Minimum Competence

Andrew and Gina Leahey
  • 4.8 (12)
  • Daily News
  • Updated Daily

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. 2d ago

    Reporters Turned Away From the White House Despite a Court Order, the ABA Fights for Its Accreditation Power & New York Calls Polymarket Illegal Gambling

    This Day in Legal History: Congress Proposes the Bill of Rights On September 25, 1789, the First Congress agreed on twelve proposed amendments to the newly ratified Constitution and sent them to the states for ratification. Ten of those twelve would be ratified by the states in December 1791, and we know them today as the Bill of Rights. It was the fulfillment of a promise—many states had ratified the Constitution only on the understanding that a bill of rights protecting individual liberties would swiftly follow. The amendments are the beating heart of American individual liberty. The First Amendment’s protections for speech, press, religion, and assembly; the Fourth Amendment’s shield against unreasonable searches; the Fifth and Sixth Amendments’ guarantees of due process and fair trials; the Eighth’s ban on cruel and unusual punishment. What’s remarkable is how the meaning of these spare, elegant clauses has been fought over and elaborated for more than two centuries—the words are fixed, but their application to new circumstances is a never-ending project. It’s worth remembering, too, that two of the original twelve weren’t ratified in 1789: one concerning congressional apportionment, and one on congressional pay—and that pay amendment was finally ratified in 1992, more than 200 years later, as the 27th Amendment. The significance of September 25, 1789 is that it created the framework of enumerated rights that Americans invoke against their government every single day—and never more directly than in today’s lead story, which is, at bottom, a First Amendment fight over freedom of the press playing out at the doors of the White House. On the anniversary of the day those freedoms were proposed, we watch a court try to enforce them in real time. We have a remarkable follow-up to a story we covered earlier this week: the White House barred reporters from CNN, MS NOW, and Politico from entering—just hours after a federal judge ordered their access restored and deemed the ban likely unconstitutional. Let me lay out the sequence, because it’s striking. Recall those three outlets sued after President Trump banned them over what he called their “negative stories.” This week, U.S. District Judge Timothy Kelly ruled for the outlets, temporarily blocking the ban for 14 days and finding it likely unconstitutional—a clear First Amendment win. And then, hours later, when reporters from those outlets tried to enter the White House grounds, Secret Service officers turned some of them away and even confiscated a Politico reporter’s credentials. The outlets rushed back to court, requesting an immediate hearing, and by the end of the day the White House began readmitting the journalists. Now, here’s the legal significance, and it’s serious, because this brushes up against one of the gravest issues in our legal system: compliance with court orders. When a court issues an injunction, parties are legally bound to obey it—full stop. The rule of law depends on the understanding that when a judge rules, even the most powerful actors, including the executive branch, comply. When there’s a gap—even a few hours—between a court order and the government’s compliance with it, that’s not a small administrative hiccup; it raises the specter of defiance of the judiciary, which strikes at the foundation of the separation of powers. Now, the charitable read is that this was a logistical lag—word hadn’t reached the officers at the gate—and the fact that access was restored by day’s end supports that. But it happened against a backdrop of rising concern about executive compliance with court orders generally. The significance is that the First Amendment merits question—can a President ban outlets for critical coverage—now sits alongside an even more fundamental one: whether court orders enforcing those rights will be promptly obeyed. On the anniversary of the Bill of Rights, that’s a sobering pairing. Politico denied access to White House after judge’s order, news outlet says | Reuters · Washington Post · CNBC The American Bar Association is fighting to hold onto one of its most consequential powers: its role as the federally recognized accreditor of the nation’s law schools. This week, the ABA’s legal-education council was set to meet with a federal advisory committee to defend that role, after the Department of Education recommended in August that the government withdraw recognition of the ABA as the official law-school accreditor. Let me explain why this is a big deal, because accreditation is quiet but enormously powerful. In most states, you have to graduate from an ABA-accredited law school to even sit for the bar exam—so the ABA’s accreditation standards effectively shape what every law school in America must teach, how it must operate, and who can ultimately enter the profession. That’s a tremendous amount of gatekeeping authority concentrated in a private professional organization. The administration’s objection traces to an April 2025 executive order and centers on the ABA’s diversity, equity, and inclusion requirements—specifically Standard 206, which required schools to demonstrate a commitment to diversity. And here’s the telling development: earlier this month, the ABA’s council voted 10 to 6 to repeal Standard 206, the very DEI requirement at the heart of the dispute. So the ABA is fighting on two fronts at once—defending its institutional role while simultaneously giving ground on the substantive policy that drew the administration’s fire. This fits squarely within the anti-DEI campaign we’ve tracked across this administration, from the tax-exempt-status proposal to the pressure on universities. But it’s also part of something broader—a contest over who controls the pipeline into the legal profession itself. The significance is real: if the government strips the ABA of its accreditor status, it could reshape legal education, shift accreditation power to the states or a new body, and mark an extraordinary intervention by the executive branch into the self-governance of the legal profession. For a profession that prizes its independence, that’s a genuinely existential fight. ABA fights to retain law school governance role in meeting with Trump education department | Reuters · Inside Higher Ed · Fox Business And finally, New York has sued the prediction market Polymarket, calling it an illegal, unlicensed gambling operation—and the case cuts right to a question our legal system is scrambling to answer: what exactly is a prediction market? Attorney General Letitia James filed suit seeking to block Polymarket from operating in New York, arguing that its event contracts—where users put money on uncertain future outcomes, from elections to sports to who-knows-what—meet New York’s legal definition of gambling. And since Polymarket isn’t licensed by the New York State Gaming Commission, the state says it’s operating illegally. James raised two pointed concerns: that Polymarket lets 18-to-20-year-olds trade sports markets even though New York requires mobile sports bettors to be 21, and that it avoids the taxes that licensed sportsbooks have to pay. Here’s the fascinating legal core, and it’s a classic federalism clash. Polymarket hit back within hours with its own suit, arguing that New York is overstepping, because Polymarket operates as a federally regulated exchange—its contracts are overseen by the Commodity Futures Trading Commission, the federal commodities regulator. So the battle is: is a bet on an election outcome “gambling,” which states have always regulated, or is it a “swap” or derivative—a financial instrument—which falls under exclusive federal CFTC jurisdiction? If it’s the latter, federal law may preempt New York’s gambling regime entirely. This is the same fight James picked with Polymarket’s rival Kalshi two months ago, and courts around the country are wrestling with it. The significance is that the outcome will help define whether the booming prediction-market industry is treated as a financial market or as a casino—a multibillion-dollar question about which sovereign gets to regulate it, and under which body of law. It’s regulatory categorization as destiny, and right now nobody’s entirely sure which box these things belong in. New York sues Polymarket, says it ran illegal gambling operation | Reuters · Bloomberg · CNBC 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. 3d ago

    Missouri's Map Hits SCOTUS a Third Time, a Judge Tosses Michigan's Climate-Antitrust Suit Against Big Oil & OpenAI Turns Musk's SEC Filings Against Him

    This Day in Legal History: The Judiciary Act of 1789 On September 24, 1789, President George Washington signed the Judiciary Act of 1789 into law—one of the very first acts of the very first Congress, and a document that turned the skeletal promise of Article III into a functioning national court system. The Constitution had created “one supreme Court” and left everything else to Congress’s imagination. The Judiciary Act supplied the imagination: it built a three-tiered federal judiciary of district courts, circuit courts, and the Supreme Court; it fixed the number of justices at six; and it created the office of Attorney General. The Act’s most consequential provision turned out to be a quiet one: Section 25, which gave the Supreme Court the power to review and reverse state-court decisions that ran against federal law or the Constitution. That authority—federal judicial supremacy over state courts on questions of federal law—was the seed of much of what the Supreme Court would later become, and Section 13 of the same Act was the very provision the Court would strike down in Marbury v. Madison, establishing judicial review itself. In other words, the machinery of American judicial power, and the Court’s authority to police the boundary between state and federal law, traces directly to this statute. The significance of September 24, 1789 is that it is the architecture beneath essentially everything we cover—the district courts where cases begin, the circuit courts of appeals that review them, and the Supreme Court that sits atop it all. And it’s a strikingly apt anniversary, because our lead story is that very system in action, and under strain: a dispute ricocheting between a state supreme court, a federal district judge, a federal circuit court, and the U.S. Supreme Court—the exact interplay of state and federal judicial power that the Act of 1789 first set in motion. The fight over Missouri’s congressional map is back at the U.S. Supreme Court—for the third time in a month—and it has become a genuinely dizzying illustration of how tangled our courts can get. Let me trace the bouncing ball, because the procedural chaos is the story. Missouri Republicans adopted a new map in 2025 that dismantled a Kansas City district held by Democrat Emanuel Cleaver, part of the Trump-backed national redistricting push. Then: on September 3, the Missouri Supreme Court unanimously ruled that under state law the new map can’t be used until voters approve it in a referendum. On September 8, Justice Kavanaugh, as circuit justice, rebuffed Missouri’s request to intervene. On September 10, the U.S. Supreme Court blocked the state from using the redrawn map, in an unsigned order with no dissent. But then a federal district judge and, this Monday, the 8th Circuit Court of Appeals went the other way, reviving the Republican map—which has now triggered this third trip to the Supreme Court. Here’s the legal knot at the center: this is a collision between state law and federal law. The Missouri Supreme Court’s ruling rests on the state constitution’s referendum requirement; the federal proceedings involve federal claims about the map. Untangling which sovereign’s law controls, and which court has the final say, is exactly the state-versus-federal judicial question the Judiciary Act of 1789 first tried to sort out—and today it’s playing out in real time. Meanwhile, the human cost is real: more than a million potential voters are caught in the confusion, and absentee voting is already underway using the old 2022 districts. The significance is twofold—it’s another test of mid-decade partisan gerrymandering, and it’s a vivid, almost overwhelming example of what happens when state and federal courts point in opposite directions weeks before an election. Whatever the Court does, doing it this late, on the emergency docket, leaves election administrators and voters in an impossible bind. Battle over Missouri’s congressional map reaches US Supreme Court for third time | Reuters · SCOTUSblog · CNN A federal judge has dismissed Michigan’s climate lawsuit against the oil industry—and the way she did it matters, because Michigan tried a novel legal theory that just ran aground. Most of the climate suits we’ve seen from states and cities are built on public-nuisance and consumer-protection theories—the claim that fossil-fuel companies deceived the public about climate change. Michigan tried something different and more ambitious: an antitrust theory. Attorney General Dana Nessel accused BP, Chevron, Exxon, Shell, and the American Petroleum Institute of conspiring, over decades, to suppress competition from electric vehicles and renewable energy in order to preserve fossil fuels’ dominance. The idea was to reframe climate harm as an antitrust injury—collusion to kill off cleaner competitors. U.S. District Judge Jane Beckering in Grand Rapids rejected it, and her reasoning is a classic antitrust-doctrine problem: proximate cause and antitrust standing. She found that antitrust law simply doesn’t protect against most of the injuries Michigan claimed, and that even for the one cognizable category—energy overcharges—”the distance is too great between the alleged conspiracy and Michigan’s and its residents’ overcharges” to say the conspiracy actually caused them. That’s the antitrust-standing doctrine from cases in the lineage of Associated General Contractors: to sue, your injury has to be the kind antitrust law was meant to prevent, and it can’t be too remote or speculative a link down a long causal chain. The significance is that this marks a setback for a creative frontier in climate litigation. The public-nuisance suits grind on in various states, but Michigan’s attempt to weaponize antitrust law against Big Oil for slow-walking the energy transition has, at least here, been deemed too attenuated a theory to proceed. It’s a reminder that even a compelling narrative of corporate misconduct has to fit within the specific, technical boundaries of the legal theory you choose. US judge dismisses Michigan climate lawsuit against oil companies | Reuters · Inside Climate News· US News And finally, the Musk-versus-OpenAI antitrust brawl has taken a delicious turn: OpenAI is trying to get the case thrown out by using Elon Musk’s own SEC filings against him. Recall the posture we covered—Musk’s xAI and X Corp sued Apple and OpenAI, claiming Apple’s exclusive integration of ChatGPT into the iPhone illegally shut out rivals like Grok. Then, on September 14, Musk’s companies quietly dropped Apple from the suit, leaving OpenAI as the lone remaining defendant. Now OpenAI has asked Judge Mark Pittman in Fort Worth for summary judgment—a ruling in its favor on the existing record, before the January trial. And its argument is beautifully simple. OpenAI points to the IPO registration statement that Musk’s SpaceX filed with the SEC, and says it is “replete with disclosures diametrically opposed” to xAI’s claims of competitive harm—that the rosy, optimistic picture a company is legally required to paint for investors “bears no resemblance to the doomsaying in this litigation.” Here’s why this is legally clever, and it goes to the heart of securities law. When you file with the SEC, you are under a legal obligation to be truthful and not to mislead investors—so a company’s SEC disclosures are treated as serious, considered admissions. If SpaceX and xAI told investors the AI market is competitive and full of opportunity, they can’t easily turn around and tell a court the same market is being unlawfully monopolized to their ruin. It’s the litigation version of getting caught saying two contradictory things to two different audiences—and courts do not look kindly on it. The significance is a sharp lesson that echoes my own tax-and-regulation beat: your legally-required disclosures in one forum can come back to bind you in another. You cannot tell Wall Street one story and a federal judge the opposite. Whether it’s enough to end the case before trial is up to Judge Pittman, but OpenAI has landed a genuinely elegant punch. OpenAI says SEC disclosures undermine xAI’s antitrust lawsuit | Reuters · PYMNTS · Unite.AI 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. 4d ago

    Trump Asks SCOTUS to Detain a Pro-Palestinian Scholar, a Federal Judge Takes Leave After a "Super Drunk" Conviction & DoorDash's $131.5M NYC Pay Settlement

    This Day in Legal History: The Capture of John André On September 23, 1780, three American militiamen stopped a man riding toward British lines near Tarrytown, New York. Hidden in his boot were documents and maps of the fortifications at West Point. The man was Major John André, adjutant general of the British Army—and the papers exposed one of the most infamous plots in American history: General Benedict Arnold’s secret agreement to surrender West Point to the British in exchange for money and a British command. Arnold escaped to the enemy; his name became a synonym for traitor. André was not so lucky. The legal aftermath is what makes this a landmark. André was tried not in a civilian court but before a board of fourteen American general officers—a military tribunal—which found him to be a spy and condemned him to death. He was hanged on October 2, 1780. And here’s the part worth pausing on: André conducted himself with such dignity, and the proceedings raised such difficult questions, that his case became an enduring reference point in the law of war and the treatment of spies. Even George Washington, who approved the execution, wrestled with it. The core issues—what process is owed to someone the government has seized on national-security grounds, when a military tribunal may substitute for an ordinary court, and how a nation balances self-preservation against the procedural fairness it claims to stand for—are not relics. They run from André, through the Civil War case of Ex parte Milligan, through the World War II saboteur case of Ex parte Quirin, all the way to the post-9/11 Guantanamo litigation. The significance of September 23, 1780 is that it poses, at the very founding of the country, the permanent question of how a nation treats those it deems dangerous to its security—and how much process it owes them even so. That question is not historical trivia today. It is, almost exactly, the question in our lead story. The Trump administration has asked the Supreme Court to allow the detention of a pro-Palestinian scholar—a case that squarely tests whether federal immigration law can override a noncitizen’s due-process and free-speech claims. The scholar is Badar Khan Suri, an Indian citizen and postdoctoral fellow at Georgetown who was arrested by immigration authorities in March 2025, part of the administration’s broader campaign to detain and deport foreign nationals who engaged in pro-Palestinian activism on U.S. campuses. A lower-court judge ordered Suri released after he argued his detention violated his First Amendment free-speech rights and his Fifth Amendment right to due process. Now the Justice Department is asking the Supreme Court to consider whether federal immigration law actually stripped that judge of the authority to order him released in the first place. And that framing is the whole ballgame. The government’s argument is jurisdictional: it contends that provisions of the immigration laws channel these disputes away from the federal district courts and their habeas power, so the judge had no business ordering release. The defense is constitutional: that no statute can wall off the courts from hearing claims that the government is imprisoning someone to punish protected speech. This is the same fight playing out in the parallel case of Mahmoud Khalil, the Columbia activist, where a different appeals court came out the other way—setting up exactly the kind of circuit split that draws the Supreme Court in. The significance could hardly be higher. This asks whether the government can detain noncitizens based on their political speech, and whether the courthouse doors can be closed to their constitutional claims. It’s the modern descendant of the André question—how much process the government owes those it deems a threat—and the Supreme Court is now being asked to answer it. Trump administration asks US Supreme Court to allow detention of pro-Palestinian scholar | Reuters · Al Jazeera · US News Now a sobering story about accountability within the judiciary itself: a federal judge in Michigan will take a one-year leave from the bench to continue treatment after a drunk-driving conviction. U.S. District Judge Thomas Ludington, who is 72, was arrested in October 2025 in Emmet County, in northern Michigan, with a blood-alcohol content the prosecutor put at 0.270—more than three times the legal limit, a level that falls under Michigan’s “super drunk” enhanced-penalty statute. He pleaded no contest in April to misdemeanor operating while intoxicated, was sentenced in May to six months of probation and over $1,000 in fines and costs, and is now stepping back from his caseload for a year to undergo treatment, counseling, and testing. Let me talk about why this matters legally, because it’s not about the criminal case, which is resolved—it’s about judicial accountability. Federal judges have life tenure under Article III; they can only be removed by impeachment, which is a deliberate constitutional design to protect judicial independence. That means when a federal judge has a personal crisis like this, there’s no boss to suspend them—the system relies heavily on self-regulation and on the judicial-conduct machinery, where a judge’s colleagues, through the circuit’s judicial council, can investigate and impose measures short of removal. Ludington’s decision to take a voluntary leave and pursue treatment is that self-regulation working roughly as intended: an acknowledgment that a judge who decides other people’s cases, including drunk-driving and addiction cases, has to hold himself to the standard he applies to others. And there’s a compassionate dimension here too, one that connects to a story we covered recently about the legal profession’s mental-health and substance-use crisis—that a 0.270 BAC is not “having a few too many,” it’s a sign of a serious disease that the profession is finally learning to treat as illness rather than mere misconduct. The significance is a small but real illustration of how accountability functions for the most independent actors in our legal system, and a reminder that the bench is not immune to the profession’s struggles. Michigan federal judge to remain on leave, undergo treatment after drunk-driving arrest | Reuters · The Detroit News · UpNorthLive And finally, DoorDash has reached a $131.5 million settlement with New York City over how it paid—or underpaid—its delivery workers. The city found that DoorDash either underpaid workers or took too long to pay them, and the settlement breaks down in a revealing way. Nearly $115 million goes as relief to about 264,000 workers—including roughly $83 million to resolve a fight over how to calculate pay for workers who were logged into the app and on-call but not actively making a delivery, plus $12.3 million for payments that were missed or arrived days or weeks late—and there’s a $16.7 million fine on top. The legal backdrop is the gig-economy pay wars, and New York City has been the most aggressive jurisdiction in the country here. The city enacted a first-in-the-nation minimum-pay standard for app delivery workers, and this settlement enforces the promise behind it—that the time a worker spends available and waiting for orders is compensable, not free labor the platform gets to ignore. That “on-call time counts” principle echoes classic wage-and-hour law, the same kind of question courts have long wrestled with under the Fair Labor Standards Act about when waiting time is working time. There’s also a striking allegation in the background: the city accused DoorDash and Uber Eats of engineering “design tricks” to deprive workers of more than $550 million in tips—a reminder that in the gig economy, the design of the app itself can be the mechanism of wage theft. Now, one honest caveat for workers: DoorDash’s median payout works out to about $48 per worker, so while the headline number is large, the individual relief is modest. The significance is that this is a major enforcement win for a city that has led the nation in regulating gig work, and further confirmation that “flexibility” and app-based independence don’t exempt companies from the basic legal obligation to pay people for their time. DoorDash reaches $131.5 million settlement with NYC over delivery workers’ pay | Reuters · NBC News · Bloomberg 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

  4. 5d ago

    Paramount Settles With the States to Clear Its Warner Bros. Merger, the Botched-Bar-Exam Vendor Pays Up & Why Tariffs Need an Unwinding Mechanism

    This Day in Legal History: The Preliminary Emancipation Proclamation On September 22, 1862, following the Union’s costly victory at Antietam, President Abraham Lincoln issued the preliminary Emancipation Proclamation. It gave the Confederate states an ultimatum: return to the Union by January 1, 1863, or the enslaved people in the rebelling states “shall be then, thenceforward, and forever free.” The Confederacy did not yield, and on New Year’s Day 1863, Lincoln issued the final Proclamation, recasting the Civil War as a war against slavery and setting more than three million people on the path to freedom. For legal history, the Proclamation is a landmark study in the scope—and the limits—of executive power. Lincoln did not act under a statute passed by Congress; he acted as Commander-in-Chief, framing emancipation as a “fit and necessary war measure” to weaken the Confederacy. That’s why the Proclamation, by its own terms, reached only the areas in rebellion—not the border states loyal to the Union, where Lincoln doubted his war powers extended. It was a document acutely aware of its own legal boundaries. Lincoln understood that a wartime executive order might not survive the war’s end, which is precisely why he pushed so hard for the 13th Amendment—to place the abolition of slavery on the permanent, unshakable footing of the Constitution rather than the contested ground of a presidential proclamation. The significance of September 22, 1862 is that it is one of the most consequential exercises of executive authority in American history—and a permanent lesson in that authority’s nature. It showed both the enormous power a president can wield in a crisis and the reason such power is inherently limited and temporary, requiring the other branches to make it durable. That tension—between decisive executive action and the checks that legitimate and constrain it—runs directly into my column today, which is, at its heart, about exactly that balance. Paramount has settled with California and eleven other states, clearing one of the biggest remaining hurdles to its roughly $110 billion merger with Warner Bros. Discovery—a deal that would reshape Hollywood. Let me set the stage. Back in July, a coalition of twelve states, led by California Attorney General Rob Bonta, sued to block the merger, arguing in their complaint that combining Paramount and Warner Bros. would “extinguish competition” in the entertainment industry. And you can see why they worried: this deal would unite two of Hollywood’s biggest film studios, two major streaming services, and—critically for the news business—two of the largest cable-news operations, CBS and CNN, under a single owner. This is state antitrust enforcement, and it’s a reminder that state AGs are increasingly aggressive independent players in merger review, not just spectators to the federal agencies. The settlement, which came together over the weekend after four holdout states came around, includes some genuinely interesting concessions. First, an output commitment: Paramount pledges to release 30 films a year for the first two years and 32 a year for the next three, or pay a penalty—a remedy aimed squarely at the fear that the merged giant would slash output and starve theaters. But the most striking term, from a media-law perspective, is this: the states secured a commitment to independent editorial boards for CBS and CNN. Think about what that addresses—the concern that concentrating this much news media under one owner threatens editorial independence, that the danger of media mergers isn’t just higher prices but a narrowing of the free press. The significance is twofold: it clears a major path toward closing one of the largest media mergers in history, and it shows antitrust remedies stretching beyond the usual price-and-output concerns into the territory of safeguarding editorial independence—a novel and telling wrinkle in an age of consolidated media. Paramount settles with California, other states, clearing major hurdle for Warner Bros | Reuters · Washington Post · NBC News Now a story that will resonate with anyone who’s ever sat for the bar: the vendor behind California’s disastrous 2025 bar exam has agreed to a class-action settlement. Longtime listeners may recall the debacle—the February 2025 California bar exam was marred by serious technical failures, with test-takers reporting crashing software, login problems, and lost answers on the online platform, in what became a genuine crisis for the people whose careers hung on that test. The company that administered it, ProctorU, doing business as Meazure Learning, has now agreed to settle the examinees’ proposed class action for about $1.35 million. Under the deal—which still needs approval from a federal judge in the Northern District of California—roughly 4,100 examinees would get full refunds of the $153 laptop fee they paid to take the exam. One quick clarification, because you may see a bigger number floating around: the class-action figure is $1.35 million, but separately, the State Bar of California itself sued the vendor and secured a $5.25 million settlement—so the total the vendor is paying across both actions is meaningfully larger than the class-action number alone. The legal framing is a straightforward but important one: this is a consumer/contract and negligence theory—the plaintiffs alleged the company deployed malfunctioning software despite knowing about glitches weeks in advance. That last part, the alleged prior knowledge, is what elevates it from unfortunate technical failure toward actionable misconduct. The significance goes beyond the dollars, which are modest—a $153 refund doesn’t remotely capture the stress and career disruption of a botched bar exam. It’s a cautionary tale about the high-stakes migration of critical, gatekeeping exams onto proprietary software, and about accountability when that technology fails the people who depend on it. As more of the legal profession’s own infrastructure goes digital, the reliability of the vendors behind it becomes a real professional-responsibility concern. California bar exam software provider to pay $1.35 million in class action over test | Reuters · Bloomberg Law · Law360 And finally, in my column for Bloomberg Tax this week, I take on the messy afterlife of the tariff wars—specifically, what happens when tariffs get unwound. Billions in tariff refunds are now flowing back to U.S. companies after the Supreme Court struck down the IEEPA tariffs earlier this year, and my argument is that the whole refund process reveals a deep design flaw: the government is good at returning cash to the businesses that legally paid it, but it has no way to get that money back to the consumers who actually bore much of the cost. Here’s the core problem. Tariffs legally fall on the importer—the company that writes the check—but economically, that burden gets passed down the supply chain into higher prices for distributors, retailers, and ultimately consumers. So when the tariff is refunded, the money goes back to the importer, not to the people who really paid. And companies do whatever they want with that windfall—pay down debt, reward workers, or lower prices on something totally unrelated. My favorite illustration in the piece: imagine you overpaid for a coffee machine last year because of the tariff, and the company uses its refund to discount patio furniture this year. The patio-furniture buyer gets a subsidy funded by your coffee-machine overpayment. That’s only a “refund” if you treat all consumers as one undifferentiated blob rather than actual individuals. Now here’s the legal heart of my argument, and it draws on the tax code. Section 6416 of the Internal Revenue Code already solves a version of this for federal excise taxes: a business generally can’t get a refund just because it remitted the tax—it has to show it either didn’t pass the tax on to customers, or it repaid them, or they consented. Tariffs have no comparable mechanism. So my proposal is that Congress should require any temporary tariff to contain an unwinding mechanism from the very beginning—specifying who gets refunded, what happens when the burden was shifted downstream, whether claims accrue interest, and how Treasury should account for potential refund liability while the tariff is even in effect. And this ties directly to today’s legal-history theme: the Supreme Court, in striking down those tariffs, essentially treated tariffs as a branch of the taxing power. So maybe, I argue, we should start treating their unwinding with the same seriousness—and the same built-in checks—we give other taxes. Given that this administration already exceeded the tariff authority Congress delegated it, this isn’t a hypothetical worth shrugging at. It’s a design problem Congress should fix before the next tariff, not after. Tariffs Need a Checks-and-Balances System From the Beginning | 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

  5. 6d ago

    Tesla's Race-Discrimination Trial Opens, CNN, MS NOW and Politico Sue Over a White House Press Ban & Law Schools Confront AI

    This Day in Legal History: Sandra Day O’Connor Confirmed On September 21, 1981, the United States Senate voted 99 to 0 to confirm Sandra Day O’Connor to the Supreme Court of the United States, making her the first woman ever to sit on the nation’s highest court—191 years after the Court was established. Nominated by President Ronald Reagan, who had pledged during his campaign to name a woman to the Court, O’Connor sailed through confirmation with unanimous support, the lone missing vote belonging to a senator away at a conference. O’Connor’s path to that seat is a story about the barriers she broke to get there. A graduate near the top of her class at Stanford Law School, she nonetheless found that law firms in the early 1950s would not hire a woman as an attorney—one offered her a job as a legal secretary. She built her career in public service and Arizona state government and judiciary instead, and that pragmatic, real-world background shaped the justice she became: not an ideologue, but a cautious, case-by-case decider who for years held the pivotal swing vote on a closely divided Court, casting the deciding ballot on questions from affirmative action to abortion to the limits of executive power. The significance of September 21, 1981 is both symbolic and substantive. Symbolically, it shattered a two-century barrier and reshaped who Americans could imagine wielding the judicial power. Substantively, O’Connor’s controlling opinions defined American law for a generation. And it’s a fitting anniversary for today, because our lead story is about a workplace accused of denying opportunity on the basis of who people are—a reminder that the promise of equal treatment that O’Connor’s own career embodied remains, so often, a promise the law is still fighting to keep. Tesla is heading to trial in California over allegations that it allowed rampant race discrimination against Black workers at its flagship Fremont assembly plant—one of the most significant employment-discrimination cases against a major American company to reach a courtroom in years. The suit was brought by California’s Civil Rights Department, and that’s the first thing worth understanding: this isn’t a private plaintiff, it’s a state civil-rights agency suing on behalf of workers, which brings the enforcement power of the state to bear. The trial opened Monday in Oakland before state Superior Court Judge Peter Borkon, and it’s scheduled to run all the way to October 30—a long trial that signals how much evidence is in play. The allegations, filed back in 2022, are stark. The department claims Black workers at Fremont were subjected to pervasive harassment—racial slurs, racist graffiti, including in bathrooms—and that Tesla failed to prevent or stop it. It further alleges the plant was effectively racially segregated, with Black workers funneled into the lowest-paying, least desirable jobs, paid less, and passed over for promotions. Legally, these are claims under California’s Fair Employment and Housing Act, the state’s robust anti-discrimination statute, and they sound in two theories we should distinguish: hostile-work-environment harassment, where the question is whether the workplace was permeated with discriminatory intimidation severe enough to alter employment conditions, and disparate treatment in pay and promotion. Tesla denies wrongdoing, says it doesn’t tolerate discrimination, and says it has fired workers who engaged in misconduct—which previews its likely defense: that any harassment was the work of rogue bad actors the company addressed, not a condition it allowed to fester. The significance is considerable. This is one of a whole series of discrimination cases Tesla has faced over Fremont, including a parallel federal EEOC suit, and a state agency taking one to a full jury trial—rather than settling—makes it a landmark test. Thousands of workers are implicated, the company is among the most high-profile in the world, and the outcome will say something about how seriously the law will hold a corporate giant responsible for the culture of its factory floor. Tesla faces major trial for alleged bias against Black workers, after years of lawsuits | Reuters · US News · Business Standard Three major news organizations—CNN, MS NOW, and Politico—have sued the Trump administration after being banned from the White House, in a First Amendment fight with real echoes of a case from the last Trump term. Here’s what happened: the President announced he was barring the three outlets from the White House because, in his telling, he didn’t like their “negative stories,” and over the weekend their reporters—including journalists from each outlet—tried to enter the grounds to cover the news and were turned away by the Secret Service, which deactivated and seized their press passes. The outlets are now in court arguing this is unconstitutional viewpoint discrimination and a violation of press freedom. The legal framework here is well-developed, and it’s why the outlets have a strong hand. The controlling precedent traces to a 1977 D.C. Circuit case, Sherrill v. Knight, which held that once the White House opens press access, it can’t deny a journalist a hardpass without due process and a compelling reason—the government can’t hand out access based on whether it likes the coverage. That principle was reaffirmed in 2018, when a court sided with CNN after the first Trump administration pulled correspondent Jim Acosta’s press pass—and, tellingly, CNN has brought back Ted Boutrous, the First Amendment lawyer who won that Acosta case, to lead this one. The core constitutional problem for the administration is that its stated reason—punishing outlets for critical coverage—is close to a textbook definition of unconstitutional viewpoint-based retaliation against the press. Now, the courts have never said White House access is unlimited or that any journalist can demand entry, so there’s nuance about what process and standards apply. But retaliating against specific outlets for the content of their reporting sits at the very core of what the First Amendment forbids the government from doing. The significance is that this is a direct test of press freedom against executive power—whether a President can use physical access to the White House as a cudgel to reward friendly coverage and punish critical coverage. Given the precedent, the outlets enter court with the wind at their backs. CNN, MS NOW and Politico file lawsuit against Trump administration over White House access | Reuters · CNN · MS NOW And finally, a story close to my own world: American law schools are grappling with how to teach law in the age of AI—and some are responding by banning the technology from the classroom entirely. The University of Chicago Law School, notably, has barred phones, tablets, and laptops from its core first-year classrooms this academic year. The rationale is worth taking seriously, because it’s not mere technophobia. The concern is that generative AI, and screens generally, undermine the Socratic method—the centuries-old back-and-forth of cold-calling and live argument that is the signature of legal education. As the chair of Chicago’s AI committee put it, the whole point is to do things “the hard way—because that’s how you learn.” The worry is that if a first-year law student can have ChatGPT instantly summarize a case, spot the issue, and draft the analysis, they never actually build the mental muscles—the close reading, the legal reasoning, the ability to think on their feet under pressure—that the profession requires. And here’s the crucial nuance that makes this more than a simple ban: schools like Chicago aren’t rejecting AI for the whole curriculum. The plan is foundational skills first, AI later—teach students to reason without the tool in year one, then teach them to use it ethically and effectively in advanced research, writing, and clinical work down the line. It mirrors a genuine debate splitting legal education, with many schools racing in the opposite direction, expanding AI instruction from day one. As someone who teaches at the intersection of law and technology, I find this the right instinct: you have to understand what the tool is doing before you can responsibly delegate to it, and every disaster we’ve covered on this show—the hallucinated citations, the sanctioned lawyers, the ChatGPT-fabricated testimony in that New Mexico murder appeal—is ultimately a story about someone who trusted the tool before they’d mastered the underlying judgment. The significance is that the profession’s training pipeline is being redesigned in real time around a single question: how do you produce lawyers who can harness AI without being hollowed out by it? Laptop bans, new tech courses: US law schools grapple with AI | Reuters · Inside Higher Ed · Forbes This is a public episode. 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  6. Sep 16

    Charlie Kirk's Family Eyes a Suit Against UVU, Noncitizen-Voting Defendants Challenge the Law Itself & the CLARITY Act Crashes in the Senate

    This Day in Legal History: The First Peacetime Draft On September 16, 1940, President Franklin D. Roosevelt signed the Selective Training and Service Act, establishing the first peacetime military draft in American history. With France fallen and Britain under siege, the country was bracing for a war it had not yet entered, and the Act required men in a broad age range to register for potential conscription. Within a month, the first registration was underway; within two, the first draftees were entering service. The law sits at the heart of one of constitutional law’s most fundamental questions: the scope of federal power over the individual. Congress’s authority to raise armies is explicit in the Constitution, and the Supreme Court had already upheld conscription during World War I in the Selective Draft Law Cases of 1918, rejecting arguments that a compelled draft amounted to involuntary servitude barred by the 13th Amendment. But doing it in peacetime was new, and it sharpened the debate over how far the national government could reach into a citizen’s life absent a declared war. The significance of September 16, 1940 echoes for decades. The draft it created would swell to power the American war effort, and the Selective Service system it established would endure through Korea and Vietnam—where it became the flashpoint for some of the most important First Amendment cases in our history, like United States v. O’Brien, the draft-card burning case that gave us the modern test for regulating symbolic speech. It’s a fitting anniversary for today, because our second story is, at its core, about that same enduring question—the limits of federal power to reach and prosecute individuals—just in the context of elections and immigration rather than war. The family of Charlie Kirk plans to sue Utah Valley University over alleged security failures at the campus event where the conservative activist was shot and killed last September. According to the reporting, the family’s lawyers have signaled their intent to bring a claim centered on the university’s alleged failure to provide adequate security for the event. Let me walk through the legal terrain here, because it’s more complicated than a typical negligence case. The core theory would be premises liability and negligent security—the idea that an entity hosting an event owes a duty of reasonable care to protect attendees from foreseeable harm, including, in some circumstances, third-party violence. Plaintiffs in these cases have to show the harm was foreseeable and that reasonable security measures would have prevented it. But there’s a major hurdle when the defendant is a public university: sovereign immunity. Utah Valley University is a state institution, and states and their arms are generally shielded from suit except to the extent they’ve waived that immunity, typically through a state tort claims act that caps damages and imposes strict notice deadlines and procedural requirements. So before this ever reaches a jury on the merits, the family will have to navigate Utah’s governmental immunity framework—and those statutes often sharply limit both whether you can sue a public entity for this kind of failure and how much you can recover. The significance is that this opens a second legal front around the Kirk killing—the criminal case against Tyler Robinson, which we covered when a judge sent it to a death-penalty trial, and now a potential civil suit against the institution that hosted the event. It also raises a question that every university and venue in the country is now asking: what is the legal duty to secure a high-profile, controversial public event, and who bears the liability when security fails? Family of Charlie Kirk plans suit against Utah university over alleged security failures | Reuters · ABC News · The Salt Lake Tribune In a genuinely clever piece of criminal-defense lawyering, several noncitizens charged with illegally voting in U.S. elections are now challenging the constitutionality of the very law being used to prosecute them. Five defendants in separate federal cases in Miami and Madison, Wisconsin, have argued—for the first time in court—that the 1996 statute they’re charged under is unconstitutional. That law was part of the Illegal Immigration Reform and Immigrant Responsibility Act, and it criminalizes voting by noncitizens in federal elections. The challenge lands in the middle of the administration’s aggressive push to prosecute what it claims is widespread illegal voting by noncitizens—a claim, worth noting, that study after study has found to be exceedingly rare. Here’s the legal chess match. The defendants are attacking Congress’s authority to criminalize this conduct at all. The Justice Department’s counter is twofold: first, that the Supreme Court has recognized Congress’s power to protect election integrity—pointing to laws like the one criminalizing voting twice in the same election; and second, and more cleverly, that this statute isn’t really an election-regulation law but an immigration law, and Congress’s authority over immigration is about as broad as it gets. That framing matters enormously, because if the statute is grounded in the immigration power rather than the elections power, it stands on much firmer constitutional footing. The results so far are mixed—a judge in Miami already denied one such motion, siding with the DOJ. But a ruling for the defendants, which could come before the November 3 midterms, would raise serious questions about the federal government’s authority to bring these cases at all. The significance is that this is a constitutional test of the legal foundation beneath the entire noncitizen-voting prosecution campaign—and it’s being litigated on the clock, right up against an election. Noncitizens accused of illegal US voting challenge Trump’s authority to prosecute them | Reuters · US News · Yahoo News And finally, in a major blow to the crypto industry, the Senate’s landmark crypto market-structure bill—the CLARITY Act—has failed. Now, one note before we dig in: some early coverage framed the day’s vote as the Senate moving to “advance” the bill, but the actual outcome was a defeat. This was a cloture vote—the procedural step to cut off debate and move to a final vote—and it needed 60 votes to succeed. It got 49, against 50 no votes. That’s not just short of 60; it’s short of a simple majority, which tells you how far the bill was from passing. The no votes included all Democrats plus four Republicans—Susan Collins, Josh Hawley, Jerry Moran, and Thom Tillis. Here’s what the bill would have done and why it matters. The CLARITY Act was designed to create the first comprehensive federal framework for crypto markets—crucially, by sorting out the long-running turf war between the SEC and the CFTC over who regulates what. That question—is a given crypto token a “security” regulated by the SEC, or a “commodity” regulated by the CFTC?—has bedeviled the industry for years, and legal uncertainty has been its biggest complaint. So why did it fail? Reporting indicates the sticking point was ethics provisions covering senior public officials—Democrats wanted stronger conflict-of-interest rules, an issue with obvious resonance given the current administration’s own crypto ventures, and negotiators couldn’t bridge the gap despite incorporating more than 120 Democratic requests. The significance is substantial. This effectively ends comprehensive crypto market-structure legislation in the Senate for 2026, after the industry spent years and hundreds of millions of dollars lobbying for it. Crypto remains in the regulatory limbo it’s been fighting to escape—governed by enforcement actions and case-by-case litigation rather than a clear statutory framework—and the “is it a security or a commodity” question stays exactly where it’s been: unresolved. US Senate vote fails to advance landmark crypto bill | Reuters · CNBC · NPR This is a public episode. 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  7. Sep 15

    Supreme Court Blocks Trump's Mail-Ballot Restrictions, Musk's X Drops Apple but Keeps Suing OpenAI & Why Breaking Up the Big Four Won't Fix Auditor Misconduct

    This Day in Legal History: The 16th Street Baptist Church Bombing On September 15, 1963, members of the Ku Klux Klan planted dynamite beneath the steps of the 16th Street Baptist Church in Birmingham, Alabama—a hub of the civil rights movement—and detonated it on a Sunday morning. The blast killed four young Black girls: Addie Mae Collins, Cynthia Wesley, Carole Robertson, and Denise McNair. It was an act of racial terrorism aimed at the heart of a community, and it became one of the galvanizing atrocities of the civil rights era. The legal aftermath is a study in the agonizing slowness of justice. Though the FBI identified suspects within a few years, no one was prosecuted at the time—an all-too-familiar failure of Southern justice to hold white supremacists accountable for violence against Black Americans. It took fourteen years for the first conviction: Robert Chambliss, found guilty of murder in 1977. And it took until the twenty-first century for the rest—the FBI reopened the case in 1997, leading to the convictions of Thomas Blanton in 2001 and Bobby Frank Cherry in 2002, nearly forty years after the crime. A fourth suspect died before he could be charged. The significance of September 15, 1963 for the law is twofold. The bombing helped build the political will that produced the Civil Rights Act of 1964 and the Voting Rights Act of 1965—the deaths of those four girls were not in vain in the sense that they hardened the nation’s resolve to write equality into law. And the decades-long road to conviction is a sobering lesson about accountability: that justice delayed is a profound injustice, but also that the law’s memory can be long, and that consequences can reach the responsible actors even many years after the fact. That last idea—that accountability shouldn’t expire just because time has passed or the guilty have moved on—runs, in a much quieter register, straight through my column today. In a significant loss for the administration, the Supreme Court has refused to let the U.S. Postal Service impose its new mail-ballot restrictions for this November’s midterm elections—effectively ending, for this cycle, a fight we’ve been tracking for weeks. Recall the sequence: an executive effort to have the Postal Service dictate new requirements on how states handle mail-in ballots; a Boston federal judge, Indira Talwani, blocking it as likely unlawful because the Postal Service has no authority to control mail-in voting; the administration racing to the Supreme Court on the emergency docket; and then, just yesterday, a second judge blocking it too. Now the Supreme Court has spoken, and it kept the injunction in place, finding the administration was unlikely to succeed on the merits. The most telling part is Justice Kavanaugh’s concurrence. He didn’t fully close the door on the government’s statutory argument—he wrote there’s “at least a fair prospect” the rule falls within the Postal Service’s authority—but he said that imposing this rule in the middle of the 2026 election would be arbitrary and capricious under the Administrative Procedure Act. That’s the Purcell principle in spirit: courts are extremely wary of changing election rules right before an election, because doing so breeds chaos and confusion for voters and administrators. So the practical outcome is clear: the old rules govern this midterm, and the mail-ballot restrictions are off the table for now. The significance is that the judiciary—including a conservative justice—drew a hard line against reshaping the mechanics of a national election, on the fly, weeks before people vote. The merits question may return in calmer times, but the attempt to change the rules mid-election has failed. In loss for Trump, US Supreme Court won’t let Postal Service restrict mail ballots | Reuters · NPR · CNBC Elon Musk’s X Corp and his AI venture—now operating as SpaceXAI—have dropped Apple from the antitrust lawsuit they filed last year, while vowing to press on against their real target: OpenAI. The suit, filed in federal court in Texas, accused Apple of illegally conspiring with OpenAI to monopolize the markets for smartphones and generative-AI chatbots, essentially by baking ChatGPT into Apple Intelligence on iPhones and freezing out rival chatbots like Musk’s Grok. In a court filing, Musk’s companies moved to dismiss the claims against Apple—without explaining why, and without saying whether a settlement was reached—but they made clear the case against OpenAI continues. Here’s the legal meat. The core theory is an exclusive-dealing and monopolization claim: the allegation that a dominant platform, Apple, and a dominant AI provider, OpenAI, struck a deal that unlawfully forecloses competitors from a critical distribution channel. That’s a serious antitrust argument in the abstract—exclusive arrangements by dominant firms can violate the Sherman Act if they lock rivals out of the market. But it sits inside a very tangled rivalry: Musk co-founded OpenAI, is now its bitter competitor and litigation adversary on multiple fronts, and runs a competing chatbot. Dropping Apple while keeping OpenAI in the case tells you where Musk sees leverage—and possibly that Apple, facing its own separate antitrust battles, found a way to resolve its piece. The significance is that this is a live front in the biggest question in tech antitrust right now: as AI gets embedded into the dominant platforms we all use, who controls the gateways, and do those integration deals help consumers or unlawfully entrench the incumbents? That fight is very much still on—just now aimed squarely at OpenAI. Musk’s X Corp and SpaceXAI resolve antitrust lawsuit against Apple | Reuters · CNBC · The Wrap And finally, in my column for Bloomberg Tax this week, I take on a question that’s playing out in Australia but has direct lessons for the U.S.: what to actually do about misconduct at the Big Four accounting firms. Australia is considering breaking up its Big Four—separating audit from consulting—in the wake of a KPMG scandal, and my argument is that structural separation, while fine, is only part of the answer, and policymakers shouldn’t mistake it for a cure-all. Here’s the core of the problem. KPMG Australia is accused of using confidential information from one client to win audit business from others. And here’s the key insight: splitting off the consulting arm wouldn’t stop that. An audit-only firm still holds confidential information its competitors don’t have, and it can still be tempted to weaponize that information to win the next audit client. In fact, we’ve seen exactly this in the U.S.—back in 2019, the SEC settled with KPMG’s U.S. firm over a partner who tried to use improperly obtained information about regulatory inspections to win audit business. Spinning off consulting wouldn’t have prevented it, because the misconduct arose from competition inside the audit sector itself. So what do I actually propose? Two things. First, target how firms compete for business: require real controls on who can access confidential client and regulatory information, mandate independent review of major sales pitches by someone whose pay isn’t tied to winning the contract, and let regulators spot-check bids. Second—and this is the part I care most about—fix who pays. Right now, a partner can win business improperly, collect the bonus, and leave the firm years before anyone notices. When the penalty finally lands, it’s paid by the current partners, people who may have had nothing to do with it, while the wrongdoer keeps the spoils. Australia has moved to increase individual penalties, which is good, but penalties aren’t the same as clawing back the money. I argue firms should structure partner compensation so that pay tied to misconduct stays recoverable for a set period—even after the partner walks out the door. The deeper principle, and you’ll recognize it from today’s legal-history segment, is that accountability shouldn’t expire just because time has passed or the guilty party has moved on. Breaking up the Big Four might change what firms sell. But we also need to change how they win business—and who pays when the lines are crossed. KPMG Australia Scandal Shows Misconduct Rules Need Strengthening | 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

  8. Sep 14

    Arizona Sues L'Oréal Over Hair-Relaxer Cancer Risks, a Second Judge Blocks the Mail-In Voting Rule, the "Loyalty Question" Falls & a ChatGPT Brief Backfires

    We’ve launched Minimum Competence CLE, and our first course is now available completely free. Researching Federal Tax Issues After Loper Bright looks at how the Supreme Court’s decision ending Chevron deference changes the way lawyers should research and evaluate Treasury regulations, IRS guidance, and other federal tax authorities. Take the course and earn CLE credit at cle.minimumcomp.com This Day in Legal History: Theodore Roosevelt Sworn In On September 14, 1901, President William McKinley died in Buffalo, New York, eight days after being shot by an assassin at the Pan-American Exposition. That same afternoon, in the parlor of a private home, 42-year-old Vice President Theodore Roosevelt took the oath of office—administered by U.S. District Judge John R. Hazel—and became the youngest person ever to hold the presidency. The moment is a landmark in the constitutional law of presidential succession. The Constitution provided that the powers of the presidency “devolve” on the vice president upon the president’s death, but in 1901 the mechanics were still governed as much by precedent as by clear rule. Roosevelt’s swift, orderly assumption of office—taking the oath the very day McKinley died, before a federal judge, with the cabinet present—reinforced the norm of immediate, seamless succession that the country would rely on again and again. It wouldn’t be until the 25th Amendment, ratified in 1967, that the Constitution spelled out in detail how succession, vice-presidential vacancies, and presidential disability actually work. The significance of September 14, 1901 is twofold. It launched a presidency that would reshape American law—Roosevelt the trust-buster, whose antitrust campaign against the great monopolies gave real teeth to the Sherman Act, and Roosevelt the conservationist and regulator, who helped build the modern administrative state with agencies to police food, drugs, and railroads. And it stands as an early, sturdy example of the peaceful, lawful transfer of power in a moment of national trauma. Roosevelt’s own credo, captured in today’s opening quote, that no one stands above the law and no one below it, is a fitting frame for a day of stories about the reach of the law—over a corporation, over the executive branch’s power to run elections and hire its workforce, and over a lawyer’s duty to the court. Arizona has become the first U.S. state to sue L’Oréal over cancer risks allegedly linked to chemical hair relaxers, accusing the company of concealing evidence that the products could cause cancer in women. Attorney General Kristin Mayes filed the suit in state court, alleging L’Oréal violated Arizona’s consumer-protection laws by marketing hair relaxers—products used predominantly by Black women—for decades without warning about the risks of ovarian and uterine cancer. The complaint is pointed about the equity dimension, accusing the company of exploiting, in its words, “centuries of social pressures and discriminatory beauty standards” affecting people of African descent while prioritizing profit over safety. Here’s the legal architecture worth understanding. This is a state enforcement action, which is a different animal from the private suits: Arizona isn’t just seeking damages for injured individuals, it’s invoking the state’s consumer-protection authority and asking a court to force L’Oréal to stop selling the products unless it warns of the cancer risk. That failure-to-warn and deceptive-marketing theory is the same family of claim we saw in the Texas TikTok case last week—the state as enforcer, alleging the company misrepresented safety. The backdrop is enormous: L’Oréal already faces more than 12,000 personal-injury suits consolidated in federal multidistrict litigation in Chicago, a wave that took off after a 2022 National Institutes of Health study found women who frequently used these products were more than twice as likely to develop uterine cancer. The significance is that a state attorney general has now entered the fray with the distinct leverage of consumer-protection law—penalties, injunctions, and the state’s investigative muscle—and Arizona being first often means it won’t be last. Arizona accuses L’Oréal of concealing cancer risks linked to hair relaxers | Reuters · CNBC · Courthouse News A second federal judge has now blocked the administration’s mail-in voting restrictions—and the timing could hardly be sharper, with ballots for the November 3 midterms already starting to go out. Washington-based U.S. District Judge Carl Nichols, a Trump appointee, granted the Democratic Party a preliminary injunction against the new U.S. Postal Service rule that would tighten how mail-in ballots can be sent, finding bluntly that “no statute grants the Postal Service the power to issue key parts of the rule.” That’s a classic administrative-law holding: an agency has only the authority Congress actually gave it, and when it acts beyond that statutory grant, courts will stop it. Judge Nichols is the second judge to block the rule—Boston-based Judge Indira Talwani had earlier found it likely unlawful and unconstitutional. And all of this is unfolding while the Supreme Court is still weighing the administration’s emergency request to overturn that separate order, which we covered when the administration ran back to the justices two weeks ago. So step back and look at the board: two district judges have now independently blocked the rule, one of them a Trump appointee, and the Supreme Court is simultaneously being asked to clear the way for it—all as actual ballots hit actual mailboxes. The significance is that the judiciary keeps rejecting the administration’s attempts to reshape election mechanics from the executive branch, increasingly on the straightforward ground that the executive is claiming powers Congress never granted. But with the emergency docket still live and the election underway, the rules governing how millions of people vote remain genuinely unsettled at the worst possible moment. Trump’s mail-in voting restrictions blocked by a second judge | Reuters · NBC News · SCOTUSblog A federal judge has struck down the administration’s “loyalty question”—the requirement that applicants for career federal jobs write essays explaining how they’d help advance President Trump’s policies and executive orders. U.S. District Judge George O’Toole in Boston sided with three unions, including the American Federation of Government Employees, halting the question on the grounds that it likely violated the Administrative Procedure Act and infringed on First Amendment speech rights. To see why this matters, you have to understand the century-old bargain at the heart of the federal civil service. Since the Pendleton Act of 1883—passed after a disappointed office-seeker assassinated President Garfield—the United States has hired most of its federal workforce based on merit, not political loyalty, precisely to prevent a spoils system where government jobs are handed out as rewards for partisan fealty. The loyalty question, which OPM had folded into a “Merit Hiring Plan” and which reportedly appeared in more than 70,000 job postings, cut directly against that principle by asking nonpartisan civil servants to profess support for a particular president’s agenda. The judge’s First Amendment point is crucial: the government generally cannot condition public employment on an applicant’s political beliefs or compel them to endorse a political viewpoint—that’s the doctrine running from cases like Elrod v. Burns and Rutan, which limit political patronage in government hiring. The significance is that this is a judicial defense of the merit-based civil service against politicization—a ruling that the machinery of government is supposed to serve the public and the law, not the personal policy agenda of whoever currently occupies the White House. US judge blocks Trump administration’s ‘loyalty’ question for job applicants | Reuters · US News · HuffPost And finally, a story that lands squarely in our ongoing series on legal AI gone wrong—and this one is about as serious as it gets, because a man’s life sentence hung in the balance. The New Mexico Supreme Court has fined a defense attorney, Stephen Aarons, $5,000 and held him in contempt after his brief in a murder appeal cited police testimony and witnesses that ChatGPT simply made up. Aarons was appealing the conviction of Oscar Renee Sandoval, who was sentenced to life in prison. He told the court he fed a transcript and case materials into ChatGPT, expecting it would produce what he called “a bulletproof summary”—and instead it fabricated evidence, including invented details like a claim that the shooter wore dark pants and a white shirt. The court didn’t just fine him; it said he’d shown “a lack of remorse and a lack of concern for his client,” and it’s referring him to the disciplinary board. Now, we have covered a parade of these cases—the sanctioned lawyers, the fake citations—but this one is different in a way that should genuinely alarm every lawyer listening. This isn’t a contract dispute or a routine motion; it’s a criminal appeal, where the fabricated material goes to the reliability of a conviction that put a human being away for life. It’s the intersection of two things we’ve hammered on: the professional-responsibility duty of candor and competence—Rule 11, and the basic obligation to verify what you file—and the specific, documented unreliability of generative AI. And recall that just last week we covered Harvey, the $15.5 billion legal-AI company, buying a “guardrails” firm precisely to constrain this behavior. This case is why that matters. The significance is a hard, unavoidable lesson: AI is a tool, and the lawyer—not the tool—remains responsible for every wo

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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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  • Creator
    Andrew and Gina Leahey
  • Years Active
    2023 - 2026
  • Episodes
    918
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    © Andrew Leahey
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