Minimum Competence - Daily Legal News Podcast
Minimum Competence
Legal News for Weds 12/20 - WilmerHale Getting to Bottom of OpenAI Ouster, Trump off the Ballot in Colorado, Texas Sued for Border Crossing Nonsense and Florida Bill Would Protect Privacy of the Dead

Legal News for Weds 12/20 - WilmerHale Getting to Bottom of OpenAI Ouster, Trump off the Ballot in Colorado, Texas Sued for Border Crossing Nonsense and Florida Bill Would Protect Privacy of the Dead

WilmerHale investigating the OpenAI story, Trump off the ballot in Colorado, TX sued for its border crossing nonsense and Florida bill would protect privacy of the dead.

An old timey detective holding a magnifying glass up to a robot, pencil sketch

This Day in Legal History: Georgia Outlaws Lynching

On December 20, 1893, Georgia took a historical step by becoming the first state in the United States to outlaw lynching. This groundbreaking law declared lynching a criminal act, subject to a punishment of up to four years in prison. The enactment of this law was a response to the rampant and brutal practice of lynching, primarily targeting African Americans in the post-Civil War era.

Despite the law's presence, its enforcement was another matter. The statute struggled to curb the barbaric practice, largely due to deep-seated racial prejudices and a lack of political will. This failure was notably highlighted by Ida Wells-Barnett, a prominent African American journalist and crusader against lynching. In her 1899 pamphlet titled "Lynch Law in Georgia," Wells-Barnett meticulously documented instances of lynching and the state's inability to enforce its own law effectively.

Wells-Barnett's work served as a crucial document, shedding light on the harsh realities and ineffectiveness of the law in Georgia. Her detailed accounts provided a stark contrast to the legal intentions of the statute, revealing a disturbing continuation of racially motivated violence. The pamphlet not only exposed the failures of the legal system but also helped catalyze the anti-lynching movement nationally.

This legislation in Georgia, while a legal landmark, underscored the complexities and challenges in addressing deeply entrenched social evils through law alone. The ongoing struggle against lynching highlighted the necessity for a combination of legal reform, societal change, and relentless advocacy. The efforts of individuals like Wells-Barnett were instrumental in keeping the spotlight on this critical issue, ultimately contributing to the broader civil rights movement in the United States.

WilmerHale, a Big Law firm, is conducting an investigation into the sudden dismissal and subsequent reinstatement of Sam Altman as CEO of OpenAI, a Microsoft-backed startup. This probe aims to aid OpenAI in regaining trust and credibility, while also allowing WilmerHale to recover from its controversial handling of a congressional hearing involving two university presidents. Experts like James Park from UCLA and Simon Gaugush, a former federal prosecutor, see this investigation as crucial for restoring faith among OpenAI's employees and investors, especially after the turmoil caused by Altman's brief ouster.

WilmerHale has a history of advising on high-profile crises, having worked with clients like Meta Platforms Inc. and PurduePharma. However, its reputation suffered a setback when it was criticized for the advice given to Harvard and University of Pennsylvania presidents during a hearing on antisemitism. Despite this, OpenAI chose WilmerHale for its expertise in crisis management, just days after the firm's mishap at the congressional hearing.

Sam Altman's abrupt firing was reportedly due to a lack of candor with OpenAI's board. This event led to a leadership shakeup and a restructuring of the board, which now includes a non-voting observer from Microsoft. The investigation by WilmerHale, led by Hallie Levin and Anjan Sahni, is expected to delve into the circumstances surrounding Altman's dismissal and scrutinize OpenAI's corporate structure.

Corporate boards often prefer law firm-led investigations as they can identify internal issues while maintaining attorney-client privilege. These probes, according to Jason de Bretteville, a partner at Stradling, are typically aimed at uncovering compliance failures and preempting any stakeholder challenges. The outcome of WilmerHale's investigation, especially whether it will result in a public report, remains to be seen. However, given the regulatory scrutiny over OpenAI's partnership with Microsoft, maintaining secrecy could potentially harm the company's public image.

OpenAI Probe Is WilmerHale Test After College President Debacle

Donald Trump was disqualified from appearing on Colorado's presidential primary ballot by the state's Supreme Court, citing his alleged involvement in the January 6, 2021, Capitol attack. This ruling is based on Section 3 of the 14th Amendment, which bars anyone engaged in insurrection from holding federal office. However, a lower court previously ruled that while Trump's actions could be considered insurrection, this section doesn't apply to presidents. The Colorado Supreme Court's decision is currently on hold pending review by the U.S. Supreme Court, to which Trump plans to appeal.

The case raises unprecedented legal issues, especially since Section 3 of the 14th Amendment is rarely invoked and the U.S. Supreme Court, with a conservative majority including three Trump appointees, has shown skepticism towards expanding court powers. The dissenting justices in the Colorado decision emphasized that Trump hadn't been criminally convicted of insurrection and lacked basic rights such as subpoena power in this case.

Trump's campaign has denounced the ruling as undemocratic, planning a swift appeal to the U.S. Supreme Court. They argue that these disqualification efforts in Colorado and other states are politically motivated attempts to prevent him from holding office.

The impact of this ruling on the 2024 election might be limited, as Colorado, a state with Democratic leanings, is not crucial for Trump's electoral success. However, similar lawsuits in more pivotal states could influence the election, with judges likely to consider the Colorado ruling in their decisions.

Meanwhile, disqualification cases against Trump in over 12 states have seen mixed outcomes. Courts in Michigan, New Hampshire, Florida, and Minnesota have dismissed similar cases, often on procedural or jurisdictional grounds, indicating that courts generally resist unilaterally disqualifying candidates from ballots.

Why was Trump removed from Colorado ballot and what does it mean? | Reuters

Trump’s Legal, Political Fate Rests With Supreme Court He Shaped

Civil rights groups, led by the American Civil Liberties Union (ACLU), filed a lawsuit challenging a new Texas law (SB4) that increases state powers to arrest, prosecute, and deport individuals for illegal border crossings. This law, signed by Texas Governor Greg Abbott, conflicts with the federal government's authority under the U.S. Constitution to enforce immigration laws, according to the lawsuit. SB4, effective from March, criminalizes illegal entry or re-entry into Texas from a foreign country and empowers state and local law enforcement to act on these violations. It also authorizes state judges to order deportations, with severe penalties for non-compliance.

The ACLU argues that this law, one of the most stringent state-led immigration measures in the U.S., could result in racial profiling, particularly against Brown and Black communities. The lawsuit also contends that SB4 illegally prevents migrants from seeking asylum or other humanitarian protections in the U.S. El Paso County, Texas, one of the plaintiffs, anticipates a significant increase in arrests due to this law, straining its resources and conflicting with its policy to incarcerate only high-risk individuals.

Governor Abbott defends the law as a necessary response to the Biden administration's failure to curb illegal migration. However, legal experts, like Cornell Law School's Stephen Yale-Loehr, have pointed out the law's vulnerability to legal challenges based on a 2012 Supreme Court ruling that immigration enforcement is a federal responsibility. Texas Attorney General Ken Paxton sees the law as an opportunity for the Supreme Court to revisit this precedent.

This lawsuit is part of a series of legal challenges faced by Texas under its Operation Lone Star, aimed at deterring illegal border crossings. These include court rulings against Texas' measures such as installing razor wire fencing and floating barriers along the Mexico border.

Lawsuit challenges Texas efforts to restrict illegal border crossings | Reuters

In Florida, a new bill is being proposed to regulate the collection of biometric data, such as fingerprints, from the deceased by funeral homes. This legislation was prompted by Mark Cady-Archilla, who discovered his mother's fingerprints were scanned and shared with Legacy Touch, a company that creates keepsakes, without his consent. The Florida bill, unique in its focus on the deceased, requires funeral homes to disclose in writing what data they collect and why, and whether it is sold to third parties, giving legal representatives the option to opt out.

This move in Florida is part of a broader legislative interest in biometric privacy, with laws in other states like Illinois, Texas, and Washington already providing biometric privacy rights to living residents. However, the collection of biometric data from the deceased often falls outside current laws. Federal courts have held that privacy rights end at death, and funeral industry practices vary widely.

Legacy Touch, which partners with funeral homes to collect and transfer fingerprint scans, states that homes do not legally need permission to scan fingerprints but should communicate with families. They also offer commissions to funeral homes for orders placed. The National Funeral Directors Association recommends obtaining written consent for fingerprint collection.

In Massachusetts, a policy requires consent for the removal of personal materials, including fingerprints or DNA, from a deceased body. This policy came into effect after a family was upset to learn about the collection of a decedent's fingerprints for jewelry offerings.

Cady-Archilla, who filed a civil suit against the funeral home that handled his mother's body, argues for the need to protect the deceased's privacy. He emphasizes the importance of dignity and informed consent in handling the remains of loved ones.

The Florida bill, if passed, could set a precedent in regulating biometric data collection from the deceased, potentially influencing similar legislation in other states. It raises questions about the nature of biometric data and the rights of individuals after death, as well as the responsibilities of companies and funeral homes in handling such sensitive information.

Florida Tests Waters for Privacy Law With Focus on Dead People

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at