Issue 7

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.

Legal Design for the “Good Man”

Consequentialist analysts of legal rules tend to focus their attention on Holmes’s “bad man,” who conforms to legal rules only out of fear of legal sanctions. On this view, legal rules should be designed to give self-interested legal subjects sufficient reason to choose socially optimal actions. But many people conform to legal rules simply because they are the rules, even when their self-interest dictates doing otherwise.

At first glance, this focus on the bad man seems to make sense. Lawmakers, it is plausible to suppose, don’t have to worry about the “good man” when designing legal rules because he will do what they want him to do anyway by conforming to the law. In other words, good man analysis of law is simple and so can be safely ignored.

But good man analysis of law is much more complex than scholars have previously supposed, and ignoring the good man will therefore lead consequentialist lawmakers to err. People are motivated to comply with legal rules for various different kinds of reasons, and this variety matters for their behavior by affecting both their short-run responses to legal rules and their long-run attitudes towards the law. A lawmaker ought to design legal rules in a way that attends to this variety if her aim is to design socially optimal rules.

This Article systematically analyzes the problem of legal design in the face of the diversity of motivational types that exist in the population of legal subjects. Part I develops a typology of good persons by exploring the causes and consequences of legal norm internalization—the ways in which a person’s preferences are transformed such that he comes to value complying with legal rules for the sake of the rules. Part II argues that a good person’s type matters for his behavior in a number of important ways. For example, it affects the way in which he chooses among actions that conform to legal norms and the ways in which he responds to the various kinds of uncertainty to which the legal system exposes him. Part III derives normative implications of my analysis for consequentialist lawmakers, while also addressing the converse worry that good man analysis of law is too complex to be tractable. The overall aim is to systematically examine the ways in which a diversity of motivations in the population complicates the problem of legal design for legislators, judges, and administrative officials, and to develop an organizing framework that can be used to think about the problem rigorously, which I illustrate by exploring some examples.

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