Coale Mind

Coale Mind

Hosted by leading Texas appellate lawyer David Coale, each "Coale Mind" episode offers concise, lively, and practical exploration of today's hot-button constitutional issues.


October 15, 2023 9 mins

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 real...

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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 ...

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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 ...

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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 "orig...

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January 18, 2023 28 mins

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 t...

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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 specula...

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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 Tennesse...

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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 wome...

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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 ...

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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 representati...
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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 ...

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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 Congr...

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May 29, 2022 6 mins

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 neithe...
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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 p...

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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 the...

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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 sig...

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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,...

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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 Fir...

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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 f...

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February 6, 2022 14 mins

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 ...

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