AT: Schedule (319)

Course Schedule

Before Week 1 (before August 26th)

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

• Review Syllabus, Deliverables, Schedule, Calendar and Course Policies in ShannonWeb
• Set up your Slack profile by clicking here to join our Slack workspace
• Complete the “Introduce Yourself” post in the Slack #introduction channel
• Complete the “Learning Contract” post in the Slack #learning-contract channel
• Purchase the required book (see Required Course Text)

Week 1, Classes 1 & 2

• Read and prepare the cases and materials in Chapter 3, Constitutional Perspectives
• Review Constitutional Law and Regulatory Process videos

• Review the course requirements
• Discuss the cases and materials in Chapter 3, Constitutional Perspectives
• Review current events

Week 2, Class 3

Monday: Labor Day – No Class

• Read and prepare the cases and materials in Chapter 3, Constitutional Perspectives
• Review Constitutional Law and Regulatory Process videos

• Review the course teams
• Discuss the cases and materials in Chapter 3, Constitutional Perspectives
• Review current events

Week 3, Classes 4 & 5

Week 4, Classes 6 & 7

Before Class

Week 5, Classes 8 & 9

• Read and prepare the cases and materials in Chapter 21, IP: Copyrights and Chapter 22, IP: Trademarks and Trade Secrets
• Review Overview, Copyright and Trademark videos

• Discuss the cases and materials in Chapter 21, IP: Copyrights and Chapter 22, IP: Trademarks and Trade Secrets
• Review current events

Week 6, Classes 10 & 11

• Read and prepare the cases and materials on Labor Law in Chapter 17, Employment Law, Regulation and Labor Law
• Review Labor Law videos

• Discuss the cases and materials on Labor Law in Chapter 17, Employment Law, Regulation and Labor Law
• Review current events

Deliverable

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

Week 7, Class 12

SCOTUS 2018/19 Docket

Voting Rights: Partisan Gerrymandering

• Summary: North Carolina plaintiffs claimed that the state’s congressional districting plan discriminated against Democrats. Maryland plaintiffs claimed that their state’s plan discriminated against Republicans. The plaintiffs cited the First Amendment, the Equal Protection Clause, the Elections Clause, and Article I, section 2. The district courts ruled in favor of the plaintiffs. The Supreme Court vacated, finding that partisan gerrymandering claims present political questions beyond the reach of the federal courts because they lack “judicially discoverable and manageable standards for resolving [them].” Citing the history of partisan gerrymandering, the Court stated that the Constitution assigns electoral districting problems to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play. “To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.” The Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. Deciding among the different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. The Court distinguished one-person-one-vote and racial gerrymandering cases as susceptible to legal standards. Any assertion that partisan gerrymanders violate the core right of voters to choose their representatives is more likely grounded in the Guarantee Clause, which “guarantee[s] to every State in [the] Union a Republican Form of Government.” That Clause does not provide the basis for a justiciable claim.
• Issue: Are election districts drawn to help one political party over another subject to judicial review, and did Wisconsin’s state legislative maps violate the Constitution by denying some votes’ free speech of equal protection rights?
• Holding: Partisan gerrymandering claims present political questions beyond the reach of the federal courts.
• Judgment:  Vacated and remanded, 5-4, in an opinion by Chief Justice Roberts on June 27, 2019. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg, Breyer and Sotomayor joined.
• SCOTUS Blog Case Page
• Slip Opinion

Voting Rights: Racial Gerrymandering

• Summary: After the 2010 census, Virginia redrew legislative districts for its Senate and House of Delegates. Voters sued, claiming racial gerrymandering. The House of Delegates intervened. The district court held that 11 districts were unconstitutionally drawn, enjoined Virginia from conducting elections for those districts before adopting a new plan, and gave the General Assembly several months to adopt that plan. Virginia’s Attorney General announced that the state would not appeal. The Supreme Court dismissed an appeal by the House for lack of standing. To establish standing, a litigant must show a concrete and particularized injury, that is fairly traceable to the challenged conduct and is likely to be redressed by a favorable decision. Standing must be met at every stage of the litigation. To appeal a decision that the primary party does not challenge, an intervenor must independently demonstrate standing. The state itself had standing to appeal, and could have designated agents to do so, but did not designate the House to represent its interests. Under Virginia law, authority to represent the state’s interests in civil litigation rests exclusively with its Attorney General. The House has consistently purported to represent only its own interests and lacks standing to appeal in its own right. A judicial decision invalidating a state law does not inflict a discrete, cognizable injury on each organ of government that participated in the law’s passage. Virginia’s Constitution allocates redistricting authority to the “General Assembly,” of which the House constitutes only a part. The issue is the constitutionality of a concededly enacted redistricting plan, not the results of the chamber’s poll or the validity of any counted or uncounted vote. Redrawing district lines may affect the chamber’s membership, but the House as an institution has no cognizable interest in the identity of its members.
• Issue: Whether the district court conducted a proper “holistic” analysis of the majority-minority Virginia House of Delegates districts under the prior decision in this case, Bethune-Hill v. Va. State Bd. of Elections.
• Holding: The House of Delegates lacks standing to appeal the invalidation of Virginia’s redistricting plan.
• Judgment:  Appeal dismissed, 5-4, in an opinion by Justice Ginsburg on June 17, 2019. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts, and Justices Breyer and Kavanaugh joined.
• SCOTUS Blog Case Page
• Slip Opinion

Week 8, Classes 13 & 14

Monday: Fall Break – No Class

Fifth Amendment: Double Jeopardy

• Summary: Gamble pleaded guilty under Alabama’s felon-in-possession-of-a-firearm statute. Federal prosecutors then indicted him for the same instance of possession under federal law. Gamble argued that the federal indictment was for “the same offence” as the one at issue in his state conviction, exposing him to double jeopardy under the Fifth Amendment. The Eleventh Circuit and Supreme Court affirmed the denial of his motion, invoking the dual-sovereignty doctrine, according to which two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns.” The dual sovereignty doctrine is not an exception to the double jeopardy right but follows from the Fifth Amendment’s text. As originally understood, an “offence” is defined by a law, and each law is defined by a sovereign. Where there are two sovereigns, there are two laws and two “offences.” The Court stated that “Gamble’s historical evidence is too feeble to break the chain of precedent linking dozens of cases over 170 years.”
• Issue: Should the Supreme Court overrule the double jeopardy dual sovereign exception, which allows state and federal courts to separately try an individual for the same conduct?
• Holding: The dual-sovereignty doctrine – under which two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns – is upheld.
• Judgment: Affirmed, 7-2, in an opinion by Justice Alito on June 17, 2019. Justice Thomas filed a concurring opinion. Justice Ginsburg and Justice Gorsuch filed dissenting opinions..
• SCOTUS Blog Case Page
• Slip Opinion

Deliverable

• 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 Slack DM

Week 9, Classes 15 & 16

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

Week 10, Classes 17 & 18

Establishment Clause – Maryland “Peace Cross”

• Summary: In 1918, residents of Prince George’s County decided to erect a cross as a war memorial to stand at the terminus of another World War I memorial—the National Defense Highway connecting Washington to Annapolis. The 32-foot tall Latin cross has a plaque, naming the 49 county soldiers who died in the war. The Bladensburg Cross has since been the site of patriotic events honoring veterans. Monuments honoring the veterans of other conflicts have been added in a nearby park. The monument is now at the center of a busy intersection. The Maryland-National Capital Park and Planning Commission acquired the Cross and the land in 1961 and uses public funds for its maintenance. The Supreme Court held that the Bladensburg Cross does not violate the Establishment Clause. Even if a monument’s original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. The cross is a symbol closely linked to World War I. The nation adopted it as part of its military honors, establishing the Distinguished Service Cross and the Navy Cross. The soldiers’ final resting places abroad were marked by crosses or Stars of David. As World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal or alteration would not be viewed by many as a neutral act. The Bladensburg Cross has acquired historical importance, reminding people of the sacrifices of their predecessors. Although the monument was dedicated during a period of heightened racial and religious animosity, it includes the names of Christian and Jewish and Black and White soldiers. Four justices noted that the “Lemon” test ambitiously attempted to find a grand unified theory of the Establishment Clause but the “expectation of a ready framework has not been met.” “Where monuments, symbols, and practices with a longstanding history follow in the tradition of the First Congress in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans, they are likewise constitutional.”
• Issue: Does the government-funded display and maintenance of a 40-foot-tall cross-shaped World War I memorial placed at a public highway intersection violate the Establishment Clause of the First Amendment because of its relation to Christianity?
• Holding: The Bladensburg Cross does not violate the establishment clause of the First Amendment.
• Judgment: Reversed and remanded, 7-2, in an opinion by Justice Alito on June 20, 2019. Justice Alito announced the judgment of the Supreme Court and delivered the opinion of the court with respect to Parts I, II–B, II–C, III, and IV, in which Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh joined, and an opinion with respect to Parts II–A and II–D, in which Chief Justice Roberts and Justices Breyer and Kavanaugh joined. Justice Breyer filed a concurring opinion, in which Justice Kagan joined. Justice Kavanaugh filed a concurring opinion. Justice Kagan filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.
• SCOTUS Blog Case Page
• Slip Opinion

Congressional Authority – Federal Agency Powers

• Overview: The government’s acquisition from wireless carriers of defendant’s historical cell-site location information (CSLI) was a search under the Fourth Amendment; a court order obtained by the government under the Stored Communications Act was not a permissible mechanism for accessing CSLI as a warrant was generally required.
• Holdings: [1]-The government’s acquisition from wireless carriers of defendant’s historical cell-site location information (CSLI) was a search under the Fourth Amendment. When the government accessed defendant’s CSLI, it invaded his reasonable expectation of privacy in the whole of his physical movements, and the fact that the government obtained the information from a third party did not overcome defendant’s claim to Fourth Amendment protection; [2]-A court order obtained by the government under the Stored Communications Act, 18 U.S.C.S. § 2703(d), was not a permissible mechanism for accessing historical CSLI because the showing required under the Act fell well short of probable cause. A warrant was necessary to obtain CSLI in the absence of an exception such as exigent circumstances.
• Outcome: The government’s acquisition of Timothy Carpenter’s cell-site records from his wireless carriers was a Fourth Amendment search; the government did not obtain a warrant supported by probable cause before acquiring those records.
• Judgment: Reversed and remanded, 5-4, in an opinion by Chief Justice Roberts on June 22, 2018. Justice Kennedy filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Justice Thomas joined. Justice Gorsuch filed a dissenting opinion.
• SCOTUS Blog Case Page

Deliverable

• Case Analysis #2 materials submitted via Slack no later than Sunday at 12n

Week 11, Classes 19 & 20

Business Records Confidentiality: Freedom of Information Act

• Summary: Media filed a Freedom of Information Act (FOIA) request with the U.S. Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in the national Supplemental Nutrition Assistance Program (SNAP) and each store’s annual SNAP food stamp redemption data from fiscal years 2005-2010. The USDA declined the request, invoking FOIA Exemption 4, which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” 5 U.S.C. 552(b)(4). The Eighth Circuit affirmed an order requiring disclosure. The USDA declined to appeal. The Food Marketing Institute, a trade association of grocers, was permitted to intervene. The Supreme Court reversed and remanded, first holding that Institute had standing. Where commercial or financial information is customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” under Exemption 4. The Institute’s retailers customarily do not disclose store-level SNAP data or make it publicly available; to induce retailers to participate in SNAP and provide store-level information, the government has long promised retailers that it will keep their information private. The Court declined to “arbitrarily constrict Exemption 4 by adding limitations found nowhere in its terms.”
• Issue: Is information exempt from disclosure under Exemption 4 of the Freedom of Information Act if the disclosure of the information does not cause substantial competitive harm to the third-party submitter?
• Holding: Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of 5 U. S. C. §552(b)(4), the Freedom of Information Act’s Exemption 4.
• Judgment: Reversed and remanded, 6-3, in an opinion by Justice Gorsuch on June 24, 2019. Justice Breyer filed and opinion concurring in part and dissenting in part, in which Justices Ginsburg and Sotomayor joined.
• SCOTUS Blog Case Page
• Slip Opinion

Census Citizenship Question

• Summary: Under the Census Act, authorized by the Enumeration Clause, the Secretary of Commerce conducts the decennial census “in such form and content as he may determine,” 13 U.S.C. 141(a), aided by the Census Bureau. Census data is used to apportion congressional representatives, allocate federal funds, draw electoral districts, and collect demographic information. All but one survey between 1820 and 2000 asked at least some people about their citizenship or place of birth. In 2010, the citizenship question was moved to the American Community Survey, which is sent annually to a small sample of households. In 2018, Secretary of Commerce Ross announced that he would reinstate a citizenship question on the 2020 census at the request of the Department of Justice (DOJ), which sought census data to use in enforcing the Voting Rights Act (VRA). The Secretary indicated that other alternatives had been explored and that he “carefully considered” that reinstating the question could depress the response rate. The plan was challenged under the Enumeration Clause, the Administrative Procedure Act (APA) and the Equal Protection Clause. The Commerce Department’s administrative record indicated that the Secretary began exploring reinstatement of a citizenship question shortly after his 2017 confirmation, attempted to elicit requests for citizenship data from other agencies, and eventually persuaded DOJ to make the request. The Supreme Court affirmed in favor of the objectors. While the Secretary may inquire about citizenship on the census questionnaire, his decision is reviewable under the APA, except “to the extent that” the agency action is “committed to agency discretion by law.” The Census Act confers broad authority but does not leave the Secretary’s discretion unbounded. The census is not traditionally regarded as “committed to agency discretion.” The Secretary technically complied with the statutes; he explored obtaining the information from other sources, fully informed Congress, and explained his decision. Viewing the evidence as a whole, however, the Court concluded that the decision cannot adequately be explained by DOJ’s request. The Secretary took steps to reinstate the question a week into his tenure, with no concern for VRA enforcement. His staff attempted to elicit requests for citizenship data from other agencies before turning to the VRA rationale. The reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. The Secretary’s explanation “was more of a distraction.”
• Issue: (1) Can a district court order the collection of evidence outside the administrative record—including compelling a high-ranking government official’s deposition—without any evidence showing that the decisionmaker did not believe the objective reasons behind the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis? (2) Was the Department of Commerce’s decision to add a citizenship question to the 2020 census unlawful—either under the Administrative Procedure Act or the Enumeration Clause of the Constitution?
• Holding: The secretary of the Department of Commerce did not violate the enumeration clause or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire, but the district court was warranted in remanding the case back to the agency where the evidence tells a story that does not match the secretary’s explanation for his decision.
• Judgment: Affirmed in part, reversed in part, and remanded, 5-4, in an opinion by Chief Justice Roberts on June 27, 2019. Chief Justice Roberts delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III, IV–B, and IV–C, in which Justices Thomas, Alito, Gorsuch and Kavanaugh joined; with respect to Part IV–A, in which Justices Thomas, Ginsburg, Breyer, Sotomayor, Kagan and Kavanaugh joined; and with respect to Part V, in which Justices Ginsburg, Breyer, Sotomayor and Kagan joined. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justices Gorsuch and Kavanaugh joined. Justices Breyer filed an opinion concurring in part and dissenting in part, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Alito filed an opinion concurring in part and dissenting in part.
• SCOTUS Blog Case Page
• Slip Opinion

Deliverable

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

Week 12, Classes 21 & 22

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

Week 13, Classes 23 & 24

Class Actions In Arbitration

• Summary: In 2016, a hacker tricked an employee into disclosing tax information of about 1,300 Lamps employees. After a fraudulent federal income tax return was filed in the name of Varela, he filed a putative class action on behalf of employees whose information had been compromised. Relying on the arbitration agreement in Varela’s employment contract, Lamps sought to compel arbitration on an individual rather than a classwide basis. The Ninth Circuit affirmed the rejection of the individual arbitration request, authorizing class arbitration. Although Supreme Court precedent held (Stolt-Nielsen, 2010) that a court may not compel classwide arbitration when an agreement is silent on the availability of such arbitration, the Ninth Circuit concluded that Stolt-Nielsen did not apply because the Lamps agreement was ambiguous, not silent, concerning class arbitration. The Supreme Court reversed, Under the Federal Arbitration Act, 9 U.S.C. 2, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. Arbitration is strictly a matter of consent. Class arbitration, unlike the individualized arbitration envisioned by the Act, “sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.” Courts may not infer consent to participate in class arbitration absent an affirmative “contractual basis for concluding that the party agreed to do so.” Silence is not enough and ambiguity does not provide a sufficient basis to infer consent.
• Issue: Does the Federal Arbitration Act preclude using state law principles of contract interpretation to understand commonly used language in a standard form arbitration agreement as authorizing class arbitrations?
• Holding: Under the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration.
• Judgment: Reversed and remanded, 5-4, in an opinion by Chief Justice Roberts on April 24, 2019. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer and Sotomayor joined. Justices Breyer and Sotomayor filed dissenting opinions. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg and Breyer joined, and in which Justice Sotomayor joined as to Part II.
• SCOTUS Blog Case Page
• Slip Opinion

Scandalous Trademarks

Week 14, Class 25

Wednesday: Thanksgiving Break – No Class

Apple Antitrust Dispute

SCOTUS 2019/20 Docket

First & Fourteenth Amendment

Copyright of Public Domain Material

Week 16, Class 28

During Class

• Course Wrap-up