The Atlantic City Fire Department requires all personnel who respond to fires or other emergencies to follow the proper use of an air mask when exposed to hazardous air. To ensure a proper fit, employees are prohibited from growing facial hair that could interfere with the mask seal. Plaintiff, Pastor Alexander Smith requested a religious accommodation to wear a short beard, arguing that growing the beard was an exercise of his faith and that wearing the mask was not part of his technician role in the department. This request was denied, citing safety concerns, prompting Smith to pursue legal action, alleging First Amendment, Equal Protection, and Title VII violations. However, the District Court of New Jersey ruled in favor of the fire department.

Together, the Harvard Religious Freedom Clinic and First Liberty Institute are appealing his case to the Third Circuit, with oral argument on October 30. Join Kayla Toney, who is arguing the case, and Katie Mahoney, Clinical Instructional Fellow at the Harvard Religious Freedom Clinic, as they break down the argument.
Featuring:

In September, the Department of Justice announced that it would withdraw its 1995 bank merger guidelines and apply its 2023 merger guidelines for all industries, a move that some have interpreted as signaling stricter review of bank mergers. At the same time, Congress is considering the “Credit Card Competition Act,” which purports to promote competition in the credit card network space. Join us for a discussion of these topics and their implications for consumers, competition, and the economy as well as Capital One’s proposed acquisition of Discover.
Featuring:

Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Sen. Patrick Toomey, Former United States Senator (PA), Ranking Member of the Senate Committee on Banking
Dr. Diana Moss, Vice President and Director of Competition Policy, Progressive Policy Institute
Moderator: Jelena McWilliams, Managing Partner and Head of the Financial Institutions Group, Cravath, Swaine, & Moore Washington, D.C. office, Former Chairman of the Federal Deposit Insurance Corporation (FDIC)

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

Wisconsin Bell v. U.S., (November 4) – Telecommunications; Whether reimbursement requests submitted to the Federal Communications Commission’s E-rate program are “claims” under the False Claims Act.
Advocate Christ Medical Center v. Becerra, (November 5) – Medicare; Whether the phrase “entitled … to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.
E.M.D. Sales v. Carrera, (November 5) – Labor & Employment; Whether the burden of proof that employers must satisfy to demonstrate the applicability of a Fair Labor Standards Act exemption is a mere preponderance of the evidence or clear and convincing evidence.
Facebook v. Amalgamated Bank, (November 6) – Corporations; Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm.
Velazquez v. Garland, (November 12) – International and National Security; Whether, when a noncitizen’s voluntary-departure period ends on a weekend or public holiday, a motion to reopen filed the next business day is sufficient to avoid the penalties for failure to depart under 8 U.S.C. § 1229c(d)(1).
Delligatti v. U.S., (November 12) – Criminal Law & Procedure; Issue(s): Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
NVIDIA Corp. v. E. Ohman J:or Fonder AB, (November 13) – Securities; (1) Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents; and (2) whether plaintiffs can satisfy the Act’s falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.

The Federalist Society is proud to host Mark Rienzi, President of the Becket Fund and Professor of Law at the Catholic University of America, for this year’s annual discussion of Religious Liberty at the Court. This webinar will be moderated by William Saunders, Professor and Co-director of the Center for Religious Liberty at Catholic University of America. Please join us for this latest installment which will look at recent developments in religious liberty litigation and ahead to the Supreme Court’s October term.
Featuring:

Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
(Moderator) Prof. William L. Saunders, Director of the Program in Human Rights, Catholic University of America

Garland v. VanDerStok concerns whether the ATF’s 2022 update to its regulations under the Gun Control Act of 1968, which clarified that federal law requirements that apply to the manufacture and sale of standard firearms also apply to “ghost guns” –readily convertible weapons parts or receiver kits– exceeds the mandate of the same. The ATF argues it simply clarified what had already been true in response to the notable rise in the use of ghost guns. The challengers, including both two individual gun owners and a gun advocacy organization, challenged the rule, alleging it exceeded the statutory authority granted to the ATF. The Court is now set to consider whether such kits constitute “firearms” and/or “frames or receivers” as regulated under the Act.
Oral argument was heard on October 8, 2024.
Join us for a Courthouse Steps Oral Argument program with litigating attorney Peter Patterson who argued on behalf of the respondents.
Featuring:

Peter A. Patterson, Partner, Cooper & Kirk

Liquefied natural gas (“LNG”) technology has enabled the United States to become the world’s largest exporter of natural gas in recent years, boosting our allies’ energy security and our own domestic economy and trade balance. Some estimates show that U.S. LNG export capacity will almost double over the next several years as facilities currently under construction come online. But LNG has met opposition from those concerned about its environmental impacts – including the Biden Administration, which announced a “pause” on approvals of LNG exports earlier this year.

The clash has made its way into the courts: In July 2024, a federal trial judge stayed the administration’s policy, and in August, the D.C. Circuit rescinded FERC’s previous authorization of two LNG projects on the Texas coast due to alleged deficiencies in its environmental analysis. Our panel of experts will discuss these recent policies and rulings, along with the broader implications of American LNG for energy security and international environmental efforts.

For many years, legal scholars have declared that the nondelegation doctrine is dead. Professor Cass Sunstein once quipped that the nondelegation doctrine had only “one good year” and more than 200 “bad ones.” But that has changed recently. In 2024, the en banc Fifth Circuit held that the Federal Communications Commision’s (FCC) Universal Service Fund is unconstitutional on nondelegation grounds. It was one of the only times since 1935 that a court has done so, and it appears that 2024 (and beyond) may turn out to be good years for the nondelegation doctrine.

Contrary to the FCC’s argument, the en banc Fifth Circuit concluded that the Universal Service Fund operates as a tax, which only Congress has the power and authority to require. Regardless of the public policy that it seeks to advance, Congress cannot delegate this power to the FCC or to any other executive branch agency. The nondelegation doctrine has not been entirely dead for the last hundred years; courts often construe statutes so as not to invalidate them under the nondelegation doctrine. The en banc Fifth Circuit rejected that approach.

In Nowhere to Live: The Hidden Story of America’s Housing Crisis, author James Burling describes the interesting history of America’s housing market. With stories going back to the Civil War, the early twentieth century, and the “urban renewal” movement of the 1950s, Nowhere to Live argues that a series of governmental mistakes helped to create a current housing crisis. Burling also proposes a solution: “not by government fiat, but through the restoration of private property rights.” Join the author and moderator Eric Claeys as they discuss these issues and the book itself.
Featuring:

James S. Burling, Vice President of Litigation, Pacific Legal Foundation
Moderator: Prof. Eric R. Claeys, Professor of Law, Antonin Scalia Law School, George Mason University

The Supreme Court recently decided that they will review a case dealing with the Clean Water Act (CWA), which prohibits the pollution of US waters without a National Pollutant Discharge Elimination System (NPDES) permit. In order to comply with the statute, the city of San Francisco was issued a permit by the Environmental Protection Agency (EPA) in 2019. The permit, however, lays down narrative limitations on the discharge of pollutants, such as anything which may “cause or contribute to a violation of any applicable water quality standard.” The city of San Francisco challenged the EPA’s permit, arguing that these restrictions “expose San Francisco and numerous permit-holders nationwide to enforcement actions while failing to tell them how much they need to limit or treat their discharges to comply with the Act.” In July 2023, the Ninth Circuit Court of Appeals rejected San Francisco’s argument, finding that the narrative limitations are not too vague but are rather important to ensuring that state water standards are met. This then prompted the city to appeal the decision to the Supreme Court.
Join this FedSoc Forum as panelists discuss varying views of this case and what the Supreme Court’s review might bring.
Featuring:

Prof. Robin Craig, Robert A. Schroeder Distinguished Professor of Law, University of Kansas School of Law
Andre Monette, Managing Partner, Best Best & Krieger LLP
Moderator: Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law

This program will provide a short introduction to the world of E-Discovery, predominantly in the civil litigation setting. Join us as Prof. Ted Hirt discusses E-Discovery and some related topics: the challenge of “big data,” how the Federal Civil Rules deal with E-discovery (including case scheduling and orders), and “proportionality.” Additionally, this program will cover topics including dealing with the client, safeguarding privileges, ways to deploy technologies in E-discovery production, and sanctions or measures for the destruction of information.
Featuring:

Prof. Ted Hirt, Professorial Lecturer in Law, George Washington University Law School

The free speech rights (or lack thereof) of K-12 students has always been a unique area in the realm of First Amendment litigation. Cases like Tinker v. Des Moines Independent Community School District from 60 years ago established that students do not leave their First Amendment rights at the schoolhouse gate, though subsequent cases have articulated that those First Amendment rights are not inherently co-extensive with the rights of adults. Schools often implement policies aimed at preserving the safety of students or that seek to limit “offensive” or “inappropriate” messaging which can constrain or inhibit the free speech of their students. To what degree that restriction of a constitutional right is permissible has become a question for the courts in a series of cases where students (or their representatives) are challenging school policies on the basis of alleged unconstitutional restriction of students’ First Amendment rights.
Join us for an update on several of these cases including:

D.A. v Tri-County Area Schools (Michigan student forbidden from wearing a “Let’s Go Brandon Sweatshirt.”) –
L.M. v Town of Middleborough (Massachusetts school forbade student from wearing “There are only two genders” tshirt).
B.B. v Capistrano Unified School District (California school punished kindergartner over “All Lives Matter” in drawing).

The U.S. Supreme Court continues to shape arbitration law through a strict interpretation of the Federal Arbitration Act (FAA), with each term introducing new nuances. This program will explore Supreme Court decisions from the latest term and examine recent interpretations by federal appeals courts, focusing on their impact on arbitration practice. The panel will offer practical insights into the evolving landscape of arbitration law, updates for attorneys to ensure compliance with the latest legal developments, and strategies to optimize arbitration for clients currently using or considering arbitration.
Featuring:

Charles Bennett, Trial Lawyer, Bennett Legal
Richard Faulker, Attorney, Faulkner ADR Law, Of Counsel, Bennett Legal
Philip J. Loree, Jr., Partner, The Loree Law Firm

Judicial selection in the states is not uniform, but most states have some form of judicial elections. Some are contested elections–whether partisan or nonpartisan–and some involve uncontested retention elections. During an election, judicial candidates must abide by ethical rules that explicitly restrict their ability to speak freely.
What are the implications, if any, for restrictions on judicial speech arising from different systems of selecting and retaining judges? How do judicial campaign experiences inform free speech perspectives? Join us for a conversation about how judicial elections intersect with free speech rights.
Featuring:

Hon. Clint Bolick, Justice, Arizona Supreme Court
Hon. J. Brett Busby, Justice, Texas Supreme Court
Hon. Daniel Kelly, Former Justice, Wisconsin Supreme Court
(Moderator) Hon. G. Barry Anderson, Justice, Minnesota Supreme Court (ret.)

The regulatory landscape for Private Funds has changed dramatically over the past decade, culminating in the SEC’s recent Private Fund Advisers regulation, which was recently struck down by the Fifth Circuit. In the wake of this important court decision, what’s next? Will the SEC go back to the drawing board? Is more regulation even needed? What broader implications can we draw for the legal landscape and regulatory governance principles going forward?
Featuring:

David Blass, Partner, Simpson Thacher
Russ Ryan, Senior Litigation Counsel, New Civil Liberties Alliance
Jennifer Choi, CEO, Institutional Limited Partners Association
Moderator: Lindsey Keljo, Managing Director and Associate General Counsel, Head of Asset Management Group, SIFMA

This event will survey the SEC’s current involvement in the cryptocurrency field. The conversation will include best practices for defending against SEC enforcement inquiries or investigations in the crypto industry. It will also examine the proactive legal approaches individuals and companies can take against the SEC, detailing how, when, and why they can bring suit. This discussion will conclude with a conversation about private sector initiatives to establish a sound disclosure protocol to avoid fraud and improve crypto asset disclosure.
Featuring:

Rachel Barnett, CLO of IEX Exchange
Prof. Chris Brummer, Agnes Williams Sesquicentennial Professor of Financial Technology at Georgetown Law
William R. McLucas, Partner, WilmerHale
Brian Richman, Associate, Gibson, Dunn, & Crutcher
Patrick Daugherty, Partner, Foley & Lardner (Moderator)

Some Intellectual Property experts contend that American patent reliability has been in decline for 20 years. They point to the threat of inter partes review, the misuse of march-in rights under the Bayh-Dole Act, the imposition of reasonable or reference price clauses, direct government price-setting, and, most importantly, an inability to obtain an injunction after a finding of infringement. In fact, since the Supreme Court decided eBay v. MercExchange in 2006, injunctions have declined precipitously – some studies have shown as much as a 91% reduction.
Are current patent owners and their licensees taking a risk in believing that their patents will accomplish their raison d’être… affecting the right to exclude? Is it true that patent owners cannot count on their patents to prevent copycat products from entering the market or to allow patent owners or their licensees to charge market prices for their goods? Should injunctive relief be more readily available in patent cases?
This FedSoc forum will explore the history of injunctive relief in patent cases and explain the eBay opinion and how it is currently being applied by the trial courts. This program will also discuss potential legislative proposals to provide regular access to injunctive relief in order to restore patent reliability.
Featuring:

Prof. Jonathan Barnett, Professor, University of Southern California Gould School of Law
Prof. Thomas Cotter, Taft, Stettinius & Hollister Professor of Law, University of Minnesota Law School
Nick Matich, Principal, McKool Smith
Hon. Paul Michel, Former Chief Judge, United States Court of Appeals for the Federal Circuit
Moderator: Jeffrey Depp, Policy Consultant, Center for Strategic and International Studies