AT: Schedule (318)

Course Schedule

Before Week 1 (before August 27th)

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

Week 1, Classes 1 & 2

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

Week 3, Classes 4 & 5

Before Class
  • Read and prepare the cases and materials on Labor Law in Chapter 17, Employment Law, Regulation and Labor Law
  • Review Labor Law videos
During Class
  • Discuss the cases and materials on Labor Law in Chapter 17, Employment Law, Regulation and Labor Law
  • Review current events

Week 4, Classes 6 & 7

Before Class
During Class
  • Discuss the cases and materials in Chapter 19, Antitrust Law
  • Review current events

Week 5, Classes 8 & 9

Before Class
  • Read and prepare the cases and materials in Chapter 20, IP: Patents
  • Review Overview and Patent videos
During Class
  • Discuss the cases and materials in Chapter 20, IP: Patents
  • Review current events

Deliverable

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

Week 6, Classes 10 & 11

Partisan Gerrymandering

Team 1: Gill v. Whitford, 138 S. Ct. 1916 (Monday)
  • Overview: Wisconsin voters lacked U.S. Const. art. III standing in a suit alleging that partisan gerrymandering diluted votes in violation of the First and Fourteenth Amendments, as allegations of statewide harm to the voters’ interests in collective representation and in influencing policymaking did not present individual and personal injury.
  • Holdings: [1]-For purposes of determining whether Wisconsin voters had U.S. Const. art. III standing in a suit alleging that partisan gerrymandering diluted their votes in violation of the First and Fourteenth Amendments, the voters’ alleged injury was district specific and not statewide in nature. Allegations of statewide harm to the voters’ interests in their collective representation in the legislature and in influencing policymaking did not present individual and personal injury of the kind required for standing; [2]-Although some voters had pleaded that “packing” or “cracking” in their legislative districts diluted the influence of their votes, they failed to prove that they lived in packed or cracked districts. Evidence derived from partisan asymmetry studies did not address the effect of a gerrymander on the votes of particular citizens and therefore did not establish standing.
  • Outcome: Plaintiffs – Wisconsin Democratic voters who rested their claim of unconstitutional partisan gerrymandering on statewide injury – have failed to demonstrate Article III standing.
  • Judgment: Vacated and remanded, 9-0, in an opinion by Chief Justice Roberts on June 18, 2018. Thomas and Gorsuch joined the opinion except as to Part III. Justice Kagan filed a concurring opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined.
  • SCOTUS Blog Case Page
Team 2: Abbott v. Perez, 138 S. Ct. 2305 (Wednesday)
  • Overview: In a suit challenging Texas’s state congressional districting plans, the court erred in requiring the State to show that the Legislature had purged the taint from prior plan because the burden of proof lay with those challenging the plans, and there was no direct or circumstantial evidence that the Legislature acted with discriminatory intent.
  • Holdings: [1]-In a suit challenging state congressional districting plans for the Texas State Legislature, where the Legislature enacted plans developed pursuant to U.S. Supreme Court instructions, a Texas court erred in requiring the State to show that the Legislature purged the taint attributed to a prior plan because the burden of proof lay with those challenging the laws, not with the State; [2]-There was no direct or circumstantial evidence that the Legislature acted with discriminatory intent, particularly as there was no evidence that the Legislature’s aim was to approve plans it knew were unlawful; [3]-As to the four districts invalidated on alternative grounds, the district court erroneously relied on the effects test of § 2 of the Voting Rights Act, 52 U.S.C.S. § 10301, for three districts, although it properly found racial gerrymandering for the fourth district.
  • Outcome: The district court disregarded the presumption of legislative good faith and improperly reversed the burden of proof when it required the state to show a lack of discriminatory intent in adopting new districting plans; one of the challenged state house districts is an impermissible racial gerrymander.
  • Judgment: Reversed and remanded, 5-4, in an opinion by Justice Alito on June 25, 2018. Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Sotomayor filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Kagan joined.

Week 7, Class 12

Monday: Fall Break – No Class
During Class
  • ???

Week 8, Classes 13 & 14

Voting Rights – Voter Registration Purges

Team 3: Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833 (Monday)
  • Overview: Ohio’s procedure of sending voters who had not voted for two years a pre-addressed, postage prepaid card which asked them to verify that they resided at address on the card and removing them from rolls of voters only if they failed to return the card and failed to vote in any election for four more years did not violate 52 U.S.C.S. § 20507(b)(2).
  • Holdings: [1]-The U.S. Court of Appeals for the Sixth Circuit erred when it found that the process the State of Ohio adopted in Ohio Rev. Code Ann. § 3503.21(B)(2) for removing individuals who had not voted in recent elections from the rolls of voters violated 52 U.S.C.S. § 20507(b)(2); [2]-Ohio’s procedure of sending voters who had not voted for two years a pre-addressed, postage prepaid card asking them to verify that they resided at the address on the card and removing them from the rolls of voters only if they failed to return the card and failed to vote in any election for four more years did not strike any registrant solely by reason of their failure to vote, was permitted by § 20507(d), and did not violate the National Voter Registration Act or the Help America Vote Act of 2002.
  • Outcome: The process that Ohio uses to remove voters on change-of-residence grounds does not violate the National Voter Registration Act.
  • Judgment: Reversed, 5-4, in an opinion by Justice Alito on June 11, 2018. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Sotomayor filed a dissenting opinion.

Free Exercise Clause

Team 4: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (Wednesday)
  • Overview: Where a state civil rights commission held that a baker violated an anti-discrimination law when he declined to bake a wedding cake for a same sex marriage, the commission violated the First Amendment Free Exercise clause because its treatment of the baker’s case displayed clear and impermissible hostility towards his sincere religious beliefs.
  • Holdings: [1]-Where a baker declined to bake a wedding cake for a same sex marriage on the basis that he had to use his artistic skills to make an expressive statement inconsistent with his religious beliefs, a state civil rights commission violated the First Amendment’s Free Exercise Clause when it ruled that the baker violated a state anti-discrimination act because the commission’s treatment of the baker’s case displayed a clear and impermissible hostility towards his sincere religious beliefs; [2]-Under the Free Exercise Clause, a State had a duty not to base laws or regulations on hostility to a religion or a religious viewpoint, the Free Exercise Clause barred even subtle departures from neutrality on matters of religion, and the official expressions of hostility to the baker’s religion in some of the commissioners’ comments were inconsistent with the Free Exercise Clause.
  • Outcome: The Colorado Civil Rights Commission’s actions in assessing a cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the free exercise clause.
  • Judgment: Reversed, 7-2, in an opinion by Justice Kennedy on June 4, 2018. Justice Kagan filed a concurring opinion, in which Justice Breyer joined. Justice Gorsuch filed a concurring opinion, in which Justice Alito joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.

Deliverable

  • Case Simulation #1 Materials Available No Later Than Sunday at 10a
  • Case Simulation #1, Phase 1 Memo Due No Later Than Thursday at 11p; Submit Using Slack DM

Week 9, Classes 15 & 16

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

Week 10, Classes 17 & 18

Digital Privacy: Cellphone Location Data

Team 5: Carpenter v. United States, 138 S. Ct. 2206 (Monday)
  • 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.

First Amendment: Political Apparel

Team 6: Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (Wednesday)
  • Overview: Minn. Stat. § 211B.11, subd. 1 violated First Amendment to the extent it prohibited voters from wearing a political badge, button, or insignia inside a polling place on Election Day because neither statute nor Election Day Policy State developed provided election officials with objective, workable standards which restrained their discretion.
  • Holdings: [1]-Minn. Stat. § 211B.11, subd. 1 (Supp. 2017), violated the Free Speech Clause of the First Amendment to the U.S. Constitution to the extent it prohibited voters from wearing a political badge, political button, or anything bearing political insignia inside a polling place on Election Day; [2]-Although Minnesota had the right to prohibit certain apparel in polling places on Election Day because polling places were nonpublic forums, it had to draw a reasonable line, and neither § 211B.11, subd. 1 nor an Election Day Policy the State developed and distributed to election officials met that test because they allowed election judges to decide what was “political” when screening individuals at the entrance to the polls without using objective, workable standards which restrained that discretion.
  • Outcome: Minnesota’s ban on political apparel at polling places violates the First Amendment’s free speech clause.
  • Judgment: Reversed and remanded, 7-2, in an opinion by Chief Justice Roberts on June 14, 2018. Justice Sotomayor filed a dissenting opinion, in which Justice Breyer joined.

Deliverable

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

Week 11, Classes 19 & 20

Online Sellers & State Sales Taxes

Team 1: South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (Monday)
  • Overview: State of South Dakota was not prohibited under the Commerce Clause of the U.S. Constitution from enacting legislation which required remote sellers to collect and remit sales tax on goods and services sold to buyers for delivery in South Dakota, even though the business that made the sale did not have a physical presence in the State.
  • Holdings: [1]-The State of South Dakota was not prohibited under the Commerce Clause of the U.S. Constitution from enacting legislation which required remote sellers to collect and remit sales tax on goods and services sold to buyers for delivery in the State, even though a business that made the sale did not have a physical presence in the State; [2]-The physical presence rule of Quill Corp. v. North Dakota, 504 U.S. 298, 112 S. Ct. 1904, 119 L. Ed. 2d 91 (1992), which prohibited South Dakota from enforcing S. 106, 2016 Leg. Assembly, 91st Sess. (S. D. 2016), was unsound and incorrect, and the Supreme Court’s decisions in Quill and in National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753, 87 S. Ct. 1389, 18 L. Ed. 2d 505 (1967), were overruled.
  • Outcome: The Supreme Court vacated the Supreme Court of South Dakota’s judgment dismissing the State’s declaratory judgment action against several remote merchants, and remanded the case.
  • Judgment: Vacated and remanded, 5-4, in an opinion by Justice Kennedy on June 21, 2018. Justice Thomas and Justice Gorsuch filed concurring opinions. Chief Justice Roberts filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.

FLSA Exemption

Team 2: Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (Wednesday)
  • Overview: Automobile service advisors were exempt from the FLSA overtime requirement because they were salesmen primarily engaged in servicing cars since they sold car services and they were also primarily engaged in servicing cars since they were integral to the servicing process as they met customers and suggested and sold repair and maintenance services.
  • Holdings: [1]-Automobile service advisors were exempt from the FLSA overtime requirement because they were salesmen primarily engaged in servicing cars since they sold customers services for their vehicles and they were also primarily engaged in servicing cars since they were integral to the servicing process as they met customers, suggested and sold repair and maintenance services, and followed up as the services were performed; [2]-Although service advisors did not spend most of their time physically repairing cars, 29 U.S.C.S. § 213(b)(10)(A) was not so constrained, and use of the disjunctive word “or” to join “selling” and “servicing” suggested that the exemption covered a salesman primarily engaged in either activity; [3]-There was no reason to construe FLSA exemptions narrowly, and neither an agency handbook nor the FLSA’s legislative history supported a contrary interpretation.
  • Judgment: Reversed and remanded, 5-4, in an opinion by Justice Thomas on April 2, 2018. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.

Deliverable

  • Case Simulation #2 Materials Available No Later Than Sunday at 10a
  • Case Simulation #2, Phase 1 Memo Due No Later Than Thursday at 11p; Submit Using Slack DM

Week 12, Classes 21 & 22

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

Week 13, Class 23

Wednesday: Thanksgiving Break – No Class
During Class
  • Discuss CS #1 & #2

Week 14, Classes 24 & 25

Arbitration Clauses in Employment Contracts

Team 3: Epic Systems Corp. v. Lewis (Monday) (Consolidated with: Ernst & Young LLP v. Morris & National Labor Relations Board v. Murphy Oil USA, Inc.)
  • Overview: Arbitration agreements calling for individualized proceedings were to be enforced as written as 9 U.S.C.S. § 2 did not save the employees’ defense that the contracts were unenforceable just because they required bilateral arbitration, and nothing in 29 U.S.C.S. § 157 expressed approval or disapproval of arbitration or mentioned class actions.
  • Holdings: [1]-The arbitration agreements between employers and employees that called for individualized proceedings were to be enforced as written where 9 U.S.C.S. § 2 did not save the employees’ defense that the contracts were unenforceable just because they required bilateral arbitration, and nothing in 29 U.S.C.S. § 157 expressed approval or disapproval of arbitration or mentioned class or collective action procedures; [2]-The NLRB’s opinion suggesting that the NLRA displaced the Arbitration Act was not due Chevron deference as it had interpreted a statute that it did not administer, i.e., the FAA, the Executive Branch had offered competing interpretations of the NLRA, and the statutory construction canon against reading conflicts into statutes resolved the issue.
  • Outcome: Congress has instructed in the Federal Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the National Labor Relations Act suggests otherwise.
  • Judgment: Reversed and remanded, 5-4, in an opinion by Justice Gorsuch on May 21, 2018. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.

Agency Shop Fees

Team 4: Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (Wednesday)
  • Overview: Provision of the Illinois Public Labor Relations Act which forced public employees to subsidize a union, even if they chose not to join the union, violated free speech rights of nonmembers by compelling them to subsidize private speech, and States and public-sector unions were no longer allowed to extract agency fees from nonconsenting employees.
  • Holdings: [1]-The provision of the Illinois Public Labor Relations Act which forced public employees to subsidize a union, even if they chose not to join and strongly objected to the positions the union took in collective bargaining and related activities, violated the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern, and States and public-sector unions were no longer allowed to extract agency fees from nonconsenting employees; [2]-The Court’s decision in Abood v. Detroit Bd. of Ed., 431 U. S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), was poorly reasoned, had led to practical problems and abuse, was inconsistent with other First Amendment cases and had been undermined by more recent decisions, and was overruled.
  • Outcome: The state of Illinois’ extraction of agency fees from nonconsenting public-sector employees violates the First Amendment; Abood v. Detroit Bd. of Ed., which concluded otherwise, is overruled.
  • Judgment: Reversed and remanded, 5-4, in an opinion by Justice Alito on June 27, 2018. Justice Sotomayor filed a dissenting opinion. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined.

Week 15, Classes 26 & 27

Patent Trolls & Infringement (?)

Team 5: TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (Monday)
  • Overview: [1]-The amendments to 28 U.S.C.S. § 1391 did not modify the meaning of 28 U.S.C.S. § 1400(b) as interpreted by case law, and as a result, a domestic corporation resided only in its State of incorporation for purposes of the patent venue statute.
  • Holding: The patent venue statute, 28 U.S.C. § 1400(b), provides that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” As applied to domestic corporations, “reside[nce]” in Section 1400(b) refers only to the state of incorporation; the amendments to Section 1391 did not modify the meaning of Section 1400(b) as interpreted in Fourco Glass Co. v. Transmirra Products.
  • Judgment: Reversed and remanded, 8-0, in an opinion by Justice Thomas on May 22, 2017. Justice Gorsuch took no part in the consideration or decision of the case.

Merchant Contracts: Anti-Steering Provisions

Team 6: Ohio v. American Express Co., 138 S. Ct. 2274 (Wednesday)
  • Overview: The anti-steering provisions of a credit-card company’s contracts with merchants did not violate 15 U.S.C.S. § 1 of the Sherman Act as it was not shown that the anti-steering provisions had anticompetitive effects; the company’s increased merchant fees did not reflect an ability to charge above a competitive price.
  • Holdings: [1]-In determining whether the anti-steering provisions of a credit-card company’s contracts that restricted merchants from discouraging use of the company’s cards violated 15 U.S.C.S. § 1 of the Sherman Act, the two-sided market for credit-card transactions had to be analyzed as a whole to determine whether the anti-steering provisions had been shown to have anticompetitive effects; [2]-The federal government and states failed to show that the anti-steering provisions had anticompetitive effects. The company’s increased merchant fees reflected increases in the value of its services and the cost of its transactions, not an ability to charge above a competitive price, and it was not shown that the anti-steering provisions stifled interbrand competition.
  • Outcome: American Express’ anti-steering provisions in its merchant contracts—which prohibit merchants from avoiding fees by discouraging customers’ American Express card use at the point of sale — do not violate federal antitrust law.
  • Judgment: Affirmed, 5-4, in an opinion by Justice Thomas on June 25, 2018. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined.

Week 16, Class 28

During Class

  • Course Wrap-up