Coale Mind

The issue in  Roman Catholic Diocese of Brooklyn v. Cuomo   was whether a governor's order about maximum gathering size unfairly restricted religious liberty; by a 5-4 margin, the Supreme Court found that it likely did. The reasoning of the Court, and the concurring and dissenting Justices, suggests ways that the Court may examine future cases about COVID restrictions. It also shows the immed...

President Trump's die-hard supporters are calling on his lawyers to "Release the Kraken," in the form of (as-yet-unknown) evidence showing alleged election fraud.  This episode looks at the history of the mythic Kraken, and notes that the sailors who created the myth were afraid to say its name because it was such an alien and powerful force.  Accordingly, the Kraken may not be the...

This episode looks at  Bogert v. Secretary,   the first U.S. Circuit-level case to result from the aftermath of the 2020 election. The case focuses on the concept of "standing"--a limit on judicial power that flows from the words "case or controversy" in the Constitution--to find that two important election-related issues had not been presented in a manner that the federal cour...

In 1603, Sir Walter Raleigh was convicted of treason and executed based on an out-of-court statement by Lord Cobham -- despite Sir Walter's objection that "[Lord Cobham] is in the house hard by, and may soon be brought hither." The result of Raleigh's trial is a rule against "hearsay" testimony, and that rule was dispositive of a vote-counting case in Michigan last we...

Last week in Pool v. City of Houston , the Fifth Circuit confronted a "zombie statute"--a law that nominally remain in the law books even though they are unenforceable after having been found unconstitutional. (There are dozens of such laws across the country, including many old Jim  Crow-era segregation laws, as well as the ordinance against same-sex marriage that was struck down in Obe...

Abbott and Costello struggled to answer, "Who's on first?" In election cases today about the COVID-19 pandemic, that same question--applied to the specific defendants who have been sued--can resolve the case, and implicates basic principles about how our government is organized. This episode considers Mi Familia Vota v. Abbott,  a recent Fifth Circuit case about election law, in whi...

A Texas statute allows registered voters, age 65 or older, to request an early-voting ballot that may be returned by mail. In a 2-1 decision, the Fifth Circuit recently rejected a claim that this statute impermissibly "abridged" the rights of younger voters in violation of the 26th Amendment.  The majority and dissent used the same basic approach to review the case--first, identifying a...

For many years, state legislatures chose the Presidential electors, and popular vote played no role. Since the 1830s, though, legislatures have chosen to allocate electors based on the results of the popular vote for President. The Constitution still gives state legislatures broad power to appoint electors, however, and the COVID-19 pandemic could create situations where a legislature will want to...

Are Judge Amy Coney Barrett's religious beliefs off-limits for her upcoming confirmation hearings? At first blush, yes, particularly given the long and unpleasant history of anti-Catholicism on the national political stage. But on a second look, and considering the well-settled concept from trial practice about "opening the door" to evidence on a particular issue, there is a distinc...

A Presidential election in the United States is a process, not a date. The Constitution and federal statutes set six key dates for that process in 2020. This episode reviews their history, and considers how each date could lead to conflict in a highly polarized climate: November 3, 2020. Election Day -- the end of vote collection , but the start of vote counting ; December 8, 2020. "Safe Harb...

How does the Constitution limit the power to appoint a Supreme Court justice in the last year of a Presidential term? By putting one-third of the Senate, which must consent to the new appointment, up for re-election.  If the electorate in the key Senate races believes that no nomination should be made to replace Ruth Bader Ginsburg in 2020, the voters can exercise their power and even deny the Pre...

Two headlines from last week -- 1. Warnings, from the recent Republican convention, of a "socialist agenda" if the Biden-Harris ticket is elected, and 2. A news story about an increase in overtime-pay litigation. But wait, isn't litigation about workplace conditions part of a "socialist agenda?" This episode of "Coale Mind" examines that question in light of the...

I-35 is the main artery of Austin; massive billboards on either side of it advertise a wide variety of goods and services to freeway drivers.  The City of Austin tried to block new digital billboards that related to "off-premise" activity (business conducted somewhere other than the location of the sign). The Fifth Circuit found this unconstitutional under the First Amendment as a conten...

A busy morning at the Dallas County Courthouse; the trial of a personal injury case about a rear-end collision; and the defense counsel strikes three Hispanic jurors. Has he violated the Batson cases that forbid strikes based on race or ethnicity? The answer to that question turns on how the law must use objective facts -- statistics, the transcript of the specific questions asked during jury sele...

Massachusetts recently announced its plan to require flu vaccines for public school students. A 1905 Supreme Court decision, Jacobson v. Massachusetts, seems to give a state that power. This episode reviews Jacobson and considers how developments in (1) religious freedom law, (2) the law of administrative-agency procedure, and (3) the law of personal body autonomy, may weaken or strengthen Jacobso...

This fall, the Supreme Court will consider two decisions by the en banc (full) U.S. Court of Appeals for the Fifth Circuit, the federal appellate court for Texas. In the first, California v. Texas , a Fifth Circuit panel found that the individual mandate of the Affordable Care Act was unconstitutional after the repeal of the relevant tax, and the en banc court denied review in a close vote. In the...

The right to speak about a scientific subject (such as mask-wearing in response to the COVID-19 pandemic) is guaranteed by the First Amendment. But the exercise of that right may carry with it a responsibility to speak as a scientist, or else risk falling into the psychological trap of cognitive bias. 

In 1842, near Austin, a Comanche raiding party stole Mr. Herbert's mule. A neighbor got the mule back, after which he and Mr. Herbert got in a lawsuit about who now owned the mule. The Supreme Court of the Republic of Texas ruled for Mr. Herbert. The reasons why go to the foundation of America's legal relationship with Native Americans. And they are important to this day, because they ex...

In the 1843 case of Walker v. McNeil , the Supreme Court of the Republic of Texas voided a contract to sell a slave. The court found that the buyer had used "duress" to force the sale--in other words, he had wrongly interfered with the seller's liberty by making threats against him. Of course, the Walker court missed the forest for the trees. It waxed poetic about the liberty of the...

This episode considers the phenomenon of "cancel culture" in light of the recent case of Wilson v. Houston Community College College System Board. The U.S. Court of Appeals for the Fifth Circuit held that Wilson, a trustee of the Board, stated a viable First Amendment claim when the Board passed a censure resolution against him for his public comments about the Board's activities. T...

This episode examines President Trump's recent pardon of Roger Stone. It notes that the pardon is (1) unusually close in time to the actual events of the underlying prosecution, and (2) unusually close in personal relationship to the President himself, and suggests those two questions will be useful in examining future uses of the pardon power that the Constitution gives the Chief Executive. 

A statue of former Texas governor James Throckmorton stands on the town square of McKinney, Texas, the county seat of Collin County immediately north of Dallas. Because he served as a general in the Confederate army, a debate is ongoing as to whether the statue should be removed. In this podcast, I question whether its removal is appropriate given the (1) Mr. Throckmorton voted against Texas seces...

In a pilot post for Coale Mind , David discusses the July 6, 2020 decision in Chiafolo v. Washington about "faithless electors." What does Edmund Blair's 1952 refusal to follow the Alabama popular vote mean for our 2020 election, and Presidential elections going forward?