Teaching Law and Policy Using Oral Arguments

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Christi Bartman
August 11, 2015

If you really want to have one of those “a-ha” moments with your students, teach a class with “law” in the title. Students approach the class with no small degree of trepidation and expectation that you will tell them exactly what the law is on a particular topic. They soon learn that there are always at least two sides to an argument, and, if nine Supreme Court justices can disagree, they can too. I introduce this initially by assigning the class the oral argument.

The best website for introducing students to the case and argument is Oyez.org, which lays out the case in what the students soon learn to be the format for a brief. This is a simple summary of the facts, issues, questions of law, holding, reasoning and breakdown of the vote of the justices of a case. Not only does it help them dissect an opinion, Oyez.org offers the opportunity to hear the oral argument via an MP3 file. A transcript is included should the students want to follow along.

There are several ways to introduce oral arguments to online students. You can print the text and use it as a role-play if you have synchronous ability. Assign the roles of the justices and attorneys to students and challenge them to mimic the behavior of their character. If the class is asynchronous, the argument can be assigned as a forum discussion or as part of an assignment.

After listening to oral arguments, students are asked to comment on the exchange, the ability of the attorneys to make their case and the interaction between the justices and the attorneys as well as the justices and each other. They are asked if they can determine the ideology of the justices or whether political leaning or gender plays a part. They are also asked to predict the outcome based on the oral argument.

Almost routinely, students say, “Wow! The attorney could not get a word in edgewise.” They have never been exposed to this level of argument. The justices are constantly interrupting the attorneys. The primary frame of reference for most students is what they have seen at a trial court level where the attorneys present their argument uninterrupted. Additionally, they are seldom able to predict the outcome based on the oral argument. The justices are well-known for playing devil’s advocate to tease out a specific point or force the attorney to make their case.

As an example I might assign the case PRADO NAVARETTE v. CALIFORNIA, 572 US ____ (2014), which deals with justification for a traffic stop. 

A partial transcript of the oral argument follows:

Justice Anthony Kennedy: You get an A for consistency.

I’m — I’m not sure about common sense.

[Laughter] 

Justice Antonin Scalia: I’m — I’m not sure he gets an A for consistency.

I thought — I thought you said you acknowledged or didn’t repudiate the statement in — in our opinion in J.L. that if there was a bomb in the car that would be something else.

What — what if there is in the car — the tip is this person has an atomic bomb given him by al-Qaida; he is driving it into the center of Los Angeles to — to eradicate the entire city, OK.

Let it go? 

Paul R Kleven: Your Honor, I believe— 

Justice Antonin Scalia: He tells you the license number, where the car is.

You can’t stop the car? 

Paul R Kleven: –I believe, consistent with what the court said in Florida v. J.L. that may be a situation, again, where the court decides that — that the risk is so great– 

Justice Antonin Scalia: So you see, he is not consistent.

As you can see, some of the discussion gets quite animated. It helps for students to see that the justices have a sense of humor. Many times they use hypotheticals to tease out the finer points of an argument or to press the attorney into further thinking through the ramifications of their position.

In the end, students emerge from the class with the ability to see more than one side to an argument. They start to understand that there is rarely one “right” answer. They see an example of how to disagree on a topic in a respectful manner and the importance of supporting your argument with solid legal and scholarly sources. In essence, what they gain ultimately is the ability to think critically about a topic. It is always a pleasure to observe when that “a-ha ” moment actually happens.

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Author: Dr. Bartman is the program director of the public administration program at American Public University. She received her Ph.D. in policy history from Bowling Green State University, her JD from the University of Toledo College of Law, a master’s in public administration from Troy State University, and a BSBA from Appalachian State University. Dr. Bartman has published in the area of “lawfare,” or how international law is used as a supplement to military policy. She currently serves as vice president of the Central Ohio Chapter of the American Society of Public Administration.

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