AT: Schedule

Before Week 1 (before January 27th)

You will complete this deliverable by visiting the Before We Begin section of ShannonWeb.

Antitrust Resources

Week 1, Class 1

During Class
  • Review the course requirements
  • Review current events

Week 2, Classes 2 & 3

Before Class
During Class
  • Review the CA projects
  • Discuss Antitrust History, Statutes & Enforcement etal
  • Review current events

Week 3, Classes 4 & 5

Before Class

During Class
  • Discuss Amazon and antitrust
  • Review current events

Week 4, Classes 6 & 7

Before Class

During Class
  • Discuss Facebook and antitrust
  • Review current events

Week 5, Classes 8 & 9

Before Class

During Class

  • Discuss Google and antitrust
  • Review current events

Week 6, Classes 10 & 11

Before Class
During Class
  • Discuss CDA §230
  • Review current events

Deliverable(s)

  • Case Analysis #1 materials submitted via Teams no later than Sunday at 12n

Case Analysis Resources

Case Analysis #1

Week 7, Class 12 & 13

Team 1: Presidential Immunity

Trump v. Vance, 591 U.S. ___ (2020), 140 S. Ct. 2412, No. 19–635  (U.S. July 9, 2020) (Consolidated with: Trump v. Mazars, Trump v. Deutsche Bank AG) (Monday)

  • Overview: The President was neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need because no citizen, not even the President, was categorically above the common duty to produce evidence when called upon in a criminal proceeding.
  • Summary: The Second Circuit and the Supreme Court affirmed the denial of injunctive relief. Article II and the Supremacy Clause do not categorically preclude or require a heightened standard for the issuance of a state criminal subpoena to a sitting President. The Court examined precedent concerning federal subpoenas, from Aaron Burr’s motion for a subpoena directed at President Jefferson, through Monroe, Clinton, and Nixon, and concluded that, with respect to the state subpoena, the President’s “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
    The Court rejected an argument that a state grand jury subpoena for a sitting President’s personal records must meet a heightened standard of need because of the possibility of diversion, stigma, and harassment. The President conceded that the criminal investigations are permitted under Article II and the Supremacy Clause; the receipt of a subpoena does not categorically magnify the harm to the President’s reputation and grand jury secrecy rules aim to prevent the stigma the President anticipates.
    Although a President cannot be treated as an “ordinary individual” when executive communications are sought, with regard to private papers, a President stands in “nearly the same situation with any other individual.” Absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence. A President may avail himself of the same protections available to every other citizen, including the right to challenge the subpoena on grounds permitted by state law, such as bad faith and undue burden or breadth. A President can raise subpoena-specific constitutional challenges in either a state or a federal forum and can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. The New York County District Attorney’s Office served a subpoena duces tecum on the personal accounting firm of President Trump, seeking financial records relating to the President and his businesses. The President, acting in his personal capacity, sought to enjoin enforcement of the subpoena.
  • Holding: Article II and the supremacy clause of the Constitution do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting president.
  • JudgmentAffirmed and remanded, 7-2, in an opinion by Chief Justice Roberts on July 9, 2020. Justice Kavanaugh filed an opinion concurring in the judgment, in which Justice Gorsuch joined. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion.
  • SCOTUS Blog Vance Case Page
  • Slip Opinion
  • LexisNexis

Team 2: Immigration

Department of Homeland Security v. Regents of the University of California, 591 U.S. ___ (2020), 140 S. Ct. 1891, No. 18-587 (U.S. June 18, 2020) (Consolidated with: Trump v. NAACP, Wolf v. Vidal) (Wednesday)

  • Overview: Rescission of DACA was arbitrary and capricious under the APA because the Acting Secretary offered no reason for terminating the forbearance policy, did not consider alternatives that were within the ambit of the existing forbearance policy, and failed to address whether there was legitimate reliance on the DACA memorandum.
  • Summary: In 2012, the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program, which allows certain unauthorized aliens who arrived in the U.S. as children to apply for a two-year forbearance of removal to become eligible for work authorization and various federal benefits. Two years later, a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), proposed to make 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance, work eligibility, and other benefits. States obtained a nationwide preliminary injunction barring implementation of both. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act, which defines eligibility for benefits. The Supreme Court affirmed. In 2017, DHS rescinded the DAPA Memorandum. Acting Secretary of Homeland Security Duke then rescinded DACA.
    Following decisions by the Second, Ninth, and D.C. Circuits, the Supreme Court held that DHS’s rescission decision was arbitrary and capricious.
    As a preliminary matter, the Court held that the decision is reviewable under the APA, rejecting an argument that DACA is a general non-enforcement policy. The DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. The parties did not challenge any removal proceedings so that judicial review would be barred by 8 U.S.C. 1252.
    The Court declined to consider additional justifications for the decision that were offered nine months later. Judicial review of agency action is limited to the grounds that the agency invoked when it took the action. The later justifications bore little relationship to those offered originally and constitute “post hoc rationalization.” Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the issue, such as eliminating benefits eligibility while continuing forbearance. In failing to consider that option, Duke failed to supply the “reasoned analysis” required by the APA. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. DHS has flexibility in addressing reliance interests and could have considered various accommodations.
  • Holding: The Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals program was arbitrary and capricious under the Administrative Procedure Act.
  • JudgmentVacated in part, reversed in part and remanded, 5-4, in an opinion by Chief Justice Roberts on June 18, 2020. Roberts delivered the opinion of the court except as to Part IV. Justices Ginsburg, Breyer and Kagan joined that opinion in full, and Justice Sotomayor joined as to all but Part IV. Justice Sotomayor filed an opinion concurring in part, concurring in the judgment in part and dissenting in part. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Alito and Gorsuch joined. Justices Alito and Kavanaugh filed opinions concurring in the judgment in part and dissenting in part.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Week 8, Classes 14 & 15

Team 3: Voting Rights

Republican National Committee v. Democratic National Committee, (2020), 140 S. Ct. 1205, No. 19A1016 (U.S. April 6, 2020) (Monday)

  • Overview: Application for stay granted, because by changing Wisconsin election rules so close to the election date and by affording relief that plaintiffs had not asked for in their preliminary injunction motions, a district court contravened judicial precedents and erred by ordering such relief.
  • Summary: To slow the spread of the COVID-19 pandemic, Wisconsin’s Governor ordered Wisconsinites to stay at home until April 24. An unprecedented number of voters requested absentee ballots for the state’s spring election, resulting in a severe backlog of ballots not promptly mailed to voters. Plaintiffs, including the Democratic party, sued the Wisconsin Elections Commission and, on April 2, obtained a preliminary injunction that extended the deadline for voters to request absentee ballots and extended the deadline for election officials to receive completed absentee ballots.
    On the day before the April 7 election, the Supreme Court stayed the preliminary injunction to the extent it required Wisconsin to count absentee ballots postmarked after April 7. The Court declined to address “the wisdom of” proceeding with the scheduled election, opting to answer “a narrow, technical question.” While the deadline for the municipal clerks to receive absentee ballots is extended to April 13, those ballots must be mailed and postmarked by election day.
    The plaintiffs had not asked that the court allow ballots postmarked after election day to be counted; the court unilaterally ordered that such ballots be counted if received by April 13. That extension would fundamentally alter the nature of the election and would afford relief that the plaintiffs did not seek. In its order enjoining the public release of any election results for six days after election day, the district court essentially enjoined nonparties. The Court noted no evidence that voters who requested absentee ballots at the last minute would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to receiving ballots; the deadline for receiving ballots was extended to ensure that their votes count. The Court declined to express an opinion on whether other election procedure modifications are appropriate in light of COVID–19.
  • Holding: The District Court’s order granting a preliminary injunction is stayed to the extent it requires Wisconsin to count absentee ballots postmarked after April 7, 2020, the date of the state’s election.
  • JudgmentApplication for stay granted in a per curiam opinion on April 6, 2020. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor and Kagan joined.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Team 4: Twelfth Amendment, Electoral College

Chiafalo v. Washington, 591 U.S. ___ (2020), 140 S. Ct. 2316, No. 19-465 (U.S. July 5, 2020) (Consolidated with: Colorado Department of State v. Baca(Wednesday)

  • Overview: In a case involving Washington electors who violated their pledges in 2016 presidential election, a State was allowed to penalize an elector for breaking his pledge and voting for someone other than candidate who won his State’s popular vote as nothing in the Constitution expressly prohibited States from taking away electors’ voting discretion.
  • Summary: When Americans cast ballots for presidential candidates, their votes actually go toward selecting members of the Electoral College, whom each state appoints based on the popular returns. With limited exceptions, states appoint a slate of electors selected by the political party whose candidate has won the state’s popular vote. Most states compel electors to pledge to support that party’s nominee and remove a “faithless elector” from his position; a few impose a monetary fine on any elector who flouts his pledge.
    Three Washington electors violated their pledges to support Hillary Clinton in 2016 and were fined $1,000 apiece. The Electors challenged their fines, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Supreme Court rejected their claims.
    The Supreme Court affirmed. A state may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President. Article II, Section 1 gives the states the authority to appoint electors “in such Manner as the Legislature thereof may direct.” The power to appoint an elector includes the power to condition his appointment, including requiring that electors pledge to cast their Electoral College ballots for the party’s presidential nominee. States can demand that an elector actually live up to that pledge, on pain of penalty.
    Nothing in the Constitution expressly prohibits states from taking away presidential electors’ voting discretion. Article II’s use of the term “electors” and the Twelfth Amendment’s requirement that the electors “vote,” “by ballot,” do not establish that electors must have discretion. From the first elections under the Constitution, states sent electors to the College to vote for pre-selected candidates, rather than to use their own judgment. The electors rapidly settled into that non-discretionary role. Ratified at the start of the 19th century, the Twelfth Amendment acknowledged and facilitated the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting.
  • Holding: A state may enforce an elector’s pledge to support their party’s nominee – and the state voters’ choice – for president in the Electoral College.
  • JudgmentAffirmed, 9-0, in an opinion by Justice Kagan on July 6, 2020. Justice Thomas filed an opinion concurring in the judgment, in which Justice Gorsuch joined as to part II.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Deliverable(s)

  • Case Simulation #1 Materials Available No Later Than Sunday at 1p
  • Case Simulation #1, Phase 1 Memo Due No Later Than Thursday at 11p; Submit Using Teams DM

Week 9, Classes 16 & 17

During Class
  • Case Simulation #1
    • Monday: Phase 1, discuss case simulation memos
    • Wednesday: Phase 2, team Q&A

Week 10, Classes 18 & 19

Team 5: First Amendment, Free Exercise Clause

Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020), 140 S. Ct. 2246, No. 18-1195 (U.S. June 30, 2020) (Monday)
  • Summary: Montana grants tax credits to those who donate to organizations that award scholarships for private school tuition. To reconcile the program with the Montana Constitution, which bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools. Parents sued, alleging that the Rule discriminated on the basis of religion. The Montana Supreme Court held that the program, unmodified by Rule 1, aided religious schools in violation of the Montana Constitution’s no-aid provision and that the violation required invalidating the entire program. The Supreme Court remanded. The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution. Disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny. Montana’s no-aid provision does not zero in on any essentially religious course of instruction but bars aid to a religious school “simply because of what it is.” The protections of the Free Exercise Clause do not depend on a case-by-case analysis. To satisfy strict scrutiny, government action must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. Montana’s interest in creating a greater separation of church and state than the U.S. Constitution requires cannot qualify as compelling. The Montana Supreme Court was obligated to disregard the no-aid provision and decide this case consistent with the Federal Constitution.
  • Holding: The application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the free exercise clause.
  • JudgmentReversed and remanded, 5-4, in an opinion by Chief Justice Roberts on June 30, 2020. Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Alito filed a concurring opinion. Justice Gorsuch filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justice Kagan joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined as to Part I. Justice Sotomayor filed a dissenting opinion.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Team 6: First Amendment, Free Exercise Clause, Employer Health Insurance Plans

Little Sisters of the Poor v. Pennsylvania, 591 U.S. ___ (2020), 140 S. Ct. 2367, No. 19-431 (U.S. July 7, 2020) (Consolidated with: Trump v. Pennsylvania(Wednesday)
  • Overview: Departments of Health and Human Services, Labor, and the Treasury had the legal authority to exempt certain employers who had religious and conscientious objections from the agency-created contraceptive mandate as 42 U.S.C.S. § 300gg-13(a)(4) granted the Health Resources and Services Administration sweeping authority.
  • Summary: The Patient Protection and Affordable Care Act of 2010 (ACA) requires covered employers to provide women with “preventive care and screenings” without cost-sharing requirements and relies on Preventive Care Guidelines “supported by the Health Resources and Services Administration” (HRSA) to define “preventive care and screenings,” 42 U.S.C. 300gg–13(a)(4). Those Guidelines mandate that health plans cover all FDA-approved contraceptive methods. When the Federal Departments incorporated the Guidelines, they gave HRSA the discretion to exempt religious employers from providing contraceptive coverage. Later, the Departments promulgated a rule accommodating qualifying religious organizations, allowing them to opt out of coverage by self-certifying that they met certain criteria to their health insurance issuer, which would then exclude contraceptive coverage from the employer’s plan and provide participants with separate payments for contraceptive services without any cost-sharing requirements.
    In its 2014 “Hobby Lobby” decision, the Supreme Court held that the contraceptive mandate substantially burdened the free exercise of closely-held corporations with sincerely held religious objections. In a later decision, the Court remanded challenges to the self-certification accommodation so that the parties could develop an approach that would accommodate employers’ concerns while providing women full and equal coverage.
    The Departments then promulgated interim final rules. One significantly expanded the church exemption to include an employer that objects, based on its sincerely held religious beliefs, to coverage or payments for contraceptive services. Another created an exemption for employers with sincerely held moral objections to providing contraceptive coverage. The Third Circuit affirmed a preliminary nationwide injunction against the implementation of the rules.
    The Supreme Court reversed. The Departments had the authority under the ACA to promulgate the exemptions. Section 300gg–13(a)(4) states that group health plans must provide preventive care and screenings “as provided for” in comprehensive guidelines, granting HRSA sweeping authority to define that preventive care and to create exemptions from its Guidelines. Concerns that the exemptions thwart Congress’ intent by making it significantly harder for women to obtain seamless access to contraception without cost-sharing cannot justify supplanting that plain meaning. “It is clear … that the contraceptive mandate is capable of violating the Religious Freedom Restoration Act.” The rules promulgating the exemptions are free from procedural defects.
  • Holding: The Departments of Health and Human Services, Labor and the Treasury had authority under the Affordable Care Act to promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees.
  • JudgmentReversed and remanded, 7-2, in an opinion by Justice Thomas on July 8, 2020. Justice Alito filed a concurring opinion, in which Justice Gorsuch joined. Justice Kagan filed an opinion concurring in the judgment, in which Justice Breyer joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Deliverable(s)

  • Case Analysis #2 materials submitted via Teams no later than Sunday at 12n
  • Case Simulation #2 Materials Available No Later Than Tuesday at 1p

Week 11, Class 20

Easter Monday: No Class
During Class (Wednesday)
  • Review CA #1 results
  • Review current events

Deliverable(s)

  • Case Simulation #2, Phase 1 Memo Due No Later Than Thursday at 11p EDT; Submit Using Teams DM

Week 12, Classes 21 & 22

During Class
    • Monday: Phase 1, discuss case simulation memos
    • Wednesday: Phase 2, team Q&A

Case Analysis #2

Week 13, Classes 23 & 24

Team 1: First Amendment, Free Exercise Clause, Employment Discrimination

Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. __ (2020), 140 S. Ct. 2367, No. 19-267 (U.S. December 17, 2019) (Consolidated with: St. James School v. Biel) (Monday)
  • Overview: Departments of Health and Human Services, Labor, and the Treasury had the legal authority to exempt certain employers who had religious and conscientious objections from the agency-created contraceptive mandate as 42 U.S.C.S. § 300gg-13(a)(4) granted the Health Resources and Services Administration sweeping authority.
  • Summary: Two teachers at Roman Catholic elementary schools were employed under agreements that set out the schools’ mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teachers’ performance would be reviewed on those bases. Each taught religion and worshipped with her students, prayed with her students. Each teacher sued after her employment was terminated. One claimed violation of the Age Discrimination in Employment Act; the other claimed she was discharged because she requested a leave of absence to obtain breast cancer treatment. The Ninth Circuit declined to apply the Supreme Court’s 2012 Hosanna-Tabor “ministerial exception” to laws governing the employment relationship between a religious institution and certain key employees.
    The Supreme Court reversed. The First Amendment’s Religion Clauses foreclose the adjudication of employment disputes involving those holding certain important positions with churches and other religious institutions. Several factors may be important in determining whether a particular position falls within the ministerial exception. What matters is what an employee does. Educating young people in their faith, inculcating its teachings, and training them to live their faith lie at the core of a private religious school’s mission. The plaintiff-teachers qualify for the exception; both performed vital religious duties, educating their students in the Catholic faith, and guiding their students to live their lives in accordance with that faith. Their titles did not include the term “minister” but their schools expressly saw them as playing a vital role in carrying out the church’s mission. A religious institution’s explanation of the role of its employees in the life of the religion is important. The Ninth Circuit mistakenly treated the Hosanna-Tabor decision as a checklist; that court invested undue significance in the facts that these teachers did not have clerical titles and that they had less formal religious schooling than the Hosanna-Tabor teacher. The Court rejected a suggestion that an employee can never come within the Hosanna-Tabor exception unless the employee is a “practicing” member of the religion with which the employer is associated.
  • Holding: The “ministerial exception” under the religion clauses of the First Amendment forecloses the adjudication of employment-discrimination claims of Catholic school teachers in these cases.
  • JudgmentReversed and remanded, 7-2, in an opinion by Justice Alito on July 8, 2020. Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Team 2: Sixth Amendment, Jury Trial

Ramos v. Louisiana, 590 U.S. ___ (2020), 140 S. Ct. 1390, No. 18-5924 (U.S. April 19, 2020) (Wednesday)
  • Overview: The Sixth Amendment right to a jury trial, as incorporated against the States by way of the Fourteenth Amendment, required a unanimous verdict to convict a defendant of a serious offense.
  • Summary: In 48 states and in federal court, a single juror’s vote to acquit is enough to prevent a conviction; Louisiana and Oregon punish people based on 10-to-2 verdicts. Ramos was convicted in a Louisiana court by a 10-to-2 jury verdict and was sentenced to life without parole.
    The Supreme Court reversed. The Sixth Amendment right to a jury trial, as incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Juror unanimity is a vital common law right. The Court rejected an “invitation” to “perform a cost-benefit analysis on the historic features of common law jury trials and to conclude that unanimity does not make the cut.” In overturning its 1972 “Apodaca” decision, the Court stated that the reasoning, in that case, was “gravely mistaken” and “sits uneasily with 120 years of preceding case law.” The fact that Louisiana and Oregon may need to retry defendants convicted of felonies by non-unanimous verdicts whose cases are still pending on direct appeal “will surely impose a cost, but new rules of criminal procedure usually do.”
  • Holding: The Sixth Amendment right to a jury trial, as incorporated against the states, requires a unanimous verdict to convict a defendant of a serious offense.
  • JudgmentReversed, 6-3, in an opinion by Justice Gorsuch on April 20, 2020. Justice Gorsuch delivered the opinion of the court with respect to Parts I, II–A, III, and IV–B–1, in which Justices Ginsburg, Breyer, Sotomayor and Kavanaugh joined; an opinion with respect to Parts II–B, IV–B–2, and V, in which Justices Ginsburg, Breyer and Sotomayor joined; and an opinion with respect to Part IV–A, in which Justices Ginsburg and Breyer joined. Justice Sotomayor filed an opinion concurring as to all but Part IV–A. Justice kavanaugh filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts joined, and in which Justice Kagan joined as to all but Part III–D.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Week 14, Classes 25 & 26

Team 3: Workplace Discrimination

Bostock v. Clayton County, 590 U.S. ___ (2020), 140 S. Ct. 1731, No. 18-422 (U.S. June 15, 2020) (Monday)
  • Overview: Employers each violated Title VII of the Civil Rights Act of 1964 when they fired a long-time employee shortly after the employee revealed that he or she was homosexual or transgender because it was impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
  • Summary: Three employers each fired a long-time employee for being homosexual or transgender. Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, which makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin,” 42 U.S.C. 2000e–2(a)(1). The Eleventh Circuit held that the suit could be dismissed. The Second and Sixth Circuits allowed the claims to proceed.
    The Supreme Court ruled in favor of the employees. An employer violates Title VII when it intentionally fires an individual employee based in part on sex regardless of whether other factors besides the plaintiff’s sex contributed to the decision or whether the employer treated women as a group the same when compared to men as a group. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. It is irrelevant what an employer or others might call the discriminatory practice; that another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from that assigned at birth, might play an important role in the employer’s decision; or that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. The Court rejected arguments that homosexuality and transgender status are distinct concepts from sex and that a stricter causation test should apply because the policies at issue have the same adverse consequences for men and women. Legislative history has no bearing where no ambiguity exists about how Title VII’s terms apply to the facts.
  • Holding: An employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
  • Judgment: Reversed and remanded, 6-3, in an opinion by Justice Gorsuch on June 15, 2020. Justice Alito filed a dissenting opinion, in which Justice Thomas joined. Justice Kavanaugh filed a dissenting opinion.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Team 4: Age Discrimination In Employment (ADEA)

Babb v. Wilkie, 589 U.S. ___ (2020), 140 S. Ct. 1168, No. 18-882 (U.S. April 5, 2020) (Wednesday)
  • Overview: Under the plain meaning of 29 U.S.C.S. § 633a(a), age had to be a but-for cause of differential treatment for federal employees, but not necessarily a but-for cause of a personnel action itself and if age discrimination played any part in the way a decision was made, then the decision was not made in a way that was untainted by such discrimination.
  • Summary: Babb, a VA pharmacist, filed suit under the Age Discrimination in Employment Act, 29 U.S.C. 633a(a). The district court granted the VA summary judgment, finding that Babb had established a prima facie case but that the VA had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual. The Eleventh Circuit affirmed.
    The Supreme Court reversed. Section 633a(a) demands that federal sector personnel actions be untainted by any consideration of age. The ADEA does not require proof that a federal employment decision would have turned out differently if age had not been taken into account. If age is a factor in an employment decision, the statute has been violated. It is not anomalous to hold the federal government to a stricter standard than private employers or state and local governments.
    But-for causation is important in determining the appropriate remedy. To obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate.
  • Holding: The plain meaning of 29 U. S. C. § 633a(a), the federal-sector provision of the Age Discrimination in Employment Act of 1967, demands that personnel actions be untainted by any consideration of age, but but-for causation is important in determining the appropriate remedy that may be obtained.
  • Judgment:  Reversed and remanded, 8-1, in an opinion by Justice Alito on April 6, 2020. Justice Sotomayor filed a concurring opinion, in which Justice Ginsburg joined. Justice Thomas filed a dissenting opinion.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Week 15, Classes 26 & 27

Team 5: Trademarks

Patent and Trademark Office v. Booking.com B.V., 591 U.S. ___ (2020), 140 S. Ct. 2298, No. 19-46 (U.S. May 3, 2020) (Monday)
  • Overview: A term styled “generic.com” was a generic name for a class of goods or services only if the term had that meaning to consumers. Since consumers did not perceive the term “Booking.com” to signify online hotel-reservation services as a class, the terms was eligible for federal trademark registration.
  • Summary: A generic name—the name of a class of products or services—is ineligible for federal trademark registration. Booking.com, a travel-reservation website, sought federal registration of marks including the term “Booking.com.” Concluding that “Booking.com” was a generic name for online hotel-reservation services, the U.S. Patent and Trademark Office (PTO) refused registration. The Fourth Circuit affirmed the District Court decision that “Booking.com”—unlike the term “booking” standing alone—is not generic.
    The Supreme Court affirmed. A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Whether a compound term is generic turns on whether that term, taken as a whole, signifies to consumers a class of goods or services. Consumers do not perceive the term “Booking.com” that way. Only one entity can occupy a particular Internet domain name at a time, so a “generic.com” term could convey to consumers an association with a particular website. An unyielding legal rule disregarding consumer perception would be incompatible with a bedrock principle of the Lanham Act. The PTO’s policy concerns do not support a categorical rule against the registration of “generic.com” terms. Several doctrines ensure that registration of “Booking.com” would not yield its holder a monopoly on the term “booking.”
  • Holding: A term styled “generic.com” is a generic name for a class of goods or services—and thus ineligible for federal trademark protection—only if the term has that meaning to consumers.
  • JudgmentAffirmed, 8-1, in an opinion by Justice Ginsburg on June 30, 2020. Justice Sotomayor filed a concurring opinion. Justice Breyer filed a dissenting opinion.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Team 6: Trademarks

Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 590 U.S. ___ (2020), 140 S. Ct. 1589, No. 18-1086 (U.S. May 14, 2020) (Wednesday)
  • Overview: Claim preclusion did not bar a competitor from asserting its settlement agreement defense in a third action with the trademark holder where that case involved different marks, different legal theories, and different conduct occurring at different times, and thus, the third action and the previous action lacked a common nucleus of operative facts.
  • Summary: Lucky Brand and Marcel market clothing. Marcel registered the trademark “Get Lucky.” Lucky Brand registered the trademark “Lucky Brand” and other marks with the word “Lucky.” In a 2003 settlement agreement, Lucky Brand agreed to stop using the phrase “Get Lucky.” Marcel released its claims regarding Lucky Brand’s use of its other trademarks.
    In 2005, Lucky Brand sued Marcel for violating its trademarks. Marcel filed counterclaims turning on Lucky Brand’s continued use of “Get Lucky,” but did not claim that Lucky Brand’s use of its other marks alone infringed that mark. The court enjoined Lucky Brand from copying or imitating Marcel’s “Get Lucky” mark.
    In 2011, Marcel sued Lucky Brand, arguing only that Lucky Brand’s post-2010 use of Lucky Brand’s other marks infringed Marcel’s “Get Lucky” mark. Marcel did not allege that Lucky Brand continued to use “Get Lucky.” Lucky Brand argued, for the first time since early in the 2005 Action, that Marcel had released those claims in the settlement agreement. The Second Circuit vacated the dismissal of the action, concluding that “defense preclusion” prohibited Lucky Brand from raising that unlitigated defense.
    A unanimous Supreme Court reversed. Any preclusion of defenses must, at a minimum, satisfy the strictures of issue preclusion or claim preclusion. Here, issue preclusion does not apply, so the causes of action must share a “common nucleus of operative fact[s]” for claim preclusion to apply. The 2005 claims depended on Lucky Brand’s alleged use of “Get Lucky.” In the 2011 suit, Marcel alleged that the infringement was Lucky Brand’s use of its other marks containing the word “Lucky,” not any use of “Get Lucky” itself. The conduct in the 2011 suit occurred after the conclusion of the 2005 suit.
  • Holding:  Because the trademark action at issue challenged different conduct—and raised different claims—from an earlier action between the parties, Marcel cannot preclude Lucky Brand from raising new defenses, including a defense that Lucky Brand failed to press fully in the earlier suit.
  • JudgmentReversed and remanded, 9-0, in an opinion by Justice Sotomayor on May 14, 2020.
  • SCOTUS Blog Case Page
  • Slip Opinion
  • LexisNexis

Week 16, Class 28

During Class

  • Course Wrap

AT: Deliverables

You are responsible for completing the following deliverables this semester.

Engagement

Success in this course will require you to do more than simply appear in class twice a week and answer an occasional question. I expect that all of my students will be prepared to actively participate in our in class discussions since that is a key way to take as much away from the course as possible. Please review the Engagement Rubric in the Engagement section of this site.

Our conversations are ongoing so you must engage your classmates with commentary, reaction and/or analysis both in class and online. Remember, conversation ” … is a form of interactive, spontaneous communication between two or more people …” and generally, ” … written exchanges are usually not referred to as conversations.” The good news is that Teams will allow us to engage in either synchronous or asynchronous written exchanges that will stand in for conversations.

Case Analysis

You will complete this deliverable by posting your materials to the appropriate channel in Teams.

We will examine twelve cases decided by SCOTUS during the 2019/2020 term. These cases focus on constitutional law, immigration, presidential immunity and trademarks, among others.

You will join one of six teams that will be responsible for the management of all aspects of a case analysis. Each team will be responsible for the analysis of two cases as described in the Course Schedule. Each case analysis will be developed and shared in your team’s OneNote Notebook and will include three parts.

  • Case analysis narrative, in a minimum of 3,000 words. Each narrative will include the materials necessary to support the team’s analysis. The narrative, and materials, should include, but not be limited to (a) the basis of the case (including a review of lower court and related decisions) and, (b) a discussion that provides context for the case from a legal, ethical, social, cultural and political perspective.
  • A narrated, self-running Powerpoint presentation to share their analysis, allowing their classmates to be full prepared for each in-class discussion.
  • Moderation of the scheduled discussion of the case analysis.

You will use your Teams CA channel to collaborate with your team and memorialize your discussions and supporting materials including, for example, web sources, documents and multimedia content for each case. Be sure to carefully review the materials included in Writing on a Digital Platform and Writing and Research.

Case Simulation

You will complete this deliverable by posting your memo to the appropriate channel in Teams.

We will complete two case simulations this semester. Links to the materials related to each case simulations are in the Course Schedule.

Each case simulation requires two phases.

The first phase will require you to review materials in the text. You will also study a case that examines issues related to the simulation topic, focusing on facts, a statutory excerpt and case law. Based on your knowledge of the particular area of law as a whole, you will then compose a neutral memorandum (not to exceed 750 words) that outlines each legal issue present with a short explanation of the applicable legal rules or doctrine. The sources of law for this memorandum are the text’s chapter on the area of law as well as any applicable statutory and case law. Your perspective is not that of an advocate. Rather, your analysis is as objective as possible in spotting any and all potential issues that could arise in the case and opine as to the likelihood of success on each point. You will complete this phase of the assignment individually. Be sure to carefully review the materials included in Writing on a Digital Platform and Writing and ResearchNever post a Word or Google doc or pdf.

During the second phase you will prepare for an in-class Q & A discussion of the issues presented by the materials included in the first phase. You will be assigned to a team that will advocate for one side or the other during the discussion.

I will evaluate the following factors when I assess your contributions to the simulations:

  • Phase 1: Assessment will be based on the clarity of your writing, spelling and grammar, document appearance and satisfaction of form requirements; articulation of all potential issues presented and the quality and depth of analysis. You will complete Phase 1 individually. Your issues memorandum should reflect a thoughtful, substantive and well-reasoned summary; and
  • Phase 2: Assessment will be based on your mastery of the issues under consideration, contribution to the preparatory work of your team and participation in the give and take of the in-class discussion.

Grading

The following weights will be assigned to each component of your final grade:

  • Engagement (20%)
  • Case Analysis #1 (20%)
  • Case Analysis #2 (20%)
  • Case Simulation #1 (20%)
  • Case Simulation #2 (20%)

AT: Review This First

Stillman’s Mission

… is to enrich each student’s life through an ethics-centered education focusing on transforming concepts into business practice.

Welcome To The Course

Welcome to Advanced Topics. This is part of your course syllabus. We will meet remotely weekly (MW, 3:30p – 4:45p) via Teams. You will find links to our class meetings and my office hours in your Outlook and Teams calendars. I will update this syllabus if I add something to the course or if something unexpected intervenes … like a hurricane or blizzard. It is your responsibility to remain current on course assignments and materials by reviewing this syllabus regularly for updates.

You should review the entire course syllabuscalendar, deliverables, schedule and any other materials included in this course site carefully. You will find answers to any questions when you review the rest of the information included on this site. If you have any questions after you’ve reviewed this syllabus and the rest of the course site, you can DM me in Teams to contact me.

Before We Meet

We will meet for the first time on Wednesday, January 27th at 3:30p. We will meet remotely via Teams this semester, please see your Outlook or Teams calendar for links to our Teams class meetings.

Click here to join your Teams workspace. It is important that you complete your signup immediately since all of our course communication will be via Teams and I will not use email for our course communication in the future.

Before we meet please click Before We Begin to complete some housekeeping items that include introducing yourself, agreeing to the learning contract and your O365 profile.

Introduction

Managers face a variety of legal challenges that can both help and hinder success. This course examines several advanced topics in the legal environment that will provide a foundation that will equip students to recognize the legal challenges they will encounter as managers. We will focus on several of the cases decided during the 2019/2020 SCOTUS term. We will examine cases that address issues touching on constitutional law, employment and labor law, patents and antitrust. While we will not turn students into lawyers, we will develop the legal knowledge and analytical skills that guide entrepreneurs in a complicated legal environment.

What Should You Expect?

The subject matter of the course is interesting, challenging and very timely. We will cover some very interesting topics that are particularly important in the economy of the 21st century. We will use a variety of digital platforms to interact with each other and the course materials.

The COVID-19 pandemic has forced us to move to a fundamentally different set of delivery modalities, e.g., HyFlex, hybrid, remote, synchronous, or not, or some combination of approaches to teaching and learning. We are increasingly working remotely in order to accomplish our work. That remote modality demands that we adjust our understanding of acceptable protocols for attendance and participation, whether a meeting or course attendance, engagement and participation.

While working together using a digital platform, e.g., Teams, Zoom, Slack, etc. it is important that you join the session with a live camera and muted mic. A live camera helps to create a sense of community and will help all of us to engage effectively during our discussions. If you only unmute your mic when speaking we can avoid feedback, unsolicited input from family, pets and others as well as any random noise. If you cannot be seen or heard by your classmates it will be difficult to actively engage in course meetings. That will have negative implications for your grade results. Please review the Protocols for Online Meetings and Classes for more information.

I will actively engage you through the use of the Socratic Method, both in class and during our discussions outside class. You will have a better sense of my class sessions after you read my perspective on Teaching and Learning.

Learning Objectives

This course is an elective that is required for those students who have decided to pursue the Minor in Legal Studies. The course will help prepare students to meet the legal and regulatory challenges and opportunities they can expect to encounter as managers of private and public businesses. The course provides a conceptual framework for understanding the various legal tools available to managers engaged in evaluating and pursuing opportunities. This course will not make you a lawyer. It will, however, help you to develop insights into the law so you can handle the legal aspects of management with confidence.  This includes developing legal literacy and learning what to look for when selecting an attorney and then … knowing when to call one.

Required Course Text

Hunter, Shannon, Amoroso & O’Sullivan-Gavin. Law, Business and Regulation: A Managerial Perspective, CreateSpace (2017).

The required course text is available from several sources.

Professors Hunter, Amoroso, O’Sullivan-Gavin and I have decided to provide a digital version of the text for your use this semester at no cost to our students. You will find the digital version here. Access to a digital version of the text will facilitate your course work particularly while we are engaged in remote learning.

If you prefer to purchase a print copy of the text it is available for purchase from the SHU bookstore. You can also click the link above to order the text directly from Amazon. You will need the text before our first class meeting to complete the assignments described in the Course Schedule.

N.B. Do not purchase The Legal Environment of Business: A Managerial and Regulatory Perspective, 3rd Ed. CreateSpace (2011).

Additional Materials

All of the course materials are available as links that you will find at ShannonWeb. I may assign additional materials for use in our course. I will post links to those materials in advance in the Course Schedule. Please check the syllabus regularly for updates.

Technology

Since you have reviewed my Course Policies, you are already familiar with my expectations about the use of technology in my courses. Your participation in this course will require you to engage with a number of different digital platforms. Be sure to carefully review the materials included in Writing on a Digital Platform and Writing and Research. Our communication and collaboration platform will be Teams. If you need to reach me or have a question, please DM in Teams. We use Teams video for our virtual office hours. You will prepare your writing assignments using digital platforms that will allow you to incorporate multimedia that will enhance your text based content. You will use resources as varied as a search engine (GoogleDuckDuckGo or Bing) and also the resources available from our own Walsh Library.

You are responsible for “figuring it out” when it comes to the “how to” aspects of a project. If you don’t know how to do something … “search for it”!

Many of my students have told me that “figuring it out” was both an unexpected and beneficial experience and a critical learning outcome.

Course Policies

It is your responsibility to become familiar with my Course Policies including in class performance; attendance, preparation & participation; assignments; course communication; assessment and plagiarism. Please review them carefully.

As in the law … ignorance (of the Course Policies) is not an excuse.

Contact Me

Professor John H. Shannon

  • Office: 651 Jubilee Hall or Teams
  • Communications: Teams DM (preferred) or email at john DOT shannon AT shu DOT edu
  • Office Hours: Mon & Wed, 1:30p – 3p; also by appt, all office hours and other meetings will be held via Teams since it is impossible to observe social distancing rules in a small space.

We can schedule an alternative meeting time if you are not available during my office hours. As you know, our course communications platform is Teams. Please DM me in Teams with some days/times when you are available and we can schedule a video conference in Teams.

I can be reached via any number of platforms … Teams (preferred), email, voice or video. As a general rule, I am available if I am online. You can DM me in Teams or, if you are already enrolled in one of my courses, post a question to the Course Questions channel in our course’s Teams workspace. I will try to reply to any communications as soon as possible but certainly no more than 24 hours after receipt. If you prefer a video conference (and who doesn’t?) please DM me with some convenient days/times and we’ll set it up.

My office hours are subject to change pretty much every semester so please check your course syllabus for my current office hours (see above). I have, in the past, generally scheduled at least one hour a week using Teams video to accommodate those who have a conflict with my scheduled office hours. Since we are conducting all office hours and other meetings via Teams and if you are unavailable to meet during my scheduled office hours, you can schedule an appointment for a video conference via Teams. I prefer video conferences because they give me more options when answering your questions.

That said, I do try to carve out some space for thoughtful consideration of life. The practical impact of that desire is to keep evenings and weekends clear for family, friends and other forms of social interaction. If you going to ping me late on a Friday then I will get back to you on Monday unless it is an emergency … a REAL emergency.

When communicating with me please include the following information: your name, the question or issue to be resolved, your course/section and any other necessary information.