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 hastransformed the federal courts. The federal courts moved from paper toelectronic filing, resolved daunting privacy problems, and made theirfiles available on PACER – thereby becoming the world’s mosttransparent court system. Now they have already embarked on what may bea second, equally important transformation – the use of relationalforms from which court data can be extracted automatically. ThisArticle describes the technology and seeks to project and evaluate theeffects of that second transformation.

Ifit occurs, the second transformation would create millions of windowsinto the courts at virtually no cost to the government. All relevantaspects of the courts’ decision making would be revealed topolicymakers, litigants, and the public, in forms they could readilycomprehend. All would be able to see who wins what and how often. Thatwould give policy makers the feedback necessary to fine tune thesystem, lawyers the ability to predict the outcomes of their cases, andthe public the ability to see what courts actually do. Members of thepublic could also see whether the precautions they take for supposedlegal reasons are the right ones.

Opponents argue that courtrecord transparency (1) will expose parties and witnesses to the riskof identify theft and other harms, (2) will invade privacy by makingpreviously difficult-to-obtain public record information aboutindividuals readily available, and (3) will pressure judges in waysthat deprive them of judicial independence. The Article argues thatnone of those objections is well-founded.

ADL