Seventh Circuit Week in Review

The Seventh Circuit had a busy week, with six new opinions in criminal cases. The government won all six.  I’ll provide just a brief description of each.  At the outset, though, it is interesting to note that five of the six involved gun charges.  Even in the wake of the Supreme Court’s recognition of an individual constitutional right to possess firearms in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), it still appears to be business as usual in the world of gun prosecutions.

In United States v. Whitaker (No. 08-1259), the court (per Judge Ripple) affirmed the defendant’s conviction of being a felon in possession of a firearm.  On appeal, Whitaker argued that his Fourth Amendment rights had been violated by the search of his car that turned up the incriminating firearm.  The search followed two 911 calls, in which tipsters alerted police to an altercation in a parking lot.  One of the tipsters further indicated that a man involved in the altercation was carrying a gun.  When police officers arrived on the scene, they found Whitaker and (after a search of Whitaker’s nearby parked car) the gun.  In seeking to have the gun suppressed, Whitaker relied on Florida v. J.L., 529 U.S. 266 (2000), in which the Supreme Court held that stopping an individual solely on the basis of an anonymous tip usually falls beyond the bounds of reasonableness.  However, the Seventh Circuit distinguished J.L. based primarily on the fact that the tipsters in Whitaker alterted police to an ongoing altercation; “when the police respond to an emergency as a result of a 911 call, the exigencies of the situation do not require further pre-response verification of the caller’s identity before action is taken.”

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Kennedy ERISA Participants to Brief Plan Document Issue for Supreme Court

4united_states_supreme_court_112904 This is not wholly unpredictable, but the Supreme Court in the ERISA case of Kennedy v. DuPont Savings Plan told the parties to brief an issue that pretty much dominated oral argument.

From SCOTUSBlog:

The Supreme Court on Tuesday ordered lawyers to file new briefs by Nov. 10 on a new issue in a pending case testing a divorced spouse’s right to the other spouse’s pension benefits.  The question was posed in Kennedy v. DuPont Savings Plan Administrator (07-636) — a case heard by the Justices on Oct. 7.  The new question tests the application to the case of a part of federal benefit law that requires benefit plan administrators to operate the plan as dictated by plan documents — an issue that the Court appeared previously to have declined to hear . . . .

 

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Priorities for the Next President: Antitrust Law

The priority of the new administration in the field of antitrust law will be to undo the damage wrought by Chicago School dogmatists. This does not mean that the economic theories that form the basis of Chicago School economics or its application are incorrect. But, the broad assault by academic, bureaucratic, and juristic theorists over practical reality that has gained significant momentum during the administration of George Bush the younger (hereafter the Bush Administration) has struck down the existing antitrust legal analysis without regard to precedent, evidence, jury findings, and the value to society of private attorneys general in the enforcement of antitrust laws.  During the Bush Administration, the older Chicago School theorists on the United States Supreme Court and the lesser appellate courts have joined with new appointees to alter in many basic ways the structure of antitrust law, e.g., they have undone the per se standard for vertical minimum price-fixing, created high barriers for plaintiffs at the pleading stage for antitrust cases so that it is difficult to avoid dismissal prior to discovery, and strengthened the freedom of monopolists to refuse to deal with parties dependent on what they sell and thereby to avoid greater competition for whatever their products may be used to produce.

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