Article

Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments

Oral arguments at the U.S. Supreme Court are important—they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the Justices of the highest court. This Article studies how the Justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but also because, as we show, conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female Justices learning over time how to behave more like male Justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.

We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female Justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia’s particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.

Functionality Screens

Among intellectual property (“IP”) doctrines, only utility patents should protect function. Utility patents offer strong rights that place constraints on competition, but they only arise when inventors can demonstrate substantial novelty after a costly examination. Copyrights, trademarks, and design patents are much easier to obtain than utility patents, and they often last much longer. Accordingly, to prevent claimants from obtaining “backdoor patents,” the other IP doctrines must screen out functionality. As yet, however, courts and scholars have paid little systematic attention to the ways in which these functionality screens operate across and within IP law.

We have four tasks in this Article. First, we identify three separate functionality screens that IP laws use: Filtering, Exclusion, and Threshold. Second, we illustrate the use of these different screens in copyright, trademark, and design patent laws. Each law takes a different approach to screening functionality. Third, we model the relative costs and benefits of the different screening regimes, paying particular attention to administrative and error costs and how these costs affect incentives and competition. Finally, we assess the current screening regimes and offer suggestions for how they might be improved.

Copyright Survives: Rethinking the Copyright-Contract Conflict

Twenty-one years ago, copyright died. More accurately, it was killed. In 1996, in ProCD v. Zeidenberg, Judge Easterbrook, writing for the Seventh Circuit, held that a contract that restricted the use of factual information was not preempted by the Copyright Act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the ProCD approach is broadly adopted, the results would be dire. Through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain. Contracts, we were repeatedly warned throughout the years, would kill copyright law.

This Article challenges this scholarly consensus by studying the court opinions that have dealt with the copyright-contract conflict over the past four decades. This examination reveals surprising facts: notwithstanding the scholars’ warnings, ProCD’s approach won the day and was embraced by most federal circuit courts. The doomsday scenarios scholars warned against, however, did not materialize. The overall effect of contracts on the size and scope of the public domain, or over copyright law as a whole, seems minimal. The Article explains this discrepancy and shows that contracts are an ineffective tool to control information because they are too weak of a device to threaten or replace copyright law. Indeed, to paraphrase Mark Twain, the reports of the death of copyright were greatly exaggerated. The Article concludes by placing this analysis in context, as part of a broader ongoing discussion on the desirability and enforceability of standard-form agreements.

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