FedSoc Forums

E.M.D. Sales, Inc. v. Carrera concerns what standard of evidence the court should apply in cases of exceptions to the Fair Labor Standards Act. The District Court decided that E.M.D. was liable for some employee overtime because it did not prove by clear and convincing evidence that its sales representatives were outside salesmen. Therefore, they were not exempt from normal overtime rules. The Fourth Circut agreed, affirming the use of the clear-and-convincing evidence standard.On January 15th, 2025, the Supreme Court, in a 9-0 decision, reversed the Fourth Circut’s decision and remanded the case. In an opinion by Justice Kavanaugh, it held that the preponderance-of-the-evidence standard applies when an employer seeks to show that an employee is exempt from the minimum wage and overtime pay provisions of the Fair Labor Standards Act.Featuring:Michael J. O'Neill, Vice President of Legal Affairs, Landmark Legal Foundation

In Barnes v. Felix the Supreme Court is set to address a circuit split concerning the context courts should consider when evaluating an excessive force claim brought under the Fourth Amendment.Is the correct rubric the "moment of threat" doctrine (which was applied by the Fifth Circuit here and has been adopted by several other circuits including the Second, Fourth, and Eighth), which considers only whether there was imminent danger creating a reasonable fear for one's life in the immediate moment(s) preceding the use of force? Alternately, should a court consider the "totality of circumstances" (along the lines of the precedent of the First, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits) when assessing if it was a justified use of force?Join us for a Courthouse Steps program where we will break down and analyze how oral argument went before the Court.Featuring:Matthew P. Cavedon, Robert Pool Fellow in Law and Religion, Emory University School of Law

How should podcasters talk about crime in a way that informs the public while respecting the legal process and the rights of everyone involved? This question has taken on unprecedented importance now that anyone can become a citizen journalist by using nothing more expensive than a computer and cellphone. Join us for a conversation exploring the issue with two veteran true crime podcasters, moderated by a scholar of criminal law.Featuring:Alice Shih LaCour, Partner, Hilgers Graben PLLC; Co-Host, The Prosecutors PodcastDavid Oscar Markus, Partner, Markus/Moss LLP; Host, For the Defense Podcast(Moderator) Matthew P. Cavedon, Robert Pool Fellow in Law and Religion, Emory University School of Law

Last month, the last American troops left Niger, following withdrawal of U.S. troops in Chad last spring and from Somalia in 2021. Talks are underway for revived U.S. presence in Chad, as happened in Somalia in 2022, but there seems to be a larger trend toward disengagement. Does this foretell enhanced Chinese influence? A greater role for Russian intrigues? Or a larger role for terrorist networks? Join us for a discussion of the geostrategic stakes.Featuring: Cameron Hudson, Senior Fellow, Africa Program, CSISProf. Thomas Lee, Leitner Family Professor of International Law; Director of Graduate and International Studies, Fordham University School of LawDr. Michael Rubin, Senior Fellow, AEIModerator: Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

Institutions of higher education released demographic data for their first classes admitted after the Supreme Court's landmark decision Students for Fair Admissions v. President and Fellows of Harvard College held that the Constitution prohibits the use of race as a "bonus" in admissions decisions. The demographic data reflect a variety of admissions policy changes. Four new voices in civil rights law--all recent law school graduates--will summarize trends in post-Fair Admissions admissions policies and data to explain how institutions of higher education responded to the Fair Admissions decision. Featuring: Peter Abernathy, Judicial Law Clerk, 31st Circuit Court of VirginiaSamuel Gellen, Honor Law Graduate Attorney, U.S. Nuclear Regulatory CommissionLeo O'Malley, Judicial Law Clerk, U.S. District Court for the Eastern District of TexasAnthony Pericolo, Associate, Desmarais LLP(Moderator) Devon Westhill, President and General Counsel, Center for Equal Opportunity

In TikTok, Inc. v. Garland, the Court was asked to consider whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment. The PAFACA requires that TikTok either cease operations in the United States or have its parent company ByteDance sell off the American segment of the company by January 19, 2025. Petitioners challenged the law as unconstitutionally abridging their freedom of speech, and after a lower court decision upholding the law, the Supreme Court granted cert on December 18, 2024.Oral Argument was heard on January 10, 2025, and a decision came out on January 17, 2025.Join us for a Courthouse Steps Decision program where we analyze the decision and likely effects.Featuring:Darpana Sheth Nunziata, Public Interest Litigator

Our liberty, safety, and prosperity are based on the rule of law, not the rule of man or machine. However, given that the criminal justice system suffers from many efficiencies and errors, could artificial intelligence aid the efforts of police, prosecutors, and other actors tasked with protecting public safety with limited resources? Given the power of A.I. technologies to find proverbial needles in haystacks and identify patterns that would otherwise be overlooked, it is not surprising that some criminal justice agencies are already deploying these tools. How can we harness the potential benefits while also ensuring that our liberty and privacy are not compromised? This discussion will feature experts in both the law and technology to help us sort though these questions and identify policies and practices that promote innovation while ensuring constitutional rights are protected. Featuring: Michael R. Holley, First Assistant District Attorney, Montgomery County District Attorney’s Office, Conroe Texas Patrick Robinson, Owner, VSV Leadership Jesse Rothman, Senior Fellow, Council on Criminal Justice Hon. Scott U. Schlegel, Judge, Fifth Circuit Court of Appeal, State of Louisiana (Moderator) Marc Levin, Chief Policy Counsel, Council on Criminal Justice; Senior Advisor, Right on Crime -- Related Readings --

Free Speech Coalition, Inc. v. Paxton concerns Texas Law H.B. 1181, and what precedent should apply in considering its impact on free speech.Passed in 2023, the law requires commercial entities, including social media platforms, "that knowingly and intentionally publish or distribute material on an Internet website... more than one-third of which is sexual material harmful to minors" to age-gate their content, and to verify the age of their users, ensuring they are 18 years of age or older.Soon after the law passed, plaintiffs, including the Free Speech Coalition, "a trade association for the adult industry", sued, claiming the law violated their right to free speech. Drawing on a line of cases including Ashcroft v. ACLU (2004), the plaintiffs argued that since the law impacted constitutionally protected speech, strict scrutiny should be applied and the TX law failed that test. In reviewing the case, the Fifth Circuit denied that argument, instead applying a rational basis test, drawing from the precedent of Ginsburg v. New York (1968).Thus, the Supreme Court is set to consider a relatively narrow question: whether the court of appeals erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech.Join us for a Courthouse Steps program following oral argument on January 15, 2025, where we break down and analyze how arguments went before the Court.Featuring:Erik S. Jaffe, Partner, Schaerr | Jaffe LLP

Immigration is a spotlight issue, especially heading into the next administration. Some say the United States is under attack—that the entrance of millions of immigrants, some of whom intend to and do cause harm to Americans, constitutes an “invasion” or "predatory incursion" of the sort mentioned in Article I of the Constitution and the Alien Enemies Act (AEA). Others contend, however, that allowing the term “invasion” or "predatory incursion" to apply to illegal immigration is both wrong and dangerous, and would allow for the possibility of states engaging in war or mounting hostility with neighboring countries. Is the US under invasion or predatory incursion by illegal immigrants? Can illegal immigration be an instrument to diminish the sovereignty of a nation? Join us in discussing these important questions and more.Featuring:Hon. Ken Cuccinelli, Former Acting Deputy Secretary for the Department of Homeland SecurityProf. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason UniversityModerator: Joseph Humire, Executive Director, Center for a Secure Free Society--To register, click the link above.--For reference:Policy Brief: How States Can Secure the BorderAttorney General Opinion No. I22-001(R21-015) Immigration is Not InvasionCourts Might Not Stop Trump's Illicit Plans for Mass Deportations

In TikTok, Inc. v. Garland (consolidated with Firebaugh v. Garland) the Court is set to consider whether the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA)(enacted by Congress in April 2024), as applied to petitioners, violates the First Amendment.Put forward as a law focused on national security, PAFACA would require that TikTok either cease operations in the United States or have its parent company ByteDance sell off the American segment of the company by January 19, 2025. The government contends that TikTok poses a notable national security threat given the data it, as a foreign-owned company, collects on American users and the extent to which it could be used to control information (or disinformation) flow to American users. TikTok, along with several users, on the other hand, challenged the law, contending that while there may be a legitimate government interest in national security, the means employed in this case violate the free speech rights of both TikTok and its American users who use the platform to create content. The DC Circuit, in an opinion written by Judge Ginsburg, upheld the law against a First Amendment challenge.The Supreme Court granted cert on December 18, 2024, and oral argument is set for January 10, 2025. Join us for a panel Courthouse Steps program following oral argument.Featuring:Corbin K. Barthold, Internet Policy Counsel and Director of Appellate Litigation, TechFreedomChristian Corrigan, Solicitor General, Montana Attorney General's Office(Moderator) Casey Mattox, Vice President, Legal Strategy, Stand Together