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Minimum Competence

Minimum Competence

著者： 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.comAndrew Leahey 政治・政府 政治学 日次
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  • The EEOC Fights to Keep Its Law-Firm DEI Records Secret, Disney Takes On the FCC & What Sen. Kelly's AI Tax Bill Would Actually Tax

    The EEOC Fights to Keep Its Law-Firm DEI Records Secret, Disney Takes On the FCC & What Sen. Kelly's AI Tax Bill Would Actually Tax
    2026/10/07
    This Day in Legal History: The Stamp Act CongressOn October 7, 1765, twenty-seven delegates from nine of the thirteen American colonies met in New York City for what became known as the Stamp Act Congress. Parliament had passed the Stamp Act that spring, requiring colonists to buy stamped paper for newspapers, legal documents, licenses, and even playing cards. It was the first direct tax Parliament had imposed on the colonies, and the colonies responded with their first organized, intercolonial political meeting.On October 19, the delegates adopted the Declaration of Rights and Grievances. Its argument was legal, not just political. The colonists claimed the rights of Englishmen, including the principle that they could be taxed only by their own representatives. Because they had no representatives in Parliament, they argued, only their colonial assemblies could tax them. The declaration also objected to the use of admiralty courts, which sat without juries, to enforce the act, insisting that trial by jury was a right of every British subject.The significance of October 7, 1765 is that it put the connection between a tax and its legitimacy at the center of American political thought. “No taxation without representation” is about who gets to impose a tax. My column today is about a related question that comes up every time a legislature designs a new tax: what exactly is being taxed, and does the thing being measured have anything to do with the reason for the tax?The administration is asking a federal court to let the Equal Employment Opportunity Commission keep secret the records of its investigation last year into diversity practices at major law firms. Some background. In March 2025, the EEOC’s then-acting chair, Andrea Lucas, sent letters to 20 of the country’s largest firms, including Skadden, WilmerHale, Perkins Coie, Debevoise, and Hogan Lovells, warning that their diversity and inclusion policies might violate Title VII. By April, the EEOC announced agreements with four firms: Kirkland & Ellis, Latham & Watkins, Simpson Thacher, and A&O Shearman. It never disclosed the terms. Those four were among nine firms that together pledged nearly $1 billion in free legal work for causes the White House supports. Public Citizen and two law professors sued for the records. In a filing on Monday, the government said the EEOC can neither confirm nor deny whether any of the firms received a formal charge of discrimination. The legal basis is real. Title VII prohibits the EEOC from making charges of discrimination public and restricts disclosure of information it gathers in investigations, and federal records law lets agencies withhold information that another statute protects. Those confidentiality rules exist so that employers and workers can cooperate with investigations without public exposure. The tension is that this wasn’t a routine investigation of one employer. It was a public campaign by a federal agency against an entire sector of the legal profession, announced in press releases and resolved with agreements whose terms are still unknown. The challengers argue the public is entitled to know what the government demanded and what firms agreed to, especially when the result was hundreds of millions of dollars in pro bono commitments to the administration’s priorities. The court will have to decide whether a confidentiality rule designed for individual discrimination charges can shield the details of a campaign aimed at an entire profession.US seeks to keep law firm DEI probe records secret | Reuters · Hoodline · HCAMagA federal judge in Washington held a two-hour hearing on Disney’s request to block the Federal Communications Commission’s early review of the broadcast licenses for ABC’s eight owned-and-operated TV stations. Earlier this year, FCC Chair Brendan Carr ordered those stations to file license-renewal applications years ahead of schedule. They weren’t due until October 2028 at the earliest. Disney and ABC sued in August, calling the move an “extraordinary assault on free speech” and alleging the agency was trying to punish the network for refusing to bend to White House pressure. At the hearing, Disney’s lawyer said the government is seeking to censor and control ABC’s broadcasts. U.S. District Judge Loren AliKhan didn’t rule. She asked for more written arguments, from the government by October 9 and from Disney by October 14, so a decision isn’t likely before mid-October. Here’s the legal setup. Broadcasters operate under federal licenses, and the FCC renews them based on whether a station serves the “public interest.” That standard gives the agency real authority, and the Supreme Court has long allowed more regulation of broadcasting than of print or the internet because the airwaves are a limited public resource. But the First Amendment still applies. The FCC can’t use its licensing power to punish a broadcaster for the content of its news coverage ...
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    8 分
  • SCOTUS Opens Its Term With Boulder's Climate Case, the Harvard Funding Fight Hits the First Circuit & Poland Charges Google Over Publisher Payments

    SCOTUS Opens Its Term With Boulder's Climate Case, the Harvard Funding Fight Hits the First Circuit & Poland Charges Google Over Publisher Payments
    2026/10/05
    This Day in Legal History: Earl Warren Takes the Center ChairOn October 5, 1953, which was the first Monday in October and the opening day of the Supreme Court’s term, Earl Warren was sworn in as the 14th Chief Justice of the United States. Chief Justice Fred Vinson had died of a heart attack less than a month earlier. To make sure the Court opened its term with a full bench, President Eisenhower gave Warren, then governor of California, a recess appointment. Eisenhower and Vice President Nixon attended the ceremony. The Senate confirmed Warren the following March, and he took the oath again.The timing mattered. Brown v. Board of Education had already been argued once and was set for reargument that term. Warren spent months building a unanimous Court, and in May 1954 he delivered the opinion holding that racially segregated public schools violate the Equal Protection Clause. Over the next sixteen years, the Warren Court reshaped American law: one person, one vote in the reapportionment cases; the right to counsel in Gideon v. Wainwright; the Miranda warnings; and major expansions of free speech and the rights of criminal defendants.The significance of October 5, 1953 is a reminder of how much depends on who sits on the Court when a term opens. A recess appointment made to fill a seat for opening day put in the center chair the justice who would lead one of the most consequential eras in the Court’s history. And today, exactly 73 years later, is again the first Monday in October, with the Court opening a new term and hearing its first case: our lead story.The Supreme Court opens its new term today by hearing arguments in one of the most important climate cases it has taken up: Suncor Energy v. County Commissioners of Boulder County. In 2018, the city and county of Boulder sued Suncor and ExxonMobil in Colorado state court under state law, alleging that the companies deceived the public about the role of their products in climate change and seeking compensation for local harms like wildfire, heat, and flooding costs. The Colorado Supreme Court ruled 5 to 2 last year that the case could go forward. The oil companies’ argument is preemption. They say that climate change is caused by greenhouse gas emissions from every country on earth, that the Clean Air Act and the federal structure govern interstate and international air pollution, and that a single state can’t use its own tort law to effectively regulate a global problem or impose liability for emissions far outside its borders. Boulder’s answer is that it isn’t regulating emissions at all. It’s suing over deception, a classic state-law claim, and nothing in federal law clearly displaces that. The Court also asked the parties to address threshold questions about whether it has jurisdiction to hear the case at this stage. Two things raise the stakes. First, nearly 60 similar suits by states and cities around the country turn on how the Court resolves this question. A broad ruling for the companies could end most of them; a ruling for Boulder would send them toward trial. Second, as we covered last week, Justice Alito has recused himself, so only eight justices are sitting. If they split 4 to 4, the Colorado ruling would stand, but without setting any national precedent, and the same fight would return in another case. A decision is expected by mid-2027.US Supreme Court weighs bid by oil companies to avoid climate lawsuit | Reuters · Earthjustice · Harvard Environmental & Energy Law ProgramThe administration is asking the First Circuit Court of Appeals in Boston to revive its effort to terminate roughly $2.2 billion in federal research grants to Harvard University. The background: in April 2025, the administration sent Harvard a list of demands, including ending its diversity programs and bringing in outside auditors to monitor academic departments for “viewpoint diversity.” Harvard’s president, Alan Garber, refused, saying no government should dictate what private universities can teach. Within hours, the administration froze Harvard’s grants, citing the university’s alleged failure to address harassment of Jewish students, and it eventually terminated them. A federal district judge ruled for Harvard in an 84-page decision, finding that the administration used antisemitism as “a smokescreen for a targeted, ideologically motivated assault” on the country’s leading universities. That’s a First Amendment retaliation finding: the government can’t cut off a benefit to punish someone for protected speech or for refusing to give up academic independence. On appeal, the Justice Department makes two kinds of arguments. On the merits, it says the government isn’t required to keep funding universities that show “deliberate indifference” to antisemitism. It also argues the case was in the wrong court entirely. Under the Tucker Act, contract claims seeking money from the federal government belong in the Court of Federal ...
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    7 分
  • Tennessee Calls Its Failed Execution a "Tragedy," a Judge Strikes Down the Federal Noncitizen-Voting Crime & New Mexico Seeks Up to $40B From Meta

    Tennessee Calls Its Failed Execution a "Tragedy," a Judge Strikes Down the Federal Noncitizen-Voting Crime & New Mexico Seeks Up to $40B From Meta
    2026/10/02
    This Day in Legal History: Thurgood Marshall Joins the CourtOn October 2, 1967, Chief Justice Earl Warren swore in Thurgood Marshall as an associate justice of the Supreme Court, the first Black justice in the Court’s history. President Lyndon Johnson had nominated him to replace Justice Tom Clark, and the Senate confirmed him that August by a vote of 69 to 11.Marshall arrived at the Court having already changed it from the other side of the bench. As chief counsel of the NAACP Legal Defense and Educational Fund, he argued 32 cases before the Supreme Court and won 29 of them, including Brown v. Board of Education. He had also served as a federal appeals judge and as Solicitor General. Few justices have come to the Court with a record of argument that shaped as much of the law they were about to apply.In nearly 24 years on the Court, Marshall was a consistent voice for equal protection and for the rights of criminal defendants. He was also among the Court’s most persistent opponents of capital punishment. In Furman v. Georgia in 1972 he concluded the death penalty was unconstitutional in all circumstances, and after the Court allowed executions to resume he dissented from death sentences for the rest of his tenure. That position is worth recalling today, because our first story is about what happens when the state’s attempt to carry out a death sentence fails.We have an update on the story we covered yesterday. Tennessee Governor Bill Lee has called the failed execution of Christa Pike “a tragedy,” saying no one wanted it to happen and that it was “deeply disturbing” that it happened in his state. As a reminder, Pike was convicted of the 1995 murder of a fellow Job Corps student, committed when Pike was 18. On Wednesday night, after the Supreme Court lifted a last-minute stay, officials administered two doses of pentobarbital. She lost consciousness but kept a steady heartbeat, and she was taken to a hospital for emergency treatment. Lee has suspended the remaining execution scheduled for this year and ordered a third-party review. The new detail is that, according to reporting from JURIST and the Washington Post, this is the second botched execution in Tennessee this year. That matters legally. Under Baze v. Rees and Glossip v. Gross, an inmate challenging an execution method generally has to show a substantial risk of severe pain and identify a feasible alternative. Courts have often treated a single mishap as an isolated accident that doesn’t prove the method is unconstitutional. Two failures in one year is harder to call isolated, and it gives lawyers for other death-row prisoners evidence that the state’s protocol itself is unreliable.Tennessee has been here before: in 2022, Governor Lee paused executions after the state was found not to have properly tested its lethal-injection drugs. For Pike herself, the hardest question remains whether the state may try again. The 1947 case of Louisiana ex rel. Francis v. Resweber allowed a second attempt after a failed electrocution, but that was a narrow, divided decision from a very different era. Pike’s lawyers will argue a second attempt would be cruel and unusual, and they’ll keep pressing the claim that evidence of her childhood abuse was never properly considered at sentencing. Expect the third-party review, and whatever it finds about the drugs and procedures, to be central evidence in that litigation.Tennessee governor calls failed Christa Pike execution a ‘tragedy’ | Reuters · JURIST · Washington PostA federal judge in Miami has held that the 1996 federal law making it a crime for noncitizens to vote in federal elections is unconstitutional. Two weeks ago we covered the novel defense strategy behind this: several noncitizens charged under the law argued that Congress never had the power to pass it. At that point one Miami judge had rejected the argument. Now U.S. District Judge David Leibowitz has accepted it, dismissing the case against Chelsea Cox, a Jamaican national living in Florida charged with voting illegally in the 2020 election. His reasoning rests on the structure of the Constitution. Article I and the Seventeenth Amendment tie voter eligibility in federal elections to the qualifications each state sets for its own legislature. The Elections Clause gives Congress power over the “times, places and manner” of federal elections, but the Supreme Court said in Arizona v. Inter Tribal Council in 2013 that this doesn’t include power to set who is qualified to vote. On that view, deciding who may vote belongs to the states, and Congress can’t criminalize voting by people the Constitution leaves the states to regulate. The Justice Department’s answer, as we discussed, is that the law is really an exercise of Congress’s broad immigration power, not an election rule. Judge Leibowitz didn’t accept that framing. A few points of perspective. This appears to be the first time any federal court has found the 1996 ...
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    8 分
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