AT: Schedule

Before Week 1 (before January 19th)

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

Course Resources: Antitrust

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

Deliverable(s)

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

Case Analysis Resources

Week 6, Classes 10 & 11

Team 1: SCOTUS: 1789-1870 (Monday)

  •  Prepare a comprehensive examination of the Supreme Court between 1789 and 1870.

Team 2: SCOTUS: 1871-present (Wednesday)

  • Prepare a comprehensive examination of the Supreme Court between 1871 and the present.

Case Analysis #1

Week 7, Class 12 & 13

Team 3: Free Exercise (Monday)

Fulton v. City of Philadelphia,  No. 19–123, Argued November 4, 2020 – Decided June 17, 2021
  • Summary: Philadelphia contracts with private agencies, which certify prospective foster families under state criteria. Based on its religious beliefs, Catholic Social Services (CSS) will not certify unmarried couples or same-sex married couples. Other Philadelphia agencies will certify same-sex couples. No same-sex couple sought certification from CSS. Philadelphia informed CSS that unless it agreed to certify same-sex couples it would no longer refer children to the agency, citing a non-discrimination provision in the agency’s contract and its Fair Practices Ordinance. CSS filed suit. The Third Circuit affirmed the denial of preliminary relief. The Supreme Court reversed.
  • Issue: Does the refusal of Philadelphia to contract with CSS unless CSS agrees to certify same-sex couples violates the Free Exercise Clause by requiring CSS either to curtail its mission or to certify same-sex couples in violation of its religious beliefs?
  • Holding: Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment.
  • Judgment: Reversed and remanded, 9-0, in an opinion by Chief Justice Roberts on June 17, 2021. Chief Justice Roberts delivered the opinion of the court, in which Justices Breyer, Sotomayor, Kagan, Kavanaugh and Barrett joined. Justice Barrett filed a concurring opinion, in which Justice Kavanaugh joined, and in which Justice Breyer joined as to all but the first paragraph. Justice Alito filed an opinion concurring in the judgment, in which Justices Thomas and Gorsuch joined. Justice Gorsuch filed an opinion concurring in the judgment, in which Justices Thomas and Alito joined.
  • LexisNexis

Team 4: Voting Rights (Wednesday)

Brnovich v. Democratic National Committee, 594 U.S. ___ (2021) No. 19–1257, Argued March 2, 2021 – Decided July 1, 2021 (Consolidated with: Arizona Republican Party v. Democratic National Committee)
  • Summary: Arizona voters may cast their ballots on election day in person at a traditional precinct or a “voting center” in their county of residence, may cast an “early ballot” by mail, or may vote in person at an early voting location in each county. Arizonans who vote in person on election day in a county that uses the precinct system must vote in the precinct to which they are assigned based on their address; if a voter votes in the wrong precinct, the vote is not counted. For Arizonans who vote early by mail, Arizona HB 2023 makes it a crime for any person other than a postal worker, an elections official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot. A suit under section 2 of the Voting Rights Act of 1965, 52 U.S.C. 10301, challenged Arizona’s refusal to count ballots cast in the wrong precinct and its ballot-collection restriction. The Ninth Circuit invalidated both restrictions. The Supreme Court reversed, characterizing Arizona’s restrictions as “generally applicable time, place, or manner” voting rules and declining to apply the disparate-impact model to displace “the totality of circumstances.” The Court also rejected a “least-restrictive means” analysis as having “the potential to invalidate just about any voting rule.”
  • Issue: Does Arizona’s out-of-precinct policy violate Section 2 of the Voting Rights Act? Does Arizona’s ballot-collection law violate Section 2 of the Voting Rights Act or the Fifteenth Amendment?
  • Holding: Arizona’s out-of-precinct policy and H.B. 2023 do not violate Section 2 of the Voting Rights Act, and H.B. 2023 was not enacted with a racially discriminatory purpose. Supreme Court upholds Arizona voting rules that discount the votes of those who vote at the wrong precinct and that make it a crime for any person other than a postal worker, an elections official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot.
  • Judgment: Reversed and remanded, 6-3, in an opinion by Justice Alito on July 1, 2021. Justice Alito delivered the opinion of the court, in which Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett joined. Justice Gorsuch filed a concurring opinion, in which Justice Thomas joined. Justice Kagan filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.
  • Lexis Nexis

Week 8 | No Classes: Spring Break

Week 9, Classes 14 & 15

Team 5: Disclosure Requirements for Tax-exempt Organizations (Monday)

Americans for Prosperity Foundation v. Bonta, No. 19–251, Argued April 26, 2021 – Decided July 1, 2021 (Consolidated with: Thomas More Law Center v. Bonta)
  • Summary: Charitable organizations soliciting funds in California generally must register with the Attorney General and renew their registrations annually by filing copies of their IRS Form 990, on which tax-exempt organizations provide the names and addresses of their major donors. Two tax-exempt charities that solicit contributions in California renewed their registrations and filed redacted Form 990s to preserve their donors’ anonymity. The Attorney General threatened the charities with the suspension of their registrations and fines. The charities alleged that the compelled disclosure requirement violated their First Amendment rights and the rights of their donors. The Ninth Circuit ruled in favor of the Attorney General. The Supreme Court reversed. California’s disclosure requirement is facially invalid because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest. Compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as other forms of governmental action. Exacting scrutiny requires that a government-mandated disclosure regime be narrowly tailored to the government’s asserted interest, even if it is not the least restrictive means of achieving that end.
  • Issue: The cases concerned governmental disclosure requirements for charitable organizations’ donor lists.
  • Holding: The U.S. Court of Appeals for the 9th Circuit’s judgment, which vacated the district court’s injunction of California’s compelled disclosure of Schedule Bs as not narrowly tailored to the state’s interest in investigating charitable misconduct, is reversed, and the cases are remanded.
  • Judgment: Reversed and remanded, 6-3, in an opinion by Chief Justice Roberts on July 1, 2021. Justices Kavanaugh and Barrett joined the court’s opinion in full, Justices Alito and Gorsuch joined except as to Part II–B–1, and Justice Thomas joined except as to Parts II–B–1 and III–B. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Sotomayor filed a dissenting opinion, in which Justices Breyer and Kagan joined.
  • Lexis Nexis

Team 6: Separation of Powers (Wednesday)

Collins v. Yellen, 594 U.S. ___ (2021) No. 19–422. Argued December 9, 2020 – Decided June 23, 2021 (Consolidated with: Yellen v. Collins)
  • Summary: The Federal Housing Finance Agency FHFA worked with the U.S. Department of the Treasury to change how private shareholders of Fannie Mae and Freddie Mac are compensated when the companies make a profit. The shareholders sued, arguing that the change was beyond the powers of the FHFA and the Treasury and that the structure of the FHFA was unconstitutional.
  • Issue: Whether the FHFA’s structure violates the separation of powers? Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.
  • Holding: Because the Federal Housing Finance Agency did not exceed its authority under the Housing and Economic Recovery Act of 2008 as a conservator of Fannie Mae and Freddie Mac, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of those entities; the Recovery Act’s structure, which restricts the President’s power to remove the FHFA director, violates the separation of powers.
  • Judgment: Affirmed in part, reversed in part, vacated in part and remanded, 7-2, in an opinion by Justice Alito on June 23, 2021. Justice Gorsuch joined the opinion as to all but Part III–C, Justices Kagan and Breyer joined as to all but Part III–B, and Justice Sotomayor joined as to Parts I, II, and III–C. Justice Thomas filed a concurring opinion. Justice Gorsuch filed an opinion concurring in part. Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Breyer and Sotomayor joined as to Part II. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.
  • Lexis Nexis

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 10, Classes 16 & 17

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

Deliverable(s)

  • Case Analysis #2 materials submitted via Teams no later than Thursday at 9p

Week 11, Classes 18 & 19

Team 7: Remedies Under The Religious Freedom Restoration Act (Monday)

Tanzin v. Tanvir, 592 U.S. ___ (2020), No. 19–71. Argued October 6, 2020 – Decided December 10, 2020
  • Summary: The Religious Freedom Restoration Act of 1993 (RFRA) provides a remedy to redress federal government violations of the right to free exercise under the First Amendment. Practicing Muslims sued under RFRA, claiming that federal agents placed them on the No Fly List for refusing to act as informants against their religious communities. They sought injunctive relief against the agents in their official capacities and monetary damages against the agents in their individual capacities. The Supreme Court affirmed the Second Circuit in holding that RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities. RFRA’s text provides that persons may “obtain appropriate relief against a government,” including an “official (or other person acting under color of law) of the United States,” 42 U.S.C. 2000bb–2(1). RFRA supplants the ordinary meaning of “government” with an express definition that includes “official[s]” and underscores that “official[s]” are “person[s].” Under RFRA’s definition, relief that can be executed against an “official . . . of the United States” is “relief against a government.” What relief is “appropriate” is context-dependent. In the context of suits against government officials, damages have long been awarded as appropriate relief. Damages are available under section 1983 for clearly established violations of the First Amendment; that means RFRA provides, as one avenue for relief, a right to seek damages against government employees.
  • Issue: Whether the RFRA allows individuals to sue for damages when government officials have interfered with their freedom to practice their religion.
  • Holding: The Religious Freedom Restoration Act of 1993’s express remedies provision, 42 U. S. C. §2000bb–1(c), permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities for violating litigants’ right to free exercise of religion under the First Amendment.
  • Judgment: Affirmed, 8-0, in an opinion by Justice Thomas on December 10, 2020. Justice Barrett took no part in the consideration or decision of this case.
  • Lexis Nexis

Case Analysis #2

Team 1: Copyright And Fair Use (Wednesday)

Google LLC v. Oracle America, Inc., 593 U.S. ___ (2021) No. 18–956. Argued October 7, 2020 – Decided April 5, 2021
  • Summary: Oracle owns a copyright in Java SE, a computer platform. Google acquired Android and sought to build a new software platform for mobile devices. To allow millions of programmers familiar with Java to work with its new platform, Google copied roughly 11,500 lines of code from Java SE. The copied lines allow programmers to call upon prewritten computing tasks for use in their own programs. The Federal Circuit held that the copied lines were copyrightable and reversed a jury’s finding of fair use.
  • Issue: Does copyright protection extend to a software interface and does petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use?
  • Holding: Google’s limited copying of the Java SE Application Programming Interface allowed programmers to put their accrued talents to work in a transformative program and constituted a fair use of that material under copyright law.
  • Judgment: Reversed and remanded, 6-2, in an opinion by Justice Breyer on April 5, 2021. Justice Thomas filed a dissenting opinion, in which Justice Alito joined. Justice Barrett took no part in the consideration or decision of this case.
  • Lexis Nexis

Deliverable(s)

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

Week 12, Classes 20 & 21

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

Week 13, Classes 22 & 23

Team 2: Computer Fraud and Abuse Act Authorized Access (Monday)

Van Buren v. United States, 593 U.S. ___ (2021) No. 19–783. Argued November 30, 2020 – Decided June 3, 2021
  • Summary: Former Georgia police sergeant Van Buren used his credentials on a patrol-car computer to access a law enforcement database to retrieve license plate information in exchange for money. His conduct violated a department policy against obtaining database information for non-law-enforcement purposes. The Eleventh Circuit upheld Van Buren’s conviction for a felony violation of the Computer Fraud and Abuse Act of 1986 (CFAA), which covers anyone who “intentionally accesses a computer without authorization or exceeds authorized access,” 18 U.S.C. 1030(a)(2), defined to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.”
  • Issue: Does a person who is authorized to access information on a computer for certain purposes violate Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose?
  • Holding: An individual “exceeds authorized access” under the Computer Fraud and Abuse Act of 1986, 18 U.S.C. § 1030(a)(2), when he accesses a computer with authorization but then obtains information located in particular areas of the computer — such as files, folders or databases — that are off-limits to him.
  • Judgment: Reversed and remanded, 6-3, in an opinion by Justice Barrett on June 3, 2021. Justice Thomas filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.
  • Lexis Nexis

During Class (Wednesday)

  • Recap CA #1

Week 14, Class 24

Easter Monday: No Class

Team 3: Securities Fraud and Materiality (Wednesday)

Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System, 594 U.S. ___ (2021) No. 20–222. Argued March 29, 2021 – Decided June 21, 2021
  • Summary: Shareholders of Goldman filed a class action alleging that Goldman and several of its executives committed securities fraud by misrepresenting Goldman’s freedom from, or ability to combat, conflicts of interest in its business practices. The district court certified a shareholder class, but the Second Circuit vacated the order in 2018. On remand, the district court certified the class once more. The court affirmed the district court’s order on remand, holding that the district court correctly applied the inflation-maintenance theory. The court explained that the inflation-maintenance theory did not require proof of fraud-induced inflation, and that the district court applied the correct standard in concluding that Goldman’s share price was inflated. The court also held that the district court did not abuse its discretion by holding that Goldman failed to rebut the Basic presumption by a preponderance of the evidence.
  • Issue: Can a defendant in a securities class action rebut the presumption of class wide reliance, and does a defendant seeking to rebut the Basic presumption have only a burden of production or also the ultimate burden of persuasion?
  • Holding: The generic nature of a misrepresentation in connection with the sale of securities often is important evidence of price impact that courts should consider at class certification; defendants bear the burden of persuasion to prove a lack of price impact by a preponderance of the evidence at class certification.
  • Judgment: Vacated and remanded, 8-1, in an opinion by Justice Barrett on June 21, 2021. Justice Gorsuch filed an opinion concurring in part and dissenting in part, in which Justices Thomas and Alito joined. Justice Sotomayor filed an opinion concurring in part and dissenting from the judgment.
  • Lexis Nexis

Week 15, Classes 25 & 26

Team 4: Antitrust And Amateur Athletics

National Collegiate Athletic Association v. Alston, 594 U.S. ___ (2021) No. 20–512. Argued March 31, 2021 – Decided June 21, 2021 (Consolidated with: American Athletic Conference et al. v. Alston) (Wednesday)
  • Summary: The National Collegiate Athletic Association (NCAA) limits how schools may compensate college-level “amateur” student-athletes. Current and former student-athletes brought suit under Section 1 of the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce,” 15 U.S.C. 1. The Ninth Circuit declined to disturb NCAA rules limiting undergraduate athletic scholarships and other compensation related to athletic performance but enjoined certain NCAA rules limiting the education-related benefits, such as scholarships for graduate or vocational school, payments for academic tutoring, or paid post-eligibility internships.
  • Issue: Was the 9th Circuit’s holding that the NCAA eligibility rules regarding student-athletes’ compensation violate federal antitrust law in error, and does the Sherman Act authorize a court to subject the product-defining rules of a joint venture to full Rule of Reason review, and to hold those rules unlawful if, in the court’s view, they are not the least restrictive means that could have been used to accomplish their pro-competitive goal.
  • Holding: The district court’s injunction pertaining to certain NCAA rules limiting the education-related benefits that schools may make available to student-athletes is consistent with established antitrust principles.
  • Judgment: Affirmed, 9-0, in an opinion by Justice Gorsuch on June 21, 2021. Justice Kavanaugh filed a concurring opinion.
  • Lexis Nexis

Team 5: First Amendment

Mahanoy Area School District v. B.L., 594 U.S. ___ (2021) No. 20–255. Argued April 28, 2021 – Decided June 23, 2021 (Monday)
  • Summary: B.L. failed to make her school’s varsity cheerleading squad. While visiting a store over the weekend, B.L. posted two images on Snapchat, a social media smartphone application that allows users to share temporary images with selected friends. B.L.’s posts expressed frustration with the school and the cheerleading squad; one contained vulgar language and gestures. When school officials learned of the posts, they suspended B.L. from the junior varsity cheerleading squad for the upcoming year.
  • Issue: Do public schools have a special interest in regulating some off-campus student speech, and are the special interests offered by the school sufficient to overcome B. L.’s interest in free expression in this case?
  • Holding: The school district’s decision to suspend student Brandi Levy from the cheerleading team for posting to social media (outside of school hours and away from the school’s campus) vulgar language and gestures critical of the school violates the First Amendment.
  • Judgment: Affirmed, 8-1, in an opinion by Justice Breyer on June 23, 2021. Justice Alito filed a concurring opinion, in which Justice Gorsuch joined. Justice Thomas filed a dissenting opinion.
  • Lexis Nexis

Week 16, Classes 27 & 28

Team 6: Jurisdiction

Ford Motor Company v. Bandemer, No. 19–368. Argued October 7, 2020 – Decided March 25, 2021 (Consolidated with: Ford Motor Co. v. Montana Eighth Judicial Dist.) (Wednesday)
  • Summary: Ford, incorporated in Delaware and headquartered in Michigan, markets, sells, and services its products across the U.S. and overseas and encourages a resale market for its vehicles. Montana and Minnesota courts exercised jurisdiction over Ford in products-liability suits stemming from car accidents that injured state residents. The vehicles were designed and manufactured elsewhere, and originally were sold outside the forum states.
  • Issue: Do state courts have jurisdiction only if the company’s conduct in the State had given rise to the plaintiff’s claims?
  • Holding: The connection between plaintiffs’ product-liability claims arising from car accidents occurring in each plaintiff’s state of residence and Ford’s activities in those states is sufficient to support specific jurisdiction in the respective state courts, even though the automobiles involved in the accidents were manufactured and sold elsewhere.
  • Judgment: Affirmed, 8-0, in an opinion by Justice Kagan on March 25, 2021. Justice Alito filed an opinion concurring in the judgment. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Barrett took no part in the consideration or decision of this case.
  • Lexis Nexis

Team 7: Statutory Interpretation

Facebook, Inc. v. Duguid, 592 U.S. ___ (2021) No. 19–511. Argued December 8, 2020 – Decided April 1, 2021 (Monday)
  • Summary: The Telephone Consumer Protection Act of 1991 (TCPA) restricts communications made with an “automatic telephone dialing system,” defined as equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers, 47 U.S.C. 227(a)(1). Facebook’s social media platform allows users to elect to receive text messages when someone attempts to log in to the user’s account from a new device. Facebook sent such texts to Duguid, alerting him to login activity on a Facebook account linked to his telephone number, but Duguid never created any Facebook account. Duguid tried, unsuccessfully, to stop the unwanted messages. He brought a putative class action, alleging that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages. The Ninth Circuit ruled in Duguid’s favor.
  • Issue: Whether the definition of “automatic telephone dialing system” encompasses equipment that can “store” and dial telephone numbers, even if the device does not “us[e] a random or sequential number generator.”
  • Holding: To qualify as an “automatic telephone dialing system” under the Telephone Consumer Protection Act of 1991, a device must have the capacity either to store, or to produce, a telephone number using a random or sequential number generator.
  • Judgment: Reversed and remanded, 9-0, in an opinion by Justice Sotomayor on April 1, 2021. Justice Alito filed an opinion concurring in the judgment.
  • Lexis Nexis

Week 16, Class 28

  • Course Wrap

Web Resources

You will find a variety of web-based resources that support my courses in this section of the site.

Administrative Law

Alternative Dispute Resolution

Business Law Education, Profession & Careers

Civil Procedure

Federal & State Legislation & Enforcement

Legal Research / Legal Writing: Dictionaries & Encyclopedia

Legal Research