Coale Mind

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. 

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. 

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. 

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. 

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. 

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 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. 

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.  

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.

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.