Thursday, March 27, 2008

Transparency in the Court System

Lynn LoPucki (UCLA) has recently posted an article entitled "Court Transparency" on SSRN.  This article discusses an issue that will be increasingly important, the availability of filings and other court data maintained electronically to the general public and to scholars.  In the mass tort context, there is a significant amount of data not kept by the court system that would be useful to policy makers and scholars, so this article address only part of the question, but a very important part.  It got me thinking that perhaps in the electronic age it would be possible to file discovery responses with the courts and make them universally available.  Would this be a good or bad thing?  The counter-arguments and objections to transparency that he raises are also important to think about seriously.  Here is the abstract:

Over the past decade, technology has transformed the federal courts. The federal courts moved from paper to electronic filing, resolved daunting privacy problems, and made their files available on PACER - thereby becoming the world's most transparent court system. Now they have already embarked on what may be a second, equally important transformation - the use of relational forms from which court data can be extracted automatically. This Article describes the technology and seeks to project and evaluate the effects of that second transformation.

If it occurs, the second transformation would create millions of windows into the courts at virtually no cost to the government. All relevant aspects of the courts' decision making would be revealed to policymakers, litigants, and the public, in forms they could readily comprehend. All would be able to see who wins what and how often. That would give policy makers the feedback necessary to fine tune the system, lawyers the ability to predict the outcomes of their cases, and the public the ability to see what courts actually do. Members of the public could also see whether the precautions they take for supposed legal reasons are the right ones.

Opponents argue that court record transparency (1) will expose parties and witnesses to the risk of identify theft and other harms, (2) will invade privacy by making previously difficult-to-obtain public record information about individuals readily available, and (3) will pressure judges in ways that deprive them of judicial independence. The Article argues that none of those objections is well-founded.


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