Thursday, March 12, 2020

Oral Argument 2.0 Launches

Posted by Sherry F. Colb & Jareb A. Gleckel

Even as we all fearfully watch and do what we can to mitigate the pandemic that understandably has taken up nearly all of our attention, other developments occur. In the hope that we might distract readers from graver matters, today we announce a project that has been in the works for some time: Oral Argument 2.0

One of the most fun features of cases that come before the U.S. Supreme Court is oral argument. By contrast to reading opinions, listening to or reading an oral argument is much less taxing. One can follow it while driving or walking the dog. It is as close to theater as one finds in the law. And Justices have the chance to ask the questions that remain with them after they have read all the briefs. There is an urgency and a precision to oral argument, a give and take, that is very different from the briefs in which lawyers give a soliloquy and hope that what they say persuades the Justices to rule in their favor. An oral argument is a conversation in which, at its best, the Justices can use the advocates to leave no stone unturned. Human interaction is almost always more exciting than one human passively receiving the communications of another.

Oral argument, however, has one especially poignant flaw. The conversation, like most conversations, is extemporaneous, and the lawyers, therefore, cannot anticipate and fully prepare for every possibility. Justices will frequently pose hypothetical questions and problems that one or the other lawyer will not have seen coming. Or the lawyer will offer an answer but then think of an even better answer later in the day. The French have an expression for this sort of experience. They call it "l'esprit d'escalier," the spirit of the staircase. Who among us has not, after the fact, thought of something we wish we had said earlier, something more clever or more persuasive? In oral argument, there are no do-overs. If you think of it later, you might as well not have thought of it at all. Unless...

Oral Argument 2.0 invites law professors and attorneys to play the role of an oral argument amicus. Each reviews the oral argument in a case of her choosing and identifies questions that appear central to one or more of the Justices. She then writes the best answer that she can, with an eye to scripting an oral statement rather than to writing part of a brief. Imagine a great actor addressing the Court and speaking the words found in the answer.

Whether you are a law clerk, a practicing attorney, a student, or even a Justice, we encourage you to read the answers you'll find in Oral Argument 2.0 and perhaps discover that there are after all do-overs in oral argument.