Coale Mind

Ken Paxton v. Big Tex Aug 18, 2024

In this episode, I examine a debate between gun rights and property rights, in the specific context of the decision by the State Fair of Texas to ban firearms.--and the announcement of Texas Attorney General Ken Paxton that he intends to challenge that decision. This isn’t just about rights under the Constitution and Texas statute; it’s also about the freedom to make agreements and finding the right balance between safety and individual freedoms. In this episode, I break down how these legal ideas fit together and what they mean for everyone involved.

Interview with Dr. Ben Voth about James Farmer, Jr. Mar 10, 2024

In this episode, I interview my old friend Ben Voth, a professor of rhetoric and the director of debate at Southern Methodist University in Dallas. In 2019, Ben wrote a book called James Farmer Jr.: The Great Debater, which discusses how the strategies of civil-rights icon James Farmer were shaped by his debate training (the subject of Denzel Washington's The Great Debaters). I hope that Mr. Farmer's thoughtful eloquence can provide us with some guidance for the difficult discussions of our times.

What is the Fifteenth Court's Precedent? Feb 11, 2024

With apologies for the pun, the Fifteenth Court of Appeals faces an “unprecedented” situation.

Unlike the other intermediate courts of appeal in Texas, the newly created Fifteenth Court of Appeals has no immediate predecessor. The Legislature gave it statewide jurisdiction over specific kinds of cases, as opposed to general jurisdiction over cases from a particular geographic area. As a result, that court does not start with an “inherited” body of precedent.

The Fifteenth Court thus faces a novel—and fundamental—question: what is its precedent?

This episode examines five sources of insight for answering that question: (1) English common law (as defined by a Texas statute dating back to the Republic); (2) “vertical” precedent, as described by a 2022 supreme court case; (3) federal practice about the Erie doctrine; (4) generally recognized conflicts-of-laws principles; and (5) historical examples from the 1840s, when the Supreme Court of the Republic of Texas confronted a similar problem with a lack of precedent.

How Good is Generative AI? ChatGPT and I Co-Author a Tale Jan 21, 2024

About a year ago, in a popular episode I had ChatGPT as my guest, and we discussed several issues of the day. To start this year off right, I invited ChatGPT back—now updated to version 4.0—and asked it to prepare a short story for listeners to enjoy.
Specifically, I asked it to prepare a “noir” story, in the style of Raymond Chandler and his immortal private eye Philip Marlowe, but set in a courtroom and involving lawyers.
Here it is. The characters and plot—such as they are—are entirely of ChatGPT’s making. I gave ChatGPT the initial prompt to get it started and then had it rewrite several paragraphs for additional detail and continuity. I did only minimal style editing. Again, I think that the resulting product shows some things that ChatGPT does very well—and some others, that at least for now, it does not do well at all.

Can the Texas Supreme Court do that? "Adminstrative stays" in the state courts of Texas Jan 07, 2024

In mid-December of 2023, the Texas Supreme Court resolved a high-profile abortion case in which a woman sought an emergency injunction to immunize her health-care providers from liability under Texas's strong anti-abortion laws. During the brief time that the matter was before that Court, it issued an “administrative stay” against further enforcement of the relevant court order.
This episode considers the history of the “administrative stay” concept in federal court, where it originated and is reasonably well-developed, and then examines how well that federal-court concept transfers into the Texas state system. It concludes by urging cautious use of this tool, in order to properly balance the power of central and local courts as envisioned by Texas's highly decentralized constitution of 1876.

University Presidents, Calls for Genocide, and Aristotle Dec 17, 2023

While the furor over recent Congressional testimony by three prominent university presidents has died down somwhat (after the president of the University of Pennsylvania resigned), there are still important lessons to be learned from what went so badly wrong. In this episode, I consider how the presidents (and their litigation counsel) could have used Aristotle's three principles for successful communication (the balancing of ethos, pathos, and logos) to craft a more persuasive message ... and at least, avoid a public-relations disaster.

Jury Consultant Jason Bloom Returns - The "New Normal" of Jury Selection for 2024 Dec 10, 2023

Favorite guest Jason Bloom, one of the country's most respected jury consultants, returns to offer his insights on jury selection for 2024 (and with them, insight on how our modern society makes decisions). Topics include the (overwhelming) effect of social media, the legacy of the pandemic and the concern it left jurors with about corporate "accountability" -- and his new book! I think you'll find this to be our most informative and practically useful conversation yet.

How to Fix Political-Candidate Debates Oct 15, 2023

I recently watched the second televised debate among Republican candidates for President and was disappointed by the conduct of those proceedings—they were hard to follow and offered little useful information. In today’s episode, I draw on my experiences in competitive debate and business litigation to offer two ideas for improvement: (1) requiring some portion to be recorded in advance, and (2) empowering moderators to have a realistic ability to flip a kill switch and turn off a participant’s microphone.

Slavery and the Republic of Texas Supreme Court: What Can we Learn? May 21, 2023

Back during the pandemic, I got a copy of "Dallam's Decisions." It’s a one-volume work with all the opinions of the short-lived Supreme Court of the Republic of Texas (1840-45, give or take). It’s fascinating stuff, some of that court’s work is terrible, and some is really insightful.

I wrote down some notes about the three cases from that court dealing with slavery, and recently got around to spinning those notes out into a short article.

That article just came out in the “Journal of the Texas Supreme Court Historical Society,” a link is here, starting on page 75. It looks at three cases, I think those cases offer some good insights about our world as well as the 1840s.

Mifepristone May: Upcoming Argument About "Conservatism" Apr 30, 2023

In a recent article in Slate, I note that the Texas medication-abortion case highlights the distinction between "political" and "judicial" conservatism. The district court's ruling reached a desirable result from a "politically" conservative perspective (reduced abortion access). But it rests on a standing argument that is not "judicially" conservative (the plaintiffs rely on a chain of possibilities to establish their claimed injury). The Fifth Circuit will confront that distinction in the May 17 arguments in this case. This episode examines this choice, adding new developments from the last few weeks to the analysis in my Slate article.

Are "Business Courts" Acceptable Under the Texas State Constitution? Mar 26, 2023

This episode examines arguments for why the proposed new system of business courts may not pass muster under Texas' state constitution.
Specifically, it examines the constitutionality of appointing trial-level judges, and of creating a new "Fifteenth Court of Appeals" with statewide jurisdiction over one specific type of questions.
It reviews whether this structure is consistent with an "originalist" understanding of Texas' Reconstruction-era constitution and its vision of highly decentralized state government.
The episode concludes by asking whether it really advances the stated goal of "certainty" in Texas business law to create a new court system whose constitutional legitimacy is sure to be challenged.

Interview with ChatGPT Jan 18, 2023

In this episode I interview ChatGPT, the powerful and easy to use AI chatbot that has changed the global discussion about the roles of human and artificial intelligence. We talk about its potential impact on the legal system.
I'll be interested in your reactions. My takeaways were that ChatGPT:
- Was unfailingly polite and well-organized;
- Seemed to have a high-level "understanding" of a lot of topics
- Was at times pedantic and evasive;
- Wasn't great with detail, at one point making a mistake about the case and when Roe v. Wade was overruled. It acknowledged its error and apologized for it, though, when pointed out.
Technical note: I did not the substance of any response by ChatGPT. I did delete occasional redundant paragraphs and made one small revision to a numbered list to help the speech software. The voice of ChatGPT is provided by the text-to-speech function in Microsoft Word, which may not be the most sophisticated voice AI program out there but was enough to get the job done.

"WWHD"? How should courts use the question: "What Would Hamilton Do?" Nov 06, 2022

This episode considers modern-day financial regulation - specifically, the Consumer Finance Protection Bureau - and what Alexander Hamilton might have thought about it.
Then I consider, using a recent Fifth Circuit opinion as a test case, whether those thoughts offer any guidance about the constitutionality of the Consumer Financial Protection Bureau. I doing so, I focus on the trial-court rules that guard against speculative testimony from a witness, as well as expert testimony that is not well-grounded in a recognized methodology.
Based on that review, I suggest that analysis of Hamilton's intent - that would likely not be admissible in a trial court - may not be probative in a Constitutional analysis about a feature of modern government that did not exist in Hamilton's lifetime.

Coale Kids on Book Bans, Dress Codes, and Motto Posters Oct 09, 2022

In this episode, I discuss three important issues of the day about school law with the people who really know the subject - three students. My guests are our kids Cecilia Coale (17, and a senior at the local high school), Camden Coale (14, a freshman), and Casey Coale (12, in seventh grade). (Their older brother Caleb is in college and could not join us.)
We talk about (1) book banning, and in particular a recent Tennessee school-board vote to restrict access to "Maus," (2) dress codes, including a Forney ISD initiative to restrict the wearing of dresses, and (3) the new Texas law requiring the display of the national motto if a "durable poster" of it is given to a public school by a private donor. I hope you enjoy the episode as much as we had fun doing it!

Abortion Access as a Human Right: Interview With Julie F. Kay Oct 02, 2022

In this episode, I interview noted human rights lawyer and author (and college classmate) Julie F. Kay, co-author of the 2021 book Controlling Women: What We Must Do Now to Save Reproductive Freedom, and the architect of the landmark European human rights case, A,_B_and C v. Ireland. We discuss her experiences in successfully advocating for abortion access in Ireland, and her thoughts on how we can move forward productively on women's health issues after the Supreme Court's recent Dobbs opinion.

The National Motto, the Texas Legislature, and the Southlake Dragons Sep 04, 2022

This episode considers the new Texas law about the national motto "In God We Trust." The law requires public schools to display "a durable poster or framed copy" of the motto, if it is donated to the school and the poster also contains the US and Texas flag -- with no other "words, images, or other information."
A Dallas-area school district drew national attention last week when it rejected the donation of a poster with the motto written in Arabic, as well as posters with rainbow-colored backgrounds. The district argued that it had earlier accepted "a durable poster" from someone else; the would-be donor argued that each of his posters qualified as "a durable poster" within the meaning of the law.
I consider the purposes of the law, the fact that both sides of the Southlake debate have a point based on how the law is written, and suggest a third approach going forward--that districts display any qualifying poster for a reasonable amount of time, thereby giving all donors an opportunity to speak, but not flooding their walls with an excessive number of posters.

God, Sex, Life, and Dobbs: Who are the "People's Elected Representatives"? Jul 31, 2022

Quoting several courts and the synoptic gospels ("Render unto Caesar ... "), this episode further considers who the "people's elected representatives" are, as identified in Dobbs:

Which state's representatives? A Texas resident has an abortion in New Mexico, after receiving information from a nonprofit based in New York. Which state's legislature(s) may regulate this activity?
Which representatives? Imagine a law giving two different Texas prosecutors jurisdiction over an alleged abortion-related crime. Which branch of government resolves a difference of opinion--one of the prosecutors (the executive)? the Legislature? or the courts?
Is it government at all? What if the duly elected leaders of a church congregation decide to assist travel to other states related to abortion? Do they have a defense to prosecution under the Supreme Court's City of Hialeah case that allowed Santeria congregations to engage in animal sacrifice?

Abortion Travel Restrictions After Dobbs: Constitutional? Jul 24, 2022

Season Three of the Coale Mind podcast begins in the wake of the recent Dobbs opinion, taking a look at state laws seeking to regulate travel, and communication, between states involving abortion.
Substantively, the episode focuses on the constitutional "privilege or immunity of citizenship" involving interstate travel, while also considering the "dormant commerce clause," the First Amendment, and the general due-process protection against vagueness.
Procedurally, the episode considers the different audiences for litigation about these laws, comparing the very conservative U.S. Court of Appeals for the Fifth Circuit with the more liberal intermediate courts of appeal throughout the Texas state appellate system.
It concludes that Justice Alito's observation about returning abortion regulation to "the people's elected representatives" may be far more nuanced and unpredictable than it seemed when he wrote that sentence.

The Administrative State Strikes Back? Jun 12, 2022

The antipathy of an increasingly conservative federal judiciary for the perceived excesses of the "administrative state" is well-known; a good recent example is the Fifth Circuit's panel-majority opinion in Jarkesy v. SEC that found constitutional problems with that agency's use of administrative law judges.
In that case, the SEC unsuccessfully argued that its use of those judges was important to Congress's "statutory scheme" created by the federal securities laws.
This episode considers the possibility that Congress, reacting to assertive judicial review of administrative-agency action, may start incorporating limits on judicial review as part of this and other such comprehensive "statutory schemes." It briefly examines the basis for such Congressional power and what form such reactions might take.

Originalism and its Discontents May 29, 2022

This episode compares:

the Fifth Circuit's May 2022 opinion in Jarkesy v. SEC, which held that the Seventh Amendment's right to civil jury trial extends to an SEC enforcement action (although the SEC did not exist in 1791), and
the draft Supreme Court majority opinion in Dobbs(which held that the Fourteenth Amendment did not protect an abortion right in 1868, although the vast majority of women could neither vote nor own property at that time).

The episode concludes that historical analogies, made in the name of "originalism," may not be a faithful application of that technique for constitutional reasoning when the historical context differs substantially from our own.

Cities and Counties as Post-Roe Bulwarks: Who Are the "People's Elected Representatives"? May 08, 2022

Recent headlines have been dominated by the leak of Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization. A key sentence in that draft opinion says: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
In Texas, recent court battles about three topics --county election procedures, mask mandates, and SB8-- showed that “the people’s elected representatives” includes far more than the Legislature. There are not just two levels to our government (state and federal) but also a third—local authorities. This episode considers how the role and powers of those, additional, elected representatives may affect the availability of abortion in a post-Roe world.

Podcasting About Podcasting! I interview Todd Smith and Jody Sanders about their "Texas Appellate Law" podcast podcast Apr 17, 2022

After months of "home confinement" as a result of the COVID-19 pandemic, at an appellate CLE in Austin last fall I ran into my old friends Todd Smith and Jody Sanders, who publish the popular Texas Appellate Law podcast. We resolved to swap interviews in 2022, and this is "Coale Mind"'s side of the bargain! I interview Todd and Jody about their practices, podcasting and social media generally, and where they see both areas going in the future. I hope you enjoy these episodes as much as we enjoyed doing them.

Why the Supreme Court is Like a Bowl of Soup: Clarence Thomas + Dobbs = Legitimacy Worries Apr 03, 2022

Building on a recent interview that I did with the Lincoln Project, this episode examines why today's Supreme Court is like a bowl of soup, heated by two separate burners. The first is the ongoing scrutiny over Justice Thomas's recusal decisions in matters related to his wife's political activity. The second, cool now but with the potential to become blazing hot, is the pending Dobbs case in which the Court could significantly limit or even overrule Roe v. Wade. The combined heat potentially generated by these two issues--an ethical dispute about a Justice coupled with the possibility of a uniquely controversial ruling--could present a legitimacy problem for the Court of a magnitude not seen in recent memory.

Randomized SCOTUS Terms: A Cure for Dull Confirmation Proceedings? Mar 23, 2022

Our selection of Supreme Court Justices today is based on a wager, that can come out one of two ways.
If an elderly Justice guesses correctly about his or her health, a boring confirmation process to replace that Justice with someone ideologically similar. We are seeing that today with the fulsome, if entirely predictable, confirmation hearings for Judge Katanji Brown Jackson.
If the Justice guesses incorrectly, the opposing political party races to confirm an ideologically different successor. We saw that recently with the death of Justice Ruth Bader Ginsburg and the race to replace her with now-Justice Amy Coney Barrett.
Boredom or ghoulishness. Is this really the best we can do? This episode considers, tongue-in-cheek, whether adding some purely random elements to the selection process could revitalize public interest in it. The specific "suggestions" are likely not feasible, but hopefully they can stimulate some creative thinking to break free from the current wager and its, inflexible, two outcomes.

Can SB8 be adapted to regulate firearm sales? Mar 20, 2022

This episode examines whether the machinery of SB8 - the Texas anti-abortion law enforced entirely by private actors - can be adapted to regulate firearm sales.
Specifically, it looks at the recent $70 million settlement by Remington of claims by family members of victims of the 2011 Sandy Hook shooting, and the characterization of those claims by the Connecticut Supreme Court's 2019 opinion in Soto v. Bushmaster Firearms.
It concludes that if any such law could be drafted consistently with the broad federal grant of immunity in the Protection of Lawful Commerce in Arms Act, it would be based on the analysis of that statute in the Soto opinion.

My Law Firm Has Reopened: What Now? Interview with design expert Anne Kniffen. Feb 27, 2022

So your law firm has reopened after the COVID-19 pandemic.
Great! What should your space look like now?
When your lease runs out, where should your firm be based?
If it has one "office" now, should it continue to do so?
How do you get people to come to the office--if you want them to at all?
And what should a home office look like now?
These are hard questions, and every professional service firm is confronting them as the economy returns to "normalcy" in the wake of the COVID-19 pandemic. In this episode, I interview noted interior-architecture expert Anne Kniffen about developing trends and best practices about the post-pandemic law firm workspace.

"Can the School Board Ban that Book?" Feb 06, 2022

Can the school board remove "that book" - whatever it may be - from the high school library?
This episode reviews the First Amendment's guidelines on that issue, established by the Supreme Court's one case in the area, in 1982. It examined whether the school board's :(impermissible) motive to restrict student access to a particular message was the reason for a book's removal, as opposed to a (permissible) motive related to education or appropriateness for the audience's age.
After reviewing that case and two examples of how lower courts have applied it, the episode makes two suggestions about the law today: (1) the balance struck 1982 case, featuring a dissent by Justice Rehnquist, would likely not be the same balance that today's more-conservative Supreme Court strike, and (2) another early-1980s First Amendment case, about the then-important issue of speech rights in shopping malls, teaches that the world of information has changed a lot since then, and that school libraries may now be as peripheral to the mainstream exchange of ideas as shopping malls.

Juries, Voters, and Acceptance of Responsibility: Jury Consultant Jason Bloom Returns Jan 22, 2022

By popular demand, the nationally respected jury consultant Jason Bloom returns to "Coale Mind" after his insightful interview last year about the restart of jury trials after the 2020 quarantines. In this episode, he discusses the insights from the continued return of jury trials.
He describes how, across the country, prospective jurors are more eager to be selected and serve on juries than ever before, reflecting a national mood that wants to reassert control over government after many months of uncertainty and frustration. Relatedly, jury deliberations are emphasizing a theme of "accountability"--examining which party to a case has demonstrated responsibility for its actions and decisions.
Obviously important for trial lawyers, Jason's insights are also critical to understanding America's political dialogue as society continues to reawaken after the COVID pandemic. Decisionmakers (jurors, voters, and customers) bring very specific interests and desires to 2022 that must be understood and accommodated to make effective policy.

"Chocolate Is Life": How to Navigate a Global Supply Chain and Eat Well Too! Jan 12, 2022

To start the New Year off right, I interview Valerie Beck, one of the world’s leading experts on the business of -- chocolate. Seriously!
Through her business, Chocolate Uplift, Valerie serves as a consultant to craft chocolate makers all over the world. For many years before that, she was CEO of a tour company that offered “chocolate tours” of the many fascinating places where chocolate is made. (And, she’s a college classmate of mine.)
I invited her to the podcast both because she’s an energetic and inspirational speaker, and because her insights about the chocolate business raise important policy questions about what "ethical manufacturing" means in a fast-moving global marketplace. I hope you learn something interesting about craft chocolate, as well as the many tough decisions that farmers, manufacturers -- and consumers -- must confront in a global economy.

"SB8: A Terrible Beauty" - November 2021 Baylor Law Presentation, Part Two Nov 28, 2021

This is the second half of my presentation to Professor Rory Ryan's Federal Courts class at Baylor Law School, about SB8, on November 23, 2021. The presentation addresses four issues raised in the litigation about the law:
(1) sovereign immunity as defined by Ex Parte Young,
(2) standing (both to sue about SB8, and under it),
(3) whether Texas avoided "state action" (and with it, the federal civil-rights laws) by its delegation of enforcement to private citizens, and
(4) limits on federal-court power to enjoin an unconstitutional law, especially as stated by In Re Debs.
This episode has the discussion of the last three topics and a brief conclusion.
PLEASE NOTE that there are occasional short skips in the recording, especially at the very start, but they do not interfere with the flow of the presentations. The PowerPoint is available here and a video recording here.

"SB8: A Terrible Beauty" - November 2021 Baylor Law Presentation, Part One Nov 28, 2021

This is the first half of my presentation to Professor Rory Ryan's Federal Courts class at Baylor Law School, about SB8, on November 23, 2021. The presentation addresses four issues raised in the litigation about the law:
(1) sovereign immunity as defined by Ex Parte Young,
(2) standing (both to sue about SB8, and under it),
(3) whether Texas avoided "state action" (and with it, the federal civil-rights laws) by its delegation of enforcement to private citizens, and
(4) limits on federal-court power to enjoin an unconstitutional law, especially as stated by In Re Debs.
This episode has the introduction and the discussion of the first topic about Young.
PLEASE NOTE that there are occasional short skips in the recording, especially at the very start, but they do not interfere with the flow of the presentations. The PowerPoint is available here and a video recording here.

The Law of Thanksgiving: How a National Holiday Comes to Be Nov 21, 2021

Celebrate Thanksgiving this year with "Coale Mind," which examines the legal underpinnings of our country's national holidays. Somewhat surprisingly, they are grounded in a fairly obscure part of the U.S. Code that sets vacation policy for federal employees, rather than one of the more well-known portions of that Code or the Constitution. From there, I examine some interesting lessons that the scheduling of Thanksgiving, in particular, has to teach us about (1) the growth in the power of the federal bureaucracy since the Civil War, (2) the power of retail interests to affect public policy, and (3) the power of tradition (here, the ancient custom of a "harvest ritual" to both affect the law and become a part of it.

"In re Debs" - the 1895 railroad-strike case that may control the Texas abortion dispute Oct 30, 2021

In 1895, the Supreme Court affirmed a contempt conviction against Eugene Debs, the leader of a nationwide strike by railroad workers. The conviction arose from a federal-court injunction, obtained by federal prosecutors to prevent private actors from infringing on activity protected by the U.S. Constitution. Both the United States and the State of Texas rely on that opinion, In re Debs, in the ongoing litigation about the constitutionality of the new Texas abortion statute. The strength of the analogy between the Texas case and Debs will form an important part of the opinion that the Supreme Court ultimately reaches about that law.

Critical Race Theory in Texas Schools: Valuable Tool, Scary Monster, or Something Else Entirely? Oct 10, 2021

This episode reviews the new Texas law (Tex. Educ. Code sec. 28.0022(a)(4)(A), (C)) about teaching "Critical Race Theory" in the state school system. My special guest is my friend of more than thirty years, Dr. Michael Hester of the University of West Georgia, who teaches in its communications school, coaches the debate team, and serves as a special advisor to the university's Chief Diversity Officer. In this episode we consider:

What is "Critical Race Theory?? Where does it come from? What questions does it try to answer?
Does the higher-education version of Critical Race Theory have anything to do with (a) K-12 education, or (b) the specific provisions of this statute?
What is the 1619 Project, anyway?
What should someone read who wants to understand Critical Race Theory better? and
What should a high school student read who wants to know more about CRT?

This episode was a lot of fun to put together and I hope you enjoy it.

Does the Heartbeat Act violate the "Open Courts Clause" of the Texas Constitution? Oct 03, 2021

A few weeks ago, I considered whether the new Texas abortion statute, the "Texas Heartbeat Act," violated the "Separation of Powers" Clause of the Texas Constitution of 1876. This week I examined whether the Heartbeat Act may violate the "Open Courts Clause," another unique feature of the 1876 state constitution, which also has no direct equivalent in the U.S. Constitution.
While the application of that clause to the Act would raise some novel questions, the near-shutdown of abortion services in Texas over the last month suggests that the practical effect of the Act has been to deny the constitutional guarantee of "open courts" to providers--who would otherwise seek to defend the legality of the services they offer.

Treason, or Smart Soldiering? Sep 26, 2021

"Treason!" cry former President Trump and supporters, criticizing calls made by General Mark Milley to his counterparts in China and other countries during the waning days of the Trump Administration. This episode considers the validity of that claim, both under the Constitution's definition of "treason," as well as general principles about civilian-military relationships in the United States.

Interview with Matt Rinaldi, the new Texas GOP Chair Sep 19, 2021

I talk "the state of the State" with Matt Rinaldi, the new statewide chair of the Texas Republican Party. We succinctly talk about the Governor's emergency powers, the power grid, border security, SB8 -- and, a special bonus topic that you must listen all the way to the end to hear!

Does the Heartbeat Act violate the Texas Constitution? Sep 08, 2021

Building on an insightful op-ed in today's Boston Globe about the Supreme Court's 1981 Grendel's Den case, this episode considers whether the Heartbeat Act's delegation of enforcement authority to millions of private citizens may violate the Texas Constitution's separation-of-powers clause -- a clause that does not appear in the U.S. Constitution.

Interview with Former Railroad Commission Candidate Chrysta Castaneda -- Why the Lights Went Out in February . . . and Will it Happen Again? Sep 05, 2021

In this episode I interview my old friend Chrysta Casteneda, a well-known oil-and-gas litigator in Texas who ran for a position on Texas's powerful Railroad Commission in 2020. She describes why the "lights went out" in Texas in February 2021 as several things went wrong at once, and examines whether we have done enough to protect ourselves against another epic failure of our electrical grid as the state continues to grow.

Is the Fifth Circuit More Conservative Than the Roberts Court? Revisited. Aug 22, 2021

Welcome to the second year of Coale Mind!
In a previous episode of this podcast, I questioned whether the U.S. Court of Appeals for the Fifth Circuit – the federal appellate court for Texas, Louisiana, and Mississippi – may have grown more conservative than the U.S. Supreme Court under the leadership of Chief Justice Roberts. In particular, I looked at two Fifth Circuit cases that the Supreme Court reviewed in the last term—Collins v. Yellen, about the structure of the regulator for Fannie Mae and Freddie Mac—and California v. Texas, about the constitutionality of the Affordable Care Act.
The Supreme Court has now ruled and the answer to the question is . . . it depends. These cases ultimately show that not all conservativism is the same . . . .

No, Donald Trump Can't Be "Reinstated" as President Jun 06, 2021

Various speakers associated with the "Q" phenomenon have recently claimed that Donald Trump can be "reinstated" as President, based on the hoped-for outcome of ongoing "audits" of 2020 election ballots in battleground states. This episode reviews the relevant text of the Constitution, noting that (1) voters choose Presidential electors, not candidates, and (2) the 20th Amendment speaks directly to the time that a new President and Vice-President takes office, and concludes that no "reinstatement" will happen.

Interview with Jury Consultant Jason Bloom -- How 2020 Shapes the Restart of Jury Trials Apr 18, 2021

Special guest! Jason Bloom, one of the nation’s leading jury consultants, talks about his experiences with jury selection during the COVID-19 pandemic. From that foundation, he and I talk about issues likely to arise as jury trials return to reopening courthouses across the country. They include:

- A surprising eagerness of people to show up and serve on juries, in part driven by widespread feelings of frustration after months of shutdown;

- Concern about what Jason calls the “massive exercise in confirmation bias” that potential jurors bring to the courthouse with them, depending on how restricted a juror’s information sources may be;

- The once-obscure psychological terms “ultracrepidarian” and “pareidolia” (you have to listen to the podcast to explore those terms’ meaning :));

- Remembering that 2020 changed potential jurors not only because of COVID, but because of Black Lives Matter, the Biden-Trump election and its aftermath, etc.

- And a reminder that jury service—unlike the similar civic-engagement exercise of voting—forces jurors to form a consensus among their different beliefs; and

- Why 1-page written questionnaires for potential jurors may be particularly useful now in light of the above issues.

For information on Jason, his background, and his outstanding jury consultation services, please visit his website.

How is a monk like a veterinarian? The modern Constitution's protection of economic liberty Mar 21, 2021

The Constitution protects economic liberty, but only against regulations that lack a rational foundation in a legitimate governmental interest.
Two recent cases from the U.S. Court of Appeals for the Fifth Circuit show how slippery this principle can be in practice. The underlying principle is alive and well, but "rationality" is a fairly easy burden for a regulator to satisfy.
In one, a Louisiana ban on the making of funeral caskets by Catholic monks was struck down (in no small part, because the ban served to benefit the funeral home directors who controlled the relevant agency).
In the other, a Texas ban on telemedicine by veterinarians was affirmed, by a 2-1 vote, on the rational basis that pets cannot talk while humans can. (The dissent was swayed by the argument that babies cannot talk either, but we allow pediatricians to treat them by telemedicine).

QAnon, Faces on Mars, and Joe Biden's Inauguration Feb 28, 2021

Despite the disappearance of the shadowy "Q," and the failure of the long-promised "Storm" to occur, followers of "QAnon" still hold out hope. Some believe that President Trump will return to power on March 4, 2021, in the reversal of an 1871 that turned the US into a "corporation" (spoiler alert--it didn't). Another view is that "NESARA," a secret package of economic reforms, will kick into gear in the summer of 2021, bringing about the return of President Trump and at last triggering the "Storm."
These beliefs are fanciful, but they are spun from underlying facts that many times are correct--so far as they go. Why do we do this to ourselves? This episode examines the psychological concepts of "pareidolia" and "apophenia"--our tendency to create order from unrelated sensory information, as was famously illustrated by NASA's "Face on Mars" picture in the 1970s. Those psychological tendencies, while useful in another time when our ancestors needed to instantly distinguish friend from foe, now poses dangers to the proper operation of our democracy--which assumes that voters are operating with reliable and fundamentally factual information and worldviews.

Can Biden do that? The limits on policymaking by executive order Feb 07, 2021

In just the first few weeks of his Administration, President Biden has issued 20-plus executive orders--a noticeably faster pace than his immediate predecessors. What exactly is his authority to issue such orders? And what are the limits on it? This episode of Coale Mind examines the text and structure of the Constitution to identify some answers--both substantive, and procedural.

Can Donald Trump be impeached after he has left office? Jan 24, 2021

The Senate plans to begin a second impeachment trial of Donald Trump. Can it do so under the Constitution? This episode looks at the Constitution's text, evidence of the framer's intent, two historical impeachment cases, and the Constitution's structure. It concludes that the answer is likely a matter of political will and consensus, which the two historical examples (former Senator William Blount in 1798 and former Secretary of War William Belknap in 1876) show is hard to actually sustain all the way through a trial to an judgment of impeachment.

Can President Trump pardon himself? Jan 10, 2021

The pardon provision in Article II of the Constitution is broad -- but so are other clauses that describe other aspects of the Presidency. This episode of Coale Mind reviews those terms of the Constitution, and considers how our debate about them reflects our society's broader debate about what we want the United States to be.

Showdown on Sixth Street: Governor v. Mayor on COVID-19 regulations Jan 03, 2021

Sixth Street in Austin is one of the nation's most famous "party streets." But is also the location of a Texas-style showdown between the governor, on the one hand, and the local mayor and county judge, on the other, about the regulation of bars and restaurants during the COVID-19 pandemic. This episode looks at the laws underlying their dispute (which just reached the Texas Supreme Court in its first case of 2021), and examines how those laws help explain the broader structure of our modern local governments.

No, Texas Can't Secede: A Tale of the Supreme Court and the Confederate Treasury Dec 13, 2020

The Supreme Court's recent rejection of the Texas v. Pennsylvania lawsuit has produced some muttering on the far right wing about the concept of secession.
This episode examines Texas v. White, the 1869 Supreme Court case that held -- once and for all -- that a state cannot secede from the United States. The case arose from shady dealings by the Confederate government of Texas involving millions of dollars (1860 dollars, mind you) in U.S. bonds.
The desperation of the Texas government in 1865 shows the real danger of secession: that while it can be entertaining to idly discuss, the real work of building a government is not something that should be approached as a start-up venture.

The Spirit of 1876 - Why Rutherford Hayes Haunts the 2020 Election Dec 06, 2020

The Presidential election of 1876 was spectacularly fouled up.
Three states certified dueling slates of electors; Congress resolved the resulting confusion with a political compromise about the end of Reconstruction, and then passed laws to try to avoid a similar crisis in future years.
While we have been lucky since 1876 to not have another election with so many technical problems, the laws passed by Congress are not imperfect. Many of their nuances are very much alive today, and form a big part of the still-running dialogue about finalizing the 2020 Presidential election process.
To fully understand the end of this election, you need to channel "The Spirit of 1876" . . . .
(This PowerPoint presentation contains more information about the 1876 election and its consequences, prepared for a recent talk I did for a fundraiser for the New York City Urban Debate League.)

Church and COVID - the Supreme Court blocks a gathering-size restriction Nov 29, 2020

The issue in Roman Catholic Diocese of Brooklyn v. Cuomo was whether a governor's order about maximum gathering size unfairly restricted religious liberty; by a 5-4 margin, the Supreme Court found that it likely did. The reasoning of the Court, and the concurring and dissenting Justices, suggests ways that the Court may examine future cases about COVID restrictions. It also shows the immediate impact that Justice Barrett's appointment has had on the Court, particularly on the issue of protecting religious liberty.

"Release the Kraken!" - the risks of Constitutional myth-making Nov 22, 2020

President Trump's die-hard supporters are calling on his lawyers to "Release the Kraken," in the form of (as-yet-unknown) evidence showing alleged election fraud.
This episode looks at the history of the mythic Kraken, and notes that the sailors who created the myth were afraid to say its name because it was such an alien and powerful force.
Accordingly, the Kraken may not be the wisest myth to incorporate (or "syncretize") into our modern Constitutional dialogue about election law.

Don't stand so close to the courts -- "standing" and why many election cases fail Nov 15, 2020

This episode looks at Bogert v. Secretary, the first U.S. Circuit-level case to result from the aftermath of the 2020 election. The case focuses on the concept of "standing"--a limit on judicial power that flows from the words "case or controversy" in the Constitution--to find that two important election-related issues had not been presented in a manner that the federal court system could address.

Sir Walter Raleigh and President Trump's election lawsuits Nov 08, 2020

In 1603, Sir Walter Raleigh was convicted of treason and executed based on an out-of-court statement by Lord Cobham -- despite Sir Walter's objection that "[Lord Cobham] is in the house hard by, and may soon be brought hither." The result of Raleigh's trial is a rule against "hearsay" testimony, and that rule was dispositive of a vote-counting case in Michigan last week. Raleigh is best known for introducing tobacco-smoking to Europe, but his legacy is also directly relevant to our ongoing election about the 2020 vote count.

Halloween Special - "Attack of the Zombie Statute!" Oct 25, 2020

Last week in Pool v. City of Houston, the Fifth Circuit confronted a "zombie statute"--a law that nominally remain in the law books even though they are unenforceable after having been found unconstitutional. (There are dozens of such laws across the country, including many old Jim Crow-era segregation laws, as well as the ordinance against same-sex marriage that was struck down in Obergefell v. Hodges.)
The plaintiffs, who wanted to circulate petitions in Houston to begin the citizen referendum process, had standing to sue about an unconstitutional restriction on their rights even though the Supreme Court had struck down a similar law 20 years ago.
In the words of the Court, given Houston's actions towards the plaintiffs: "This zombie shows signs of life."

"Who's on First?" - Why it matters who is sued in election cases. Oct 18, 2020

Abbott and Costello struggled to answer, "Who's on first?" In election cases today about the COVID-19 pandemic, that same question--applied to the specific defendants who have been sued--can resolve the case, and implicates basic principles about how our government is organized.
This episode considers Mi Familia Vota v. Abbott, a recent Fifth Circuit case about election law, in which the Court concluded that the plaintiffs had sued the wrong defendants (Texas's Governor and Secretary of State)--and reviews why that question is fundamental to the organization of our government under the Constitution.
The episode also honors the spectacular moustache of Edward Young, the Attorney General of Minnesota in 1908 and the namesake of the landmark case of Ex parte Young.

"Nice Ballot, Old Chap" - How do courts measure the "abridgement" of voting rights? Oct 11, 2020

A Texas statute allows registered voters, age 65 or older, to request an early-voting ballot that may be returned by mail. In a 2-1 decision, the Fifth Circuit recently rejected a claim that this statute impermissibly "abridged" the rights of younger voters in violation of the 26th Amendment.
The majority and dissent used the same basic approach to review the case--first, identifying a baseline level of protection for the right to vote, and then, measuring whether the Texas law was an "abridgement" of that protection. But despite starting with the same basic framework, they reached opposite conclusions, showing how slippery the concept of "abridgment" can be in this setting.

"Just Kidding?!" -- Can a State Legislature Replace the Popular Vote for President? Oct 04, 2020

For many years, state legislatures chose the Presidential electors, and popular vote played no role. Since the 1830s, though, legislatures have chosen to allocate electors based on the results of the popular vote for President. The Constitution still gives state legislatures broad power to appoint electors, however, and the COVID-19 pandemic could create situations where a legislature will want to intervene in the elector-appointment process. This podcasts considers the source of that power, the legal constraints on it, and how a state legislature could potentially act within the bounds of the law in this area--particularly if a Presidential or Vice-Presidential candidate became incapacitated by COVID-19.

Cross-Examining God: Religion's Role in the Barrett Confirmation Hearings Sep 26, 2020

Are Judge Amy Coney Barrett's religious beliefs off-limits for her upcoming confirmation hearings?
At first blush, yes, particularly given the long and unpleasant history of anti-Catholicism on the national political stage. But on a second look, and considering the well-settled concept from trial practice about "opening the door" to evidence on a particular issue, there is a distinct and important role for questions about religion.
Judge Barrett's first law review article as an academic suggested that Catholic trial judges should recuse themselves from death penalty cases. Is her distinction between trial judges and appellate judges (such as a Supreme Court Justice) a meaningful one? The Senate will have to tread carefully to explore that important topic while maintaining appropriate boundaries between church and state.

Advice and Consent: Can Justice Ginsburg be Replaced in 2020? Sep 19, 2020

How does the Constitution limit the power to appoint a Supreme Court justice in the last year of a Presidential term? By putting one-third of the Senate, which must consent to the new appointment, up for re-election.
If the electorate in the key Senate races believes that no nomination should be made to replace Ruth Bader Ginsburg in 2020, the voters can exercise their power and even deny the President's party a Senate majority. And if the voters are unpersuaded that the issue is important, then the Senate majority will control the decision.
The Constitution makes this question intensely political, precisely because it is of such critical political importance to the country.

Mark Your Calendar: Six Dates to Know for the 2020 Presidential Election Cycle Sep 19, 2020

A Presidential election in the United States is a process, not a date. The Constitution and federal statutes set six key dates for that process in 2020. This episode reviews their history, and considers how each date could lead to conflict in a highly polarized climate:

November 3, 2020. Election Day -- the end of vote collection, but the start of vote counting;
December 8, 2020. "Safe Harbor Day" -- the day a state's resolution of a dispute about electors becomes binding (the date that drove the fast pace of Bush v. Gore);
December 14, 2020. The day electors formally vote in each state;
December 23, 2020. The deadline to transmit a state's electoral vote to Congress;
January 6, 2021. "Counting Day" -- usually ceremonial, but potentially the start of a brand-new election in the House if no candidate has an electoral majority; and
January 20, 2021. Inauguration Day. The President's term ends.

"The socialists are coming!" (Or, are they already here?) Sep 13, 2020

Two headlines from last week --
1. Warnings, from the recent Republican convention, of a "socialist agenda" if the Biden-Harris ticket is elected, and
2. A news story about an increase in overtime-pay litigation.
But wait, isn't litigation about workplace conditions part of a "socialist agenda?" This episode of "Coale Mind" examines that question in light of the Supreme Court's cases about government power to regulate the economy, when the "Lochner era" came to a crashing end during the New Deal.

Signs of the Times - Does the First Amendment Protect I-35's Giant Billboards? Sep 06, 2020

I-35 is the main artery of Austin; massive billboards on either side of it advertise a wide variety of goods and services to freeway drivers.
The City of Austin tried to block new digital billboards that related to "off-premise" activity (business conducted somewhere other than the location of the sign). The Fifth Circuit found this unconstitutional under the First Amendment as a content regulation.
In this episode, I follow the chain of hypotheticals that took this sign ordinance from "well-intentioned idea" to "unconstitutional law." Along the way, I consider how tricky it can be to distinguish "speech" itself (hard to regulate) from the "time, place, or manner" of that speech (much easier to regulate).

Why are you striking those Hispanic jurors? Aug 30, 2020

A busy morning at the Dallas County Courthouse; the trial of a personal injury case about a rear-end collision; and the defense counsel strikes three Hispanic jurors. Has he violated the Batson cases that forbid strikes based on race or ethnicity?
The answer to that question turns on how the law must use objective facts -- statistics, the transcript of the specific questions asked during jury selection, etc. -- because the subjective intent of counsel is unknowable. Reasonable minds differed on that point in this case, as they often do in resolving important questions about the presence of racial animus in our society.

Can a state require vaccinations? And is the Supreme Court's 1905 answer still good? Aug 23, 2020

Massachusetts recently announced its plan to require flu vaccines for public school students. A 1905 Supreme Court decision, Jacobson v. Massachusetts, seems to give a state that power. This episode reviews Jacobson and considers how developments in (1) religious freedom law, (2) the law of administrative-agency procedure, and (3) the law of personal body autonomy, may weaken or strengthen Jacobson in the modern setting.

Too conservative for the Roberts Court? The 5th Circuit goes to Washington. Aug 16, 2020

This fall, the Supreme Court will consider two decisions by the en banc (full) U.S. Court of Appeals for the Fifth Circuit, the federal appellate court for Texas.
In the first, California v. Texas, a Fifth Circuit panel found that the individual mandate of the Affordable Care Act was unconstitutional after the repeal of the relevant tax, and the en banc court denied review in a close vote. In the second, Collins v. Mnuchin, the en banc Fifth Circuit found that Fannie Mae's regulator was structured unconstitutionally.
These cases, important in their own right, also reflect a fascinating encounter between two "conservative" federal courts. Will the Fifth Circuit, widely seen as a particularly conservative court after President Trump's many appointments, be seen by the Roberts Court as having gone too far? Or will the two courts by "in synch" with each other on these important constitutional issues?

"But I Don't Want to Wear a Mask!" Aug 09, 2020

The right to speak about a scientific subject (such as mask-wearing in response to the COVID-19 pandemic) is guaranteed by the First Amendment. But the exercise of that right may carry with it a responsibility to speak as a scientist, or else risk falling into the psychological trap of cognitive bias.

The Case of the Missing Mule Aug 02, 2020

In 1842, near Austin, a Comanche raiding party stole Mr. Herbert's mule. A neighbor got the mule back, after which he and Mr. Herbert got in a lawsuit about who now owned the mule. The Supreme Court of the Republic of Texas ruled for Mr. Herbert. The reasons why go to the foundation of America's legal relationship with Native Americans. And they are important to this day, because they explain why the U.S. Supreme Court just ordered a new trial for an Oklahoma case that arose on land that Congress declared to be a reservation for the Creek Indians.

The liberty to sell a slave? An 1843 Republic of Texas court case still has a lot to teach us. Jul 26, 2020

In the 1843 case of Walker v. McNeil, the Supreme Court of the Republic of Texas voided a contract to sell a slave. The court found that the buyer had used "duress" to force the sale--in other words, he had wrongly interfered with the seller's liberty by making threats against him.
Of course, the Walker court missed the forest for the trees. It waxed poetic about the liberty of the seller, never noticing that the slave had no liberty at all.
This old opinion is extraordinarily misguided. But can we still learn from Walker, by studying its specific oversights? Do we sometimes also miss the forest for the trees, especially when we talk about social justice issues that are part of slavery's ugly legacy? I suggest in this podcast that Walker, despite its age and misguided holding, still has a great deal to teach us.

"Cancel Culture" and the First Amendment - lessons from a recent 8-8 Fifth Circuit case Jul 19, 2020

This episode considers the phenomenon of "cancel culture" in light of the recent case of Wilson v. Houston Community College College System Board.
The U.S. Court of Appeals for the Fifth Circuit held that Wilson, a trustee of the Board, stated a viable First Amendment claim when the Board passed a censure resolution against him for his public comments about the Board's activities. The Board sought en banc review from the full court, which tied 8-8 on whether to consider the case again.
The arguments in Wilson illuminate the concerns that drive what is sometimes called "cancel culture," and may help us think through when healthy debate can become an overreaching desire to silence the other side of a debate.
If those questions seem hard, the fact that a team of very sophisticated judges split 8-8 may give us some reassurance that they really are challenging.

Roger Stone's pardon - two concerns (PILOT) Jul 13, 2020

This episode examines President Trump's recent pardon of Roger Stone. It notes that the pardon is (1) unusually close in time to the actual events of the underlying prosecution, and (2) unusually close in personal relationship to the President himself, and suggests those two questions will be useful in examining future uses of the pardon power that the Constitution gives the Chief Executive.

James Throckmorton - should his statue remain in place? (PILOT) Jul 10, 2020

A statue of former Texas governor James Throckmorton stands on the town square of McKinney, Texas, the county seat of Collin County immediately north of Dallas. Because he served as a general in the Confederate army, a debate is ongoing as to whether the statue should be removed. In this podcast, I question whether its removal is appropriate given the (1) Mr. Throckmorton voted against Texas secession; (2) the statue contains no military trappings or pro-Confederate slogans; and (3) Mr. Throckmorton lived and worked in Collin County, giving him a real connection to the place where his statue is on display.

Chiafolo v. Washington - what do "faithless electors" mean for me? (PILOT) Jul 07, 2020

In a pilot post for Coale Mind, David discusses the July 6, 2020 decision in Chiafolo v. Washington about "faithless electors." What does Edmund Blair's 1952 refusal to follow the Alabama popular vote mean for our 2020 election, and Presidential elections going forward?

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