Seventh Circuit Review

To prevent plaintiffs from harassing the defendant or engaging in forum-shopping, the common law doctrine of forum non conveniens permits trial courts to dismiss a foreign plaintiff's suit, over which it would normally have jurisdiction, if both the parties' convenience and the ends of justice are best served by dismissal. Supreme Court precedent requires courts to weigh a number of private and public interest factors, and gives foreign plaintiffs less deference in their choice of forum than a domestic plaintiff. Applying this test in Abad v. Bayer Corporation, the Seventh Circuit upheld the dismissal of two cases involving Argentinean plaintiffs who brought product liability claims against American corporations in U.S. courts. Abad illustrates that the nature of the doctrine and the lenient standard of appellate review of forum non conveniens decisions give district courts too much discretion in determining whether dismissal is warranted. This Comment will highlight inconsistencies between the district court decisions affirmed in Abad, and it proposes that the Seventh Circuit should adjust the doctrine to ensure that district courts apply a consistent framework by (1) returning to the original conception of the doctrine set forth in Gilbert, (2) using a nation-to-nation analysis of the relative public interests, (3) adopting the Second Circuit's sliding scale approach to the less deference rule, and (4) refusing to consider parties' willingness to make concessions.

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In Wiesmueller v. Kosobucki, the Seventh Circuit considered whether the Wisconsin diploma privilege violated the dormant Commerce Clause of the United States Constitution. The diploma privilege grants graduates of the University of Wisconsin Law School and Marquette University Law School admission to the Wisconsin bar without examination. This privilege does not extend to graduates of other ABA-accredited law schools who desire to practice in Wisconsin. Because the issue was dismissed prematurely in the lower court, the Seventh Circuit declined to decide the issue. Nonetheless, the Seventh Circuit suggested that the diploma privilege arbitrarily discriminated against interstate commerce. This Comment argues that the Wisconsin diploma privilege survives constitutional scrutiny when properly assessed under the dormant Commerce Clause doctrine.

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This Comment considers whether reckless homicide should be considered a "crime of violence" under the United States Sentencing Guidelines. The Guidelines provide for a sentence enhancement for those defendants who are labeled as career offenders. Career offenders are those individuals who have at least three convictions for either drug offenses or "crimes of violence." In United States v. Begay, the United States Supreme Court held that in order for a predicate offense to be a crime of violence, the crime must be "purposeful, aggressive, and violent." The Seventh Circuit recently held in United States v. Woods that reckless homicide does not meet Begay's "purposeful" requirement. Ultimately, the Seventh Circuit's holding is inconsistent with the goals behind the Sentencing Guidelines and the Armed Career Criminal Act and should be revisited by the court.

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In its recent decision in Staub v. Proctor Hospital, the Seventh Circuit clarified its approach to the colorfully named "cat's paw" theory of employment discrimination. The cat's paw doctrine holds employers vicariously liable when an employee involved in the decisionmaking process, other than the non-biased formal decisionmaker, possessed discriminatory intent. Currently, the circuits disagree about how much control the biased employee must possess over the decisionmaker to impose liability on the employer. In Staub, the Seventh Circuit held that liability should be imposed only when the biased employee possessed "singular influence" over the formal decisionmaker, aligning the court most closely with the Fourth Circuit's stringent "actual decisionmaker" rule. In light of the current circuit split, this Note argues that a coherent and uniform standard needs to be adopted to decide these common cases. It analyzes the strengths and weaknesses of the circuits' various rules, concluding that no current approach provides a satisfying solution. Accordingly, this Note suggests that courts should adopt the "motivating factor" standard of causation, should more carefully scrutinize whether an independent investigation breaks the causal chain, and should apply agency principles as a proper limitation on liability.

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In Bridges v. Gilbert, the Seventh Circuit considered the question of whether prisoners' free speech, like the free speech of public employees, must involve a matter of public concern to receive First Amendment protection against governmental retaliation. Instead of holding that a prisoner's speech must involve a matter of public concern, the Seventh Circuit drew on the Supreme Court's unexamined and indeterminate test in Pell v. Procunier to hold that prisoners retained those free speech rights not inconsistent with their status as a prisoner or the legitimate penological objectives of the corrections system. This Comment traces the evolution of the Court's prisoner and public employee free speech jurisprudence. Then, it discusses the approaches taken by the federal circuits, especially the Seventh Circuit, to prisoners' free speech retaliation claims. Finally, this Comment argues that while the Seventh Circuit's decision in Bridges arguably conformed to Court precedent, the Seventh Circuit should have considered developing a test balancing the prisoner's speech on a matter of public-penological concern against the government's legitimate penological interests in restricting the prisoner's speech.

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On May 1, 2009, the Seventh Circuit and the D.C. Circuit issued decisions interpreting Section 3(b) of the National Labor Relations Act. In New Process Steel, LP v. NLRB, the Seventh Circuit interpreted Section 3(b) as allowing the National Labor Relations Board to issue decisions through a two-member panel. However, the D.C. Circuit declared the same two-member panel unlawful in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB. The Supreme Court will now resolve the issue, having granted certiorari to New Process Steel. This Note argues that Section 3(b)'s plain language and legislative history fail to provide a satisfying answer to the question. Accordingly, this Note demonstrates how Chevron analysis can provide a legal framework that both embraces Section 3(b)'s ambiguity and provides a satisfying outcome.

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The First Amendment right to petition is deeply intertwined with the other liberties offered by the Bill of Rights. However, the right to petition is still rarely analyzed in the legal world. This already difficult topic has become even more muddled in the prison system. Although the Prison Litigation Reform Act sought both to help prisoners and reduce the abundance of inmate lawsuits, inmate grievance processes actually suffocate the right to petition in prisons, sometimes going so far as to create a culture that offers barely any First Amendment protection. The Seventh Circuit's decision in Dobbey v. Illinois Dept. of Corrections illustrates the problem. Since little guidance has been offered as to how the right should be construed, a circuit split has developed over the breadth of the right. This Note argues the right to petition must be broad for inmates because prison grievance systems have proven unable to provide satisfactory in-house resolution of inmate claims.

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