Coale Mind

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. 

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. 

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. 

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! 

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. 

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. 

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:

1. 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?
2. 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?
3. 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? 

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 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. 

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.