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THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss provisions of the Copyright Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Sixth Circuit Court of Appeals. * * * American copyright law has long recognized that a work created by an employee belongs to the employer, who is then viewed as the author and copyright holder. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 248, 23 S.Ct. 298, 47 L.Ed. 460 (1903). This judge-made doctrine was "later codified in the Copyright Act of 1909." Forward v. Thorogood, 985 F.2d 604, 606 (1st Cir. 1993). However, the 1909 Act did not provide much detail. It indicated that "[t]he word 'author' shall include an employer in the case of works made for hire," 17 U.S.C. § 26 (1976 ed.) (1909 Act), but did not define "employer" or "works made for hire." As a result, "the task of shaping these terms fell to the courts." Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 744, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). Initially, courts limited the doctrine to "the traditional employer-employee relationship," that is, to "a work created by an employee acting within the scope of employment." Forward, 985 F.2d at 606. Later, however, courts extended the doctrine "to include commissioned works created by independent contractors." Id. In these situations, courts would "treat[] the contractor as an employee and creat[e] a presumption of copyright ownership in the commissioning party at whose 'instance and expense' the work was done." Id.; see also 1 Nimmer on Copyright § 5.03[B][1][a][i] (noting that, under the 1909 Act, "the courts expanded the definition of 'employer' to include a hiring party who had the right to control or supervise the artist's work"). In practice, this test often favors the hiring party. See Roger E. Schechter & John R. Thomas, Principles of Copyright Law § 5.2.1 (1st ed. 2010) (noting that, "[e]ven in situations very far removed from the typical employer-employee case," the test "was often satisfied because the hiring party was the one who was the 'motivating factor' for the project and who had at least a theoretical 'right to supervise' the work"). In the Copyright Act of 1976, Congress introduced a more explicit, two-part framework that applied to works created on or after January 1, 1978 (the effective date of the Act). 17 U.S.C. § 101; Forward, 985 F.2d at 605. The 1976 Act defined a "work made for hire" as either: (1) a work prepared by an employee within the scope of his or her employment; or(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.17 U.S.C. § 101. Markham Concepts, Inc. v. Hasbro, Inc., 1 F. 4th 74 (1st Cir. 2021)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret, and apply provisions of Title IX of the Education Amendments Act of 1972. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * Title IX provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." 20 U.S.C. § 1681(a). Though the statute contains no express private right of action, the Supreme Court has held that individuals may sue funding recipients for violating Title IX. See Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). And the Court has held that this implied right of action includes retaliation claims, explaining that "when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional 'discrimination' 'on the basis of sex, ' in violation of Title IX." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). * * * The Supreme Court's decision in Jackson did not spell out the elements of a Title IX retaliation claim, and no published case in this circuit has decided the question. In unpublished authority, however, we have analogized to Title VII retaliation claims, stating that a Title IX plaintiff must show "that (1) [s]he engaged in protected activity, (2) [the funding recipient] knew of the protected activity, (3) [s]he suffered an adverse school-related action, and (4) a causal connection exists between the protected activity and the adverse action." Gordon v. Traverse City Area Pub. Schs., 686 F. App'x 315, 320 (6th Cir. 2017). Our sister circuits apply similar tests. See, e.g., Emeldi v. Univ. of Or., 698 F.3d 715, 724 (9th Cir. 2012); Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002). Bose v. Bea, 947 F. 3d 983 (6th Cir. 2020)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding First Amendment retaliation claims. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Section 1983 allows plaintiffs to sue municipal entities (and municipal officials in their personal capacities) for deprivations of constitutional rights. 42 U.S.C. § 1983; see Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011). One right enforceable through section 1983 is the First Amendment's guarantee of freedom of speech, which "prohibits [the government] from punishing its employees in retaliation for the content of their protected speech." Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001); see also Garcetti v. Ceballos, 547 U.S. 410, 413, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ("It is well settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." (internal quotation marks omitted)). To state a First Amendment retaliation claim, a plaintiff "must plausibly allege that (1) his or her speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him or her; and (3) there was a causal connection between this adverse action and the protected speech." Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018) (cleaned up). A public employee's speech is protected by the First Amendment when "the employee spoke as a private citizen and . . . the speech at issue addressed a matter of public concern." Id. at 393. "To constitute speech on a matter of public concern, an employee's expression must be fairly considered as relating to any matter of political, social, or other concern to the community." Id. at 399 (internal quotation marks omitted). But speech that is "calculated to redress personal grievances-even if touching on a matter of general importance-does not qualify for First Amendment protection." Id. at 400 (internal quotation marks omitted). Likewise, the First Amendment does not protect speech that "principally focuses on an issue that is personal in nature and generally related to the speaker's own situation." Id. at 399 (cleaned up). Quinones v. City of Binghamton, 997 F. 3d 461 (2nd Cir. 2021)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding hostile work environment claims. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * A hostile environment that violates Title VII "exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (internal quotation marks and brackets omitted). Thus, to state a hostile work environment claim, [the plaintiff] must allege that: (1) he "experienced unwelcome harassment"; (2) the harassment was based on his race or protected activity; (3) "the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere"; and (4) "there is some basis for imposing liability on the employer." Bass, 324 F.3d at 765. Regarding the third element, "[w]hether the environment is objectively hostile or abusive is judged from the perspective of a reasonable person in the plaintiff's position." Boyer-Liberto, 786 F.3d at 277 (internal quotation marks omitted). "That determination is made by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (internal quotation marks omitted). "[R]ude treatment," "callous behavior," or "routine difference of opinion and personality conflict," without more, will not suffice. E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-316 (4th Cir. 2008) (internal quotation marks omitted). Holloway v. Maryland, 32 F. 4th 293 (4th Cir. 2022)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding trademark infringement claims. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Under the Lanham Act, a plaintiff alleging trademark infringement must demonstrate that (1) "it has a valid mark that is entitled to protection" and that (2) the defendant's "actions are likely to cause confusion with [that] mark." The Sports Auth., Inc. v. Prime Hospitality Corp., 89 F.3d 955, 960 (2d Cir. 1996). "[A] plaintiff does not have to show necessarily that consumers would believe that the defendant's goods or services are from the same source as those of the plaintiff." Id. Rather, a defendant may also be liable for trademark infringement if its "actions are 'likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association' of the defendant's goods or services with those of the plaintiff." Id. (quoting 15 U.S.C. § 1125(a)(1)(A)); see also Int'l Info. Sys. Sec. Certification Consortium, Inc. v. Sec. Univ., LLC, 823 F.3d 153, 161-63 (2d Cir. 2016). That said, the mere possibility of confusion is not enough. To prevail in a trademark infringement action, a plaintiff must prove "a probability of confusion ... affecting numerous ordinary prudent purchasers." Star Indus., Inc. v. Bacardi & Co. Ltd., 412 F.3d 373, 383 (2d Cir. 2005) (emphasis added) (internal quotation marks omitted). Tiffany and Company v. Costco Wholesale Corp., 971 F. 3d 74 (2nd Cir. 2020)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss antitrust doctrine. * * * Section 1 of the Sherman Act - which prohibits "[e]very contract, combination... or conspiracy, in restraint of trade or commerce," 15 U.S.C. § 1 - "applies only to concerted action that restrains trade." Am. Needle, 560 U.S. at 190, 130 S.Ct. 2201. By contrast, § 2 of the Sherman Act - which makes it illegal to "monopolize, or attempt to monopolize, or combine or conspire ... to monopolize any part of the trade or commerce," 15 U.S.C. § 2 - "covers both concerted and independent action, but only if that action 'monopolizes'... or 'threatens actual monopolization, '" Am. Needle, 560 U.S. at 190, 130 S.Ct. 2201 (alteration and citations omitted), or at least is intended to monopolize, see Auraria Student Housing at the Regency, LLC v. Campus Vill. Apartments, LLC, 843 F.3d 1225, 1233 (10th Cir. 2016). See also Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal & Prof'l Publ'ns, Inc., 63 F.3d 1540, 1545 (10th Cir. 1995) ("Section 1 of the Act focuses on the anticompetitive behavior of joint actors ... [while] [s]ection 2 applies to unilateral as well as joint action...." (citation omitted)).Thus, like § 1, § 2 embodies a conspiracy claim that requires "concerted action by a plurality of actors." See Bell v. Fur Breeders Agric. Coop., 348 F.3d 1224, 1232 (10th Cir. 2003) (section 1); Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1028 (10th Cir. 2002) (section 2). The elements of a § 2 conspiracy claim are "conspiracy, specific intent to monopolize, and overt acts done in furtherance of the conspiracy." Full Draw Prods., 182 F.3d at 756 (citation omitted). Unlike § 1, however, § 2 - through its prohibitions on monopolization and attempted monopolization - also "can be violated by a single economic unit without requiring any contract, combination, or conspiracy." Cohlmia, 693 F.3d at 1280. The elements of a § 2 monopolization claim are "(1) monopoly power in the relevant market; (2) willful acquisition or maintenance of this power through exclusionary conduct; and (3) harm to competition." Lenox II, 762 F.3d at 1119. And the elements of a § 2 attempted monopolization claim are (1) "predatory or anticompetitive conduct," (2) "a specific intent to monopolize," and (3) "a dangerous probability of achieving monopoly power." Id. at 1129. * * * Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F. 3d 1221 (10th Cir. 2017)

THIS CASEBOOK contains a selection of U.S. Court of Appeals decisions that analyze and discuss issues surrounding cyber law. Volume 2 of the casebook covers the Fifth through the Eleventh Court of Appeals. * * * Title I of the Electronic Communications Privacy Act includes a private right of action, 18 U.S.C. § 2520, against anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication," 18 U.S.C. § 2511(1)(a). [The ECPA also prohibits] the intentional use of the contents of information knowingly obtained through such interception. See id. § 2511(1)(d). The California Invasion of Privacy Act (CIPA), [ ] likewise includes a private right of action, Cal. Penal Code § 637.2(a), and [ ] similarly prohibits the unauthorized reading, or attempting to read, of "any message, report, or communication while the same is in transit or passing over any wire, line, or cable," as well as the use of "any information so obtained." Cal. Penal Code § 631(a). * * * The harms protected by these statutes bear a "close relationship" to ones that have "traditionally been regarded as providing a basis for a lawsuit." See Spokeo I, 136 S. Ct. at 1549. "Violations of the right to privacy have long been actionable at common law." Eichenberger, 876 F.3d at 983. And one of the several privacy torts historically recognized was "unreasonable intrusion upon the seclusion of another," which traditionally extends to, among other things, "tapping ... telephone wires" as well as "opening ... private and personal mail." Restatement (Second) of Torts § 652B cmt. b. There is a straightforward analogue between those traditional torts and the statutory protections codified in ECPA and CIPA against viewing or using private communications. Moreover, under the privacy torts that form the backdrop for these modern statutes, "[t]he intrusion itself makes the defendant subject to liability." Restatement (Second) of Torts § 652B cmt. b. "In other words, 'privacy torts do not always require additional consequences to be actionable.'" Patel, 932 F.3d at 1274 (quoting Eichenberger, 876 F.3d at 983). Thus, historical practice provides support not only for the conclusion that wiretapping is actionable, but also for the conclusion that a wiretapping plaintiff "need not allege any further harm to have standing." See Eichenberger, 876 F.3d at 984. Campbell v. Facebook, Inc., 951 F. 3d 1106 (9th Cir. 2020).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding cyber law. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fourth Circuit Court of Appeals. * * * The Stored Communications Act is Title II of the Electronic Communications Privacy Act, codified at 18 U.S.C. §§ 2701 et seq. Passed by Congress in 1986, "the SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address." Quon v. Arch Wireless Operating Co., 529 F.3d 892, 900 (9th Cir. 2008), rev'd on other grounds sub nom. Ontario v. Quon, 560 U.S. 746 (2010). Historically, the Fourth Amendment has not protected personal information revealed to third parties. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976) ("The Fourth Amendment does not prohibit the obtaining of information revealed to a third party . . . even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed."). Providers of electronic communications act as third parties that store and process their users' private files, meaning the provider-maintained files fall outside Fourth Amendment protection. Because most electronic communication providers serve the public but are themselves private actors, they could potentially search files held under their control and disclose their users' information to the government without violating the Fourth Amendment. See Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1210-11 (2004). * * * To address this vulnerability, Congress crafted the SCA to protect information held by centralized communication providers. In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 147 (3d Cir. 2015). The SCA "creates a set of Fourth Amendment-like privacy protections by statute [by] regulating the relationship between government investigators and service providers in possession of users' private information." Kerr, supra, at 1212. It provides this enhanced privacy protection by limiting the government's ability to compel providers to disclose their users' information, 18 U.S.C. § 2703, and by limiting the providers' ability to disclose such information to the government, 18 U.S.C. § 2702. Walker v. Coffey, (3rd Cir. 2020).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding the doctrine of honest-services fraud. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * It is not a defense to an honest-services fraud charge to claim that a public official would have lawfully performed the official action in question even without having accepted a thing of value. * * * A conviction for honest-services wire fraud requires proof that the defendant used wire communications in interstate commerce to carry out a "scheme or artifice to defraud," 18 U.S.C. § 1343, by depriving another of "the intangible right of honest services," id. § 1346. In Skilling, the Supreme Court construed § 1346 narrowly and held that honest-services fraud encompasses only bribery and kickback schemes. 561 U.S. at 408-09, 130 S.Ct. 2896. To define the scope of the honest-services statute's proscription of bribes and kickbacks, the Skilling Court directed courts to look to, inter alia, federal statutes defining similar crimes, such as 18 U.S.C. § 201(b), the principal federal bribery statute. See id. at 412-13 & n. 45, 130 S.Ct. 2896. * * * We follow the Supreme Court's direction in Skilling and look to § 201(b) to give substance to the prohibition on honest-services fraud. In United States v. Valle, we held that an official may be convicted of bribery under § 201(b)(2) "if he has corruptly entered into a quid pro quo, knowing that the purpose behind the payment that he has ... agreed to receive[] is to induce or influence him in an official act, even if he has no intention of actually fulfilling his end of the bargain." 538 F.3d 341, 347 (5th Cir.2008). Accordingly, pursuant to Valle, a conviction for bribery under § 201(b)(2) does not require proof that the official intended to be influenced in his official actions. See id. Viewed through Skilling's lens, Valle instructs that honest-services fraud also does not require such proof. See Skilling, 561 U.S. at 412, 130 S.Ct. 2896; Valle, 538 F.3d at 347. US v. Nagin, 810 F. 3d 348 (5th Cir. 2016)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss the doctrine of res judicata. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * "To determine whether the doctrine of res judicata bars a subsequent action, we consider whether (1) the prior decision was a final judgment on the merits, (2) the litigants were the same parties, (3) the prior court was of competent jurisdiction, and (4) the causes of action were the same." Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017) (internal quotation marks omitted) (quoting In re Layo, 460 F.3d 289, 292 (2d Cir. 2006)). "The doctrine of res judicata, or claim preclusion, holds that 'a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'" Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 284 (2d Cir. 2000) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)). In re Motors Liquidation Co., 943 F. 3d 125 (2nd Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding qui tam actions. * * * The FCA imposes significant penalties on any person who "knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval" to the Government or any person who "knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim." 31 U.S.C. § 3729(a)(1)(A)-(B). Rather than rely solely on federal enforcement of these provisions, Congress decided to deputize private individuals, encouraging them to come forward with claims on behalf of the Government in the form of qui tam suits. Qui tam provisions are not new to federal law, appearing as early as the first Congress. J. Randy Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C. L. REV. 539, 554 n.54 (2000). In fact, the FCA and its qui tam provisions emerged "midway through the Civil War, in response to frauds perpetrated in connection with Union military procurement." Id. at 555. Under the FCA's qui tam provisions, "a private party, called the relator, challenges fraudulent claims against the [G]overnment on the [G]overnment's behalf, ultimately sharing in any recovery." United States ex rel. Shea v. Cellco P'ship, 863 F.3d 923, 926 (D.C. Cir. 2017); see 31 U.S.C. § 3730(b). The relator may be awarded up to thirty percent of the proceeds ultimately recovered. 31 U.S.C. § 3730(d). Relators need not allege personal injury but instead sue "to remedy an injury in fact suffered by the United States." Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). The Government may intervene in any qui tam action, taking over from the relator, and, in that event, limiting the relator's share of the recovery to at most twenty-five percent. 31 U.S.C. § 3730(b)(2), (d)(1).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding trademark infringement claims. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * *Distinctiveness is the key to trademark protectability. Only distinctive marks-"marks that serve the purpose of identifying the source of ... goods or services" -are entitled to trademark protection under the Lanham Act. Welding Servs., Inc., 509 F.3d at 1357. Marks can be inherently distinctive (marks that themselves identify the source of a particular product or service), or marks can acquire distinctiveness (marks that initially might have described a broad class of products, but that over time developed "secondary meaning ... that links [the mark] to a particular source"). Royal Palm Props., 950 F.3d at 782-83. When a mark is inherently distinctive, no proof of secondary meaning is required to prove protectability. Id. But for marks that are not inherently distinctive, proof of secondary meaning is required to obtain protection. Id. "To separate the 'distinct' from the non-'distinct' ... we have classified marks into four categories, in descending order of strength: (1) 'fanciful' or 'arbitrary, ' (2) 'suggestive, ' (3) 'descriptive, ' and (4) 'generic.'" Id. at 783 (quoting Coach House Rest., Inc. v. Coach & Six Rests., Inc., 934 F.2d 1551, 1559 (11th Cir. 1991)). We consider fanciful, arbitrary, and suggestive marks to be inherently distinctive. Id. Descriptive and generic marks, however, are not inherently distinctive. Id. "Descriptive marks can become protectible only if they 'acquire' distinctiveness by obtaining a 'secondary meaning, ' and generic marks can never become protectible." Id. (quoting Knights Armament Co. v. Optical Sys. Tech., Inc., 654 F.3d 1179, 1188 (11th Cir. 2011)). Pinnacle Advertising v. Pinnacle Advertising, 7 F. 4th 989 (11th Cir. 2021)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues stemming from rate and tariff rulings of the Federal Energy Regulatory Commission. * * * The Federal Power Act, 16 U.S.C. §§ 791a et seq., charges the [Federal Energy Regulatory] Commission with regulating "the transmission of electric energy" and "the sale of electric energy at wholesale" in interstate commerce, id. § 824(b)(1). In exercising that authority, the Commission must ensure that "[a]ll rates and charges" for the "transmission or sale of electric energy subject to" its jurisdiction are "just and reasonable," and that no public utility's rates are unduly discriminatory or preferential. Id. § 824d(a), (b); see NRG Power Mktg., LLC v. Maine Pub. Utils. Comm'n, 558 U.S. 165, 167, 130 S.Ct. 693, 175 L.Ed.2d 642 (2010). * * * To that end, the Act requires every public utility to "file with the Commission" and "keep open in convenient form and place for public inspection schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission." 16 U.S.C. § 824d(c). That obligation applies whether the rates and charges are set "unilaterally by tariff" or agreed upon in individual contracts between sellers and buyers. NRG Power Mktg., 558 U.S. at 171, 130 S.Ct. 693. When a public utility seeks to change its filed rate, it must "fil[e] with the Commission... new schedules stating plainly the change or changes ... and the time when the change or changes will go into effect." 16 U.S.C. § 824d(d). ESI Energy, LLC v. FERC, 892 F. 3d 321 (DC Cir. 2018). * * * The Federal Power Act's express mandate of openness, transparency, and consistency in rates prevents discrimination, promotes fair and equal access to the utilities' services, ensures the stability and predictability of rates, and reinforces the Commission's jurisdictional authority. See Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 130-31, 110 S.Ct. 2759, 111 L.Ed.2d 94 (1990); Consol. Edison Co. of N.Y. v. FERC, 347 F.3d 964, 969 (D.C. Cir. 2003); Consol. Edison Co. of N.Y. v. FERC, 958 F.2d 429, 432 (D.C. Cir. 1992). ESI Energy, LLC v. FERC, ibid.

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the False Claims Act. * * * The FCA imposes significant penalties on any person who "knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval" to the Government or any person who "knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim." 31 U.S.C. § 3729(a)(1)(A)-(B). US ex rel. Wood v. Allergan, Inc., 899 F. 3d 163 (2nd Cir. 2018). * * * The FCA allows private persons, or relators, to prosecute qui tam actions "against alleged fraudsters on behalf of the United States government." United States ex rel. Watson v. King-Vassel, 728 F.3d 707, 711 (7th Cir. 2013); 31 U.S.C. § 3730. If the government does not intervene in the action, [] the relator may proceed with the case on his own, though still on behalf of the government. 31 U.S.C. § 3730(c)(3). If the action is successful, the relator is eligible to receive a percentage of the recovery. Id. § 3730(d)(1)-(2). US ex rel. Berkowitz v. Automation Aids, Inc., 896 F. 3d 834 (7th Cir. 2018).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Federal Tort Claims Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. As a general rule, the United States is immune from claims for money damages in civil suits. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 686-90, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The FTCA waives the United States' sovereign immunity for civil suits for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). Where the FTCA's waiver is operative, the government is liable in tort "in the same manner and to the same extent as a private individual under like circumstances." Id. § 2674. However, this broad waiver of sovereign immunity is cabined by a list of exceptions. See id. § 2680. [T]he FTCA's waiver does not apply to "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Id. § 2680(a).The exceptions to the FTCA's immunity waiver work to defeat the subject matter jurisdiction of the federal courts. Indemnity Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir. 2009). Thus, the burden is on the plaintiff in such a civil suit to establish "that the discretionary function exception does not foreclose their claim." Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir. 2016).This exception represents one limit to the extent of "Congress' willingness to impose tort liability upon the United States." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). It exists to prevent interference by the judiciary in the policy-laden balancing that accompanies the exercise of executive discretion. See Baum v. United States, 986 F.2d 716, 720 (4th Cir. 1993); Tiffany v. United States, 931 F.2d 271, 276 (4th Cir. 1991). Most importantly, the exception protects that "discretion of the executive ... to act according to [his] judgment of the best course, a concept of substantial historical ancestry in American law." Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Taken together, these considerations make manifest the important separation-of-powers principles that animate the discretionary function exception. See Holbrook v. United States, 673 F.3d 341, 345 (4th Cir. 2012).Blanco Ayala v. United States, 982 F. 3d 209 (4th Cir. 2020)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding election law. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * [W]hen a "plaintiff alleges that a state has burdened voting rights through the disparate treatment of voters," [ ] precedent requires us to apply the Anderson-Burdick framework. Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012).Under Anderson-Burdick, we first look to the burden the State's regulation imposes on the right to vote. Burdick, 504 U.S. at 434, 112 S.Ct. 2059; Obama for Am., 697 F.3d at 428. When States impose "'reasonable nondiscriminatory restrictions'" on the right to vote, courts apply rational basis review and "'the State's important regulatory interests are generally sufficient to justify' the restrictions." Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)); see Obama for Am., 697 F.3d at 429. But when States impose severe restrictions on the right to vote, such as poll taxes or limiting access to the ballot, strict scrutiny applies. Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (citing Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)); Obama for Am., 697 F.3d at 429. It is when cases fall between these two extremes that the Anderson-Burdick framework departs from the traditional tiers of scrutiny and creates its own test.For these intermediate cases, where the burden on the right to vote is moderate, we must weigh that burden against "'the precise interests put forward by the State as justifications for the burden imposed by its rule, ' taking into consideration 'the extent to which those interests make it necessary to burden the plaintiff's rights.'" Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). Only where the State's interests outweigh the burden on the plaintiff's right to vote do voting restrictions not offend the Equal Protection Clause. Obama for Am., 697 F.3d at 433. While this standard is flexible, we must ultimately "make the 'hard judgment' that our adversary system demands." Crawford, 553 U.S. at 190, 128 S.Ct. 1610 (Stevens, J., announcing the judgment of the Court). Mays v. LaRose, 951 F. 3d 775 (6th Cir. 2020)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding election law. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals.* * * According to the constitutional blueprint for implementing the Electoral College, the States alone (through their legislatures) possess the power to determine the manner of appointing presidential electors. See U.S. Const. art. II, § 1, cl. 2; id. amend. XII. The text of the Elector Clause reads: "Each state shall appoint in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. . . ." Id. art. II, § 1, cl. 2. In interpreting the bounds of the Elector Clause, the Supreme Court has stated that "[t]he state legislature's power to select the manner for appointing electors is plenary." Bush, 531 U.S. at 104 (citing McPherson, 146 U.S. at 35). It is precisely for this reason that the Constitution does not prescribe or endorse any selection method in particular. See McPherson, 146 U.S. at 28 ("The final result [of the constitutional convention] . . . reconciled contrariety of views by leaving it to the state legislatures to appoint directly by joint ballot or concurrent separate action, or through popular election by districts or by general ticket, or as otherwise might be directed."); see also id. at 27 ("The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors."). State legislatures have utilized a variety of appointment mechanisms since the framing of the Constitution, but in recent memory, "[h]istory has . . . favored the voter." Bush, 531 U.S. at 104. Of course, the hand that giveth, also taketh away (if it so desires). See id. (citing McPherson, 146 U.S. at 35) ("The State . . . after granting the franchise in the special context of Article II, can take back the power to appoint electors.").Plenary as a state legislature's power to dictate the manner of appointing presidential electors may be, it is not beyond judicial review. On the contrary, it is "always subject to the limitation that [it] may not be exercised in a way that violates other specific provisions of the Constitution." Rhodes, 393 U.S. at 29; see also Williams, 288 F. Supp. at 626 (noting that in order to pass muster, "the manner of appointment must itself be free of Constitutional infirmity"). The Equal Protection Clause of the Fourteenth Amendment is one such well-established limitation (the First Amendment is another, as we will explain later). See Rhodes, 393 U.S. at 29 ("[N]o State can pass a law regulating elections that violates the Fourteenth Amendment[]. . . ."); Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964) ("Our Constitution leaves no room for classification of people in a way that unnecessarily abridges [their] right [to vote].").Lyman v. Baker, (1st Cir. 2020)