Oral Arguments Research Articles

Sticky Procedure and Procedural Values in the Federal Appellate Courts

New federal appeals have fallen by forty percent over the last three decades. And yet the case management procedures—reduced oral argument, unpublished decisions, case-screening, and staff attorneys—adopted to help courts tackle rising caseloads have remained. And these case management adaptations appear as durable as ever. The “stickiness” of these adaptations suggest that efficient resolution of disputes is the sine qua non of modern appellate practice. Equally sticky are some longstanding disparities in the extent to which different federal appellate courts rely on these efficiencies, raising new questions about the extent to which the federal appellate courts share core adjudicatory values.

사해행위 취소에 따른 원물반환의무가 확정된 이후 후행소송으로 가액배상을 구할 수 있는지 - 대법원 2024. 2. 15. 선고 2019다238640 판결의 선고를 계기로 -

The author analyzes the legal relationship in cases where enforcement is impossible despite the confirmation of the obligation to return the original object following the avoidance of a fraudulent act. The conclusions are summarized as follows: First, the Supreme Court ruling 2004다54978 strictly prohibits a subsequent lawsuit by the avoidance creditor seeking a different method of restitution, which has been subject to strong criticism. However, this ruling can be justified as it seeks an appropriate balance between the avoidance creditor’s right of choice and the beneficiary’s legal stability. Furthermore, the scope of application of this ruling’s legal principle is limited to cases where the avoidance creditor had the option to choose the method of restitution. Second, the claims for the return of the original object and for value compensation share the same purpose, legal basis, and nature, making them substantively identical in terms of the subject matter of litigation. The current case law also appears to be based on this premise. As a general rule, an avoidance creditor is not permitted to file a subsequent lawsuit for value compensation based on facts that existed before the conclusion of oral arguments in the original trial. It is advisable for the avoidance creditor to seek provisional remedies, and only exceptionally should standing for legal protection be recognized. This conclusion aligns with Article 407 of the Civil Code. Third, while current case law recognizes the avoidance creditor’s right to claim substitute performance and compensatory damages when enforcement of the obligation to return the original object is impossible, it is more appropriate to unify the available remedies into a single claim for value compensation. In particular, granting avoidance creditors the right to claim compensatory damages raises legal questions that warrant further critical review.

“Let Me Just Interrupt You”: Estimating Gender Effects in Supreme Court Oral Arguments

Abstract Oral argument is the most public and visible part of the U.S. Supreme Court’s decision-making process. Yet what if some advocates are treated differently before the Court solely because of aspects of their identity? In this work, we leverage a causal inference framework to quantify the effect of an advocate’s gender on interruptions of advocates at both the Court-level and the justice-level. Examining nearly four decades of U.S. Supreme Court oral argument transcript data, we identify a clear and consistent gender effect that dwarfs other influences on justice interruption behavior, with female advocates interrupted more frequently than male advocates.

When the Courtiers Return to the Marble Palace: The Impact of U.S. Supreme Court Lawyers’ Prior Appellate Clerkship Experiences

Abstract Most Supreme Court (SCOTUS) clerk studies explore selection, or impact, during the clerkship. The existing research examining the benefits of clerking for those returning to the Court suggests relational expertise from clerking for a specific justice, not process expertise from the clerkship, enhances SCOTUS oral argument success. Our study suggests the benefits of prior appellate clerkships likely stem from both relational and process expertise. Specifically, justices tend to favor parties represented by former US Court of Appeals (USCA) clerks who never clerked for the SCOTUS and prior SCOTUS clerks, even when the clerk did not serve in the justice’s chambers.

Attitudes Toward Age-Verification among U.S. Adults, Adolescents, and Parents

The Supreme Court will soon hear oral arguments challenging a state law requiring pornographic websites to formally verify the age of site visitors. Prior studies have examined public opinion toward pornography regulation in the United States, but we are aware of no study that has assessed attitudes toward-age verification akin to the kind to be considered by The Supreme Court. This Letter reports data on age-verification attitudes and correlates among U.S. adults, parents, and adolescents. Results suggested that all three groups are more likely to support age-verification than to oppose it. Nonetheless, there was also substantial attitudinal variability in all three groups. Possible explanations for these differences are proposed and the need for extensive follow up studies is emphasized.

Case of the Mondays: Examining Media Coverage of Oral Arguments Based on Weekday Selection

Abstract The US Supreme Court follows a fixed weekly schedule, with specific days assigned for tasks. Oral arguments – held on select Mondays, Tuesdays, and Wednesdays – are the only public part of the Court’s decision-making process. We argue that news outlets consider the Court’s schedule when deciding which arguments to cover. To test this, we analyze media coverage of oral arguments from the 2019, 2020, and 2021 terms. Our findings reveal a notable disparity, with Monday arguments receiving the most coverage. This highlights the influence of the Court’s schedule on media attention, shaping public awareness, and the perceived importance of cases.

A close look at children’s and adolescents’ arguments: combining a developmental, educational, and philosophical perspective

It is broadly admitted that social contexts of reasoning may prompt children and adolescents to improve the quality of their reasoning. However, it is not clear how this quality may be assessed when it comes to arguments expressed within oral interactions in diverse settings (whole-class or small-group discussions) by students of different ages and cultural backgrounds. This study aims to offer a methodological contribution to the issue of oral argument assessment of children and adolescents, by looking at a large, annotated corpus of dialogic discussions during 111 lessons taking place in five countries. Our analysis combines a structural (Toulmin Argument Pattern) and functional (Walton’s argumentation schemes) approach to argumentative reasoning. Our findings show significant variations across age groups and social settings. The discussion points out the importance of sociocultural framing of argument reasoning development and the continuation of research in argument assessment methods able to grasp important developmental and cultural variations.

Contraceptive risk events among family planning specialists: a cross sectional study

BackgroundProponents of abortion restriction cite advancements in contraceptive technology as a reason against the need for abortion care today, most recently through oral arguments in the Supreme Court of the United States case, Dobbs v. Jackson Women’s Health. However, consistent and correct use of contraception requires reproductive health literacy. Our objectives were to quantify contraceptive risk events and assess contraceptive history and preferences among a population well-equipped to evade contraceptive risks, family planning specialists following initiation of their medical training. “Risk events” are defined as reported episodes of contraceptive failure, emergency contraception use and/or unprotected or underprotected intercourse.MethodsThis was a cross-sectional study among current members of a professional organization of family planning specialists. Inclusion criteria included: status as a current or retired clinician, consensual penile-vaginal intercourse and personal or partner capacity to become pregnant since the start of medical training. Descriptive statistics were performed. This study was IRB exempt.ResultsAmong 229 respondents, 157 (69%) reported experiencing a contraceptive risk event since training. Twenty-nine (13%) respondents reported an occurrence within the last year. By category, 47% (108/229; 3 reported unknown) reported under- or unprotected intercourse, 35% (81/229) reported emergency contraception use, and 52% of participants (117/227; 2 unknown) reported known or suspected contraceptive failure. The mean number of contraceptive methods used was 3.7 (SD 1.7) out of the 13 methods listed. Almost all (97%) participants reported at least one method was not an acceptable option, with a mean of 5.6 (SD 2.7) of the 13 listed methods.ConclusionsThe majority of family planning specialists have experienced contraceptive risk events during times of active pregnancy prevention since their medical training. Contraceptive method change is common and most respondents were limited in the number of methods that were personally acceptable to them. Dialogue idealizing the role of contraception in minimizing or eliminating abortion need is simplistic and inaccurately represents the lived realities of pregnancy-capable individuals and their partners, including among those with exceptional contraceptive literacy and access.

The Practice Innovation of Law Competition from the Perspective of New Liberal Arts

The new liberal arts in the United States and domestic promotion have formed a top-down from the outside to the trend of education reform. Law students, whether undergraduates or postgraduate students, should become the leading force in the construction of new liberal arts. The participation of law students in the competition is mostly limited to moot court, court debate and other oral argument competitions, but the participation in the comprehensive cross-over competition in the new liberal arts background is seriously insufficient. The academic circle pays little attention to the literature presentation of competition research, there is a contradiction between the degree of attention to competition and the conversion rate of teaching reform articles, and the problems existing in traditional competition practice and new problems in the background of new liberal arts are emerging. The practice of legal professional competition has a low degree of embracing and contributing to the new liberal arts. Therefore, in order to improve law students' comprehensive qualities and abilities such as information acquisition ability, writing ability, PPT making ability, expression ability and presentation ability, teamwork ability and leadership ability, risk identification, response ability and resolution ability, contingency ability and scientific research ability through competition practice, Universities and teachers should dig deep into the practice levels and elements of the legal profession, actively guide students to participate in the national business competition of multi-disciplinary integration, and improve the "six-level practice method".

Amicus brief of over 300 reproductive health researchers supports mifepristone's safety and effectiveness.

On January 30, 2024, over 300 researchers filed an amicus brief in FDA v. Alliance for Hippocratic Medicine, a United States (US) Supreme Court case concerning the regulatory status of mifepristone, one of two drugs used in medication abortion. In this Comment we summarize the legal challenge, responses from the FDA and drug manufacturer to these challenges, oral arguments presented before the Court, and the implications of the Court's decision on access to mifepristone in the US. We also summarize the content of the accompanying amicus brief.

Hyping the Hypothetical: Talk and Temporality in US Supreme Court Oral Arguments

The US Supreme Court conducts much of its business through talk, including during oral arguments, where a central activity is the consideration of hypotheticals posed by justices. Using conversation analysis, I examine a key segment of the oral arguments for Citizens United v. FEC, one that arguably changed the course of campaign finance history. I identify the conversational devices employed to advance and contest one particular hypothetical, involving an imagined ban on books, subject to a speech-exchange system that differentially empowers justices to dictate both the terms of the discussion and the time afforded the advocate to respond to any particular question. The article offers the first disciplined qualitative analysis of interaction during oral arguments, illustrates the place of temporality in legal reasoning and argumentation, and makes several contributions to conversation analysis: it advances the study of institutional talk to a new legal setting, identifies some ways in which the machinery of talk can be harnessed for rhetorical effect, and demonstrates the analytical utility of prior knowledge of what a participant arrives to an encounter equipped to say.

Development of Definitory and Classificatory Thinking in Geometry through Storytelling and GBL Activities

Little is discussed regarding the meaning of “definition” in primary school, where children often memorize definitions. In geometry, students frequently confuse “definition” with the “description” of a geometric object. The aim of this study is to verify whether a new hybrid methodology between storytelling and game-based learning called Geometrikoland exercises skills that fall within what we understand as “definitory thinking”, which the set of competencies and meta-competencies is associated with acquiring a true mastery of definitions in geometry. This goal can be achieved because the dynamics of Geometrikoland alter the approach to definitions. The methodology applied is a hybrid of storytelling and adventure game-based learning applied to a “engine” of quadrilateral theory. The experiment took place in a fifth-grade class in an Italian school. The analysis of some data based on the accuracy of geometry actions during workshops and qualitative analysis based on the analysis of oral arguments produced during the labs lead to the conclusion that, on average, children have gained a greater awareness of what it means to define a geometric object and a better understanding of the relationships between various subsets of the set of quadrilaterals, previously seen as separate sets. Further confirmation has been provided by comparing the results of two mini-tests (a placement test and an exit test), which are useful for assessing the skills associated with the criterion of arbitrariness, the criterion of uniqueness, and classificatory thinking.

Since you put it that way… Gender norms and interruptions at Supreme Court oral arguments

AbstractObjectiveAt U.S. Supreme Court oral arguments, female attorneys are more likely to be interrupted than their male counterparts under some conditions. This makes it difficult for women to effectively construct a narrative and substantively impact case law. While existing work conceptualizes gender as a binary, I draw on recent work stressing gender is performative to deesentialize gender and explore how attorneys’ compliance with gender norms and subtle expectations about men's and women's behavior in a host of contexts, predicts interruptions at oral arguments.MethodsVia quantitative textual analysis of all oral arguments from 2004 to 2019 where one attorney argues for the petitioner and one for the respondent, I examine the extent to which gender norm compliance predicts interruptions.ResultsI find both male and female attorneys are interrupted more frequently when their oral arguments are not gender normative. Thus, an argument that is successful for a male attorney is not necessarily successful for a female attorney, and vice versa.ConclusionMy results underscore female attorneys are not less successful as a matter of course; attorney success is driven by attorney compliance with gender norms. This work also raises a number of normative questions I encourage future scholars to explore.

Integrating Local Science and School Science: The Benefits for Preserving Local Wisdom and Promoting Students’ Learning

<p dir="ltr"><span>Integrating local science into science learning benefits students and the culture. However, science teaching tends to focus only on the scientific content presented in the books but ignores the local culture. This paper explores local science in community cultural activities to be implemented in science learning to introduce students to cultural values following the concept of science. It identifies local science, describes the oral arguments produced by the tribal council, and analyzes the lesson plan by five science teachers in the Nagekeo district, East Nusa Tenggara. The data used in this analysis are observation and identification, interviews, and assessment sheets. The findings show that the local science in Nagekeo cultural activities that can be integrated into science learning includes the traditional unit and measurement systems, Newton's laws in their application to the traditional game, biodiversity in the traditional hunt, the concept of heat transfer, and its application in the construction of traditional houses, and vibrations, waves, and sounds in the traditional musical instrument. Recommendations from this research are embracing local science in science learning to provide meaningful learning for students and preserve local culture for each generation in the future so that it does not become extinct. </span></p><div><span><br /></span></div>

Institutional Design and the Predictability of Judicial Interruptions at Oral Argument

AbstractExamining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and apply.

Briefly Noted

On November 16, 2023, the International Court of Justice voted 13 – 2 in favor of issuing a binding Order in the case of Canada and the Netherlands v. Syrian Arab Republic. The Order adopted two provisional measures, which require Syria to prevent acts of torture and other cruel punishment, ensure that its officials and organizations do not commit torture or other cruel punishments, and preserve any evidence related to the allegations of the case. A Request for the Indication of Provisional Measures seeking such an order had been entered on June 8, 2023, by Canada and the Netherlands, for which oral arguments were held on October 10, 2023. The Request came alongside Canada's and the Netherlands' Joint Application instituting proceedings against Syria for violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Request and Application were made pursuant to Articles 36 and 41 of the Statute of the Court, Article 30 of the Convention against Torture, and Articles 73, 74, and 75 of the Rules of the Court. Vice-President Gevorgian and Judge Xue voted against both provisional measures, with Vice-President Gevorgian appending a dissenting opinion and Judge Xue appending a declaration.

Linguistic variation in supreme court oral arguments by legal professionals: A novel multi-dimensional analysis

This study uses the method of novel Multi-Dimensional Analysis to compare the discourses of justices, appellant’s attorneys, and respondent’s attorneys to provide a corpus-based description of linguistic co-occurrence patterns in their registers during oral arguments based on the extracted seven functional dimensions: (1) Instructive argumentation versus Informational production; (2) Elaborative exposition; (3) Concern with degree; (4) Concern with projection; (5) Narrative versus Non-narrative expression; (6) Impersonal expression; and (7) Stance-focused expression. Three profession-based legal corpora, totaling 32,107,839 words, were built using case transcripts from oral arguments between 1979 and 2014. The results show that justices are more argumentative, concerned with degrees, projection-, and stance-focused than attorneys. Attorneys are more informative, elaborative, narrative, and impersonal than justices. Among attorneys, appellant’s attorneys are relatively more informative, elaborative and impersonal, and less projection-concerned than respondent’s attorneys. This study has implications for MD analysis, courtroom discourse analysis, language pedagogy, and accounting research.

Risk, Resistance and Resilience: Birth Control Policy in the Wake of Dobbs

ABSTRACT The US Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization has potentially profound implications for contraception. Contraceptives came up frequently in oral arguments and constitutional protections for abortion and birth control are fundamentally linked (Griswold v. Connecticut, 381 US 479, 1965). Moreover, in recent decisions (Burwell v. Hobby Lobby Stores, Inc. 573 US 682, 2014) the court has endorsed the position of some religious groups that certain forms of contraception are “abortifacients,” essentially a form of abortion. This legal blurring of distinct scientific boundaries between abortion and birth control provides legal pathways for birth control restrictions. That said, in the immediate wake of Dobbs, policy change on birth control has been limited, media coverage on the risks posed to birth control have been scarce, and public support of birth control access has remained robust. We review the current landscape of birth control politics and policy after Dobbs, including state and federal policy responses, elite rhetoric, interest group advocacy, media coverage, and public opinion. Our analysis contributes to an emerging literature on birth control politics and policy.

Students for Fair Admissions v. Universities for Division, Exclusion, and Inequity: The Petitions, the Arguments, and the Decision

Students for Fair Admissions v. Harvard (SFFA) will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, while the UNC case lingered in district court. The Supreme Court called for the views of the Solicitor General. By doing so, the Court could punt the case to the following term, which allowed the UNC case to catch up, and Justice Breyer’s replacement to be confirmed. Both cases would be argued on October 31, 2022. Part II parses the questions asked by all nine Justices during oral argument. Chief Justice Roberts signaled up front that he would rule against the universities. Justice Thomas repeated his charge that arguments in favor of racial preferences mirror the arguments made by segregationists. Justice Alito worried about discrimination against Asian-American applicants. Justice Sotomayor focused on the detailed findings of the trial courts. Justice Kagan questioned whether SFFA would favor universities with few or no racial minorities on campus. Justice Gorsuch looked to Title VI of the Civil Rights Act of 1964. Justice Kavanaugh suggested preferences could be reserved for the descendants of slaves. Justice Barrett inquired about the expiration date of Grutter. And Justice Jackson recounted how the Reconstruction Congress used racial preferences for the freedmen. Finally, Part III breaks down four aspects of the Court’s decision. SFFA eliminated the “educational benefits” rationale for affirmative action. Chief Justice Roberts continues to take inconsistent positions in similar cases during the same term. Justice Kavanaugh continues to follow the lead of Chief Justice Roberts in leading cases, including SFFA. And I defend Justice Jackson’s likely involvement in the Harvard case, notwithstanding her recusal.

The Disappearance of Conversation in Oral Arguments - And What It Reveals about the Supreme Court

The Disappearance of Conversation in Oral Arguments - And What It Reveals about the Supreme Court