When Competition is Fun: Oral Arguments

November 24, 2009

J.L., 1L

Picking names out of a hat never did strike me as the best way to make a decision. But last week, that's how we found out which member of our Constitutional Law group would have to act as the Solicitor General in front of Chief Justice (and Professor) Heather Gerken as part of our class's weekly oral argument.

All 1Ls make an oral argument in their small group, using as their material the brief they write during the first semester. But the argument in Professor Gerken's class is different. Students are placed in teams of four or five and asked to prepare an argument on a past Supreme Court case - my week it was Parents Involved v. Seattle, a recent case on discrimination in public school assignments - but only one member of the group is asked to present the argument in front of the whole class. The rest are transformed into Justices and asked to assume that role, with all of the aggressive questioning (or, in Justice Thomas's case, passive bench-sitting) that comes with it.

To be honest, this isn't what I expected when I got to YLS. I expected handholding. I expected collaborative learning. The oral arguments in this class are neither. They are nerve-racking, for both the advocates and the Justices. Sometimes, the exchanges get heated (though they almost always end with a friendly wink or an apology after class). At first, I wondered why Professor Gerken would subject us to this sort of thing when so many of our other professors are not inclined even to cold call, let alone to force two students each week to put themselves out there in front of their classmates for almost half an hour. Sure, the Professor lets you sidestep unfair questions, and sure, your teammates on the bench are there to help you along with a leading question ("Counselor, wouldn't it be a good idea at this point to argue..."), but nothing can change the fact that someone is being put on the spot, forced to defend her intellectual bona fides in front of several dozen of her peers.

But the more I think about it, the more I understand the point. The first thing I realized as I went through the process of crafting an argument with my team was that being the advocate might actually be fun. In fact, I kind of found myself hoping that I'd be the one whose name would be plucked from the hat on the big day. And that's an important transformation: eventually we're going to have to ask for the ball when the game is on the line, and we might as well learn how to do that and to relish the opportunity now.

More importantly, though, I've come to understand the utility of trial by fire, whether said trial is a cold call or an oral argument. Law school is all about learning how to think like a lawyer; it's not just the language or the rules, but also the ability to think on one's feet, on short notice, advocating for a position one might not always think is wholly correct. Now that I've thought about it more, I can think of no better way to help us develop these skills than to put us to the test from day one. Even if it’s not very “Yale.”