Minimum Competence

This Day in Legal History: Bostock Is ArguedOn October 8, 2019, the Supreme Court heard argument in Bostock v. Clayton County and two companion cases. Each involved an employee fired after the employer learned the employee was gay or transgender. The question was whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination “because of sex,” protects against discrimination based on sexual orientation or gender identity.In June 2020, the Court answered yes, 6 to 3, in an opinion by Justice Neil Gorsuch. The reasoning was textualist. Gorsuch wrote that it’s impossible to fire someone for being gay or transgender without considering their sex: an employer who fires a man for being attracted to men, but wouldn’t fire a woman for the same thing, is treating the employee differently because of sex. The Congress that passed Title VII may not have anticipated that result, but the Court held that the words of the statute, not the expectations of its drafters, are the law. That’s the line in today’s opening quote.The significance of October 8, 2019 is the method as much as the result. Bostock shows how an old statute’s plain words can reach situations its authors never imagined. That idea runs through all of today’s stories: states are using decades-old consumer-protection laws against social media companies, and Christa Pike’s lawyers are invoking an Eighth Amendment ratified in 1791 against a modern execution protocol.Newly unsealed filings in New York’s lawsuit against TikTok contain some of the most striking allegations yet in the litigation over social media and young users. Attorney General Letitia James sued TikTok in October 2024 as part of a bipartisan group of 14 states, alleging the company misled the public about its platform’s safety. A judge has now unsealed portions of an amended complaint filed in August. The central allegation involves a feature called “Algo Refresh,” which lets a user reset their recommendations, for example to get away from a feed full of harmful content. New York alleges that in experiments TikTok called “ghost” or placebo tests, some users, including teens and children, were told the reset had worked when their recommendations hadn’t actually changed. The state says TikTok used these tests to measure how a working safety feature affected time spent on the app and ad revenue, and that an internal well-being manager warned the test conflicted with user transparency and control. The filings also allege that a 16-year-old New Yorker who died by suicide in 2022 had been in a group that didn’t receive safety features TikTok was rolling out. Reports differ on the exact dates and sizes of the tests. TikTok disputes the allegations. It acknowledges running tests in which a portion of users keep the original experience, as most tech companies do, but denies that its testing makes the platform less safe.Control groups are standard in product testing, and holding a feature back from some users isn’t by itself deceptive. The allegation that changes things is telling users a safety feature had been activated when it hadn’t. That’s an affirmative misrepresentation, which is exactly what state deceptive-practices laws prohibit. The state doesn’t need to prove the product is inherently harmful; it needs to show the company said something false that mattered to consumers. These are allegations, not findings. But coming two weeks after TikTok settled with Alabama for at least $100 million on the eve of trial, they put more pressure on the company in the dozens of state cases still pending.TikTok gave teens, children ‘placebo’ safety feature in experiment, New York alleges | Reuters · The Next Web · Business StandardFlorida has asked a state court to order immediate changes to Facebook and Instagram for teenage users. Attorney General James Uthmeier’s request, filed in Pasco County, would require Meta to find and remove Florida users under 14, cap teen use at two hours a day across all of Meta’s apps, turn off autoplay and infinite scroll for teens, cut off teen messaging once time limits are reached, and stop advertising aimed at teens. Florida wants all of this in place while the lawsuit continues.The context is that in August, Meta settled with 48 other states and Washington, D.C., agreeing to pay up to $18 billion and make changes for teen users. Uthmeier declined to join, calling that deal a “mere slap on the wrist.” Florida’s suit, under its Deceptive and Unfair Trade Practices Act, accuses Meta of designing addictive products for young users and misleading the public about their safety. Meta called the request a “meritless preliminary injunction” and said Florida should be pressing YouTube and TikTok instead. The legal hurdle is high. A preliminary injunction is an early, temporary remedy granted before any trial, so Florida has to show it is likely to win, that teens will suffer irreparable harm without immediate relief, and that the balance of harms and the public interest favor it. Florida is asking for a lot at that early stage, and the relief goes to how the products are designed and who can use them, not just to stopping a false statement. There’s also a First Amendment problem in the background.Courts have blocked several state laws restricting minors’ access to social media on free-speech grounds, finding that they burden both minors’ and adults’ access to protected speech. An age ban and usage cap imposed by court order rather than by statute will likely face similar arguments. Florida’s decision to go it alone is a bet that it can get more through litigation than through the nationwide deal. Whether that bet pays off depends a great deal on how this judge views the request.Florida asks court to force Meta to change Facebook, Instagram for teens | Reuters · The Star · WFTVAnd finally, the latest in the case of Christa Pike, whose execution in Tennessee failed last week. Her lawyers asked a Davidson County court to order state officials to preserve every piece of physical evidence from the attempt: the drugs and their packaging and lot numbers, the syringes, catheters, IV lines, and the gurney and restraints. They also asked to inspect the equipment and take any remaining drug residue for chemical analysis. The Department of Correction said an order wasn’t necessary because it’s already legally required to preserve evidence.On Wednesday, Chancellor I’Ashea Myles largely sided with Pike’s lawyers, ordering the state to preserve all the drugs, syringes, lines, needles, medical supplies, restraints, and gurneys in the execution room, along with packaging, labels, and manufacturer information. From the reports, it isn’t clear yet whether the defense will be allowed to physically examine or test those items. Pike’s lawyers say she is the first person known to have survived a completed execution attempt in the United States. After two injections of pentobarbital, she was taken to a Nashville hospital critically ill. Her lawyers argue that the attempt amounted to torture in violation of the Eighth Amendment.Under the Supreme Court’s lethal-injection cases, a prisoner challenging an execution method generally has to show that it creates a substantial risk of severe pain. Proving that requires facts: whether the drug was what the state said it was, whether it was potent or degraded, whether it was stored and mixed correctly, and whether the IV lines were placed properly. Those facts are in the syringes, the residue, and the lot numbers. If that evidence were lost or discarded, Pike’s lawyers would lose their best chance to show what went wrong, both for her own claim that the state can’t try again and for other prisoners challenging Tennessee’s protocol. Preservation orders are routine in civil litigation. What’s unusual here is the setting, and what the evidence could show about a state’s capacity to carry out its most serious punishment.Christa Pike’s lawyers demand to see syringes, drug residue from botched execution | Reuters · CBC News · RNZ 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

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 or its editorial choices. Disney’s case depends on showing that the early review is retaliation for its speech rather than ordinary regulation. The government will argue it is simply exercising its statutory oversight power. The timing of the order and any public statements tying it to ABC’s coverage will matter a great deal. This is the third case we’ve covered in recent weeks about the government using its control over access or licenses to pressure news organizations, after the White House press bans of CNN, MS NOW, and Politico.US judge to hold hearing on Disney bid to block FCC license review | Reuters · Quartz · NBC NewsAnd finally, in my column for Bloomberg Tax this week, I look at Sen. Mark Kelly’s Make AI Work for Americans Act, which proposes three new taxes to capture some of AI’s economic gains and pay for programs that help workers and communities hurt by AI-driven disruption. I’m sympathetic to the goal. My concern is that the bill never decides what part of AI activity it actually wants to measure. The first tax is on “computational processing,” and the bill defines a unit of that as 10 kilobytes of data. But bytes measure how much information there is, not how much computing it took to produce it. A short answer can take a lot of processing; a long one can be cheap. And even a perfect measure of computing power wouldn’t tell you how many workers were displaced. So you have one quantity standing in for a second, which stands in for a third. Here’s the analogy I use. If you want to offset the cost of a factory’s water use, taxing each gallon it uses is easy to justify. Taxing the number of times the factory opens its front door each day, and calling that a water tax, needs a lot more explanation. The bill’s second tax, 5% of digital advertising revenue from U.S. users, is easy to administer, but it doesn’t ask whether any of that revenue came from AI or replaced a single worker. It taxes a pot of money held by digital companies that are, at best, AI’s cousins. The third is a 50% excess-profits tax on income above 40% of gross receipts, for companies that meet AI-activity, revenue, and electricity-use tests. That’s closest to a sound theory, taxing unusually high returns, but it still doesn’t isolate profits that came from replacing workers. A company that eliminates jobs with AI could fall outside it, while a very profitable company that hasn’t displaced anyone could owe it. My argument is that until Congress can actually measure AI’s economic harm, it shouldn’t dress up loose proxies as taxes on AI. A cleaner interim approach, which I’ve argued for before, is for the public to take a direct share of the upside, like an equity stake in AI company profits, and then design targeted levies later, once the evidence connects specific AI uses to specific costs.Kelly’s AI Tax Bill Struggles to Link Tech With Economic Harms | 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

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 Claims, not a district court, and the administration says Harvard’s suit is really a dispute over grant contracts. That jurisdictional argument has worked for the government in other grant-termination cases, so it’s a serious threat to Harvard’s win. The significance goes well beyond one university. This appeal will help decide whether the federal government can use research funding as leverage to force changes in how universities teach, hire, and govern themselves, and whether courts will review that leverage as a speech problem or treat it as an ordinary contract dispute.US appeals court weighs Trump’s block on Harvard research funding | Reuters · US News · Harvard MagazineAnd finally, Poland’s competition regulator, known by its Polish initials as UOKiK, has charged Google with abusing its dominant position in negotiations with Polish news publishers over payment for their content. The backstory is a 2024 amendment to Polish copyright law implementing an EU directive that gives press publishers a right to be paid when online platforms use their content. In Google’s case, that covers articles and snippets shown in Search, Google News, and Discover. The regulator’s theory isn’t that Google refused to pay. It’s that Google controlled the information needed to negotiate. According to UOKiK, Google didn’t give publishers the data they needed to evaluate its offers, such as how much traffic and value their content generated, so publishers had no real way to judge whether the payment was fair. The regulator said that made the negotiations “illusory,” with Google effectively imposing terms. Its president put it bluntly: big tech companies “cannot place themselves above the law.” This is an interesting antitrust theory, because the abuse alleged is an information imbalance rather than a classic refusal to deal or exclusionary practice. A legal right to payment means little if one side can’t see what the content is worth. A few points of perspective: these are charges, not a final decision, and Google will have a chance to respond. If the regulator finds a violation, the maximum fine is 10% of turnover. And this is separate from the European Commission’s investigation, opened last December, into whether Google used publishers’ content in its AI services without adequate payment or the ability to opt out. Together with the U.S. ad-tech remedy we covered last month, it’s another sign that regulators on both sides of the Atlantic are focused on the economic relationship between Google and the publishers whose content it depends on.Polish regulator suspects Google abused dominant position in publisher payment talks | Reuters · Brandsit · Global Banking & Finance Review 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

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 law unconstitutional. The ruling binds only this case, and other judges, including one in the same courthouse, have gone the other way. Noncitizen voting remains illegal under the laws of essentially every state, so this doesn’t make it lawful; it questions whether the federal government can prosecute it. But the Justice Department has charged at least 60 people under this statute since January 2025, and about 45 cases are pending. Every defense lawyer in those cases now has a written federal opinion to cite. An appeal to the Eleventh Circuit seems very likely, and with judges already split, this could reach the Supreme Court.US judge finds law criminalizing noncitizen voting unconstitutional | Reuters · Al Jazeera · GV WireAnd finally, the penalty phase of New Mexico’s case against Meta, which we covered on Monday after a Santa Fe jury found the company misled the state’s residents about Facebook’s data practices in the Cambridge Analytica case. The jury found more than 43 million violations of New Mexico’s Unfair Practices Act. The statute allows up to $5,000 per violation, which puts the theoretical maximum at about $219 billion. At a hearing Thursday, New Mexico asked Judge Francis Mathew to order Meta to pay between $35 billion and $40 billion. The state’s lawyer noted that an award that size would be the largest verdict in American legal history. Meta called the request “astronomical” and asked the judge to cap the penalty at $3.45 billion. So the judge is choosing somewhere in a range that spans more than a factor of ten. This is the legal problem I flagged on Monday: per-violation penalties were written with individual transactions in mind, and they produce enormous numbers when multiplied across a whole state’s population of users. The judge has discretion under the statute, and he’ll likely weigh things like how deliberate the deception was, how long it lasted, Meta’s ability to pay, and what amount would actually deter. There’s also a constitutional ceiling in the background. The Eighth Amendment’s Excessive Fines Clause applies to civil penalties paid to the government, and the Supreme Court held in Timbs v. Indiana in 2019 that it binds the states. A penalty grossly disproportionate to the offense can be struck down, and Meta will almost certainly make that argument on appeal if the number is large. Judge Mathew says he expects to rule later this month. Whatever he decides will be watched closely by every state attorney general with a consumer-protection case against a tech platform, because it’ll show how far these statutes can be pushed.New Mexico wants Meta to pay up to $40 billion in penalties after data privacy trial | Reuters · Bloomberg Law · Law360 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

This Day in Legal History: The Nuremberg VerdictsOn October 1, 1946, the International Military Tribunal at Nuremberg delivered its sentences on the surviving leaders of Nazi Germany. Of the 22 defendants, 19 were convicted and three were acquitted. Twelve were sentenced to death, three to life imprisonment, and four to prison terms of 10 to 20 years. Hermann Göring killed himself the night before his scheduled execution. Martin Bormann, tried in absentia, was never found to face his sentence. The other death sentences were carried out on October 16.The legal achievement of Nuremberg was the decision to hold a trial at all. The Allies could have simply executed the Nazi leadership; some officials argued for exactly that. Instead, at the urging of figures like U.S. Justice Robert Jackson, who left the Supreme Court to serve as chief prosecutor, they built a court, allowed defense counsel, admitted evidence, and let the outcome turn on proof. The acquittals mattered as much as the convictions: they showed the tribunal was deciding cases, not ratifying a foregone conclusion. Nuremberg also established principles that still anchor international law, most importantly that “following orders” is not a defense to crimes against humanity, and that individuals, not just states, can be held criminally responsible for aggression and atrocities.The significance of October 1, 1946 is the idea in today’s opening quote, from Jackson’s opening statement: that even when dealing with the worst crimes imaginable, the state submits to legal process rather than acting on raw power. That idea, that the government must work through courts and procedure, especially when it is detaining, removing, or putting people to death, runs through every story we cover today.The Supreme Court has agreed to decide whether the administration can detain millions of immigrants for the entire length of their deportation proceedings without a bond hearing. In July 2025, the Department of Homeland Security issued guidance saying that immigrants who entered the country illegally are subject to mandatory detention with no bond hearing while their cases proceed, a process that can take months or years. The legal fight is about which section of the immigration statute applies. The law has one provision that requires detention for “applicants for admission,” historically understood to mean people arriving at the border. A separate provision governs people already living in the country and generally lets them ask an immigration judge for release on bond. The administration’s new position is that anyone who entered without inspection remains an “applicant for admission” no matter how long they’ve lived here, which would move them into the mandatory-detention category. The case the Court took involves Ricardo Aparecido Barbosa da Cunha, a Brazilian national who authorities say entered illegally two decades ago and applied for asylum in 2016. The Second Circuit ruled against the government. And according to the reporting, appeals judges in nine of the eleven federal circuits to consider the question have concluded that detention without a bond hearing violates federal law. That makes the administration’s position an outlier among the lower courts, which is part of why the Supreme Court stepped in. The stakes are very large. A bond hearing doesn’t guarantee release; it just means a judge decides whether a person is a flight risk or a danger. If the Court sides with the administration, millions of long-term residents could be held without that individualized review for the length of their cases. The Court will hear it in the term that opens Monday.US Supreme Court to hear clash over Trump’s immigration detention policy | Reuters · Yahoo News · National Immigration ForumThe U.S. Court of International Trade heard arguments in a challenge to the President’s “forced labor” tariffs, and opponents say the case is a test of whether he can rebuild the tariff power the Supreme Court took away in February. Imposed in late July, the tariffs range from 10% to 12.5% on goods from 60 trading partners, including the European Union and China, and they cover more than 99% of goods imported into the United States. The stated justification is that those countries have failed to stop imports made with forced labor. Four small businesses and 25 Democratic-led states sued, and their three cases were consolidated before a three-judge panel with appointees of Presidents Trump, Obama, and Biden. Their argument is that the trade statute the administration relied on requires country-specific findings of unfair trade practices, reached through a real investigation. In their telling, “forced labor” is a pretext: a label stretched over nearly all imports from 60 countries to recreate the broad, global tariff authority the Supreme Court rejected when it struck down the emergency-powers tariffs. The legal question is how closely courts will examine the factual basis for a statutory trade remedy. If the statute requires findings and the findings are thin or generic, the tariffs are vulnerable. If the court defers to the executive’s judgment on trade practices, they likely survive. The panel isn’t expected to rule from the bench. This connects directly to my column from last week on building an unwinding mechanism into tariffs from the start. If these tariffs fall too, importers will be back in the refund line, and consumers who paid higher prices will again have no clear way to get that money back.US trade court to weigh challenge to Trump’s forced labor tariffs | Reuters · CNBC · Foreign PolicyAnd finally, a story that took a turn no one expected. Tennessee tried to execute Christa Pike on Wednesday night, and the execution failed. Pike was the only woman on Tennessee’s death row, convicted of the 1995 torture and murder of 19-year-old Colleen Slemmer, a fellow student at a Knoxville Job Corps program. Pike was 18 at the time of the crime. The legal path to Wednesday night was itself dramatic. On Wednesday morning, a divided panel of the Sixth Circuit granted a short stay to consider her claim that evidence of severe childhood sexual abuse was never adequately considered at sentencing. Tennessee went to the Supreme Court, which vacated the stay Wednesday evening, with Justices Sotomayor, Kagan, and Jackson dissenting. Officials then administered two doses of the lethal drug, but Pike’s heart was still beating, and she was taken to a hospital. Governor Bill Lee has ordered a comprehensive third-party review and said the remaining execution scheduled for this year will not go forward. Now the legal questions are unusual and difficult. The closest Supreme Court precedent is from 1947, Louisiana ex rel. Francis v. Resweber, when the state’s electric chair failed to kill Willie Francis and the Court held, 5 to 4, that Louisiana could try again without violating the Eighth Amendment. Modern lethal-injection cases like Baze v. Rees and Bucklew v. Precythe focus on whether a method creates a substantial risk of severe pain, but they don’t squarely address what happens after an execution has actually been attempted and failed. Pike’s lawyers will almost certainly argue that a second attempt would be cruel and unusual. There are also the issues that were already in the case: her age at the time of the crime, just past the line the Supreme Court drew in Roper v. Simmons barring execution for crimes committed under 18, and the abuse evidence the Sixth Circuit wanted time to examine. Whatever one’s view of the death penalty, a failed execution is exactly the kind of event the Eighth Amendment was written to make courts confront, and this case will now test what the Constitution requires when the state’s ultimate punishment doesn’t work.Tennessee due to execute woman for first time in two centuries | Reuters · NPR · CBS 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