Taking Oral Argument to School
posted by Dave Hoffman
As Howard Bashman noted over at HA today, my law school hosted the Superior Court of Pennsylvania today. The Court sat on its normal argument calendar over the course of the day. It is a happening that I understand is much more common today than in the past, but still is pretty neat. I’m hoping to work one case, involving interpretation of a homeowner’s policy, into classroom discussion later this week. [Issue: should “sewer” be read using its plain meaning, or to exclude sewer lines that are within the house, when determining if a blockage in a sewage pipe was specifically excluded from an “all-risks” policy. Or, when is a sewer not a sewer?]
After watching the arguments I thought a bit about why such sessions are ever conducted in courthouses. As I understand it, sessions conducted in front of law school audiences result in much better preparation by the bench and the bar, and have the potential of enriching law student life to boot. This is particularly true for busy state appellate courts that might usually conduct expedited or perfunctory review of the record. So here’s a modest proposal: stop building new appellate courtrooms, and have law schools (in effect) subsidize some of the costs of the court system in return for educational benefits.
1. The observed quality boost results from scarcity. It is possible that making appellate courts (in effect) ride the circuit would produce rapidly diminishing returns in preparation. Familiarity breeds contempt, I’ve heard. But, I doubt the effect will turn up in this context. Instead, I imagine that judges will seek to maximize their reputational gains among an important audience (law students and faculty). That audience is important, even in states that elect their judges, because it results in better clerk applications – especially in the state courts, which today are reputationally opaque at the lower levels. So long as law students and faculty attend the sessions, judges will have significant incentives to improve their performance.
2. Law students would get bored. I agree this is a real problem, here and elsewhere, but I think it is solvable if the appellate arguments were worked into class. Obviously, this would require some cooperation from the bar – providing easy access to the briefs and record, perhaps coming into class a week or two before to talk with students about what they expect – but it might also provide “free” mooting opportunities rarely available outside of high-impact/high-stakes constitutional litigation.
3. It would turn serious disputes into a spectator sport. Anytime you turn a ritualized process into a product that gets sold to an audience at least in part for its entertaining qualities, you risk devaluing that process and making it something it wasn’t. So with appellate judging, which already faces serious pressure to become more accessible and entertaining, as opinions distributed to non-barred audiences. But I think the risk of reshaping argument in frivolous ways is relatively minimal here, because most of the trappings of practice will be retained – most law schools have mock courtrooms where the court can sit, and can provide the accoutrements (leather books, heavy walnut chairs, flags, seals, etc.) that convey the proper symbolic content.
So what do you think? Are “real” appellate courtrooms a luxury we can do without?