College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2000 Section 8: Looking Ahead: Upcoming Issues in the Court Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 8: Looking Ahead: Upcoming Issues in the Court" (2000). Supreme Court Preview. 87. https://scholarship.law.wm.edu/preview/87 Copyright c 2000 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview LOOKING AHEAD: UPCOMING ISSUES IN THE COURT In This Section: * THE MICROSOFT CASE, Meredith Lugo .................................... 413 In Micrsosoft Case, Tipping Scales Both Ways; Weght of Issues Arguesfor, Against High Court Review James V. Grimaldi ........................................................ 414 U.S. vs. Microsoft: The Overview; U.S. Judge Says Microsoft ViolatedAntitrustLaws with PredatoUBehavior Joel B rinkley ......................................................................................... 4 16 M'soft Tying Test May FallShort K aren D onovan .................................................................................... 422 The Microsoft Breakup Ruling On Appeal, Firm may be Able to Avoid Breakup David G. Savage and Davan Maharaj ......................................... 425 * THE NAPSTER CASE: Free Musicfor Consumers or Illegal Copyrght Infringement? Meredith Lugo ........................................................... 428 Napster Ruling's Inpact Wide; Victoy over Music-Sharing Site Extends Beyond Recording Industry David Segal and Christopher Stern ............................................ 429 Napster Fights to Stay Online Brenda Sandburg ......................................................... 432 + SCHOOL VOUCHERS: UnconstitutionalGovernmentalAdvancement of Relgion or Better EducationalOpportunities ForAll Children? Meredith Lugo ........................................................... 434 Vouchers Violate U.S. Constitution,Judge Rules; Ohio School Program to go on DuringAppeals Michael Hawthorne ....................................................... 435 Cleveland Vouchers May Get Supreme Review Rachel Smolkin .......................................................... 437 410 RELIGION IN THE PUBLIC SQUARE, Meredith Lugo ......................... 439 Statehouse Can't Post Bible Laws; Governormay AppealJudge's Injunction, says Commandments' Display as a HistoricalText is Legal. Indiana Civil Liberties Union Attorny Ken Falk says his Group's Lawsuit is not an Attack on Religion R. Joseph Gelarden ....................................................... 440 Commandments Monument Barred;judge: Marker at Capitol Would Look Like Endorsement Joseph Gerth ...................................................... ...... 442 House Backs In God We Trust,' Urges Display of NationalMotto Bill McAllister ..... 444 ColoradoAsks: Is 'In God We Trust' a Religious Statement? Michael Janofsky..... ......... 445 Beliefs: Trusting in God is One Thing, But Saying All Things Are Possible with God is Quite Another. Or is it? Peter Steinfels ............................................................... 447 AFFIRMATIVE ACTION, Meredith Lugo ................. 449 State Seeks Hopwood Case Reversal; Court HearsArguments On Affirmative Action Ron Nissimov ............................................................. 450 UGA Admissions Lawsuit Revived; Appeals Court Ordersjudge to Reconsider Ruling that Plaintiffs Lacked Standing Bill Rankin ......................................................... ..... 452 DRUG TESTS AND RECESS: JustAnother School Day In Lockng, Texas Meredith Lugo ................................................................. 454 Family in Texas Challenges Mandatory School Drug Test Jim Yardley ....................................................... 455 Child Casualtiesof the Drug War; Testing Schoolchildren Without Cause Steve Chapman ........................................................ 459 School Drug Test Debate Sharpens;Lawsuit: A Texas DistricHts Requirementfor all Students has Provoked a ConstitutionalFi ght with Far-ReachingImplications Lyle Denniston ........................................................... 461 THE SECOND AMENDMENT: Does it Guaranteean IndividualRight to BearArms? Meredith Lugo ........................................................... 464 411 Texas Case CouldAffect Gun Ownership; Court willAddress Individuals' Right to Possess Firearms Richard Willing .......................................................... 465 Appeals Court to HearGun Rights Case From Texas; Ruling Could Earn Landmark Status Toni Heinzl ...................................................... 467 CircuitSi ghts Gun Right; Does 'Rzght to BearArms'Mean (Gulp) a Right to BearArms? David E. Rovella ......................................................... 469 FREE SPEECH FOR STATE EMPLOYEES, Meredith Lugo ...................... 473 Appeals Court Backs Sex Ban on State Computers Tom Campbell .......................................................... 474 Court Keeps Ban on Sex Viewing on Job Stephen Dinan .......................................................... 476 Internet Anti-Porn Law in Va. is Upheld Brooke A. Masters ........................................................ 477 A "DEATH WARRANT' FOR TOBACCO COMPANIES? Meredith Lugo ........................................................... 478 Flaws' Confuse Tobacco Verdict; Appeal is Certain, Payout is Not Terri Somers ............................................................ 479 Jury Awards $145 Billion in Landmark Tobacco Case; Record Punitive Damages in Class-Action Lawsuit in FloridaMultrplies Industrys Woes. Yet it Remains Confident of an Appeal. Myron Levin ............................................................ 482 GUN MANUFACTURERS: Can They be Held Liablefor the Marketing and IllegalSales of TheirProducts? Meredith Lugo ........................................................... 486 Brooklyn Case is First to Put FirearmsIndustry Practices On Trial Robert Suro ............................................................. 487 Laners Debate Who Won Gun Suit; Contested Result Makes it Hardfor Others to Figure What Verdict Meansfor Them Bob Van Voris ..................................................... ...... 490 Verdict Against Gun Makers Upheld Mark Hamblett .......................................................... 492 412 THE MICROSOFT CASE Meredith Lugo* In a year in which the Supreme Court dealt with such hot-button issues as abortion, school prayer, and Miranda rights, it was a federal district court case dealing with antitrust law (not typically known for generating public excitement) that garnered the most national attention. The Justice Department, joined by nineteen states, contends Microsoft has harmed consumers by stifling competition. Judge Thomas Penfield Jackson agreed, concluding in April that Microsoft "maintained its monopoly power by anticompetitive means and attempted to monopolize the Web browser market," thus violating the Sherman Act. In a key point of the decision, Judge Jackson also found, applying the test set out by the Supreme Court in 1984 (in Jefferson Parish HospitalDistrict No. 2 v. Hyde), that Microsoft illegally tied Internet Explorer to its Windows operating system "to quell incipient competition." As a remedy, Judge Jackson ordered conduct restraints as well as the breakup of Microsoft into two companies, one of which would make Windows, the other of which would focus on software applications. Judge Jackson has sent the case directly to the Supreme Court under the Expediting Act, a federal law which since 1975 has permitted direct appeals to the Court of antitrust cases brought by the federal government. The Court will decide this fall whether to hear the case or send it back down to the U.S. Court of Appeals for the D.C. Circuit, a step Microsoft prefers because of a favorable ruling by that court in a previous, related case. Observers believe the Supreme Court will choose this route in order to afford the Court of Appeals an opportunity to narrow the issues for its review. Either way, there is little doubt the Supreme Court will have the final word on the interplay between the antitrust laws of the nineteenth century and the technology of the twenty-first. * College of William and Mary School of Law, Class of 2002. 413 IN MICROSOFT CASE, TIPPING SCALES BOTH WAYS Weight ofIssues Argues for, Against High Court Review The Washington Post Tuesday, July 11, 2000 James V Grimaldi Microsoft Corp. plans to argue later this "Clearly the Supreme Court would benefit month that the Supreme Court should not from the work that the Court of Appeals could accept the direct appeal of its antitrust case provide," Burt said. "One [advantage] is because it is too complex and voluminous. But focusing the issues for Supreme Court the federal judge who sent it there says the case consideration so that it doesn't have to deal is too important for the high court to pass up. with dozens of issues, and secondly the In what could turn out to be a pivotal Supreme Court benefits from the rigorous decision in the case, the Supreme Court is set to application of brainpower. Why would it be in decide this fall whether to review U.S. District the public interest to skip that step?" Judge Thomas Penfield Jackson's order that sees a less complex Microsoft be broken up into two