Exam Technique: Question I

1. Exam Technique: Question I Qs on Opinion/ Dissent Q?

2. Exam Technique: Question I SPRING 2008 QUESTION I

3. Spring 2008: Question I Summary of Facts of Problem • BarBri has monopoly re bar review courses for particular state

4. Spring 2008: Question I Summary of Facts of Problem • BarBri has monopoly re bar review courses • 2 rivals arise that begin to erode BarBri market share • one has similar prices & higher pass rate • one has similar pass rate and lower prices

5. Spring 2008: Question I Summary of Facts of Problem • BarBri has monopoly re bar review courses • 2 rivals erode BarBri market share • Response = 2 changes in pricing • Increases price of course if bought at last minute • Retains prices for courses bought in advance • Advertises this as “increased discount”

6. Spring 2008: Question I Summary of Facts of Problem • BarBri has monopoly re bar review courses • 2 rivals erode BarBri market share • Response = 2 changes in pricing • Increases price of course if bought at last minute • Retains prices for courses bought in advance • Advertises this as “increased discount” 4/10 students misread problem; discussed significance of BarBri lowering prices to meet competition.

7. Spring 2008: Question I Summary of Facts of Problem • BarBri has monopoly re bar review courses • 2 rivals erode BarBri market share • Response = 2 changes in pricing • Increases last minute price of course • 20% increase in upfront deposit required

8. Spring 2008: Question I Summary of Facts of Problem • BarBri has monopoly re bar review courses • 2 rivals erode BarBri market share • Response = 2 changes in pricing • Increases last minute price of course • 20% increase in upfront deposit required • Finding of Fact: New pricing policy causes rivals to lose market share

9. Spring 2008: Question I Review of Instructions Compose drafts of the analysis sections of an opinion and of a shorter dissent for the Court deciding this question in the context of the facts of this case. … • Standard overall instruction we reviewed last time.

10. Spring 2008: Question I Review of Instructions … Assume the state has standing to bring the lawsuit. … • We (and they) didn’t cover standing but some prior exams did • Just making sure you don’t talk about that issue

11. Spring 2008: Question I Review of Instructions … Assume the District Court’s findings of fact are supported by the record and that the facts in the Prologue are correct. … • Standard instruction reminding you that you are bound by my facts • E.g., Findings of fact here about market definition and market power • Don’t revisit these issues • Especially when asked to discuss conduct

12. Spring 2008: Question I Review of Instructions … You may employ your own understanding of how the relevant market works to the extent that it is not inconsistent with the findings of fact or the facts in the Prologue. … • Always true; made it explicit here where students obviously have some understanding of bar review course sales. • When in doubt, indicate where you are using outside knowledge. • Remember that (like Supreme Court Justices) you are not supposed to use personal knowledge to ignore or dispute “facts” from the record.

13. Spring 2008: Question I Question Presented The U.S. Supreme Court granted certiorari to address the scope of the conduct requirement of a Sherman Act §2 monopolization claim and, more specifically, to decide when, if ever, a monopolist should be forbidden from engaging in non-predatory business practices that might have the effect of strengthening its market position.

14. Spring 2008: Question I The U.S. Supreme Court granted certiorari to address the scope of the conduct requirementof a Sherman Act §2 monopolizationclaim … • Don’t address other elements of the claim. • Don’t address attempt to monopolize or §1 claims.

15. Spring 2008: Question I The U.S. S.Ct. granted certiorari ... to decide when, if ever, a monopolist should be forbidden from engaging in non-predatory business practices that might have the effect of strengthening its market position. • At least in majority, articulate and defend a rule, test or standard

16. Spring 2008: Question I Ideal Content of Answers • Use range of arguments from course: doctrine plus statutory, economic & practical considerations. In particular: • Show understanding of operation of market: • Show understanding of §2 caselaw • Respond to info/arguments in lower court decisions:

17. Spring 2008: Question I Ideal Content of Answers Show understanding of operation of market: • DCt held conduct was exclusionary & raised barriers to entry; could briefly explain why this might be so • No significant network effects to bar review courses

18. Spring 2008: Question I Ideal Content of Answers Show understanding of §2 caselaw: • Apply gen’l §2 standards from Grinnell & Trinko • Address viability of Shoe Machinery after Trinko • Would SCt adopt analyses of Berkey and/or IBM? • Be aware stronger §2case than in Trinko: • Unregulated market w/o high-tech components • D has long-standing monopoly & history of bad conduct

19. Spring 2008: Question I Ideal Content of Answers Respond to info/arguments in lower court decisions: • Ct App: Trinko overrules Shoe Machinery • Lower courts consider 3 outcomes: • no remedy • enjoin pricing policies • enjoin non-refundable deposits • Address pros and cons of each

20. Spring 2008: Question I Qs on Spring 2008 Question I

21. Exam Technique: Question II Traditional Issue-Spotter

22. Exam Technique: Question II Traditional Issue-Spotter: What I’m Looking For • Identify the Most Important Issues • Quality of Analysis • Clear Presentation • Quantity of Relevant Points Made

23. Exam Technique: Question II • Identify the Most Important Issues • Likely to be contested by lawyers • Lots of facts related to • Lots of available arguments • You’ll have to define market (product and/or geographic) • Follow any limiting instructions (like Q1)

24. Exam Technique: Question II 2. Quality of Analysis • Arguments for at least two positions. 2007: five key issues; most people one-sided at leastthree of them • Use all the facts in the problem • You can note missing facts/evidence that could help determine outcome (if not inconsistent with facts you do have)

25. Exam Technique: Question II 2. Quality of Analysis • Work with relevant cases • Defend key positions thoroughly • Push toward resolutions (Limit)

26. Exam Technique: Question II 3. Clear Presentation • Discuss one issue at a time • Clearly indicate transitions • Make logic of arguments apparent • Deal with overlap through cross-reference, not repetition • Elements of Monop. v. Att. to Monop. • Discussions of Market Power re Different Offenses

27. Exam Technique: Question II 4. Quantity of Relevant Points Made • Tends to be tie-breaker if answers otherwise similar • Always more to do than you have time for • Spend more time on most important issues • Outline at end if more to say • To save time, use abbreviations, headings, bullets

28. Exam Technique: Question II Qs on Issue- Spotting Q?

29. Exam Technique: Question II Spring 2008 Question II

30. Spring 2008 Question II • Law school remote access courses (RACs) • Agreement betw. three most prestigious law schools in state with seven law schools • Divided up state law bar subjects evenly to produce state law RACs • Provided to each other free; marketed to other schools & divided up profits • Only gave credit for own state law RACs • Refused to allow lower prestige competitor to participate in agreement

31. Spring 2008 Question II Review of Instructions Based on the following scenario [and the facts in the prologue above], discuss whether any aspect of the “2005 Agreement” described below might violate Sherman Act §1. • Stick to the topics covered by agreement • Stick to §1

32. Spring 2008 Question II Review of Instructions As part of your answer, identify and explain the possible significance of any plausible facts not provided (and not inconsistent with facts you have) that could be important to the legal analysis. • Opportunity to show engagement w parts of the course addressing specific evidence • Don’t do to exclusion of facts given.

33. Spring 2008 Question II Major Legal Issues • Boycott: Refusal to include competitor in joint Venture: (NWWS analysis) • Boycott: Refusal to give credit for outside state law RACs: (NWWS analysis; maybe prof. stds). • Market Division of state law RACs produced. Part of joint venture with efficiencies. (Per se? BMI analysis?) • Non-Economic Considerations: Should university curricular decisions be covered by AT Laws

34. Spring 2008 Question II Market Analysis (Out of the Ordinary) • Law schools decide whether to give credit for other school’s RACs and pay the fees, but individual students take the courses and presumably create the demand for them. • Do important effects of the agreement arise in the market for students choosing law schools rather than in market for law schools choosing RACs? (Like Microsoft: acts in browser market important for effects on competition for operating systems)

35. Spring 2008 Question II Use of Specific Facts Dean of prestige law school says agreement “allowed the leading law schools in [the state] to take advantage of new technology to share the strengths of our respective faculties and to ensure that our students who wish to practice in [the state] are properly trained while still maintaining the highest educational standards.” • Efficiencies sharing strengths of faculty • Asserted interest in quality of education for excluding other schools

36. Spring 2008 Question II Use of Specific Facts Prestige schools had given credit for RAC in state criminal law taught by non-prestige school b/c Prof. had drafted most of state Criminal Code After 2005 agmt, students at the prestige schools petitioned to continue to get credit for that class, but law schools refused to allow. • Going against student demand • Calls quality claim into Q • Excluding after prior relationship seen as worse in refusal to deal cases under §2.

37. Spring 2008 Question II Use of Specific Facts The non-prestige law school that provided state RACs removed from promotional materials language stating that some of its courses were also taken by students from the best law schools in the state. • Raises issue of effect on competition between law schools. • Prestige schools want to maintain perception that education is different.

38. Penultimate Slide Qs on Spring 2008 Issue-Spotter?

39. Very Last Slide! Any Last Qs on Logistics?