A funny thing happened when I tried to obtain the oral argument in Kerr v. Hickenlooper from the Tenth Circuit's website. 

It didn't exist. 

One can quickly visit the websites of the First Circuit, Third Circuit, Fourth Circuit, Fifth Circuit, Sixth Circuit, Seventh Circuit, Eighth Circuit, Ninth Circuit, D.C. Circuit, and Federal Circuit to find libraries of their oral arguments.

That leaves three that do not: the Second Circuit, the Tenth Circuit, and the Eleventh Circuit.

The Second Circuit, to my knowledge, does not provide any mechanism to obtain the recordings of oral argument.  [UPDATE: Michelle Olsen helpfully noted that the Second Circuit provides audio access with CD purchase.]

Eleventh Circuit Rule 34-4(g) ( PDF) provides, "With advance approval of the court, counsel may arrange and pay for a qualified court reporter to be present to record and transcribe the oral argument for counsel's personal use. When counsel has received such approval, counsel must provide the court with a copy of the transcript without delay and at no expense to the court. Except as otherwise provided in this rule, recording of court proceedings by anyone other than the court is prohibited." It also explains, "Oral argument is recorded for the use of the court. Although the court is not in the court reporting or audio recording business, copies of the court's audio recordings of oral arguments are available for purchase on CD . . . ."

Tenth Circuit Rule 34.1(E)(1) (PDF) explains, "Oral arguments are recorded electronically for the use of the court. Parties or others seeking access to the recordings may, however, file a motion to obtain a copy. The motion must state the reason or reasons access is sought. Upon issuance of an order from the hearing panel granting the request, the clerk will be directed to forward the mp3 recording via email."

When I called the clerk of the Tenth Ciruit, I was told I must file a motion. It turns out two others have already filed motions in the case and had their requests granted. The MP3s, however, are not disclosed to the public; they are disclosed to the moving party.

I suppose I'll have to decide how badly I want to hear what happened.  I've previously been critical about the obsession over oral argument, and particular about calls for live video of oral argument.

But at least the Supreme Court promptly discloses both the transcript and the audio of oral argument. And so do many circuit courts. So, then, why do three circuits refuse to release oral argument of appellate cases on a routine basis?