After law school,Easterbrook clerked for judge Levin Hicks Campbell of the U.S. Court of Appeals for the First Circuit from 1973 to 1974. He then joined the U.S. Solicitor General's office as an Assistant to the Solicitor General,and was promoted in 1978 to Deputy Solicitor General. The solicitor general at the time was Robert Bork,and Easterbrook has reminisced that when he joined the Solicitor General's office,"The Washington Post noted that around the same time the SG's Office had hired three lawyers either fresh from clerkships or lacking the customary appellate experience. None of us had clerked on the Supreme Court. The Post concluded that good lawyers were no longer willing to work for the Solicitor General and attributed this to Bork's role in firingArchibald Cox as Watergate special prosecutor. The paper thought that dark days lay ahead for the Office with a second-rate staff. The three bottom-of-the-barrel selections were Robert Reich (later Secretary of Labor in the Clinton Administration),Danny Boggs (future Chief Judge of the Sixth Circuit),and me."[3] Easterbrook was considered "one of the very top advocates appearing before the Supreme Court in his days at the bar".[4]
Easterbrook joined the faculty of the University of Chicago Law School in 1978. He was a principal at the economics consulting firm Compass Lexecon from 1980 until his judicial appointment. Easterbrook argued 20 cases before the Supreme Court while in the Solicitor General's office and in private practice,including several landmark antitrust cases.
Federal judicial service
Easterbrook was nominated to the court by Ronald Reagan on August 1,1984,to a new seat created by 98 Stat. 333,346;the United States Senate did not act on his nomination that year,and he was renominated in Reagan's second term on February 25,1985.[2]
He was confirmed by the Senate on April 3,1985,and received his commission the next day.[2] The American Bar Association gave Easterbrook a low "qualified/not qualified" rating,presumably due to his youth and relative inexperience. In 2001 this rating was claimed by the George W. Bush administration as evidence of liberal bias in the ABA in its announcement that it would no longer confer with the ABA in selecting judicial nominees.[5][6]
Among Judge Easterbrook's most prominent opinions are:
As a young judge in one of his early opinions,Kirchoff v. Flynn,786 F.2d 320 (CA7 1986),a lawsuit over an arrest for feeding pigeons in a park,Easterbrook used such language as "trundled to the squadrol" to describe an arrest;and states of the pigeon-feeder that she "will never be confused with the 30th Earl of Mar,whose hobby was kicking pigeons". He described a controversy over whether a police officer,or the plaintiff's own bird,had attacked the plaintiff as:"[Plaintiff] says that he was clobbered by a pair of handcuffs;[the officer] maintains that the [plaintiffs]' red macaw drew the blood when it landed on [plaintiff]'s head during the fracas and started pecking". In a footnote,he added "Predatory birds rarely attack large animals whose eyes they can see,11 Harv.Med. School Health Letter 8 (Feb.1986),and perhaps William's eyes got distracted,to his macaw's glee." This may be seen either as an example of Easterbrook's deftness with language,or his penchant for engaging in self-indulgent pedantry. Either way,his opinions often exhibit nearly impenetrable language,such as in Frantz v. U.S. Powerlifting Federation,836 F.2d 1063 (7th Cir. 1987),where he wrote,"The absence of ineluctable answers does not imply the privilege to indulge an unexamined gestalt."
University of Chicago Law School Dean Saul Levmore stated that "Easterbrook is an important influence on legal education through his judicial opinions. Course after law school course has changed for the better as Judge Easterbrook’s opinions have made their way into the curriculum. So long as he decides cases,and decides them in a way that cuts to the heart of an issue with such skill and pressure,no area of law can be dull".[4]
Easterbrook had a reputation for being "hard-nosed and demanding" during oral argument.[4] In Schlessinger v. Salimes (1996),[15] for example,he characterized the lawsuit as "goofy" and the appellant's arguments as "nutty" before issuing an order to show cause why the appellant and lawyer should not be sanctioned for a frivolous appeal. His demeanor has won him enemies in the bar. In 1994 the Chicago Council of Lawyers published an "evaluation" of the Seventh Circuit that evaluated all the judges and the court's procedures in general,but notably focused extensively on only two:Easterbrook and then-chief judge Richard Posner.[16] The evaluation of Easterbrook contained an unusual number of grievances;and the Council did not specify authorship,so the criticism is anonymous. In a section devoted to Easterbrook's judicial demeanor,the report claims he "has consistently displayed a temperament that is improper for a Circuit Judge. While Judge Easterbrook has many good qualities,there is a widespread belief that he is arrogant and intolerant with those who do not match his own intellectual level. This problem seriously interferes with the performance of his duties". The report continued to state Easterbrook "has been resoundingly and repeatedly criticized as being extremely rude to attorneys at oral argument" and that "some attorneys" said that due to the judge's demeanor they and their clients did not feel they got a fair hearing. The Council pointed to another opinion,Kale v. Obuchowski,which derided a lawyer's argument as "pettifoggery" and concluded that the appeal was "frivolous,doomed and sanctionable".[17] The Council argued that even if the lawyer's conduct was sanctionable,"the language chosen does not enhance the administration of justice".[citation needed]
However,this review by the council was never repeated,lending partial support to the defenders of Easterbrook and Posner that the report was an opportunity for anonymous venting by lawyers who were unhappy with the results of Seventh Circuit decisions,in no small part thanks to the decisions of Reagan appointees Easterbrook and Posner. Posner has recently commented about the report,"You have here some anonymous people who are talking to the Chicago Council of Lawyers. How much credence should we put on these people? They can be sore losers. They can be crybabies."[18]
In June 2009, Easterbrook wrote the decision in NRA v. City of Chicago holding that the Second Amendment, which protects the right to keep and bear arms, did not bind state governments.[20] This allowed the City of Chicago to maintain its ban on purchasing and possessing handguns. This decision was later overturned by the Supreme Court in McDonald v. City of Chicago.
In April 2015, Easterbrook wrote the decision in Friedman v. City of Highland Park holding that a city ordinance that generally prohibited the possession, sale or manufacture of semi-automatic assault weapons and large capacity magazines did not violate the Second Amendment. [21]
In May 2023, Easterbrook put a hold on an injunction that had been issued against an Illinois assault weapon and magazine ban by a federal judge in southern Illinois.[22] This allowed the ban on firearms and magazines to take effect across the state.
Other cases
In December 2017, Easterbrook supported the 4–3 en banc decision to reverse an earlier federal magistrate judgment that a confession had been unlawfully coerced from 16-year-old Brendan Dassey.
On November 1, 2019, Easterbrook concurred in the denial of rehearing regarding an Indiana abortion law requiring parental notifications. A 3-judge panel had struck down the injunctions. Easterbrook, and Diane S. Sykes who joined him, were the deciding votes to deny en banc. Easterbrook in his concurrence called on the Supreme Court to hear the case, and also pointed out its parallels with June Medical Services v. Gee.[23]
On January 23, 2020, Easterbrook wrote a decision slamming the Justice Department for arguing that a previous decision by the Seventh Circuit in the same immigration case was wrongly decided and that the Board of Immigration Appeals could ignore the decision. Easterbrook wrote, "The Board [of Immigration Appeals] seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the latter. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the 'judicial Power' under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government." The Court reversed the Board's decision and entered a judgment in favor of the plaintiff. Jorge Baez-Sanchez v. Barr.[24]
On June 29, 2020, Easterbrook wrote the opinion to reinstate significant voting restrictions in Wisconsin, originally put into place when Republicans controlled all branches of state government early in the previous decade and which U.S. District Judge James Peterson had overturned on constitutional grounds in July 2016. Easterbrook wrote that even though the voting restrictions are discriminatory, it was purely based upon party affiliation (the areas most impacted are heavily Democratic leaning). His conclusion that this is acceptable relies on a 2019 US Supreme Court ruling that partisan manipulation of electoral districts was also acceptable. “The changes were made because of politics,” he wrote. “This record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences.” He added that Democratic lawmakers could retake control of the legislature and change the laws they objected to. Barry Burden, director of the Elections Research Center at the University of Wisconsin-Madison, observed “This is an amazing conclusion that opens the doors to all kinds of partisan manipulation of election practices. It completely ignores the possibility that the party in charge might be able to alter the rules to keep itself in power, thus removing the ability of the opposing party to change the laws in the other direction.” The case was argued in 2017 and it was long a mystery why the court hadn't issued its ruling long before. Easterbrook's written opinion offered no explanation for the delay in delivering it until preparations for the 2020 national election cycle were just beginning, during the COVID-19 pandemic and in the most closely contested "battleground state" of the 2016 national election cycle.[25][26]
On August 2, 2021, Easterbrook wrote the unanimous majority opinion upholding Indiana University's requirement for students to get the COVID-19 vaccine.[27] Ten days later, circuit justice Amy Coney Barrett left the decision in place, denying a motion to block the policy temporarily while the challengers sought review from the Supreme Court.[28] A few months later in a similar case, the full Supreme Court likewise declined a request to block vaccine requirements for health care workers in Maine.[29]
Academic work
Easterbrook's academic work focuses on corporate law, particularly the 1996 book The Economic Structure of Corporate Law, which he coauthored with Daniel Fischel. Easterbrook's article, "The Proper Role of a Target's Management in Responding to a Tender Offer", 94 Harv. L. Rev. 1161 (1981) (also coauthored with Fischel) is the most heavily cited corporate law article in legal scholarship. Easterbrook has also written articles on antitrust law and judicial interpretation, including The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984); Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992); Statutes' Domains, 50 U. Chi. L. Rev. 533 (1983); and Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119 (1998). Easterbrook also expressed his opinions about how US states compete with each other in the race to the bottom to win corporations, in " The Race for the Bottom in Corporate Governance", 95 Va. L. Rev. 685 (2009).[30]
The United States Court of Appeals for the Seventh Circuit is the U.S. federal court with appellate jurisdiction over the courts in the following districts:
In re Aimster Copyright Litigation, 334 F.3d 643, was a case in which the United States Court of Appeals for the Seventh Circuit addressed copyright infringement claims brought against Aimster, concluding that a preliminary injunction against the file-sharing service was appropriate because the copyright owners were likely to prevail on their claims of contributory infringement, and that the services could have non-infringing users was insufficient reason to reverse the district court's decision. The appellate court also noted that the defendant could have limited the quantity of the infringements if it had eliminated an encryption system feature, and if it had monitored the use of its systems. This made it so that the defense did not fall within the safe harbor of 17 U.S.C. § 512(i). and could not be used as an excuse to not know about the infringement. In addition, the court decided that the harm done to the plaintiff was irreparable and outweighed any harm to the defendant created by the injunction.
Danny Julian Boggs is an American lawyer and a senior United States circuit judge of the United States Court of Appeals for the Sixth Circuit. He was appointed to the court in 1986 and served as its chief judge from September 2003 to August 2009. Boggs was on the short list of President George W. Bush's candidates for the U.S. Supreme Court.
Diane Schwerm Sykes is an American jurist and lawyer who serves as the chief judge of the U.S. Court of Appeals for the Seventh Circuit. She served as a justice of the Wisconsin Supreme Court from 1999 to 2004.
José Alberto Cabranes is an American lawyer who serves as a senior United States circuit judge of the United States Court of Appeals for the Second Circuit and a former presiding judge of the United States Foreign Intelligence Surveillance Court of Review ("FISCR"). Formerly a practicing lawyer, government official, and law teacher, he was the first Puerto Rican appointed to a federal judgeship in the continental United States (1979).
Terence Thomas Evans was a judge of the United States Court of Appeals for the Seventh Circuit and a United States district judge for the Eastern District of Wisconsin. Earlier in his career, he was a Wisconsin Circuit Court Judge in Milwaukee County.
Diane Pamela Wood is an American attorney who serves as the director of the American Law Institute and a senior lecturer at the University of Chicago Law School. She previously served as a circuit judge on the United States Court of Appeals for the Seventh Circuit.
Timothy Michael Tymkovich is an American lawyer who has served as a United States circuit judge of the United States Court of Appeals for the Tenth Circuit since 2003; serving as chief judge from 2015 to 2022. In November 2023, he was designated by Chief Justice John Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court of Review.
Stephen Roy Reinhardt was a United States circuit judge of the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was the last federal appeals court judge in active service to have been appointed to his position by President Jimmy Carter.
Jerry Edwin Smith is an American attorney and jurist serving as a United States circuit judge of the United States Court of Appeals for the Fifth Circuit.
Daniel R. Fischel is the emeritus Lee and Brena Freeman Professor of Law and Business and former Dean of University of Chicago Law School. He co-founded Lexecon, and is now chairman and president of Compass Lexecon.
David Frank Hamilton is a senior United States circuit judge of the United States Court of Appeals for the Seventh Circuit. He was previously a United States district judge of the United States District Court for the Southern District of Indiana. On March 17, 2009, he became President Barack Obama's first judicial nominee when he was named for a seat on the Seventh Circuit. He was confirmed by the Senate on November 19, 2009, in a 59–39 vote.
Richard Dickson Cudahy was an American business executive, law professor, and United States circuit judge of the United States Court of Appeals for the Seventh Circuit.
Michael Stephen Kanne was a United States circuit judge of the United States Court of Appeals for the Seventh Circuit and a former United States District Judge of the United States District Court for the Northern District of Indiana.
Consuelo Bland Marshall is a senior United States district judge of the United States District Court for the Central District of California.
Richard Allen Posner is an American legal scholar and retired federal judge who served on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chicago Law School, Posner was identified by The Journal of Legal Studies as the most-cited legal scholar of the 20th century. As of 2021, he is also the most-cited legal scholar of all time. He is widely considered to be one of the most influential legal scholars in the United States.
Chicago Lawyers' Committee For Civil Rights Under Law v. Craigslist, 519 F.3d 666, is a Seventh Circuit decision affirming a lower court ruling that Section 230 of the Communications Decency Act (CDA) provides immunity to Internet service providers that "publish" classified ads that violate the Fair Housing Act (FHA).
Dubitante is used in law reports of a judge who is doubtful about a legal proposition but hesitates to declare it wrong. E.g., "Justice X acquiesces in the Court's opinion and judgment dubitante on the question of Constitutional preemption."
Jones v. Harris Associates L.P., 559 U.S. 335 (2010), is a case decided by the United States Supreme Court in which investors claimed that the fees they paid to an investment advisor were too steep, violating the Investment Company Act of 1940.
Kimberly Hively v. Ivy Tech Community College, 853 F.3d 339, was a decision of the United States Court of Appeals for the Seventh Circuit in which the Court held that discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964. The ruling made the Seventh Circuit the first federal appeals court to find that sexual orientation is a protected class under the Civil Rights Act of 1964.
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