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. 3d ago

    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

  2. 4d ago

    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

  3. 5d ago

    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

  4. 6d ago

    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

  5. Oct 22

    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

  6. Oct 21

    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: Abrams v. United States On October 21, 1919, the Supreme Court heard argument in Abrams v. United States. Jacob Abrams and several other Russian immigrants had thrown leaflets from a Manhattan building criticizing American military intervention in Russia and calling for a general strike. They were convicted under the Sedition Act of 1918 and sentenced to as much as twenty years in prison. That November, the Court upheld their convictions, 7 to 2. The case is remembered for its dissent. Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, argued that the government may punish speech only when it presents a clear and imminent danger, not because it is unpopular or distasteful. He wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” the line that gave us the phrase “the marketplace of ideas.” Earlier that same year, Holmes had written the Court’s opinion upholding a conviction in Schenck v. United States. In Abrams, he moved toward a much more protective view of speech. The significance of October 21, 1919 is that Holmes’s dissent became, over the following half century, the foundation of modern First Amendment law, culminating in Brandenburg v. Ohio in 1969. It’s also a reminder that the idea of a market, where outcomes come from competition rather than decree, has shaped how American law thinks about speech as much as commerce. And today’s column is about what happens when the law tries to dictate how a market’s plumbing must work. A federal judge in Mississippi has refused to let the Environmental Protection Agency end a lawsuit the NAACP brought against Elon Musk’s artificial-intelligence company, xAI. The NAACP and its Mississippi chapter allege that xAI and a subsidiary built and ran gas-fired turbines in Southaven, Mississippi, without the permits the Clean Air Act requires. Those turbines supply power to xAI’s Colossus 2 data center just across the state line in Memphis. Residents in the area, many in predominantly Black neighborhoods, have raised concerns about air pollution. The NAACP sued under the Clean Air Act’s citizen-suit provision, which lets private parties enforce the law when the government doesn’t. The Justice Department, on behalf of the EPA, moved to intervene and argued that the agency could dismiss the case because federal regulators have primary authority to enforce the statute. U.S. District Judge Debra Brown agreed the EPA could join the case but held it couldn’t end the case on its own. Here’s why that matters. Citizen suits exist precisely because Congress didn’t want enforcement of environmental laws to depend entirely on the government’s willingness to act. The statute gives the government a way to take the lead: it can preempt a citizen suit by diligently prosecuting its own enforcement action. But the court’s ruling means the government can’t simply step in and shut down a private suit while not enforcing the law itself. If the EPA could do that, the citizen-suit provision would offer little protection exactly when it’s most needed. The ruling doesn’t decide whether xAI violated the law. That’s still to come. But it ensures the community’s claims will be heard. It also follows a pattern we’ve seen this fall, from the grant-conditioning cases to the agency-dismantling cases: courts insisting that the government’s preferences don’t automatically override the procedures Congress put in place. US judge rejects Trump administration bid to block NAACP lawsuit against Musk’s xAI | Reuters · Earthjustice · Lawyer Monthly Now a sensitive story about how the federal judiciary polices itself. U.S. District Judge Ada Brown of the Northern District of Texas, in Dallas, has been temporarily removed from hearing cases after a judicial investigation found a “reasonable basis” to conclude she may have a mental condition interfering with her ability to do her job. That’s not a medical diagnosis, and Judge Brown has rejected the suggestion. The investigation pointed to concerns about her workload: she had recused herself from more than 40 cases since June, and a recent report identified 78 undecided motions on her docket. On September 29, the Fifth Circuit’s judicial council reassigned her existing cases and barred her from receiving new ones for three months or until further notice. It also ordered her to undergo an independent psychiatric evaluation. Judge Brown has said she won’t participate further in the proceedings, and the council is now urging her to reengage. Here’s the legal framework. Federal judges have life tenure under Article III and can be removed only by impeachment. That protects judicial independence, but it also means there’s no ordinary way to handle a judge who can’t do the job. The Judicial Conduct and Disability Act of 1980 provides a limited process: a circuit’s judicial council can investigate and take measures short of removal, like temporarily withholding new cases, requesting voluntary retirement, or referring the matter to the Judicial Conference, which can in turn refer it to the House for possible impeachment. Last month we covered a Michigan judge who voluntarily took leave for treatment after a drunk-driving conviction. That’s how the system works best, with the judge’s cooperation. When a judge declines to participate, the council’s tools are narrower and the outcome less certain. It’s worth remembering that behind the procedure is a person, and that mental health conditions are health conditions. The goal of the process is to protect the litigants who depend on a functioning court while treating the judge fairly. Texas federal judge with suspected mental condition urged to reengage with inquiry | Reuters · ABA Journal · WFAA And finally, in my column for Bloomberg Tax this week, I look at Illinois’ fight over credit card “swipe fees.” In 2024, Illinois passed the Interchange Fee Prohibition Act, which bars banks and card networks from collecting interchange fees on the sales tax and tip portions of a card transaction. The idea makes sense: a merchant collects sales tax for the state and tips for its workers and is just passing that money along, so why should it pay a percentage fee on those amounts? A federal court blocked the law on preemption grounds, and Illinois is appealing. But my column focuses on a more basic problem: whether the payment system can actually tell those amounts apart. Picture a $150 restaurant bill: $100 for food, $8 in sales tax, and a $42 tip for great service. The customer sees three lines on the receipt, but the payment system generally treats it as one $150 transaction, and the swipe fee is a percentage of that total. Illinois wants the fee calculated only on the $100. Some processors already record tips or taxes separately, but recording a number at the register isn’t the same as reliably transmitting it through the whole card network and using it to calculate fees. Mastercard told the court that complying could take years of development. The law’s backup, which lets merchants submit paperwork up to 180 days later for a refund, has its own problem: the paperwork goes to one bank while a different bank owes the refund. And there’s an incentive problem: once tips are fee-free, businesses have a reason to reclassify charges as “gratuities.” My argument is that lawmakers should ask three questions before regulating technology systems: Can existing technology implement the distinction? Will the incentives undermine the policy? And do the benefits justify the costs? There may be simpler options, like expanding Illinois’ existing discount for retailers that collect sales tax. If the state still wants this rule, it should first create a uniform, auditable reporting standard, test it in a pilot, and target audits at suspicious tip classifications. A law can declare that two things should be treated differently, but it only works if the systems involved can actually tell them apart. Illinois Swipe Fee Fight Spotlights Tech, Behavioral Questions | 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

  7. Oct 20

    Trump Threatens California Election Officials With Jail, Mahmoud Khalil Petitions the Supreme Court & HUD’s Fair Housing Overhaul Stays Blocked

    This Day in Legal History: The Saturday Night Massacre On the night of October 20, 1973, President Richard Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor investigating Watergate. Cox had refused to accept a compromise that would have given him summaries of the White House tapes instead of the tapes themselves. Richardson had promised the Senate during his confirmation that Cox would be independent, and he resigned rather than fire him. Nixon then ordered Deputy Attorney General William Ruckelshaus to do it. Ruckelshaus also refused and resigned. Solicitor General Robert Bork, now acting attorney general, carried out the order. That night Cox issued the statement quoted at the top of today’s episode. The public reaction was immediate and enormous. Within days, Nixon agreed to turn over subpoenaed tapes, a new special prosecutor, Leon Jaworski, was appointed with stronger protections, and the House began impeachment inquiries. A federal court later found that Cox’s firing had violated the Justice Department’s own regulations. Less than a year later, Nixon resigned. The significance of October 20, 1973 is the principle that the Justice Department’s power to investigate and prosecute is not supposed to be wielded as the President’s personal instrument, and that the officials who hold that power have duties to the law that can require them to refuse. That principle is very much at issue in our first story today. The President has threatened California election officials with prison over how they handle mail ballots. Here’s the sequence. Days ago, the Justice Department gave California 48 hours to review a list of roughly 20,000 voters the administration says are probably noncitizens, or face legal action. Los Angeles County said it couldn’t comply because the administration hadn’t explained how the list was made. The Justice Department then sent a letter, signed by acting Deputy Attorney General Trent McCotter, warning county officials that if they count mail ballots from people on that list, they could be liable as “abettors” of a federal crime. The President posted the letter on social media and wrote that the officials “will all go to jail for a long period of time.” The Justice Department has also sued California to block the state from counting those ballots. California’s secretary of state said the administration’s efforts to access voter data and purge rolls “serve only to cause chaos and fuel public distrust in our elections.” There are several serious legal problems with the threat. First, the accuracy of the list. We covered last month how the federal SAVE database has wrongly flagged real citizens, including findings in one Texas county that 10 to 21 percent of those flagged were citizens. Election officials who reject ballots based on an unexplained list risk disenfranchising eligible voters, which can itself violate federal and state law. Second, aiding-and-abetting liability requires intent to help someone commit a crime. An official following state procedures for verifying and counting ballots isn’t acting with that intent. Third, federal law limits systematic voter-roll removals in the 90 days before a federal election, precisely to prevent last-minute purges. Fourth, recall that a federal judge in Miami ruled earlier this month that the federal law criminalizing noncitizen voting is unconstitutional, though that ruling binds only that case. And finally, there’s the question raised by today’s legal-history segment: when the President publicly promises prison for specific officials, it becomes harder to see a prosecution as an independent decision by the Justice Department rather than a political one. Trump threatens California officials with imprisonment over stance on mail ballots | Reuters · Newsweek · The Business Standard Mahmoud Khalil, the Palestinian activist and former Columbia University graduate student, has asked the Supreme Court to hear his case. Immigration authorities arrested Khalil, a lawful permanent resident, in March 2025 over his pro-Palestinian activism. A federal judge in New Jersey later ordered him released, finding he had a strong claim that he was being detained to punish his speech. This year, the Third Circuit reversed 2 to 1, holding that federal immigration law stripped the district court of jurisdiction to order his release, and that challenges like his must go through the immigration courts first, with review later in the court of appeals. Khalil’s petition argues that federal courts have always had the power to hear a claim that the executive is detaining someone unconstitutionally, and to order that person freed. That’s the writ of habeas corpus, which the Constitution says can’t be suspended except in cases of rebellion or invasion. His lawyers argue that if immigration law can route these claims away from district courts, then someone can be locked up for months for their speech with no judge able to stop it until long after the harm is done. The government argues Congress has the authority to channel immigration disputes through a specific review system, and a DHS spokesperson said the administration acted within its authority and encouraged Khalil to self-deport. A key point is that the federal appeals courts are divided on this question. Last month we covered the government’s own request for Supreme Court review in the case of Badar Khan Suri, the Georgetown scholar, where a different appeals court ruled the other way. A clear disagreement among the circuits on a question this important makes Supreme Court review much more likely. For now, the lower-court order barring Khalil’s re-detention stays in place while the Court decides whether to take the case. Palestinian activist Mahmoud Khalil asks US Supreme Court to hear case seeking to avoid re-arrest | Reuters · NY1 · Times of Israel And finally, the First Circuit has mostly refused to let the Department of Housing and Urban Development move forward with an overhaul of the Fair Housing Initiatives Program. That program funds local nonprofits that investigate and fight housing discrimination, including by sending “testers” to check whether landlords treat applicants differently based on race, disability, or family status. It has historically supported more than 100 organizations around the country. HUD’s plan would have taken about $46 million of the roughly $56 million Congress appropriated for fiscal 2025 and put it into just five grant awards. Fair housing groups sued, and U.S. District Judge Myong Joun blocked the plan, finding HUD hadn’t justified such a major change in how the money is distributed. On Monday, the First Circuit declined to pause most of that order while the appeal proceeds. It granted HUD narrow relief on one point, a requirement that the agency issue new fiscal 2025 funding notices under the old framework. This isn’t a final ruling on the merits. Legally, this fits the pattern we’ve seen in a series of grant cases this year. Under the Administrative Procedure Act, an agency that changes an established policy has to acknowledge the change, give a reasoned explanation, and account for the people who relied on the old policy. And when Congress appropriates money for a program with stated purposes, the agency can’t redirect it in ways that defeat those purposes. Interestingly, the same court went the other way last month, letting HUD reshape a much larger homelessness program on the ground that notice-and-comment rules didn’t apply. So these cases turn heavily on the specific statute and the specific record. For now, the fair housing groups that depend on this funding get to keep operating under the old framework while the appeal plays out. Trump administration cannot overhaul fair housing grant program, appeals court rules | Reuters · WRE News · The Hill 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. Oct 19

    A Cyberattack Halts Bankruptcy Court Notices, a Judge Won’t Let the CFTC Undo Its Gemini Deal & Tesla Defeats Self-Driving Class Actions

    This Day in Legal History: Black Monday On October 19, 1987, the Dow Jones Industrial Average fell about 508 points, or 22.6 percent, in a single day. It is still the largest one-day percentage drop in the index’s history. Markets around the world fell with it. Trading systems were overwhelmed, order books backed up, and for hours many investors had no way to know what prices they were actually getting. The legal and regulatory response shaped the markets we have today. A presidential task force known as the Brady Commission found that the stock market and the futures market, regulated by two different agencies, the SEC and the Commodity Futures Trading Commission, had acted as one market during the crash but were overseen as two. Computer-driven trading strategies in one had fed selling in the other. Among the reforms that followed were “circuit breakers,” coordinated trading halts that pause markets when prices fall too far too fast, along with closer coordination between the SEC and the CFTC. The significance of October 19, 1987 is the idea that market regulation has to match how markets actually work, and that fragmented oversight can fail when stress hits. The CFTC, which grew in importance after the crash, is in our second story today, which is about whether a regulator can simply change its mind about a case it already settled. A cybersecurity incident has halted the system that sends out notices for every federal bankruptcy court in the country. The federal judiciary disclosed the incident Thursday. It affects the Bankruptcy Noticing Center, which produces and mails or emails the official notices in bankruptcy cases, along with its website and the National Creditor Registration Service. The system is run for the judiciary by BAE Systems Inc., a U.S. subsidiary of the British defense contractor. BAE says the incident is isolated to that system and that it has taken immediate steps to address it. The Administrative Office of the U.S. Courts is coordinating with the affected courts. There’s no announced restoration date, and the reports so far don’t say what caused the incident or whether any data was accessed. Here’s why this matters more than it might sound. Bankruptcy runs on notice. When a debtor files, creditors must be told so they can file claims, object, and attend the meeting of creditors. The automatic stay that stops collection efforts, the deadlines to object to a discharge, and the bar dates for filing claims all depend on people receiving proper notice. Due process requires notice reasonably calculated to reach the people whose rights are affected; that’s the core holding of the Supreme Court’s 1950 decision in Mullane v. Central Hanover Bank. If notices aren’t going out, deadlines may need to be extended, and orders entered without proper notice could later be challenged. There’s also a privacy dimension. Bankruptcy filings contain sensitive personal and financial information, so if data was exposed, the harm could go beyond delay. This is the second time in recent weeks we’ve covered a cyber incident hitting the legal system, after the breaches at Quinn Emanuel and McDermott. Courts, like law firms, are attractive targets, and increasingly depend on outside contractors to keep critical systems running. US federal bankruptcy court operations disrupted by cybersecurity incident | Reuters · U.S. Courts · Law.com A federal judge in Manhattan has refused to undo a settlement that both sides now want to erase. In January 2025, the crypto exchange Gemini agreed to pay $5 million to settle a Commodity Futures Trading Commission lawsuit alleging it made misleading statements to the agency about a bitcoin futures product. In May of this year, after an internal review, the CFTC concluded the case should never have been brought, and the agency and Gemini jointly asked the court to vacate the settlement. U.S. District Judge Alvin Hellerstein said no. He held that the CFTC’s change of position wasn’t enough to undo a final judgment, and he rejected Gemini’s argument that regulators had pressured it into settling, noting that Gemini fought the case for more than three years before agreeing to it. So the penalty stays paid, and the permanent injunction barring Gemini from making false or misleading statements to the CFTC remains in place. Here’s the legal principle. A court-approved settlement becomes a judgment of the court, and the federal rules allow a judgment to be reopened only for specific reasons, like fraud, mistake, newly discovered evidence, or significantly changed circumstances, and courts apply those exceptions narrowly. The reason is finality. If a judgment could be wiped out whenever an agency’s leadership or priorities change, no settlement with the government would be reliable, and every new administration could revisit its predecessor’s cases. That’s the idea behind the Latin maxim in today’s opening quote: there must be an end to litigation. It’s also notable that a court is effectively protecting a judgment that neither party wants. The judge’s view is that once the court enters a judgment, it belongs to the court, not to the parties. With regulators changing direction on crypto enforcement, this ruling suggests that changing course on future cases is one thing, but undoing past judgments is another. Judge rejects CFTC, Gemini bid to vacate $5 million settlement | Reuters · CoinDesk · CoinMarketCap And finally, the Ninth Circuit has thrown out class certification in a lawsuit by California Tesla buyers who say the company misled them about its self-driving technology. The plaintiffs allege that Tesla falsely advertised that its cars had the hardware needed for full self-driving capability. U.S. District Judge Rita Lin had certified three classes of California buyers. A three-judge Ninth Circuit panel reversed, holding that there were too many individualized questions about what each buyer actually saw before buying. The case is LoSavio v. Tesla. Here’s the legal issue. To proceed as a class action, plaintiffs have to show that common questions predominate over individual ones. In a false-advertising case, that often comes down to exposure and reliance: did class members see the same misleading statement, and did it affect their decision to buy? If the advertising was uniform and widespread, a court may find that common questions predominate. If buyers encountered different statements in different places, or some saw none at all, the court may conclude it would need a mini-trial for each person, which defeats the purpose of a class. The panel found the second situation here. The plaintiffs’ lawyers argued the court didn’t appreciate how central the hardware claim was to Tesla’s entire marketing campaign. A few things to keep in mind. This doesn’t decide whether Tesla’s statements were false. The case goes back to Judge Lin, and individual buyers can still pursue their claims. The decision is also unpublished, so it isn’t binding precedent in other cases. But practically, class certification often decides whether a consumer case is worth bringing. Few buyers can afford to sue individually over the cost of a software package, so losing the class can end most of the case. US appeals court blocks class actions over Tesla’s self-driving claims | Reuters · Bloomberg Law · 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

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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
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