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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: 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?   

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.  

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. 

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.