No One Should Be Waiting in Lines (or the Power of Regulatory Design)

by Aaron Nielson — Tuesday, Oct. 6, 2015@Aaron_L_Nielson

Yesterday the Supreme Court made this rule change: “Beginning in October Term 2015, only Bar members who actually intend to attend argument will be allowed in the line for the Bar section; ‘line standers’ will not be permitted.” Orin Kerr asks “Why have different rules for the Bar line and the public line?” And I’m sure others are asking themselves “Why have a special Bar line in the first place?”

But isn’t there a deeper question: Why are there lines at all? In 2015, no one should be waiting in lines—what a waste of time. So here’s a thought: Why can’t people get tickets beforehand via the Supreme Court website? This is not a novel idea; you can already get slots in advance at the Washington Monument. Why can’t the Supreme Court do the same, but for free? (By way of background, my first experience at the Supreme Court was to watch this oral argument. I arrived in the dead of the night to wait. Another group arrived a few minutes later. I got the last ticket; the people behind me didn’t get in. But no one knew that until, as I recall, about 8 or 9 in the morning. So those poor folks, and the scores in line behind them, waited all night for nothing. Wouldn’t it have been great to know beforehand who had a ticket?)

And if there is going to be a separate Bar section, why can’t the Supreme Court auction off those seats online? The funds could be used to pay for the entire online system, with whatever is left going to pay for legal services for the indigent or some other worthy cause. I’m sympathetic, at least tentatively, to the idea that there should be a Bar section, just as there is a media section: subject-matter expertise in the courtroom benefits the outside world. But these lawyer seats need not be free.

Most oral arguments are sparsely attended; no lawyer would have to pay for many of them because the supply of tickets would outpace demand. But for high-profile cases, or the ones in which a lot of money is at stake, lawyers who want to be in the courtroom should pay for it. So long as the public line remains free, and parties (and their lawyers) are allocated seats, I don’t see why this would be a bad thing.* Waiting in line wastes resources; surely there is a better system.

(Of course, some will say we should just televise oral arguments. That is a question for another day. For what it is worth, I lean towards Justice Souter’s view. But I’m open to being persuaded.)

* One possible concern is that not all lawyers make “big law” money. Surely we want public defenders to be able to attend argument too—especially in cases directly relevant to their clients. I’m not sure how serious a problem this would really be; I suspect tickets would not be expensive. And if needs be, perhaps a fee waiver system of some kind could be established.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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