc used to justify its categorical bar. A case-by-case analysis that is sensitive to religion, as the District Court applied, better balances the interests of workers and religious institutions
Anything but Established: The Seventh Circuit’s Desertion of Supreme Court Establishment Clause Jurisprudence
Get PDFEstablishment Clause jurisprudence is anything but “established.” The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” There are four primary methods that the Supreme Court created to analyze whether the Establishment Clause has been violated: the Lemon test, Endorsement Test, Coercion Test, and the historical approach. The Supreme Court has never adopted one clear test, leaving the circuit courts to decide which one to use.
Despite the Court creating the most recent Establishment Clause test in Town of Greece v. Galloway, the historical approach, the Seventh Circuit continues to solely apply the other three tests. In holding that a holiday show did not violate the Establishment Clause, the Seventh Circuit in Freedom from Religion Foundation v. Concord Community Schools applied the Lemon test, Endorsement Test, and the Coercion Test, but not the historical approach. Recently, the Eighth Circuit became the first circuit court to completely abandon the Lemon test, signaling a major doctrinal shift.
The Supreme Court in Town of Greece overtly gave greater weight to history by mandating historical practices be analyzed in Establishment Clause cases, and therefore courts must look to history. As this Note will argue, the Seventh Circuit should have applied the historical approach when deciding Concord. The language in Town of Greece directs lower courts to examine the history of a practice when evaluating whether there has been a violation of the Establishment Clause. If history can demonstrate that a practice is well-settled in American history, no further test is necessary. But if history cannot resolve the issue, only then may courts turn to the other Establishment Clause tests set forth by the Supreme Court
Funding Crises: An Empirical Study of the Paycheck Protection Program
No full textIn the early weeks of the COVID-19 pandemic, the United States Congress funded the Paycheck Protection Program (PPP) to address the devastating consequences of business closures and millions of employees losing both their jobs and healthcare coverage during a public health emergency. That program immediately pumped more than a half-trillion dollars of forgivable loans out to five million businesses. But criticism was swift and widespread, if sometimes spurious, with detractors attacking the award of loans to wealthy celebrities such as Kanye West, politically connected donors such as the Kushner family, and large corporations such as Shake Shack and Ruth’s Chris Steak House.
In this Article, we conduct an empirical study of the central component of the largest financial bailout in US history. We examine early quantitative data released by the Small Business Administration to answer various competing claims about the effects of the PPP. Critics accused the program of being administered as a partisan political tool for President Trump’s attempted reelection, as a corrupt slush fund for cronies of the Trump administration, and as an incompetent waste of money on undeserving recipients. We test these hypotheses to evaluate the distribution of funds and whether the disbursement materially suffered from politics, corruption, or waste. We find that the lending process not only suffered from high-profile failures, but it also failed to target the neediest areas, particularly early on. Other studies present mixed findings on whether the PPP successfully protected paychecks. The PPP’s greatest weakness was its failure to reach businesses unable to survive long enough to apply for or to receive loans.
Accordingly, we call for a start to the process of theorizing a model for future programs to fund economic crises, one that would avoid the worst mistakes of the PPP. In 2008 and 2020–2021, the US government engaged in massive transfers of money from the federal fisc to corporations and, on both occasions, the task was cobbled together during an emergency, with predictable failures and shortcomings. We consider successful economic responses and how they might guide more effective, fair, and efficient models for providing emergency economic funding in the future. Indeed, we may continue to need to address the financial devastation from COVID-19 itself for years to come
The Return of the Inextricably Intertwined Verbiage, or Not? The Seventh Circuit Correctly Applies the Rooker-Feldman Doctrine
Get PDFCivil procedure involves a world of difficult obstacles and unknown traps if a person is not well- versed in the beast, and even for those people with professional expertise, the path is not always as transparent. One doctrine which seems to encompass this confusion well is the Rooker- Feldman doctrine. It is well established in the U.S. legal system that only the Supreme Court of the United States has appellate jurisdiction over final state court judgements and that any other federal court does not. As a direct result, one problem which arises quite frequently is when a party gets barred from raising a claim in federal court after previously filing a suit, alleging the same facts in state court but with different claims, that a court has already decided. The Rooker- Feldman doctrine, which is named after two landmark cases, contains the test that is used to determine whether that federal claim will be allowed to proceed in federal court or whether it will be barred. This note examines what exactly the Rooker-Feldman doctrine is with the guidance of Chief Judge Sykes’s concurrence in Andrade v. City of Hammond. This note will critique the inextricably intertwined approach to the Rooker-Feldman test and argue that it should not be the main tool in the analysis. This note also offers information as to why Rooker- Feldman gets confused with preclusion doctrine and how to separate the two. Finally, this note gives an example on the application of Rooker-Feldman when dealing with executive injuries in correlation with Rooker-Feldman analysis
Patents Are Not Probabilities: Refuting the Probabilistic Patent Theory
Get PDFThe probabilistic patent theory espoused by Carl Shapiro and Mark Lemley suggests that the lawful term of a patent is limited by the probability that the patent will be held valid and enforceable. For example, under this theory a patent with a 60% chance of being held valid and enforceable would lawfully grant 60% of a statutory patent term; any enforcement beyond that point would risk violating the antitrust laws. This article explains that Shapiro and Lemley’s theory has at least three fatal flaws: First, it depends on a “judicially-created” view of patents the Supreme Court has since rejected in Oil States Energy Services v. Greene’s Energy Group. Second, it mistakes a decrease in the value of property in light of litigation risk for a decrease in the ownership or scope of the property; as with all other forms of litigation regarding property, patent litigation may be “probabilistic” but the property in dispute is not. Third, because no patent is without some (often undefinable) level of risk, this theory would shorten the enforceable term of every patent—and would moreover do so to an un undeterminable extent. Finally, the article refutes the suggestion, adopted by the California Supreme Court, that the U.S. Supreme Court adopted the probabilistic patent theory in its 2013 decision in FTC v. Actavis, Inc. As the article demonstrates, Actavis instead applied a theory based only on the probabilities of litigation, not the probabilities of a patent