Coale Mind

With apologies for the pun, the Fifteenth Court of Appeals faces an “unprecedented” situation. 

Unlike the other intermediate courts of appeal in Texas, the newly created Fifteenth Court of Appeals has no immediate predecessor.  The Legislature gave it statewide jurisdiction over specific kinds of cases, as opposed to general jurisdiction over cases from a particular geographic area. As a result, that court does not start with an “inherited” body of precedent. 

The Fifteenth Court thus faces a novel—and fundamental—question: what is its precedent?  

This episode examines five sources of insight for answering that question: (1) English common law (as defined by a Texas statute dating back to the Republic); (2) “vertical” precedent, as described by a 2022 supreme court case; (3) federal practice about the Erie doctrine; (4) generally recognized conflicts-of-laws principles; and (5) historical examples from the 1840s, when the Supreme Court of the Republic of Texas confronted a similar problem with a lack of precedent. 

About a year ago, in a popular episode I had ChatGPT as my guest, and we discussed several issues of the day.  To start this year off right, I invited ChatGPT back—now updated to version 4.0—and asked it to prepare a short story for listeners to enjoy.

Specifically, I asked it to prepare a “noir” story, in the style of Raymond Chandler and his immortal private eye Philip Marlowe, but set in a courtroom and involving lawyers. 

Here it is. The characters and plot—such as they are—are entirely of ChatGPT’s making. I gave ChatGPT the initial prompt to get it started and then had it rewrite several paragraphs for additional detail and continuity. I did only minimal style editing. Again, I think that the resulting product shows some things that ChatGPT does very well—and some others, that at least for now, it does not do well at all. 

In mid-December of 2023, the Texas Supreme Court resolved a high-profile abortion case in which a woman sought an emergency injunction to immunize her health-care providers from liability under Texas's strong anti-abortion laws. During the brief time that the matter was before that Court, it issued an “administrative stay” against further enforcement of the relevant court order. 

This episode considers the history of the “administrative stay” concept in federal court, where it originated and is reasonably well-developed, and then examines how well that federal-court concept transfers into the Texas state system. It concludes by urging cautious use of this tool, in order to properly balance the power of central and local courts as envisioned by Texas's highly decentralized constitution of 1876.

While the furor over recent Congressional testimony by three prominent university presidents has died down somwhat (after the president of the University of Pennsylvania resigned), there are still important lessons to be learned from what went so badly wrong. In this episode, I consider how the presidents (and their litigation counsel) could have used Aristotle's three principles for successful communication (the balancing of ethos, pathos, and logos) to craft a more persuasive message ... and at least, avoid a public-relations disaster.