Minimum Competence

Andrew and Gina Leahey
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Minimum Competence is your daily companion for legal news, designed to bring you up to speed on the day’s major legal stories during your commute home. Each episode is short, clear, and informative—just enough to make you minimally competent on the key developments in law, policy, and regulation. Whether you’re a lawyer, law student, journalist, or just legal-curious, you’ll get a smart summary without the fluff. A full transcript of each episode is available via the companion newsletter at www.minimumcomp.com. www.minimumcomp.com

  1. vor 8 Std.

    A Kentucky Law Professor’s Free-Speech Fight, Big Tech Sues Over California’s Youth Social Media Law & the Battle Over Trump’s Triumphal Arch

    This Day in Legal History: Susan B. Anthony Votes On November 5, 1872, Susan B. Anthony walked into a polling place in Rochester, New York, and cast a ballot in the presidential election, along with fourteen other women from her ward. This was a deliberate legal test. Anthony and other suffragists argued that the Fourteenth Amendment, ratified four years earlier, made women citizens, and that voting was one of the privileges of citizenship that no state could deny. Two weeks later, a deputy federal marshal arrested her at her home for voting illegally. She refused to post bail. At her trial in June 1873, before Justice Ward Hunt of the Supreme Court, sitting as a trial judge, she wasn’t allowed to testify, and at the close of evidence the judge directed the all-male jury to return a guilty verdict, without letting them deliberate. When asked if she had anything to say before sentencing, Anthony delivered a famous speech condemning the proceedings. She was fined $100 and never paid it. Two years later, in Minor v. Happersett, the Supreme Court rejected the argument outright, holding that citizenship didn’t automatically include the right to vote. The significance of November 5, 1872 is that Anthony used the law itself, a vote, an arrest, and a trial, to expose the gap between constitutional promises and how they were applied. It took until 1920 and the Nineteenth Amendment to close it. Her case is a reminder that legal change often begins with someone willing to test the boundaries of what they’re allowed to say and do, and that’s exactly the question in our first story. A federal judge in Kentucky will hold a hearing later this month on whether the University of Kentucky violated the First Amendment by suspending a tenured law professor over his comments about Israel. The professor, Ramsi Woodcock, has made statements describing Israel as a “colonization project” and calling for the world to wage war against it. The university barred him from teaching and opened an investigation, which Woodcock says was driven by political pressure from state lawmakers seeking tougher action against antisemitism. Reports indicate the judge declined to give Woodcock an immediate order returning him to the classroom but set a hearing on his broader request for a preliminary injunction. Reports differ on some details of the procedural history, so I’ll keep this at the level of the legal framework. Here’s how courts analyze this. Woodcock works for a public university, so the First Amendment applies. When a public employer disciplines an employee for speech, courts use a balancing test from Pickering v. Board of Education and later cases. If the employee spoke as a private citizen on a matter of public concern, which commentary on Israel and the war in Gaza plainly is, the court weighs the employee’s free-speech interest against the employer’s interest in running its operations effectively, including avoiding disruption. Speech that’s offensive, even deeply offensive to many people, generally remains protected; the question is whether it caused or was reasonably likely to cause the kind of disruption that justifies discipline. Professors have an additional layer of protection, because courts have long recognized academic freedom as a special concern of the First Amendment. On the other side, universities have obligations under federal civil rights law to address harassment of students, including antisemitic harassment, and statements calling for war can raise questions about whether they cross from advocacy into something else. The judge will have to sort out where Woodcock’s statements fall. This case joins several others around the country, and the answers matter for public universities everywhere. Judge to review US law professor’s suspension in free speech case over Israel remarks | Reuters · Court Cast · AOL Google, Meta, and TikTok have each sued to block California’s new law restricting social media features for children under 16. We covered the law when Governor Newsom signed it in September as part of a package of what he called the strongest child-safety tech laws in the nation. The law, Assembly Bill 1709, bars platforms from giving users under 16 “psychologically exploitative” features that can lead to compulsive use, like personalized recommendations and autoplay, and requires deleting children’s accounts that use those features. The three companies filed separately in three federal courts: Google in San Jose, Meta in San Francisco, and TikTok in Los Angeles. They argue the law violates the First Amendment and Section 230 of the Communications Decency Act, that it forces them to present content the way the state prefers, and that it substitutes the state’s judgment for parents’ choices. The Electronic Frontier Foundation has also criticized the law as a privacy and free-speech problem, partly because enforcing age limits generally requires verifying users’ ages. This was predictable, and the companies have strong arguments. In 2024, in Moody v. NetChoice, the Supreme Court said that when platforms curate and arrange third-party content, they’re engaged in editorial activity protected by the First Amendment, much like a newspaper choosing what to print. A personalized feed is a curation decision. California will argue the law regulates design features and conduct, not speech, and that protecting children’s mental health is a compelling interest. Courts have split on similar laws, blocking several state restrictions on minors’ social media access while allowing some narrower ones. The outcome will likely turn on whether the court sees recommendation algorithms as speech or as product design. Notably, TikTok just agreed in its Alabama settlement to give teens a default non-personalized feed. That was a voluntary deal, but it shows the kind of change states are pushing for, now by statute. Google, Meta, TikTok sue to block California youth social media law | Reuters · Bloomberg Law · Yahoo News And finally, the President’s planned 250-foot triumphal arch in Washington is close to receiving federal approval, possibly as soon as today, and the government has said construction could begin right after. But a federal judge is weighing whether to block it. Several lawsuits are pending: one by Vietnam War veterans before U.S. District Judge Tanya Chutkan, who reportedly seemed skeptical of the rush, and others by the District of Columbia, Virginia, and Arlington County. The legal issue is authorization. Building a monument on federal land in the capital isn’t simply up to the executive branch. Congress has long controlled what gets built on the National Mall and surrounding federal parkland, and federal law generally requires congressional authorization for new memorials in the area, along with review by planning and arts commissions. Major federal projects also have to comply with environmental and historic-preservation review laws. The administration’s answer is creative: it says Congress already approved the arch more than a century ago, when it authorized a bridge across the Potomac. The challengers say a century-old bridge authorization can’t plausibly cover a new 250-foot arch. There’s a recent precedent: another federal judge, Richard Leon, blocked construction of the White House ballroom project, reasoning that Congress must authorize it first. Why does the rush matter? Like the felled trees at East Potomac Golf Links we covered last month, construction can create facts on the ground that are hard to undo. That’s exactly why judges consider emergency relief before work begins. There’s one more twist. As we discussed yesterday, Democrats will control Congress in January. If the administration is relying on old congressional authorization, it may be because getting new authorization from this Congress, or the next one, looks unlikely. Trump’s Washington arch poised for approval as judge weighs bid to block construction | Reuters · NPR · Time This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  2. vor 1 Tag

    Democrats Win Congress: What Divided Government Can and Can’t Do, Kraft Heinz Sells Maxwell House & the NYT Sues Brave

    This Day in Legal History: The Tehran Embassy Seizure On November 4, 1979, Iranian students stormed the U.S. embassy in Tehran and took dozens of Americans hostage. Fifty-two of them would be held for 444 days. In response, President Jimmy Carter invoked the International Emergency Economic Powers Act, a statute Congress had passed just two years earlier, and froze billions of dollars in Iranian assets in the United States. The crisis ended in January 1981 with the Algiers Accords, in which the United States agreed to unfreeze Iranian assets, end pending lawsuits against Iran in American courts, and send those claims to a new international tribunal. A company called Dames & Moore, which had been trying to collect money it said Iran owed it, challenged that agreement. In Dames & Moore v. Regan, decided that July, the Supreme Court upheld the President’s actions. It found that the asset transfers were authorized by the emergency powers statute, and that while no statute expressly authorized suspending the lawsuits, Congress had long accepted presidential settlement of such claims, which the Court treated as implied approval. The significance of November 4, 1979 is the legal principle the crisis produced: presidential power is at its strongest when it rests on authority Congress has already given, even a Congress elected years earlier. That’s directly relevant to our lead story, because when control of Congress changes, the powers earlier Congresses delegated to the executive branch don’t disappear. Democrats have won control of both the House and the Senate, according to unofficial results from yesterday’s midterms. As of early this morning, the Associated Press had called 228 House seats for Democrats, well past the 218 needed for a majority, with dozens of races still uncalled. In the Senate, Democrats held 54 seats to Republicans’ 44, with the races in Alaska and Mississippi still too close to call. Recall that Alaska is where the Justice Department sued to block certification if Republican Sen. Dan Sullivan lost, so watch that one. Final numbers will change, but the bottom line won’t: the President’s party will no longer control either chamber. The new Congress takes office on January 3, 2027. Until then, the current Congress, with its Republican majorities, can still pass legislation and confirm nominees in a lame-duck session. Winning an election and exercising the powers that come with it are two different things, and existing statutes and regulations keep operating until someone changes them through a lawful process. So what can a Democratic Congress actually do? The key distinction is between blocking new policy and changing existing law. Blocking is easy: either chamber can stop any bill simply by refusing to pass it, so Republican legislative priorities are effectively stalled. But enacting new law is much harder. Both chambers have to pass identical text and present it to the President, who can veto it. Overriding a veto takes two-thirds of each chamber. And in the Senate, most legislation still needs 60 votes to end a filibuster. A 54- or 55-seat majority clears neither bar. There are special procedures, like budget reconciliation, that avoid the filibuster for certain budget measures, but those bills still go to the President and can still be vetoed. Meanwhile, the President keeps substantial power. Agencies can keep using the authority earlier Congresses delegated to them, issuing, revising, or repealing regulations, though they still have to follow the required procedures and survive judicial review. A new majority’s disagreement doesn’t withdraw that authority. That doesn’t leave Congress powerless. It has three main tools to constrain the executive branch. First, it can amend an agency’s governing statute to narrow its authority or impose new duties. Second, it controls appropriations: it can attach riders like “none of the funds in this Act may be used to implement Policy X,” and, more importantly, it can refuse to fund the government on terms it doesn’t accept, which gives it real leverage in every budget negotiation. Third, it can use the Congressional Review Act to overturn eligible agency rules with a simple majority and no filibuster. But all three share the same limit: they have to become law, which means the President can veto them. The CRA in particular is mostly useful when Congress and the President agree; it’s not a tool for overturning a President’s own rules over his objection. The tools that don’t require the President’s signature are oversight and appointments. With control of committees, Democrats can hold hearings, demand documents, and issue subpoenas, choosing which agency actions get sustained public scrutiny. That can produce facts, political pressure, and the record for future legislation, though subpoena fights often end in negotiations or litigation over executive privilege. The Senate, and only the Senate, votes on nominations, so the new majority can reject or simply decline to act on nominees for agency leadership and federal judgeships. That doesn’t remove officials already serving, and federal law lets some vacancies be filled temporarily by acting officials. And for those wondering about impeachment: the House can impeach by a simple majority, but conviction and removal require two-thirds of senators present, 67 if all are voting, which no plausible Democratic majority reaches alone. Democrats win House, Senate | ABA Banking Journal · CBS News Kraft Heinz has agreed to sell its North American coffee business, including Maxwell House, Gevalia, Yuban, Sanka, and Tassimo, to the private equity firm One Rock Capital Partners at an enterprise value of about $650 million. Kraft Heinz will keep a 30% non-controlling stake, and the deal is expected to close in mid-2027, subject to regulatory approval. The sale is part of a turnaround effort by CEO Steve Cahillane, who took over in January and put on hold a planned split of the company into two businesses, while keeping that option open. A few legal points. Structurally, this is a carve-out: separating one business from a larger company. Carve-outs are legally complex because the business being sold usually shares factories, supply contracts, IT systems, employees, and brands with the rest of the company. Deals like this typically come with transition services agreements, in which the seller keeps providing certain services for a period while the buyer builds its own. Kraft Heinz’s retained 30% stake keeps it invested in the business’s success without control, and comes with its own questions about governance rights and future exit options. And “subject to regulatory approval” generally means antitrust review under the Hart-Scott-Rodino Act, which requires notifying federal antitrust agencies before deals above a certain size can close. A private equity buyer without other coffee brands is unlikely to raise competition concerns, but the waiting period still has to run. More broadly, this reflects a trend among packaged-food giants of shrinking their portfolios to focus on faster-growing products. Some of the most familiar names in American grocery stores, Maxwell House among them, are moving out of public companies and into private ownership. Kraft Heinz to divest North America coffee unit amid Cahillane’s turnaround effort | Reuters · The Globe and Mail · RTTNews And finally, The New York Times has sued Brave Software, the company behind the Brave web browser and the Brave Search engine, in federal court in Manhattan. The Times alleges Brave copied its paywalled journalism and made it available to AI companies through Brave’s search index and its search API, a product that lets other companies, including AI developers, pull search results and content into their own systems. The Times also alleges that a feature in the Brave browser lets users get past its paywall. The New York Daily News, the Chicago Tribune, and the Orlando Sentinel filed their own suits, which repor… This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  3. vor 2 Tagen

    SCOTUS Ends Trump’s Bid to Freeze California Ballots, a Judge Blocks Federal Noncitizen-Voter Lists & Why Refund-Heavy Tax Preparers Shouldn’t Be Red Flags

    This Day in Legal History: Elk v. Wilkins On November 3, 1884, the Supreme Court decided Elk v. Wilkins. John Elk was a Native American man, born on tribal land, who had left his tribe, moved to Omaha, and lived among the city’s residents. In 1880, he tried to register to vote. The registrar, Charles Wilkins, refused, on the ground that Elk wasn’t a citizen. Elk sued, relying on the Fourteenth Amendment, which says that all persons born in the United States and “subject to the jurisdiction thereof” are citizens. The Court ruled against him, 7 to 2. It held that Native Americans born into tribal nations weren’t “subject to the jurisdiction” of the United States in the sense the amendment required, and that leaving his tribe and living as a citizen didn’t make Elk one without some act of Congress naturalizing him. Justice John Marshall Harlan, whom we profiled last month, dissented, arguing that a man who had given up his tribal allegiance and lived under American law was exactly the kind of person the Fourteenth Amendment was meant to include. The significance of November 3, 1884 is that it took another forty years, until the Indian Citizenship Act of 1924, for Congress to declare all Native Americans born in the United States to be citizens, and longer still before some states stopped finding ways to keep them from voting. On Election Day, it’s a reminder that the questions of who is a citizen and who gets to vote have been contested throughout American history, and that a registrar’s decision about one voter’s eligibility can end up in the Supreme Court. Today’s stories are the latest chapter in that history. The Supreme Court has refused the administration’s emergency request to make California set aside about 20,000 mail ballots from people the Justice Department says are likely noncitizens. The administration filed its application Monday morning, and the Court denied it the same day, without explanation and with no noted dissents, hours before the polls opened. That makes four courts in a row, by California’s count, to reject the effort: the Ninth Circuit’s first dismissal last week, Judge David Carter’s denial of a restraining order, the Ninth Circuit’s rejection of the emergency appeal on Friday, and now the Supreme Court. California says the government’s list is riddled with errors, and recall that Los Angeles County found most names in one sample were tied to canceled or inactive registrations. The Court’s decision not to step in is notable for a couple of reasons. First, it’s consistent with the Court’s general reluctance to change election procedures at the last minute, a principle that has cut both ways this year; the Court has used it to keep both new restrictions and challenged rules in place right before voting. Second, the absence of any noted dissent suggests that even justices who’ve been receptive to the administration’s election arguments weren’t willing to order a state to freeze tens of thousands of ballots on the eve of the election based on this record. The practical result is simple: California counts these ballots under its normal procedures, including its own safeguards for checking eligibility. If the administration believes specific people voted illegally, it can investigate and prosecute them afterward, subject to the constitutional questions about the federal statute we’ve discussed. But the votes won’t be frozen first. Trump administration takes California ballot fight to Supreme Court | Reuters · NBC News · CalMatters A federal judge in Washington has temporarily barred the Justice Department and the Department of Homeland Security from sending states lists of registered voters the administration says may not be citizens, and from asking states to set aside those voters’ ballots until citizenship is proven. The ruling is from U.S. District Judge Tanya Chutkan. The administration had sent letters to election officials in California and Washington State demanding they not count ballots from people on those lists. The plaintiffs argued the lists violated the Privacy Act of 1974, which limits how federal agencies use and share records about individuals, including the immigration and Social Security data used to build lists like these. The Justice Department argued the letters were just part of enforcing the federal ban on noncitizen voting, not a separate policy a court could review. The legal landscape is now genuinely tangled. A Ninth Circuit panel recently cleared the government to warn election officials they could face prosecution if they don’t comply with its demands. A federal judge in San Francisco ordered the department to stop threatening officials with prosecution. And another federal judge ruled that the administration’s threat to cut off Election Assistance Commission funds to states was unconstitutional pressure. Judge Chutkan isn’t bound by the Ninth Circuit, since her court is in a different circuit. When different courts reach different conclusions on overlapping issues, the conflicts often end up at the Supreme Court. For today, the effect is that federal agencies can’t keep sending these lists or pressing states to hold ballots. Two themes run through all of these cases. The first is federalism: states run elections, and the federal government’s tools for directing how they count ballots are limited. The second is data: lists built from government databases have repeatedly flagged real citizens, and privacy law sets limits on how that data can be shared and used. Judge blocks Trump administration from pressuring states over noncitizen voting | Reuters · Jerusalem Post · Yahoo News And finally, in my column for Bloomberg Tax this week, I look at a new report from the Treasury Inspector General for Tax Administration. It found that more than 38,000 tax preparers using noncompliant preparer identification numbers prepared over 2 million returns in the 2025 filing season. Within that group, nearly 12,000 preparers filed about 95,000 returns that all claimed refunds, totaling almost $600 million. The report treats a 100% refund rate as a sign of heightened risk of fraud or misconduct, and the IRS is building a data-driven program to target preparers. My question is simple: why should a preparer whose clients all get refunds be more suspicious than one whose clients owe? Refunds are normal. Wage earners often have more withheld than they owe, and refundable credits like the earned income tax credit can produce refunds for people with little or no tax liability. A preparer who serves lower-income working families could legitimately file nothing but refund returns. And fraud isn’t just about refunds. Someone who reports $500,000 in tax owed when they really owe $750,000 has shorted the government $250,000 without ever asking for a refund. If the IRS chases a $2,000 improper refund instead, it leaves far more revenue on the table and puts the burden on a taxpayer much less able to fight back. That matters, because enforcement choices aren’t neutral. The Stanford research finding that Black taxpayers were audited at 2.9 to 4.7 times the rate of others showed how a focus on refundable credits can produce deeply unequal results. Scale matters too: TIGTA’s numbers work out to an average of about eight refund returns per preparer, which makes a 100% refund rate a pretty weak signal. My proposals: compare preparers with others serving similar clients, account for volume, test whether a risk indicator actually predicts misconduct against independently verified cases, and check whether it puts disproportionate burdens on certain groups. The IRS owes taxpayers more than an assurance that a pattern looks unusual. It should be able to show that the pattern actually predicts misconduct. Tax Preparers Who Focus on Refunds Shouldn’t Raise Red Flags | Bloomberg Tax This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

    SCOTUS Ends Trump’s Bid to Freeze California Ballots, a Judge Blocks Federal Noncitizen-Voter Lists & Why Refund-Heavy Tax Preparers Shouldn’t Be Red Flags

  4. 29. Okt.

    Weil Gotshal Plans to Dissolve, the US Sues Google Over a Returning Reservist & the White House Press Fight Moves to the Oval Office

    This Day in Legal History: Black Tuesday On October 29, 1929, the New York Stock Exchange suffered the worst day of the crash that had begun the previous Thursday. About 16 million shares changed hands, a record that stood for decades, and the Dow fell about 12 percent. Investors who had bought stock on margin, with borrowed money, were wiped out as their loans were called. The crash didn’t cause the Great Depression by itself, but it became its symbol. The legal response defined American financial regulation for the rest of the century. The Securities Act of 1933 required companies selling securities to the public to register and disclose financial information. The Securities Exchange Act of 1934 created the Securities and Exchange Commission and regulated trading and margin lending. The Banking Act of 1933, known as Glass-Steagall, separated commercial banking from investment banking and created the FDIC to insure deposits. The central idea, borrowed from Louis Brandeis in today’s opening quote, was disclosure: rather than having the government judge which investments were sound, the law would require companies to tell the truth and let investors decide. The significance of October 29, 1929 is that much of modern corporate and financial law, and much of the work of the big law firms that grew up to practice it, traces back to the response to the crash. Earlier this month we marked the 1987 crash. Today’s anniversary goes back to the original. And our first story is about one of the firms that built its reputation in the aftermath of a later financial collapse. Weil, Gotshal & Manges, one of the best-known names in corporate law, has told its partners it plans to wind down. Weil’s restructuring practice made it the go-to firm for some of the largest bankruptcies in history, including Lehman Brothers and Enron. Now the firm itself is dissolving after failing to stop a wave of partner departures and, according to Law.com, failing to find a merger partner in recent weeks. The firm says it will carry out an orderly wind-down and keep serving clients in the meantime. Reports say it brought in an outside bankruptcy lawyer to advise on the process. It isn’t yet clear what dissolution means for the firm’s lawyers and staff, numbering more than a thousand, or for its creditors. Law firm collapses are rare at this scale, but they follow a pattern. The most famous recent example is Dewey & LeBoeuf, which filed for bankruptcy in 2012. When partners start leaving, they take clients and revenue with them, which puts pressure on the remaining partners’ compensation and on the firm’s ability to cover its fixed costs, like leases and debt, which leads more partners to leave. Dissolution raises legal questions too. Under partnership law, a dissolving firm doesn’t end overnight; it winds up its affairs, collecting fees, paying creditors, and distributing what’s left. Courts have fought over the “unfinished business” doctrine, which asks whether profits from client matters that departing partners take to new firms belong to the old firm’s estate. And lawyers have professional duties that don’t pause for a wind-down. Clients have the right to choose their counsel, so they must be told promptly what’s happening and be able to decide where their matters go, with files transferred and deadlines protected. The lesson for the profession is how quickly a firm’s most valuable asset, its people, can walk out the door. Weil Gotshal law firm plans to dissolve, capping dizzying fall | Reuters · Law.com · The Lawyer The federal government has sued Google in Manhattan federal court on behalf of a former employee who is an Army reservist. Mark Davisson worked at Google as a key account executive, managing relationships with customer accounts. He took a year of military leave and returned in May 2023. The government alleges that Google kept his pay and title but no longer let him manage customer accounts, a change that could have limited his advancement. Google later moved him to a cloud solutions role that also didn’t involve managing accounts, and laid him off in August 2024 as part of a broader workforce reduction. Google hasn’t publicly responded in the reports so far. The suit is brought under USERRA, the Uniformed Services Employment and Reemployment Rights Act. It requires employers to reemploy service members returning from military duty, generally in the job they would have held if they hadn’t left, or one of equivalent seniority, status, and pay. This is known as the “escalator” principle: a service member returns to the step of the escalator they would have reached if they’d never left, not just to the same salary. That’s why the case turns on more than pay and title. If the core function of Davisson’s job, managing client accounts, was taken away, the government argues he wasn’t restored to an equivalent position, even though his paycheck didn’t change. USERRA also protects returning employees from being fired without cause for a period after they return, depending on the length of service, and prohibits discrimination and retaliation based on military service. Google will likely argue that the later layoff was part of a company-wide reduction unrelated to his service. When the Justice Department brings a USERRA case itself, it’s typically because the Labor Department investigated and referred it, and the government represents the service member at no cost. Given how many reservists and National Guard members work for large employers, the case is a reminder that the law asks employers to protect not just the paycheck but the career path. US sues Google for failing to restore a former employee to a similar job following military deployment | Reuters And finally, the White House press fight has entered a new phase. Since late September, U.S. District Judge Timothy Kelly has issued orders requiring the administration to restore White House access to journalists from CNN, MS NOW, and Politico, after the President banned the three outlets over what he called negative coverage. Earlier this month, the judge also ruled the White House can’t revoke the hard passes of dozens of the outlets’ reporters. Now the outlets have expanded their lawsuit, saying the White House is still keeping them out of the press pool, the small rotating group of reporters brought into the Oval Office for events or assigned to fly on Air Force One. The White House responded that “The Fake News has no place demanding a spot in the President’s Oval Office.” Separately, press freedom groups filed their own suit this week, arguing the ban violates the public’s First Amendment right to receive information about the government. Here’s why the pool is a harder question than the hard passes. Courts have long held that once the government opens a space to the press generally, it can’t exclude particular journalists based on viewpoint without due process. The White House briefing room and grounds fit that description. But the Oval Office and Air Force One are much more limited spaces, where the President has traditionally had more control over who’s present. Last year, in the Associated Press’s case over its exclusion from the pool, an appeals court allowed the White House to keep limiting the AP’s access to those spaces while the case continued, reasoning that they aren’t open to the press at large. The outlets here will argue that the reason for their exclusion, their coverage, is what makes it unconstitutional, wherever it happens. Viewpoint discrimination, they’ll say, is forbidden even where the government has wide discretion over access. How Judge Kelly draws that line will shape how much control any President has over which reporters see him up close. CNN, MS NOW, Politico expand lawsuit over White House access limits | Reuters · Washington Post · Deadline This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  5. 28. Okt.

    A Judge Weighs the 20,000 Disputed California Ballots, SCOTUS Lets Shelved Deportation Cases Return & Fixing the Multistate Sales Tax Disclosure Pilot

    This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  6. 27. Okt.

    The Ninth Circuit Rebuffs DOJ on California Ballots, a Judge Says Maurene Comey Was Unlawfully Fired & James Comey Is Charged a Third Time

    This Day in Legal History: Federalist No. 1 On October 27, 1787, New York’s Independent Journal published an essay signed “Publius,” titled “General Introduction.” It was the first of what became 85 essays, written by Alexander Hamilton, James Madison, and John Jay, urging New Yorkers to ratify the Constitution, which had been signed in Philadelphia just six weeks earlier. Hamilton wrote this first one. Hamilton framed ratification as a test, set out in today’s opening quote, of whether people could establish good government “from reflection and choice,” rather than by “accident and force.” He also warned readers about something he saw as a recurring danger in republics: those who use zeal for liberty as a cover for ambition. “Of those men who have overturned the liberties of republics,” he wrote, “the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” The significance of October 27, 1787 is that The Federalist became the most influential explanation of how the Constitution was meant to work, and courts, including the Supreme Court, cite it to this day to interpret the separation of powers, the role of the courts, and the limits on federal power. Its central idea, that a well-designed government channels ambition through institutions so no one person can bend them to their will, runs through all three stories today, each of which tests whether the government’s power to prosecute, to remove officials, and to run elections is being used within those limits. The Ninth Circuit has denied the Justice Department’s emergency request to stop California from counting mail ballots associated with more than 20,000 registered voters the government says are likely noncitizens. We covered this fight last Tuesday, when the President threatened California election officials with prison over these same ballots. After a weekend emergency argument, the appeals court ruled Monday that the Justice Department hadn’t given the district court a fair chance to consider the case first, so it was premature for the appeals court to step in. A district court hearing is set for today. At Sunday’s argument, Judge Mark Bennett told the government’s lawyer that California appears to have the legal authority to run its own elections. Judge Patrick Bumatay, a Trump appointee, was more sympathetic to the administration. California says its safeguards against noncitizen voting are strong and that the government’s claims rest on suspect data. Here’s the legal picture. Appellate courts generally don’t decide issues the trial court hasn’t addressed first, and emergency relief is supposed to be exceptional. The Justice Department tried to skip a step, and the court said no. On the merits, states run their elections and determine eligibility, and federal law gives the federal government limited tools to intervene in how a state counts ballots, especially without a reliable showing that specific voters are ineligible. Recall that the federal SAVE system has wrongly flagged real citizens in the past. There’s also a striking statistic in the reporting: the Justice Department has sued 30 states and D.C. for refusing to hand over complete voter rolls, and so far it has lost 26 of those cases without winning one. With the election a week away, the clock is now the government’s biggest problem. Trump administration loses push to block California votes from alleged noncitizens | Reuters · NBC News · CBS News A federal judge in Manhattan has ruled that the Justice Department unlawfully fired Maurene Comey, a federal prosecutor and the daughter of former FBI Director James Comey. Maurene Comey had worked in the Southern District of New York for years, including on the Jeffrey Epstein and Ghislaine Maxwell prosecutions. She was fired abruptly in July 2025 without explanation. She sued, arguing she was fired because of who her father is and her perceived political beliefs. In a 55-page opinion, U.S. District Judge Jesse Furman agreed that the firing was unlawful, finding it violated the separation of powers, her Fifth Amendment due process rights, and federal law. He ordered her retroactively reinstated, with back pay through December 20, 2025, when he inferred she had taken another job, and ordered her personnel file changed to show she resigned rather than was fired. The Justice Department says it will appeal, calling the decision an obstruction of the President’s constitutional authority to fire people who exercise executive power on his behalf. Here’s the legal tension. Career federal prosecutors aren’t political appointees. Like most federal civil servants, they’re covered by the civil service laws, which protect them against removal for political reasons or for reasons unrelated to job performance, and which set out procedures before firing. The administration’s argument draws on the Supreme Court’s recent decisions expanding the President’s power to remove officials. But those cases have mostly involved heads of agencies and other high-level officers, not line employees. If the President’s removal power reaches every prosecutor in the Justice Department, the civil service protections that have existed since the 1880s would mean much less. That’s why the appeal will be closely watched. Trump administration’s firing of prosecutor Maurene Comey was unlawful, judge rules | Reuters · CBS News · Washington Post And finally, on the same day his daughter won her case, the Justice Department charged former FBI Director James Comey for a third time. The new charges, in Washington, accuse him of conspiracy and two counts of unauthorized transmission of national defense information. Prosecutors allege that in October 2016, while he was FBI director, Comey directed one or more people to disclose national defense information to a reporter. Comey’s lawyer, Patrick Fitzgerald, says Comey “steadfastly maintains his innocence.” Recall the history. A 2025 indictment in Virginia over his Senate testimony was dismissed after a judge found the interim U.S. attorney who obtained it had been invalidly appointed. He also faces a separate case in North Carolina over a social media post the government calls a threat. Two features of this new case stand out. First, it was brought by a criminal information, not an indictment. The Fifth Amendment generally requires a grand jury indictment for serious federal crimes unless the defendant waives it. Prosecutors can file an information, but a defendant who hasn’t waived indictment can’t be tried on it. Comey’s lawyers have already moved to dismiss on that ground. Second, timing. The information was reportedly filed under seal on October 5, and these charges carry a ten-year statute of limitations. The alleged disclosure happened in October 2016. So the filing came right at the edge of the deadline. That raises a contested legal question: whether filing an information, without a grand jury indictment or a waiver, is enough to stop the clock. Courts have disagreed. If it isn’t, the charges may be time-barred. Taken together, three separate prosecutions of the same former official, each launched with unusual procedures, will inevitably raise questions about whether the government is using its prosecutorial power for political ends, the very concern our legal-history segment raised. Ex-FBI Director Comey charged again by US Justice Department, NBC News reports | Reuters · Washington Post · Axios This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  7. 26. Okt.

    DOJ Sues to Block Alaska’s Senate Results if Sullivan Loses, Meta’s $25B Penalty Faces Appeal & How SCOTUS Reshaped the Midterms

    This Day in Legal History: The O.K. Corral On October 26, 1881, in Tombstone, in the Arizona Territory, City Marshal Virgil Earp, his brothers Wyatt and Morgan, and Doc Holliday confronted a group of cowboys, including Ike and Billy Clanton and Tom and Frank McLaury, near the O.K. Corral. The gunfight lasted about thirty seconds. Billy Clanton and both McLaurys were killed. Virgil, Morgan, and Holliday were wounded. The legend tends to end there, but the legal story is just as interesting. Days later, Ike Clanton filed murder charges against the Earps and Holliday. Wyatt and Doc were arrested and released on $10,000 bail. Justice of the Peace Wells Spicer then held a month-long preliminary hearing, with dueling witnesses: the county sheriff testified that the cowboys had tried to surrender, while other witnesses, including some considered neutral, testified that the cowboys had drawn first. On November 30, Spicer ruled there wasn’t enough evidence to send the case to trial. He found the lawmen acted within the law, though he criticized Virgil Earp’s judgment in deputizing his brothers and Holliday. The ruling didn’t end the feud. Within months, Virgil was ambushed and Morgan was killed. The significance of October 26, 1881 is that even the most mythologized act of frontier violence ended up before a judge, and what happened next turned on evidence, witnesses, and legal standards. The phrase in today’s opening quote, often attributed to Lincoln, captures the idea that in a democracy, disputes are settled by votes and by law rather than force. That idea is at the center of everything we cover today, as the courts take on an unusually large role in the run-up to the election. The Justice Department has sued Alaska election officials in federal court in Anchorage, asking a judge to block certification of the state’s U.S. Senate race if Republican Sen. Dan Sullivan loses. The President said he ordered the suit: “I’m the one that said, ‘do it.’” The theory is unusual. Another candidate on the ballot is also named Daniel Sullivan, Daniel J. Sullivan, and the department argues his candidacy could confuse voters and violates the National Voter Registration Act. It’s asking the court to bar certification if Sen. Sullivan doesn’t win and certain other conditions are met. The race between Sullivan and Democrat Mary Peltola is close. Legal experts describe the lawsuit as without precedent and facing an uphill battle. Here’s why. First, timing. Courts are generally very reluctant to change election rules close to an election, and this suit was filed 11 days before Election Day, months after the ballot was finalized. If there was a problem with the ballot, the time to raise it was before ballots were printed and mailed. Second, the statute. The National Voter Registration Act governs voter registration, things like registering at the DMV and keeping voter rolls accurate. It doesn’t regulate who can appear on a ballot or how candidates’ names are listed. That’s governed by state law. Third, the remedy. Asking a court to block certification only if one particular candidate loses is unusual, to put it mildly. Courts decide legal questions based on the claims, not on which side wins. And states, not the federal government, run and certify their elections, with Congress, here the Senate, having its own role in judging its members’ elections. Even Alaska’s other Republican senator, Lisa Murkowski, said the department “should never have filed this lawsuit,” and reports indicate the attorney general has acknowledged that blocking certification would be unlikely outside extreme circumstances. Trump administration sues to block Senate race certification in Alaska if Republican loses | Reuters · Alaska Public Media · Votebeat Last week, New Mexico state Judge Francis Mathew ordered Meta to pay $25 billion in the Cambridge Analytica case, and Reuters reports legal experts believe Meta has a strong chance of getting it reduced on appeal. Recall the background we’ve been tracking. In September, a Santa Fe jury found Meta violated New Mexico’s Unfair Practices Act more than 43 million times by misleading residents about how their Facebook data was handled. The statute allows up to $5,000 per violation, which put the theoretical maximum at about $219 billion. New Mexico asked for $35 to $40 billion; Meta asked the judge to cap it at $3.45 billion. The judge landed at $25 billion. Meta says it will appeal, that the ruling makes it nearly impossible to do business in New Mexico, and that the suit effectively imposes a “tax on speech.” Here’s why experts think the number is vulnerable. The Eighth Amendment’s Excessive Fines Clause applies to civil penalties paid to a government, and the Supreme Court held in Timbs v. Indiana that it applies to the states. A fine violates that clause if it is “grossly disproportional” to the offense. Courts also apply due-process limits to very large awards. And New Mexico’s appellate courts will review whether the judge properly exercised his discretion. Meta’s strongest arguments are likely to be the size of the penalty compared with any proven harm to individual residents, and the way the violation count was calculated: tens of millions of violations from a couple of dozen statements reaching the state’s population. New Mexico will respond that the deception reached its entire population, that the company is enormously profitable, and that a penalty has to be large enough to actually deter. Whatever the appeal brings, this case has already shown how state consumer-protection laws can create very large exposure for tech platforms. Meta has a strong chance of getting $25 billion New Mexico penalty slashed on appeal | Reuters · CNN · Source New Mexico And finally, with the midterms eight days away, Reuters has a useful look at how the Supreme Court’s decisions this year have reshaped the election, and it’s worth pulling the threads together, because we’ve covered many of them one at a time. In April, the Court further weakened Section 2 of the Voting Rights Act, making it harder for minority voters to challenge district maps as racially discriminatory, and several Republican-led Southern states then moved quickly to break up House districts with large Black populations. In June, the Court struck down federal limits on how much political parties can spend in coordination with their candidates. This month, it froze the challenge to the FCC’s guidance extending discounted ad rates to party committees, keeping it in place through the election. And last month, it allowed the administration’s SAVE voter-verification system to be used for the midterms. Other rulings went the other way. The Court refused to let the Postal Service impose new mail-ballot restrictions, with only Justices Thomas and Alito publicly dissenting, and it barred Missouri from using its new Republican-drawn congressional map. Law professor Ilya Somin’s assessment, quoted by Reuters, is that Republicans have gained a net benefit from the Court’s election rulings, while Justice Kagan has criticized the conservative majority for declining to rein in partisan gerrymandering. At the same time, polls suggest Democrats remain in a strong position. Two broader observations. First, many of these decisions came on the emergency docket, with short or no explanations, which leaves less guidance for future cases. Second, timing matters as much as substance. Some rulings changed the rules months ahead; others froze the status quo by putting off a decision until after the election. Either way, the Court has shaped this election in more ways than almost any other in recent memory. US Supreme Court rulings reshape midterm election battlefield | Reuters · SCOTUSblog · US News This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  8. 22. Okt.

    The NAACP’s Suit Over xAI’s Turbines Survives, a Judicial Council Presses a Dallas Judge in a Fitness Inquiry & What Illinois’ Swipe-Fee Fight Teaches About Tech Regulation

    This Day in Legal History: Moritz v. Commissioner On October 22, 1970, the U.S. Tax Court denied a deduction claimed by Charles Moritz, a never-married man from Denver who worked as a book editor and paid a caregiver to look after his elderly mother so he could keep working. The tax code at the time allowed a deduction for those caregiving costs to women, widowers, divorced men, and men whose wives were incapacitated. A man who had never married didn’t qualify. Moritz, representing himself, argued that the rule was unfair. The Tax Court said the statute was clear and rejected his constitutional argument. The case came across the desk of Martin Ginsburg, a tax lawyer, who showed it to his wife, Ruth Bader Ginsburg, then a law professor at Rutgers. The Ginsburgs took the appeal together. In 1972, the Tenth Circuit ruled for Moritz, holding that denying the deduction based solely on sex violated equal protection. Their brief in Moritz became the template for Ruth Bader Ginsburg’s brief in Reed v. Reed, where the Supreme Court for the first time struck down a law for discriminating on the basis of sex. The significance of October 22, 1970 is that one of the most important lines of constitutional law in the twentieth century started with a small tax deduction and a self-represented taxpayer. As a tax professor, I’ll admit I love that. It’s a reminder that the tax code isn’t just about revenue; how it defines families, workers, and caregivers reflects and shapes who the law treats as equal. The administration has asked the Supreme Court to let it resume building border barriers across the Big Bend region of Texas. On October 2, U.S. District Judge Kathleen Cardone halted construction across the roughly 500-mile Big Bend project area, along with the use of legal waivers for the project, while a lawsuit by environmental groups, including the Center for Biological Diversity, moves forward. Here’s the legal background. A 1996 law lets the Secretary of Homeland Security waive environmental and other laws to speed construction of barriers in areas of high illegal entry. Past administrations have used those waivers to bypass dozens of laws, and courts have generally upheld them. The challengers here argue the waiver authority doesn’t fit Big Bend, a remote, rugged region that includes a national park and has relatively few crossings. Judge Cardone found that construction on this scale required clear authorization from Congress, an argument related to the major questions doctrine, which says courts expect Congress to speak clearly before agencies take actions of vast economic or political significance. Solicitor General D. John Sauer called the injunction “baseless” and argued that the government’s border security interests outweigh what he described as aesthetic, recreational, and cultural harms. The administration also says leaving a gap in Big Bend could funnel crossings into the region once the rest of the border is walled off, and it says it won’t build a large wall inside the national park itself. Notably, the government is asking the Court not only for emergency relief but to effectively overrule the district judge’s decision now, without waiting for the case to work its way up. That’s an aggressive use of the emergency docket. It’s also a reversal of the usual pattern in which the major questions doctrine is used against the government’s regulatory programs. Here, the challengers are invoking it against an executive construction project. Trump asks US Supreme Court to allow Big Bend border wall construction | Reuters · CBS News · Marfa Public Radio States are preparing to keep a close eye on the Justice Department’s election monitors. The department plans to send about 1,000 monitors to all 50 states on Election Day, roughly triple the number at the last midterm and the largest observation effort in its history. NPR reports the department has already notified counties including seven in Texas, King County in Washington, Miami-Dade in Florida, and Hennepin and Ramsey counties in Minnesota. Some states are responding by monitoring the monitors. In Minnesota’s August primary, about 40 state employees, working in pairs, followed Justice Department lawyers as they traveled through two counties. California has started a similar program. Several states have issued guidance to poll workers explaining the limits on federal observers’ authority. Here’s the legal framework. The Justice Department has sent election monitors for decades, mainly to enforce civil rights laws like the Voting Rights Act and the Americans with Disabilities Act by watching for discrimination or inaccessible polling places. But monitors generally have no special legal right to enter polling places unless a court has ordered federal observers under the Voting Rights Act or the state allows it. Otherwise, access is governed by state law, and some state laws let election officials keep them outside. Monitors don’t run elections and can’t direct poll workers or challenge voters. Two things are drawing concern this year. First, the department plans to use criminal prosecutors as monitors rather than civil lawyers and support staff, as in the past. Second, there’s the context: the federal SAVE checks, the threats against California officials we covered Tuesday, and the noncitizen-voting prosecutions. Critics worry that a large federal presence staffed by prosecutors could intimidate voters, and federal law prohibits voter intimidation by anyone, including government officials. The department says critics are fear-mongering, that monitors will focus on civil rights compliance as in past elections, and that they won’t check voters’ citizenship on Election Day. Monitoring the monitors: US states prepare for surge of Justice Dept election watchers | Reuters · NPR · US News And finally, a federal judge in San Jose heard arguments on Wednesday in one of the major copyright cases over AI training, brought by music publishers including Universal Music Publishing Group, Concord, and ABKCO against Anthropic. The publishers allege Anthropic copied song lyrics without permission to train its Claude models. Both sides asked U.S. District Judge Eumi Lee to rule in their favor without a trial. Anthropic argues that training is fair use, because the model analyzes huge amounts of material to develop general capabilities, which it says is a transformative purpose. The publishers argue that training an AI that can produce copyrighted lyrics on request isn’t transformative and harms the market for the original works, pointing to evidence about nearly 120,000 prompts used to generate synthetic lyrics. Judge Lee questioned the publishers’ theory that Claude’s ability to generate lyrics threatens the market for their songs, and Anthropic noted that UMG itself has called AI “overwhelmingly a net positive” for the music industry. The judge didn’t rule. The legal question turns on fair use’s four factors, especially two of them: whether the use is transformative, and whether it harms the market for the original. Courts have split on AI training. Last year, one federal judge found that training Claude on lawfully acquired books was fair use, while another court rejected fair use where a company copied material to build a competing product. A key point is the difference between how training works and what the output does. Training on lyrics may be transformative, but if the model regularly reproduces full lyrics when asked, that output can substitute for licensed lyrics sites. The publishers have also filed a second, larger suit alleging Anthropic trained on lyrics and sheet music found in pirated books. Anthropic, music labels make key arguments in AI training case | Reuters · Lawyer Monthly · Music Ally This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

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Minimum Competence is your daily companion for legal news, designed to bring you up to speed on the day’s major legal stories during your commute home. Each episode is short, clear, and informative—just enough to make you minimally competent on the key developments in law, policy, and regulation. Whether you’re a lawyer, law student, journalist, or just legal-curious, you’ll get a smart summary without the fluff. A full transcript of each episode is available via the companion newsletter at www.minimumcomp.com. www.minimumcomp.com

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