We'll hear argument next in case 23217, EMD Sales v. Carrera.

Ms. Blatt?

Mr. Chief Justice, and may it please the Court, for over a century, this Court has held that the

default standard in civil cases is preponderance of the evidence.

That default rule should resolve this case.

Nothing in the text suggests that Congress intended a clear and convincing evidence standard to apply to the 34 exemptions under the Fair Labor Standards Act.

Respondents argue that a heightened standard is appropriate because FLSA rights are important, but a preponderant

standard applies to rights against race discrimination and disability discrimination and rights

to organize and to workplace safety, all super important rights.

This Court has reserved the clear and convincing standard to deprivations by the government of critical rights that don't

involve money damages. This court has never allowed plaintiffs to use a clear and convincing

standard as a sword, and it certainly has never read a clear and convincing standard into a statute

for money damages. Respondents also argue that overtime rights aren't

waivable, but waivability and standards approve are unrelated and don't go hand in hand.

Waveability goes to who owns the right, the government or the individual, and a standard of proof

goes to how hard it is to prove that the right attaches in the first place.

Thus, the preponderance of the evidence standard governs non-waivable rights, such as those under the NLRA and OSHA,

and heightened standards govern waivable rights, such as those in criminal trials and deportation hearings.

Because the court below applied only the clear and convincing standard, we think this

court should remand for the application of the preponderance standard.

I welcome the Court's questions.

Other than the context of actual malice, can you think of any other case where there has been a requirement?

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