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Coale Mind

News & Politics Podcasts

Constitutional issues of the day, reviewed by Dallas lawyer David Coale.

Constitutional issues of the day, reviewed by Dallas lawyer David Coale.


United States


Constitutional issues of the day, reviewed by Dallas lawyer David Coale.








The Administrative State Strikes Back?

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...


Originalism and its Discontents

This episode compares: Jarkesy v. SECSupreme Court majority opinion in Dobbs 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"?

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...


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

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...


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

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...


Randomized SCOTUS Terms: A Cure for Dull Confirmation Proceedings?

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...


Can SB8 be adapted to regulate firearm sales?

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...


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

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...


"Can the School Board Ban that Book?"

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...


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

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...


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

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...


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

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...


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

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...


The Law of Thanksgiving: How a National Holiday Comes to Be

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...


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

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...


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

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


Does the Heartbeat Act violate the "Open Courts Clause" of the Texas Constitution?

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...


Treason, or Smart Soldiering?

"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

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?

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.