Legal Issues to Watch in 2026

Key criminal law issues to watch this year include the continuing shift in state-level reforms. More states are expected to consider decriminalizing marijuana, as well as adopting “Death with Dignity” physician-assisted suicide laws, reflecting evolving public attitudes toward autonomy and harm reduction. Another major development is the Model Penal Code’s revised sexual assault provisions, which modernize consent standards but have yet to be adopted by any state—an implementation gap worth monitoring. Finally, the nationwide trend toward eliminating the death penalty continues to gain momentum, and the coming year will reveal whether additional states join the movement away from capital punishment.

In Cox v. Sony, the Supreme Court will decide the responsibility of an internet service provider (ISP) to police its users’ copyright infringement. A group of more than 50 music companies, including Sony, sued Cox, claiming it was indirectly liable for its users’ infringement of more than 10,000 works. It alleged that Cox received 160,000 notices of repeat copyright infringement on its network but loosened its copyright enforcement policies and terminated only 33 subscribers (in a period in which it cut off access to more than 600,000 for nonpayment). A jury found Cox liable for $1 billion (though the appellate court rejected one of the bases of liability, remanding for a recalculation of damages). In contrast, Cox claims that the internet connection it provides has many uses that have nothing to do with infringement. It also contends that the required “material contribution” to infringement requires more active behavior like encouragement of unlawful acts, not failing to terminate access. Cox also warns that being forced to terminate service could punish innocent users in households, coffee shops, hospitals, universities, and military barracks, resulting in widespread disruption to internet access. The Court’s conclusion will have vast consequences for ISPs, and thus all of us.

Ever since the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, the conventional wisdom has been that Congress can create so-called “independent agencies.” These agencies–like the FCC, SEC, FTC, and Federal Reserve–are often run by multimember boards or commissions with bipartisan membership and statutory protection from at-will firing by the President. Since the start of his second term, however, President Trump has taken the position that these statutory removal restrictions are unlawful because they interfere with his constitutional authority over the executive branch. On that view, he fired Rebecca Slaughter, a Democratic commissioner on the Federal Trade Commission. Her fight for reinstatement has now arrived at the Supreme Court as Trump v. Slaughter, a case in which President Trump has asked the Court to overrule Humphrey’s Executor and to recognize a conclusive and preclusive presidential power to remove executive officers. But even if the Court upholds the legality of Slaughter's statutory removal protection, another question in the case is whether courts have any authority to order reinstatement–as opposed to some other remedy, like backpay–when an unlawful firing occurs. A final important factor lurking in the background of Slaughter's case is the Federal Reserve: If President Trump wins, can the Court craft a rule that does not result in political control over U.S. monetary policy, an outcome that could have important consequences for confidence in the U.S. economy?

Arguably one of the most important legal issues to be decided by the U.S. Supreme Court this term is whether President Trump’s Executive Order 14160 (E.O. 14160), which seeks to redefine who may acquire U.S. citizenship by birth, violates the Citizenship Clause of the Fourteenth Amendment and the Immigration and Nationality Act. The Fourteenth Amendment provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are U.S. citizens. E.O. 14160, issued on January 20, 2025, the first day of President Trump's return to the White House, provides that persons who are born in the United States are not “subject to the jurisdiction thereof” if the parents are undocumented or in the country lawfully but present on a temporary basis. To acquire birthright citizenship under the executive order, at least one parent has to be a U.S. citizen or lawful permanent resident. The Trump administration has faced multiple lawsuits from individuals, organizations, and states challenging the constitutionality and validity of the executive order. On December 5, 2025, the Supreme Court granted certiorari in Trump v. Barbara, a case brought by parents on behalf of their U.S.-born children. The question presented is “whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.” 

Many issues relating to LGBTQ+ rights are on the docket at the Supreme Court this year–with a particular focus on transgender rights. The Supreme Court has already ruled in Trump v. Orr (on the shadow docket) that a Trump Administration policy requiring all passports to reflect sex assigned at birth is likely constitutional, and can go into effect. This is a ruling that has profound negative effects for transgender Americans who have long been able to obtain passports that match their gender identity and presentation, and who face harassment, inconvenience, and risks to their safety when traveling with documentation that effectively outs them any time they are forced to provide it. In addition, the Court has three other major LGBTQ+ cases on its merits docket, including a First Amendment challenge to Colorado’s ban on conversion therapy (i.e., efforts to change LGBTQ+ status) for minors, and Equal Protection and Title IX challenges to state laws categorically banning trans women and girls from female athletics. However these cases are decided, they are likely to have a substantial doctrinal impact, both for LGBTQ+ rights, and for broader civil rights law.

OpenEvidence v. Doximity is one of the first cases to test whether strategic prompting of a generative AI model to learn how it was designed, developed, or fine-tuned constitutes trade secret misappropriation. The case follows an earlier lawsuit, OpenEvidence v. Pathway. OpenEvidence operates a widely used medical AI chatbot for clinicians. In early 2025, OpenEvidence sued Pathway Medical, alleging that Pathway conducted a “prompt injection attack” to induce the chatbot to reveal portions of its system prompt code. OpenEvidence characterizes this system prompt code as a core trade secret central to how the chatbot interacts with users. It later sued Doximity on similar grounds. Doximity then acquired Pathway Medical. The consolidated case is now pending against Doximity in federal court in Massachusetts. The litigation raises two central questions: whether system prompt code qualifies as a trade secret and whether strategic prompting is an improper means of acquisition or a lawful form of reverse engineering. Notably, the pleadings also show that defendants accessed the professional version of the chatbot using another person’s medical provider number, a form of misrepresentation unlikely to be excused under trade secret law. Moreover, the defendants’ conduct appears to have violated OpenEvidence’s Terms of Use, and many courts treat such violations as improper means under trade secret law.

Since 1984, the federal compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), has formally allowed judges to reduce criminal sentences based on “extraordinary and compelling reasons.” But there wasn’t much legal activity on the issue until the First Step Act of 2018 allowed prisoners to file their own motions in federal court. Since then, almost 5,000 federal prisoners have won compassionate release, for reasons such as violence they were subjected to by Bureau of Prisons staff, as well as extreme disparities in their and their codefendants’ sentences. But federal prosecutors have sought—and some courts have imposed—limits on what types of circumstances judges may consider in compassionate release cases. In fall 2025, the Supreme Court heard arguments in two cases—Fernandez v. United States and Rutherford v. United States—in which it could dramatically limit what federal judges are allowed to consider “extraordinary and compelling circumstances” when they consider prisoners’ motions. In the compassionate release statute, Congress listed just one limit on judges’ discretion to determine what circumstances are sufficiently extraordinary and compelling to grant compassionate release. Now, the Supreme Court will now decide whether to limit that discretion beyond what’s provided for in the statute, and its decision will have an impact on countless prisoners hoping for relief from their sentences.