Coale Mind

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 Supreme Court's cases about government power to regulate the economy, when the "Lochner era" came to a crashing end during the New Deal. 

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 content regulation. 

In this episode, I follow the chain of hypotheticals that took this sign ordinance from "well-intentioned idea" to "unconstitutional law." Along the way, I consider how tricky it can be to distinguish "speech" itself (hard to regulate) from the "time, place, or manner" of that speech (much easier to regulate). 

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 selection, etc. -- because the subjective intent of counsel is unknowable. Reasonable minds differed on that point in this case, as they often do in resolving important questions about the presence of racial animus in our society. 

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 Jacobson in the modern setting. 

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 second, Collins v. Mnuchin, the en banc Fifth Circuit found that Fannie Mae's regulator was structured unconstitutionally. 

These cases, important in their own right, also reflect a fascinating encounter between two "conservative" federal courts. Will the Fifth Circuit, widely seen as a particularly conservative court after President Trump's many appointments, be seen by the Roberts Court as having gone too far? Or will the two courts by "in synch" with each other on these important constitutional issues? 

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 explain why the U.S. Supreme Court just ordered a new trial for an Oklahoma case that arose on land that Congress declared to be a reservation for the Creek Indians. 

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 seller, never noticing that the slave had no liberty at all.

This old opinion is extraordinarily misguided. But can we still learn from Walker, by studying its specific oversights? Do we sometimes also miss the forest for the trees, especially when we talk about social justice issues that are part of slavery's ugly legacy? I suggest in this podcast that Walker, despite its age and misguided holding, still has a great deal to teach us. 

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. The Board sought en banc review from the full court, which tied 8-8 on whether to consider the case again.

The arguments in Wilson illuminate the concerns that drive what is sometimes called "cancel culture," and may help us think through when healthy debate can become an overreaching desire to silence the other side of a debate. 

If those questions seem hard, the fact that a team of very sophisticated judges split 8-8 may give us some reassurance that they really are challenging. 

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 secession; (2) the statue contains no military trappings or pro-Confederate slogans; and (3) Mr. Throckmorton lived and worked in Collin County, giving him a real connection to the place where his statue is on display. 

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?