AI and Law Call for Papers

Passing along this call for papers:

Special Issue of Artificial Intelligence and Law in Honor of Carole Hafner: call for papers

Earlier this year, Carole Hafner, a key figure in the origin and development of AI and Law, died. A tribute to Carole can be found at http://www.iaail.org/?q=page/memorials. A special issue of Artificial Intelligence and Law (which she co-founded) will be published in 2016, focusing on Carole’s main research topics: semantic retrieval and the procedural, temporal and teleological aspects of reasoning with legal cases.

In her long academic career, Carole Hafner made contributions in a number of areas of AI and Law. Her 1978 Ph.D. dissertation was a pioneering effort in semantic information retrieval of legal cases; ahead of its time, it supplied what would now be called ontologies for describing case law domains and cases, a retrieval language, and methods for retrieving, from a corpus of a hundred cases, cases providing: examples of which a specified concept is (or is not) true, criteria for knowing that the concept does (or does not) hold, or the consequences of the presence or absence of the concept in a particular case. Today, developments in technology have transformed the possibilities for information and case retrieval, and opened up rich possibilities to address the issues which motivated Carole.

Perhaps her most significant contributions were her triptych of papers written with Don Berman published in the 1991, 1993 and 1995 ICAIL conferences and consolidated in an AI and Law journal paper (Hafner and Berman 2002). All three of these papers dealt with various limitations of factor based reasoning. The 1991 paper (Berman and Hafner 1991) called for more account to be taken of the procedural context. The 1993 paper (Berman and Hafner 1993) discussed the need for consideration to be given to the social purposes of laws and legal decisions and the 1995 paper (Berman and Hafner 1995) recognized the dynamic nature of case law, and suggested that it was essential to be aware of the possibility that a current consensus was breaking down and a landmark case was coming. Factor based reasoning remains a very popular way of looking at reasoning with cases in AI and Law, and these papers are as relevant today as they were when they were first written. Although it is the second of these papers which has received by far the most attention of the three, all of them discuss issues that still demand attention.

We therefore invite contributions to a special issue of Artificial Intelligence and Law intended to revisit these aspects of conceptual case information retrieval or of reasoning with legal cases and the contribution of these papers. While contributions on any or all of the papers are welcome, we particularly seek contributions on the procedural and temporal aspects of case based reasoning, which we regard as unduly neglected. All contributions should clearly demonstrate their connection with Carole’s work. The editor of the special issue will be Trevor Bench-Capon, and all papers will go through the standard review process for this journal.

Contributions, which should be submitted through the Journal’s site at http://www.editorialmanager.com/arti/default.aspx and copied to Trevor Bench-Capon (tbc@csc.liv.ac.uk), should be received by 31st May 2016, and notification of acceptance will be by the end of July 2016 with a view to the special issue appearing as the last issue of 2016.

References

Carole D. Hafner and Donald H. Berman: The role of context in case-based legal reasoning: teleological, temporal, and procedural. Artificial Intelligence and Law 10(1-3): 19-64 (2002)

Donald H. Berman, Carole D. Hafner: Incorporating Procedural Context into a Model of Case-based Legal Reasoning. ICAIL 1991: 12-20

Donald H. Berman, Carole D. Hafner: Representing Teleological Structure in Case-based Legal Reasoning: The Missing Link. ICAIL 1993: 50-59

Donald H. Berman, Carole D. Hafner: Understanding Precedents in a Temporal Context of Evolving Legal Doctrine. ICAIL 1995: 42-51

Carole D. Hafner: An Information Retrieval System Based on a Computer Model of Legal Knowledge.  Ann Arbor: UMI Research Press, 1981.

Carole D. Hafner: Conceptual Organization of Case Law Knowledge Bases.  ICAIL 1987: 35-42.

Welcoming Thomas Bruce and Jerry Goldman to our Board

Today we’re proud to announce that Tom Bruce and Jerry Goldman recently joined the Free Law Project Board of Directors.

Tom BruceTom is the Director and co-founder of the Legal Information Institute at the Cornell Law School, where he has built a strong organization that serves millions of people every year. He has consulted on four continents, is a member of a number of standards bodies and committees, and in a previous life made the first browser for Microsoft Windows.

Jerry GoldmanJerry is the founder and director of the Oyez Project, a vast and widely utilized multimedia archive devoted to the U.S. Supreme Court and its work. He’s an influential author on a number of political and legal topics, and has received numerous awards for his efforts at Oyez and as a professor at both Chicago-Kent College of Law, and Northwestern University’s Department of Political Science.

Fellow Board Member, Brian Carver, said, “Mike and I have been directing Free Law Project for a while and when we thought about who we would most like to help us with our mission, Tom Bruce and Jerry Goldman were our top two choices. We’re thrilled that these two, who have so much experience in making legal materials available to the public online, have agreed to help Free Law Project advance its public access mission.”

You can read more on our Board of Directors page.

Knight Foundation to Support OpenJudiciary.org

Free Law Project is pleased to announce that its OpenJudiciary.org has been selected as a winner of the Knight News Challenge on Elections, an initiative of the John S. and James L. Knight Foundation.

The new project will make judicial elections more transparent for journalists and researchers by creating online profiles of judges. Profiles will show campaign contributions, judicial opinions, and biographies.

“The project aims to fill an information gap by helping citizens understand and meaningfully participate in judicial elections,” said Chris Barr, Knight Foundation director for media innovation, who leads the Prototype Fund.

A site such as OpenJudiciary.org is needed because big money is infiltrating the judicial election process. Academic research has shown that election years correlate with judges handing down harsher sentences, even an increased frequency of death sentences.

The money in state judicial elections appears to cause not only a public perception of partiality (judges being bought), but also real damage to judicial impartiality as judges are forced to fundraise from the attorneys and litigants that appear in their courts.

Free Law Project co-founder Brian Carver said, “It is currently extremely difficult for voters, journalists, or academics to investigate a judge’s past decisions and campaign contributors, and we expect OpenJudiciary.org to change that.”

Free Law Project’s CourtListener platform already contains more than 2.6 million court opinions. By combining this data with campaign finance data and other information about judges, OpenJudiciary.org will provide a means of acquiring the necessary information that makes civic engagement and informed voting possible.

Many go to the ballot box with simply no information about the judges up for election or retention. Other voters have been subjected to a constant barrage of vicious attack ads by outside groups with uncertain motives.

The problem of judicial elections has received extensive high profile coverage in the last year, with retired judges coming forward as whistle blowers, the Supreme Court hearing a case on the topic, and even popular comedian John Oliver dedicating a segment to it.

For those that want to get reliable non-partisan information about who is funding a judge’s campaign and what that judge’s record is, OpenJudiciary.org will be a vital new data source.

About Free Law Project

Free Law Project seeks to provide free access to primary legal materials, develop legal research tools, and support academic research on legal corpora. We work diligently with volunteers to expand our efforts at building an open source, open access, legal research ecosystem. Currently Free Law Project sponsors the development of CourtListener, Juriscraper, and RECAP.

About the John S. and James L. Knight Foundation

The John S. and James L. Knight Foundation promotes journalism excellence world-wide and invests in the vitality of communities in the United States where the Knight brothers once owned newspapers. Knight Foundation invests in ideas and projects that can lead to transformational change.

The Knight News Challenge on Elections is funding breakthrough ideas that better inform voters and increase civic participation before, during and after elections.

Contacts:

Free Law Project: Michael Lissner, Co-Founder & Project Lead; Brian Carver, Co-Founder, 510-501-6262, brian@mail.freelawproject.org.

Knight Foundation: Anusha Alikhan, Director of Communications, Knight Foundation, 305-908-2646, media@knightfoundation.org

Brian and Mike’s Presentations from Columbia’s Web Archiving Conference

Co-Founder Brian Carver and I presented at Columbia’s Web Archiving Conference last month and the videos have now been posted on YouTube. Brian gave a substantial talk about Juriscraper and how we used a grant from Columbia to expand it to cover all fifty states:

And I did a lightning talk about RECAP:

Postcards Arriving Soon

2015 PACER Protest PostcardsSee Free Law Project’s Brian Carver’s post on the Berkeley Blog about the National Day of PACER Protest.

Reporters Database

320px-UnitedstatesreportsA long time ago in a courthouse not too far away, people started making books of every important decision made by the courts. These books became known as reporters and were generally created by librarian-types of yore such as Mr. William Cranch and Alex Dallas.

These men—for they were all men—were busy for the next few centuries and created thousands of these books, culminating in what we know today as West’s reporters or as regional reporters like the “Dakota Reports” or the thoroughly-named, “Synopses of the Decisions of the Supreme Court of Texas Arising from Restraints by Conscript and Other Military Authorities (Robards).”

Motivated by our need to identify citations to these reporters, we’ve taken a stab at aggregating a few facts about them, such as variations in their name, abbreviation, or years they were published, and put all that information into our reporters database. Until recently, this database lived deep inside CourtListener and was only discovered by intrepid hackers rooting around, but a few months ago we pulled it out, put it in its own repository, and converted it to better formats so anyone could more easily re-use it.

Currently, it’s ready to use by any interested party, and it’s at version 1.0.9. The next version, 1.1, is around the corner and all it needs is dates for when reporters start and stop. If you’re a librarian or legal researcher, we’d love to have your help gathering this data so we can disseminate it to the world. To take one example of what can be done with this data, Frank Bennett created the Legal Resource Registry which, when you drill down to a particular court/jurisdiction, e.g., New Mexico’s Supreme Court, will show you all the reporters or citation schemes we know about for that jurisdiction. It’s a really nice visual way to view the data contained in this giant .json file.

We encourage others to take a look at the database, integrate it into their own projects, and expand on the effort.

New Versions of RECAP Extensions Out Now!

RECAP LogoWe’ve released new versions of the RECAP extensions for Chrome and Firefox and they will be auto-updating in your browsers soon.

These are the first new versions in more than two years, and while they are relatively small releases, we’re very excited to be rolling them out.

The headline feature for these extensions is a new Team Name field that you can configure in your settings. We are planning some competitions to see who can upload the most documents to RECAP and to participate, you’ll have to join a team and fill in this field with the team’s name. For now, this is a beta feature, so take a look and let us know if you have ideas for improving or using it.

There are a handful of other fixes that have also landed in these releases. In both Chrome and Firefox, the icons have been improved to support high resolution screens, and the extensions have been changed to support HTTPS uploads, making them more private and secure. In Chrome, we have a new testing framework, thanks to a volunteer developer, and we have fixed notifications to work more reliably.

A lot of this is minor work that is long overdue, but it’s laying the foundation for the next generation of RECAP. These updates don’t fix all the outstanding issues, but we’re working on it and have also created a central place for users to report issues.

So what now? Well, the next versions of RECAP are already under way, and we hope to bring them out soon. If you’re interested in getting involved, get in touch! There’s a lot to do!

@mlissner

What Should be Done About the PACER Problem?

This is the third in a series of posts about PACER:

  1. What is the “PACER Problem”?
  2. Why Should Congress Care About PACER?
  3. What Should be Done About the PACER Problem?

Let’s outline what you should do, what Congress should do, and what the courts should do:

"Uncle Sam (pointing finger)" by James Montgomery Flagg - Public Domain via Wikimedia Commons
By James Montgomery Flagg – Public Domain via Wikimedia Commons

What you should do about the PACER Problem

As we mentioned in our first post, Carl Malamud of Public.Resource.Org has written a memorandum detailing a three-pronged approach that average individuals can take to address the PACER Problem: Litigation, Supplication, and Agitation. Let’s consider each.

Litigation
It’s probably not fruitful if everyone runs out and sues the courts over PACER. Carl’s memorandum sketches many of the challenges that such cases would face. There are people thinking about this carefully, however, and so if you believe you are particularly likely to have standing, or have other resources to contribute to such an effort, feel free to get in touch with us and we can direct you to the folks having these conversations.

Supplication
Carl’s memorandum also explains that Public.Resource.Org is asking for a fee exemption from the courts, focused on receiving all of the documents from one district court and one appellate-level Circuit court. The courts have the ability to grant such a waiver, and as discussed in our second post, Congress wants the courts to move towards making these documents free. This request is already in the works, so while individuals could be supportive of this request, or pursue their own fee exemptions where they believe they have grounds to receive one, most people will find something in the next category more useful to pursue.

Agitation
There are several polite ways you could raise the profile of this issue. It appears to us that many of the decision-makers are not even aware that there is a problem or that the problem is as dire as it is, so this is not a time to resort to name-calling or flame wars. Instead, consider some of these options for PACER activism:

Send postcards to the chief judge in your local federal district court and your regional circuit court. Send a simple message, something like:

Hi. I believe that public access to electronic court records is important, but that the current PACER system is not serving the public well. I’m writing to ask you to support the exploration of ways to reduce or eliminate many of the fees PACER charges. I also think fee exemptions should be easier to obtain for a broader group of individuals. I’d encourage you to read the blog posts by Free Law Project about this at http://bit.ly/pacer-1 and to reach out to them if you would be willing to work with them on improving public access. Thanks!

Click on this map to use a PACER feature that actually works fairly well if you’re not sure which is your local federal court.

court_map_540x290

Write to your members of Congress. Is one of your Senators on the Senate Judiciary Committee? Is your representative on the House Judiciary Committee? or is one of your Senators on the Homeland Security and Governmental Affairs Committee? This was the Committee that wrote that report about the E-Government Act of 2002 that said Congress wanted the Judicial Conference to move to “a fee structure in which this information is freely available to the greatest extent possible.” Write your members of Congress, whoever they are, and say something like:

Hello. I believe that public access to electronic court records is important, but that the current PACER system is not serving the public well. When Congress passed the E-Government Act of 2002 an accompanying Senate report stated that Congress wanted the Judicial Conference to move to “a fee structure in which this information is freely available to the greatest extent possible.” However, PACER fees have only increased since that time and there appear to be no meaningful efforts to make these public records freely available. I would urge you to call for public hearings on PACER to learn why no improvement has been made on this in the last 13 years. I would also recommend you read the blog posts about this by Free Law Project at http://bit.ly/pacer-2 that suggest other steps Congress should take. Thank you for your attention to this important matter.

You can find contact information for your members of congress by searching on OpenCongress.org.

Join our crowd-based effort to download PACER documents using RECAP. RECAP LogoCarl’s memorandum also suggested a way to pursue direct action to free some PACER documents. PACER waives any fees that are under $15/quarter. So, Carl proposed that on May 1st a lot of people download $15/worth of documents and try to set a record day for PACER usage. Using your $15/quarter in “free” downloads is easy: You need to get a PACER account (credit card required), then you need to get the RECAP extension for either Firefox or Chrome. Do this now in the first quarter so you can make sure your setup is working. That way you know you’ll be ready on May Day. We’ve written up detailed instructions for participating. We’ve also set up a recap-reminder mailing list that will send you a reminder when each quarter is coming to a close, so you never forget to use your $15 credit to put more public documents into a free public archive.

Do whatever you do best!
Maybe you’re great at making videos or art or writing opinion pieces for your local newspaper. That’s awesome. Do those things. This is a people’s protest.

Make May 1 “Law Day” a National Day of PACER Protest
To give all these individual efforts greater collective impact, Carl has proposed that the people take back May 1st “Law Day” by making it a National Day of PACER Protest. So, whether you’re mailing a letter, delivering a postcard in person, or downloading $15 worth of PACER documents with RECAP, focus your activity on May 1st.

"Capitol building" by Francisco Anzola - CC-BY 2.0 via Wikimedia Commons
By Francisco Anzola – CC-BY 2.0 via Wikimedia Commons

What Congress should do about the PACER Problem

Congress should amend the E-Government Act of 2002 to forbid the Judicial Council from charging PACER fees. While this is something of a “nuclear” option, it is actually the best option because almost nothing else would solve every aspect of the PACER Problem we wrote about in part one of this series. The elimination of fees obviously resolves the unreasonably high cost of public access, but it would also solve the user-interface, document-level search, and accountability problems that make up the PACER Problem. These problems would be solved as companies competed to innovate with the PACER data. Additionally, when multiple third parties have their own copies of the public record, there can finally be accountability since the Judicial Council would be unable to arbitrarily take thousands of documents offline.

A fundamental part of such a change in the law should include a commitment to provide the courts with the funding they need directly. It is not right for the courts to use a PACER surplus to fund unrelated needs. This should stop and Congress should open up the books and figure out the appropriate level of direct funding.

Congress should hold hearings on public access to electronic court records. Before any change to the law, Congress generally holds hearings, and hearings on public access to electronic court records are long overdue. The courts put out reports that make hard-to-believe claims about user satisfaction rates and present carefully-selected statistics to suggest that many members of the public are getting free access, but a hearing that actually included diverse perspectives on these topics should be eye-opening for Congress. Invite the legal technology startups, venture capitalists, and non-profits operating in this space.

Congress would learn that a system that is good enough for electronic filing is disastrous as a fee-based public access system and that this particular disaster is holding back an enormous amount of innovation, economic growth, and public good.

Congress should require greater financial transparency around PACER. At a minimum, Congress and the public deserve more information in order to evaluate PACER and its operation. Congress should insist on detailed financial reports and outside audits that would show annual PACER revenues, annual expenses actually tied to public-access-related operations, and amounts spent annually by federal government entities using PACER. Fee policies could be better evaluated if such reports also showed separately the revenue generated from searches, docket reports, and document downloads. Congress already has the authority to receive such information and simply needs to ask.

By Phil Roeder. CC-BY 2.0 via Wikimedia Commons.
By Phil Roeder. CC-BY 2.0 via Wikimedia Commons.

What the Courts should do about the PACER Problem

The Courts should eliminate numerous PACER fees immediately in order to eliminate the PACER surplus. As described in our second post, best evidence suggests that PACER fees generate far more revenue than it costs to operate PACER. This has created a surplus whose existence violates the E-Government Act of 2002 and thwarts clear congressional intent that the Judicial Council move towards making these documents free.

These fees could be dropped to eliminate the surplus: searches should be free, docket reports should be free, complaints should be free, and not just opinions, but all orders should be free. This would leave in place charges for motions, briefs, declarations, transcripts, exhibits, and numerous other documents found on court dockets. But removing the fees for these other types of documents would enable much greater public insight into the workings of our federal judicial system. It would be a huge step towards allowing the public and the press to “know what it doesn’t know.” Without a docket, one may not even know of a case, and without the complaint, one often does not know the case’s subject matter sufficiently to know whether it is of interest, and if one could search without fear of charge, then these items could be found. Finally, as we’ve stated many times, the decrees of the courts, through orders and opinions, are the law, and we have the right to inspect the law that binds us.

We also believe all documents in cases that have been closed for at least a year could be made free without a financial impact, but again, without better reporting from the Judiciary or Congressional oversight, we lack detailed statistics on PACER usage, making it impossible to know for sure what financial impact this would have. Comments from the Administrative Office of the Courts during the PACERocalypse certainly suggest that documents in these older closed cases are not frequently retrieved and so should not significantly reduce revenue.

The Courts should grant Public.Resource.Org’s Fee Waiver Request. Public.Resource.Org proposes an extremely worthwhile experiment in free bulk access to PACER. In addition to the value that would be had as a result of the privacy audit proposed, I believe the chief value of such an experiment will come from things we don’t now expect. That is, legal technologists will build remarkable things on top of this data that we currently don’t even know we want or would enjoy. Their prototypes built on the data from a few courts will help demonstrate what we’re missing out on by not opening up all the documents.

The Courts should publish reports that provide for greater transparency. The same reports that I suggest Congress should ask for, the Courts should simply produce on their own, without having to be asked. The courts should be leaders in operational transparency, instead of engaging in what looks like obfuscation to hide revenues that should have never been collected.

Finally

In the end, solving the “PACER Problem” will require help from the public, Congress, and the courts. The system has been in place for many years and allows for electronic filing fairly well, but when it takes on its alter ego of a pay-per-page public access system it becomes a devastating impediment to innovation in the legal technology space and thwarts the ability of the press and the public to ensure the proper functioning of our democracy. Start preparing to do your part to address the PACER Problem before, during, and after May 1st. We intend to keep at it until we tear down that pay wall.

@brianwc

Why Should Congress Care About PACER?

This is the second of three short posts on PACER:

There are several reasons that Congress should care about PACER:

  1. The Courts are ignoring the law that Congess passed. In our tricameral system of government, it is the Congress that holds the power of the purse. The E-Government Act of 2002 (P.L. 107-347) provides with respect to PACER fees that the “Judicial Conference may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services.” So, they can only charge for public access services such as PACER if those fees are used to cover the operating expenses for those same services. In an accompanying Senate report, Congress noted that it “…intends to encourage the Judicial Conference to move… to a fee structure in which this information is freely available to the greatest extent possible.” 107. S. Rept. 174.

    However, figuring out exactly how much revenue PACER generates and how much it costs to operate is such an overcomplicated task that only one person has ever tried to do it. In 2010, Steve Schultze, the then Associate Director of the Center for Information Technology Policy at Princeton, pieced together this information best anyone could from multiple sources and produced an analysis that suggests that annual revenue from electronic public access (“EPA”) services approaches $100 million while annual EPA operating costs are closer to $20 million. The enormous surplus is used to fund all manner of other court technology needs, such as flatscreen monitors for jurors and audio speaker systems in courtrooms.

    In 2009, Senator Lieberman sent a letter to the Judicial Conference expressing dismay that seven years after the passage of the E-Government Act, “it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002.” Well, another six years have passed since then, and the situation has only worsened. The courts are simply ignoring Congressional intent and direction. One would like to quote the Court’s own words back to itself, when the Supreme Court wrote that, “Nothing can destroy a government more quickly than its failure to observe its own laws… If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Mapp v. Ohio, 367 U.S. 643 (1961).

  2. If you added up all the money federal government entities spend on PACER fees and just allocated it to the courts directly, then PACER could probably be free. The lawyers in most every federal agency use PACER too. The courts are sensitive to this and while they announced a fee increase for the rest of us back in September 2011, government users have been exempted from this fee increase, an exemption set to expire on April 1, 2015. When one imagines what the Department of Justice alone likely spends on PACER fees to look at documents that they themselves often created one has a perfect picture of government inefficiency. Congress should require the courts to produce a report showing how much each federal government entity spent annually on PACER for the last three years and then we could evaluate whether just reducing each federal government entity’s budget by a corresponding amount and allocating it to the courts directly for operating a free public access system might be a budget-neutral solution to the unreasonable burdens imposed on the public by the current fee structure.[1]

    pacer.gov website
    Screenshot of pacer.gov website (March 2015)
  3. Congress wants to encourage innovation and nothing would spur the legal technology space more than opening up PACER. Addressing the PACER problem is a “good government” issue and hence a non-partisan issue. Congress has lousy public approval ratings right now and the perception is that they cannot collaborate to get anything done. Ensuring public transparency of the judiciary is something people of every political persuasion should favor, and so it presents an opportunity for Congress to claim an easy victory and accomplish something really meaningful. As the current stewards of RECAP, we are contacted on nearly a weekly basis by someone with a commercial interest in federal court records and the metadata contained therein, but they are all frustrated by the enormous cost and lack of machine-friendly interfaces of the current PACER system. If the courts made the bulk data freely available in a machine-friendly format, Free Law Project (and likely others) would work quickly to create APIs and other value-added services on top of this data that would do more to further the current burst in legal technology innovations than anything else government could do.

The expressed desire of Congress to make PACER information free is currently being (and has been for 13 years) ignored by the courts who are moving in the opposite direction, making the service more costly every few years. The federal government itself is inefficiently paying its left hand with its right, while allowing a system to continue that does not incentivize the courts to reduce their operational costs like a free public system would. Finally, Congress is missing a great opportunity to encourage an increasingly vital area of the economy. Congress should care about PACER and–in our next post–we’ll further outline what both Congress and others should do about it.

@brianwc

[1] To address a few potential counter-arguments, let me state some assumptions I make. First, I suspect the government entity usage of PACER amounts to at least 20% or at least $20 million annually and that a public access system for the federal courts could be operated and maintained for less than $20 million annually. It is in this sense that my proposal would be budget neutral. This would not include spending on the courtroom technology upgrades or whatever else the courts are doing with the PACER surplus, expenditures that I think the courts should make. I simply believe they should be made transparently, in an above-board manner, with express Congressional allocations for those purposes, and not on the backs of the public paying a per-page fee for public documents. I believe the courts are woefully underfunded in general, but believe that Congress should allocate them the money that they need.

What is the “PACER Problem”?

In January of 2015, Carl Malamud of Public.Resource.Org posted a memorandum detailing problems with the federal PACER system that is supposed to provide Public Access to Court Electronic Records and outlining a three-pronged approach for addressing these problems this year.

More detail is available in the memorandum or in the video we made last fall, “Using PACER: What Could Possibly Go Wrong?

However, this is the first of three shorter posts where we will try to address:

What is the “PACER problem”?

As a result of various problems with the PACER system, the average member of the public has no meaningful access to federal court records. This is the “PACER Problem.”

These “various problems” with the PACER system include:

  1. PACER fees are too high, especially in the case of surprise charges for searches where the total charge for the search is not known until after you have incurred the charge. Using PACER’s search functionality is terrifying. You have no way of knowing what you will be charged until after you have incurred the charge. In my own experience, slight typos have cost me upwards of $50. Imagine using Google and paying based on the number of results that Google returns, where the number of results that might be returned are completely unknown in advance. On the internet, you could use a different search engine, but PACER is an absolute monopoly, so some times you have no choice but to search and cross your fingers. A system designed only for the wealthy, who have the luxury of having no regard for what use of the system might cost them, is not a public access system.
  2. The user interface is an inexplicable unusable disaster. (See our video for numerous examples.)
  3. There is no document-level search. Unlike modern search engines that index documents and return responsive documents to queries, PACER users can only search for a litigant’s name or by using an already-known case docket number. This makes the system utterly unusable for general purpose research. You cannot search for a general word or phrase, like “asylum” and hope to get back responsive documents. Instead one must already know the case one is looking for beforehand.
  4. There is no accountability. The courts recently took thousands of documents offline and after a public outcry and inquiring letters from members of Congress, the courts stated that they would put them all back online, but because no one but the courts has unhindered access to the system, no one can say what was taken offline and whether it was restored or not. As things stand now, fact-checking the courts on this is simply not possible.

So, again: As a result of various problems with the PACER system, the average member of the public has no meaningful access to federal court records.

There is no liberty without access to the law. The guarantees of the First Amendment require that the public and the press have meaningful access to court proceedings and documents. Having an open democratic society requires that the people be able to scrutinize public institutions to ensure their fairness, to enhance their quality, and to safeguard their integrity. We cannot accept a justice system we are prohibited from observing, because the watchful eyes of the public and the press are what diminish injustice, incompetence, perjury, and fraud. Meaningful public access is foundational to the functioning of good government.

We will address in a subsequent post what should be done about the PACER problem, but here we simply want to say: The PACER Problem is a problem of consequence that cannot be permitted to stand.

–Brian