14 - Free PACER

Summary

This chapter will argue that the federal court data paywall—PACER fees—unduly hinders the production of research on America’s federal courts. This effective limitation on public access to data leaves us with less access to better justice. Worse, there is little to no offsetting benefit. Although PACER fee revenue is often described as high, it is actually tiny as an economic matter. Congress can and should enact legislation that both mandates free public access to PACER’s vast array of information and replaces the associated fee revenue. That would allow the judiciary to continue its current operations and also allow appropriate research on federal courts.

Data can fuel innovation. The next generation of legal scholars will stand not just on the shoulders of their forbears, but – hopefully – on the structural foundation created by access to the electronic public record. When they “surf to the courthouse door,” they should find it open.¹

This is the worst of the best of times for federal court data. Docket reports are compiled electronically, and the overwhelming number of documents are filed electronically using the CM/ECF system. Litigants, attorneys, and members of the public can obtain case information using searches of the Judiciary’s PACER system, which stands for Public Access to Court Electronic Records. Not so long ago, none of these things was possible; people had to travel to the courthouse and conduct or request laborious searches for case information. But access is so much less than it could be, and this sorry state of affairs is the result of deliberate policy choices. We should free PACER’s data, making federal litigation data free to the same public whose judicial system creates and stores those data.

Much of my case is based on a general argument about the value of providing free public access, especially to the scholars and journalists whose analysis can help monitor and improve our justice system. But there’s a tech-specific case, too. Freeing PACER would broaden access to data, possibly allowing the development of accessible, affordable legal technology for the “have-nots” as well as those without the budgets necessary to collect or purchase their own data.²

Still, my focus in this chapter is on two other aspects of access to justice. First, the public’s access to the way the justice system operates: access for those who measure, monitor, and evaluate the justice system as a whole. The second aspect is society’s access to data-driven improvements in the justice system. Without access to large amounts of litigation data, society will forgo the gains from having scholars and journalists assess our judicial system’s performance; anecdotes and surmise will rule the roost. I take as given that scholarship and journalism can help us evaluate and improve the justice we mete out. Thus, better data access gives us access to better justice by allowing us to better understand, better design, and better operate our justice system. For these reasons, this essay will focus on the case for freeing access to court data, especially for scholars.³

My argument is mercifully simple: The various policies and practices that have limited access to PACER for the past three decades have, as the Supreme Court once put it in an unrelated context, earned their retirement.⁴ PACER began as an experimental dial-up system in 1988 before taking flight on the World Wide Web ten years later. It’s been a long flight, actually. Though PACER has radically expanded public access compared to the status quo ante a third of a century ago, PACER searches cost too much for users and deliver too little. Its search functionality is roughly the same as it was back when. You can’t search the text of docket entries, for example, much less the contents of filed documents. With some useful exceptions, PACER keeps our judicial system’s public records behind a kludgy and unjustifiably high paywall.

PACER costs so much because in 1988, when Congress allowed the Judiciary to provide electronic public access, it directed the Judiciary to fund the initiative through user fees.⁵ Happily, Congress could fix that problem with simple statutory text, and the fee revenues are so small relative to federal spending⁶ that Congress needn’t give a thought to whether it would break a sweat thinking about the question. Congress should mandate free PACER and cut the Judiciary a check large enough to replace the lost revenue. Problem solved.

* * *

Section 14.1 of this chapter provides a brief discussion of PACER’s history and present. In Section 14.2 I argue that opening PACER up to the public, with a focus on scholarly access, would lead to a greater quantity of research on the federal courts while also allowing scholars to carry out higher-quality studies.⁷ It is time to unlock the doors to the benefits of open research on our justice system. Section 14.3 offers a vision for the future, centered on free access to PACER and direct funding of Judiciary activities to replace lost fee revenues, as well as fostering an attitude of openness in the Judiciary.

It’s time to take down the paywall that divides judicial records and the public.

14.1 Diagnosing Scholarship’s PACER Predicament

Litigation in most federal courts is managed through the Case Management/Electronic Case Files (CM/ECF) system operated by the Administrative Office of the US Courts (AO).⁸ Parties file pleadings, motions, and other case documents through CM/ECF; the Court also uploads documents to this system, and textual information about case status, scheduling, and so on, exists as docket entry text. PACER is an online system that allows members of the public to get case information, including both docket reports that list case activity and case documents.⁹

14.1.1 PACER Basics

PACER¹⁰ began as a dial-up-based experiment in 1988 by the Judicial Conference,¹¹ at a time when the public had to go to physical courthouses for case information.¹² Because PACER isn’t free to operate, and Congress doesn’t appropriate funds for it,¹³ the Judicial Conference has long charged fees for PACER use. Since 1998, PACER has been accessible through World Wide Web connections; the per-page fee for downloaded information is now $0.10.¹⁴

Such fees make large case-info downloads costly. By policy choice, the Judicial Conference limits fees in some ways; today, charges are capped at $3.00 per document.¹⁵ In addition, PACER waives fees for any quarter in which a user incurs under $30 in charges.¹⁶ Parties and their attorneys receive a free copy of any electronically filed document “if receipt is required by law or directed by the filer.”¹⁷ Judicial opinions are supposedly free for anyone’s download,¹⁸ although that may not always be true in practice.¹⁹

Unfortunately, these policies do little for scholars who must download many documents for their work. The Judicial Conference does allow courts to exempt some persons from fees, including “individual researchers associated with educational institutions,”²⁰ and exemptions have facilitated important research, but much less than broader scholarly access would allow.

14.1.2 PACER Serves Up Case Records in a Clunky Way

What PACER allows users to access remains far too limited. Critically, as the Free Law Project notes: “There is no document-level search.”²¹ And although PACER users can search for litigants’ names or retrieve a case using a known docket number, it is impossible to search, say, for some version of “all cases that have at least one docket entry with the string ‘FAILURE TO STATE A CLAIM’ or ‘QUALIFIED IMMUNITY.’” The Free Law Project observes: “This makes the system utterly unusable for general purpose research.”²² Anyone seeking to obtain data from many cases of a type – those with a Rule 12(b)(6) motion, or involving qualified immunity – must pay for enormous numbers of documents. This drains research budgets for no good reason.

14.1.3 Financial Facts for PACER

The Judiciary receives no funding from Congress for PACER, and the CM/ECF backbone is supported entirely by PACER fees. Each year these fees bring in around $150 million.²³ To put it mildly, that greatly exceeds the costs to the Judiciary of operating PACER, which one source recently put at $3 million.²⁴

Who uses PACER? The Judiciary emphasizes PACER’s enormous user base – more than 3 million user accounts, by 2020.²⁵ As of 2015, 75 percent of PACER usage was unpaid due to fee waivers (perhaps principally the $30/quarter free-usage allotment), even as 75 percent of PACER revenues came from fees paid by just 1 percent of account holders.²⁶ Although I am aware of no precise data, it’s easy to guess that the biggest paying users include the big three electronic legal data vendors – Westlaw, LexisNexis, and BLAW – and bankruptcy data providers that service claimants’ data needs. As of 2015, 63 percent of PACER usage was undertaken by law firms, 12 percent by litigants themselves, 10 percent by commercial users, and only 3 percent by academics.²⁷ That academics use PACER so little is likely a testament to the fact that the large data pulls we need to do serious quantitative research would cost so much that most scholars either never start or rapidly abandon plans to study federal litigation using PACER data; see discussion in Sections 14.1.4 and 14.2.2 for more.

These facts paint a simple picture. PACER’s paywall brings some money to the Judiciary, allowing Congress to fund it a bit less. The wall doesn’t stop the biggest legal data vendors from downloading a lot of data, which they make available to subscribers who pay for platform access. The wall likely doesn’t stop litigants in most individual cases, at least not with respect to their own cases. Nor does it likely do much to keep interested small-hobbyists out.²⁸ But the PACER paywall sure does screen out scholars.

14.1.4 PACER Is Prohibitively Expensive for Scholars

To study litigation, the judicial system, and how they interact with social phenomena, scholars need large amounts of data. Because of PACER’s high per-page download fees, even projects involving relatively modest data can be very expensive.²⁹ To wit, a recent PACER fee waiver request estimates that to download only the docket sheets for just two years’ worth of FOIA cases would cost nearly $4,000.³⁰ And consider a commentary recently published in Science,³¹ which presents information on thousands of cases in which a party sought in forma pauperis status and shows considerable variation within districts in the likelihood such a waiver would be granted. The authors downloaded every docket report for all cases filed in 2016, at a cost they describe as “more than $100,000.”³² That won’t become a common research strategy.

Although some research is conducted with second-best data sources (see section14.2.2, infra), I’ve had numerous conversations over the years with scholars who abandoned research ideas they thought promising because PACER’s prohibitive costs made it too costly to push forward.

14.2 The Case for Access to Court Data

As a general matter, PACER’s paywall is unfortunate and out of place in a democracy, but it’s especially irrational as applied to scholars. Under the status quo, scholars contribute very little in the way of fee revenues, so there is close to nothing to lose from granting us access. On the other hand, we’d contribute a lot of free research if we were allowed access. And privacy risks seem limited given that all documents in question already may be downloaded by anyone who knows to look for them. In sum, right now the Judiciary and the public are getting nothing for something.

14.2.1 On Principle, Court Operations Should Be Presumptively Open to the Public

Publicity is the very soul of justice. It is to publicity, more than to everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst.

– Jeremy Bentham³³

It’s a basic principle of a democratic society that government’s operations should be open to public scrutiny. Otherwise, the citizenry cannot tell whether government is operating justly, speedily, or inexpensively.³⁴ Even appropriate scrutiny of one governmental branch by another can be limited without sufficient openness.

Constitutional and federal common law bases for public rights to observe judicial proceedings are most developed in the context of criminal trials,³⁵ but these are of course only one spot in the landscape of judicial proceedings. Of the nearly 80,000 federal criminal cases filed in 2018, only about 2 percent went to trial,³⁶ a number that isn’t much different for civil cases. With so few trials, pretrial proceedings delineate the fairness and future incentive effects of federal litigation. Accordingly, whatever interests of publicness inhere in open trial proceedings also extend to pretrial ones, too.

Professor Peter W. Martin has described five purposes for public access to litigation-related documents: (1) assuring fairness – both actual and perceived – of proceedings, (2) ensuring that the public’s ability to assess and criticize judicial performance can be done on an informed basis, (3) educating the public about how litigation works, and – hopefully – inspiring confidence as a result, (4) enabling the “check[ing]” of the judicial system by the public, and (5) “[p]roviding an outlet for community ‘concern, hostility, and emotion’ in cases that are in the public eye”.³⁷ At least the first four of these are implicated in the Judiciary’s refusal to allow affordable public access to PACER for scholarly or journalistic research.³⁸

In sum, as House Judiciary Committee Chairman Jerrold Nadler recently stated: “It is a disservice that in today’s digital age, the public’s access to public records in public proceedings is so resource-intensive and burdensome …. It is indefensible that the public must pay fees – and unjustifiably high fees, at that – to know what is happening in their own courts.”³⁹

14.2.2 Important Research Could Be Done with Freer Access, and for Free to the Judicial System

This section provides a brief, ad hoc review of quantitative empirical work that has been done using federal court data.⁴⁰

The Limits of Non-PACER Data Sources. Even before PACER, there was much quantitative empirical research published using federal court litigation data. A chief alternate data source is the Federal Judicial Center’s Integrated Database (IDB), “by far the most prominent” of data sources used for statistical research by legal scholars.⁴¹ Scholarly work using the IDB has spanned the gamut of topic areas for years.⁴² But the IDB has its flaws.⁴³

So, when FJC researchers set out to study summary judgment practice at the request of the Advisory Committee on Civil Rules in the wake of the Supreme Court’s 1986 summary judgment trilogy, these researchers analyzed docket sheets randomly selected in three district courts.⁴⁴ Subsequent FJC studies of summary judgment practice also used docket information.⁴⁵ This is particularly notable because summary judgment dispositions are the sort of issue of interest not just to scholars or elected officials, but also to the Judiciary. In fact, the sort of data the FJC, and Professor Burbank,⁴⁶ has used to study summary judgment is the primary source of information for judges doing rule-making. Yet as intensive as this work was, it typically involved studying few districts, or even just one at a time.

The CM/ECF system now contains all data necessary to enable nationwide studies, and by 2008 (if not sooner), the FJC was doing so in response to Advisory Committee requests.⁴⁷ Due to PACER’s paywall, though, outside researchers cannot generally do likewise. That means the Judiciary, and society more widely, are partly subject to the limits of FJC’s resources, however impressive its ingenuity, in addressing matters of interest to rule-making.

Another area of great interest in which the IDB is limited is the pleading standard, whose alteration in Bell Atlantic Corp. v. Twombly⁴⁸ and Ashcroft v. Iqbal⁴⁹ was arguably the top focus of procedure scholars for a period of several years. As Professor Burbank wrote even before those cases, the IDB’s limitations make it difficult, at best, to determine anything specific about Rule 12(b)(6) and 12(c) motions decided under the Rule 8(a)(2) pleading standard, including even “the number of such motions filed or decided.”⁵⁰

There are still other data sources for scholars studying the federal legal system, all with key limitations. For example, the US Sentencing Commission posts defendant-level data on sentences in federal criminal cases.⁵¹ Interesting research has been conducted using these data, for example, on racial disparities and the federal sentencing guidelines.⁵² But they obviously concern only criminal sentences. Judicial opinion databases are another source of data; in some cases these can be useful,⁵³ though it is well known that for many others this approach often brings bias given that only some opinions are published.⁵⁴ Another alternative is the Court Listener RECAP archive,⁵⁵ hosted by the Free Law Project, which contains “millions of PACER documents and dockets”⁵⁶ and grows over time as more users use RECAP, even as users are able to avoid paying for documents that RECAP already has.⁵⁷ As great a resource as RECAP is for documents that have been stored, there is no general way to measure how representative RECAP’s sample of documents and docket reports is.⁵⁸

PACER’s Unrealized Potential. This brings me to work using all of PACER, or representative samples. Bankruptcy has been a prolific substantive area for empirical study, due in part to the enterprising efforts of Professors Teresa Sullivan, Elizabeth Warren, and Jay Westbrook. The challenges surmounted in this work are described engagingly by Professor Lynn LoPucki. In brief, the professors flew themselves and some photocopiers around the country, copied court files in the clerks’ offices, and sent the copies to Austin, Texas, where they coded the information they would use – even though copy machines in the clerks’ offices were unused after hours.⁵⁹ In 2001, after PACER’s advent, the same researchers were able to secure judicial permission to hire “moonlighting assistant clerks to photocopy the files and ship the copies,” because that allowed them to avoid PACER’s per-page download fees.⁶⁰ As Professor LoPucki writes, “With the political constraints removed by judges, the 1981 technology – photocopying in the clerks’ offices – was cheaper than the 2001 technology – internet PACER – with its one-page-at-a-time political restriction.”⁶¹ In sum, at enormous and duplicative cost, these researchers were able to obtain substantial data on bankruptcy cases. They used these data to publish numerous studies about an issue of great public policy concern.⁶² Subsequent research on consumer bankruptcy reform was able to use both PACER fee waivers⁶³ – obviously a welcome development – and help from AACER, the Automated Access to Court Electronic Records, a service that collects bankruptcy court data on a daily basis and repackages it commercially.⁶⁴ AACER must itself pay the Judiciary to download data that are already in the PACER system, but the facts of the bankruptcy system evidently make it possible for market forces to sustain AACER’s more rational approach to data distribution. There is little prospect for such a market solution to PACER’s paywall for nonbankruptcy cases (and would-be users must still pay AACER).

Other scholarly work has been published using the fruits of PACER fee waivers. Examples include work by Professor David Engstrom,⁶⁵ Professor Gillian Hadfield,⁶⁶ and Professor Alexander Reinert.⁶⁷ But PACER fee waivers are at most a partial solution to the PACER paywall, and a highly imperfect one at that. Even though there is now a centralized process for requesting a fee waiver,⁶⁸ the decision over whether to grant requested waivers is up to individual district courts.⁶⁹ This can extend the time and uncertainty related to project feasibility. It results from the fact that the CM/ECF system underlying PACER is really an amalgamation of individual systems, each run by an individual court as it sees fit. It is hard to think of good reasons why one court would deny fee waivers for the same scholarly research another approves, yet that happens.⁷⁰ Further, my conversations with other scholars indicate the possibility of inconsistent treatment. For example, although Professor Lawless and his coauthors received fee waivers from all but the Southern District of Texas,⁷¹ one scholar at a workshop on federal court data access that I organized in 2015⁷² reported being unable to receive fee waivers from more than thirty-five of the ninety-four district courts.⁷³ Study of the Supreme Court’s alteration of the pleading standard in Twombly and Iqbal also shows PACER’s potential, and the limitations of its alternatives.⁷⁴

Another anecdote involves a July 2020 request by Plymouth State University Professors Chantalle Forgues and Daniel Lee for PACER fee waivers so they could download docket reports, complaints, and petitions for all New England district courts.⁷⁵ The scholars planned to use computer programs to target a subset of cases as classified using Nature of Suit codes.⁷⁶ All district courts petitioned granted the request except for the District of Massachusetts.⁷⁷ Events over several months culminated in a court order denying the professors’ request,⁷⁸ because of the Chief Judge’s belief that the researchers planned to use software that, “according to our IT security personnel, would present an unacceptable degree of risk to our system.”⁷⁹ Professors Forgues and Lee explained that “the script that petitioners propose is used everyday, including on weekends, to download files from PACER. The script at issue is used by big law firms and larger universities on a regular basis, and has been used on the Court’s system consistently for over seven (7) years.”⁸⁰ A motion seeking reconsideration remains pending.⁸¹

The upshot of all of this is two-fold. First, bulk downloads are available, without limit, to users who can afford to pay PACER fees, even as federal courts create situations in which researchers who cannot afford PACER fees are out of luck. More generally, the PACER system, and judicial policies and practices around it, stymie what would otherwise be PACER’s staggering research potential. PACER contains over a billion documents,⁸² and that number grows daily. Many other federal agencies have made their data available, with privacy restrictions, allowing the public to benefit from enormous amounts of professional-quality research at no cost to the federal government.⁸³ The many examples of research noted above – from enterprising bankruptcy scholarship to illuminating work on summary judgment and pleading to work on trials – hint at the possibilities presented by piercing PACER’s paywall. This research, much of it using inferior or limited sources of data, is a drop in the bucket compared to what we could have with free PACER.

14.2.3 What about Privacy?

A natural basis for concern about free PACER involves privacy of both litigants and witnesses. This essay is not the place to fully develop either the bases for such concerns, which are real, or the responses to them. But engaging these topics can allay certain aspects of these concerns while informing further inquiry as to others.

A first concern involves risks in the criminal justice system. Stephen Schultze chronicles one example:

In 2006, the Department of Justice (DOJ) observed a disturbing new phenomenon: anonymous individuals had begun to use PACER to cull and republish witness information. DOJ stated in a letter to the Judicial Conference, “we are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on websites such as www.whosarat.com for the clear purpose of witness intimidation, retaliation, and harassment.” DOJ urged the Judiciary to suppress public access to all plea agreements.⁸⁴

What DOJ wanted to preserve is what is sometimes called “practical obscurity” – “print-era barriers to access to sensitive criminal information.”⁸⁵ After describing how federal judges engaged these questions, including at the level of the Judicial Conference’s Court Administration and Case Management Committee, Schultze observes that “by the time whosarat.com appeared in newspaper headlines, the Judicial Conference had codified its approach to sensitive information in electronic court records,” with the result that the Justice Department “could protect sensitive plea agreements by sealing or redacting the documents, but it could not rely on the Judiciary to recreate anachronistic approximations of practical obscurity.”⁸⁶

If this balance between privacy concerns and public access is good enough for those who might be at risk of physical violence, it is difficult to see why it should not also be good enough for others in the justice system. This is especially true in the civil context, where concerns related to personal embarrassment or trade secret interests can be handled on a case-by-case basis. Just as the Freedom of Information Act contains exceptions for trade secrets and certain other delicate information,⁸⁷ so, too, may federal courts allow litigants to file documents under seal in appropriate circumstances.

The privacy case for limiting access to PACER records en masse seems especially weak given that the very same records are already available electronically. To the extent that practical obscurity exists now, it is thus limited only by PACER fees. The paywall does not protect anyone from PACER’s large commercial buyers, including, for example, bankruptcy-related services such as AACER. But these fees are high enough to keep out scholars, most of whom have little to no interest in individual information – the point of much scholarly research being to generalize rather than investigate details of unknown persons. It also includes journalists, which places PACER in tension with the First Amendment values that animate the constitutional basis for open court records that the Supreme Court found in Richmond Newspapers, Inc. v. Virginia.⁸⁸

14.3 A Vision for the Future

I‘m hardly the first one to advocate dismantling PACER’s paywall. More than a decade ago, Professor LoPucki argued that eliminating the paywall “would open a real-time window on court-system operation superior to any previously possible,” with the happy result that “[n]ot only researchers, but parties, lawyers, the government, and the public could see every important aspect of how the courts operate.”⁸⁹ The Free Law Project has long argued that there is a “PACER problem.”⁹⁰ Other scholars are on the case, in both academic journals and popular media.⁹¹ Litigation that could reduce the magnitude of PACER fees – shorten the paywall – has had some success and is ongoing.⁹² And as I discuss momentarily, there is a real chance that Congress will finally act to free PACER.

But what should a freed PACER regime look like? My purpose in this Section is to provide some suggestions. If anything like the Open Courts Act makes it into law, then some of these suggestions will have been either taken or eclipsed. Others would still be up for consideration if, as seems likely, Congress left the AO with substantial discretion in choosing how to make court records publicly available. Some of the possibilities I raise are concrete. The last section, though, is a meditation on the need for the Judiciary to adopt a new institutional attitude favoring openness. That could go a long way.

14.3.1 Free PACER and Replace Its Fees with General Revenue

Encouragingly, in December 2021 the Open Courts Act of 2021 was reported out of the Senate Judiciary Committee with bipartisan support.⁹³ This bill would require all court documents to be presumptively freely accessible to the public within three years after enactment.⁹⁴ The bill also calls for modernization of PACER’s feature set,⁹⁵ and a similar bill is pending in the US House as of this writing.⁹⁶ Although the costs of modernization might be offset partly by congressional appropriations,⁹⁷ future funding would need to come from fees paid by federal agencies for their PACER use, based on inflation-adjusted fees agencies paid in 2018,⁹⁸ and possibly also increases in filing fees on parties.⁹⁹

I have doubts about this approach to funding. First, I have not been able to find a breakdown of PACER fees by source, but logic indicates that fees paid by federal agencies are only part of the revenue from PACER. Thus, without increasing filing fees, the Judiciary would absorb at least some revenue loss. My goal is to free PACER, not cut courts. Second, if the Judiciary exercised the authority the Open Courts Act provides to raise filing fees, that burden would fall on litigants. My goal is to free PACER, not raise additional financial barriers to courts.

The better course is for Congress to simply (1) eliminate the Judiciary’s discretion to charge PACER fees and (2) increase general revenue funds for the Judiciary. Congress could hold the Judiciary harmless, replacing all PACER paywall revenues, for just $150 million.¹⁰⁰

Although $150 million would be a lot of money to have for yourself, it’s a teeny-tiny little droplet in congressional terms. By way of comparison, Americans spend roughly twenty-five times as much on wild bird food as PACER fees brought in.¹⁰¹ And overall congressional funding to the Judiciary in 2020 was fifty times what the PACER paywall brought in.¹⁰²

A situation in which we have hamstrung public inquiry into the functioning of the federal litigation system over a literal rounding error may not be funny, but it really is silly. Let’s stop it already. Congress should just cut an annual check to the Judiciary, allowing the public to better understand – and better inform Congress – how one of the three branches of our government functions.¹⁰³ It wouldn’t even make a dent in the monthly auction of Treasury debt, and it would allow the Judiciary to free PACER and lose nothing.¹⁰⁴

14.3.2 Infrastructure Improvements

As I discuss above, one of the real problems with PACER is that it provides very limited search capacity. The House bill introduced in the last Congress had modernization features directed at this problem,¹⁰⁵ and the Senate bill spoke generally of improvements in “data accessibility … and performance.”¹⁰⁶ Not knowing anything about PACER’s back-end design and capabilities, I don’t know whether its lack of a docket-entry or document text search function is a bug or is deliberate. But there are surely many nonprofit organizations that would and could host the data. As noted, the Internet Archive has already offered to do so for free, and to do so with considerably better functionality than PACER currently has.

There are other infrastructure improvements that the Judiciary could make. Some require more burden than others. Less demanding would be more refined docketing, for example, allowing docket coding for motions to dismiss according to the basis for the motion. On the high end would be redesigned forms such as the civil cover sheet, requiring more and/or better information from litigants.

A group of professors recently discussed many of the pathologies I have already described, in Science magazine.¹⁰⁷ They advocate a “collaborative research agenda to empower the public to access and analyze court records.”¹⁰⁸ This agenda includes better organization of the data because of the fact that court records tend to include unstructured text. The professors advocate developing

applications that not only support scholars and researchers who may want to analyze the data but also enable members of the judiciary, entrepreneurs, journalists, potential litigants, and concerned citizens to learn more about the functioning of the courts. To support inquiries made by the public, we should develop applications that can process natural language queries such as “What are the most recent data privacy cases?” or “How often do police officers invoke qualified immunity?”¹⁰⁹

So there are surely a range of other infrastructure improvements worth considering. My purpose here is only to suggest that more about PACER than just the paywall can be improved.

14.3.3 The Judiciary Should Adopt an Attitude of Openness

Certainly there are many judges who embrace openness. Judges have approved many, perhaps even most, PACER fee waivers that scholars have actually submitted to the courts. An amicus brief by retired judges in the ongoing PACER class-action litigation indicates laudable support for public access to court data.¹¹⁰ Over the years, I have had numerous conversations with professionals at the FJC and AO that indicate a range of support between partial and complete for providing more data access.

At the same time, it is hard not to read a message of opposition from some of the Judiciary’s choices, including setting PACER fees at an unnecessarily high level, opposition to legislation that would increase PACER access (including by circulating boilerplate “talking points” for federal judges to use in lobbying members of Congress),¹¹¹ and anecdotal evidence that some judges may reject openness as a categorical matter.¹¹²

My own experience is at least partially consistent with that picture, and it suggests that this rejection exists not only among particular judges, but also as an institutional fact. In 2015 I attended two workshops about access to federal court data. The first was one I organized at Penn Law, which was funded by the National Science Foundation,¹¹³ and the second was the Federal Courts Civil Data Project Roundtable, which was held in Washington, DC, and hosted by the ABA Standing Committee on the American Judicial System and the Duke Law Center for Judicial Studies. Participants at one or both of these workshops included federal judges; academics who work with federal data; staff researchers and/or attorneys from federal agencies including the Federal Judicial Center, the AO, the Administrative Conference of the United States; a representative from the National Center for State Courts; and Michael Lissner, executive director of the Free Law Project. I have limited space to describe my impressions of the views of the Judiciary’s representatives at these events. There were a variety of views, but it seems clear that AO representatives harbor skepticism about the economic, bureaucratic, and technological feasibility of opening up PACER (though the multi-court fee waiver exemption process that now exists occurred not too long after these events).¹¹⁴

In addition, at the ABA event, one Article III judge spoke forcefully against additional PACER access. This judge, whom I know from prior communications to be a devoted public servant, pointed to the example of a news story about a colleague that the judge thought was both unfair and professionally embarrassing. The judge at the conference expressed sincere and profound concern that the judiciary would be unduly pressured in this and other ways by the public availability of additional data that could be searched and filtered easily.

There is some evidence that the Civil Justice Reform Act distorts how judges approach their dockets, perhaps to avoid embarrassment.¹¹⁵ I’m an economist who believes that people generally respond to incentives, so I’m not surprised. Even so, Article III judges have substantial constitutional protections precisely to allow them to buck public pressure and embarrassment in the service of judicial independence. Most obviously, they have life tenure, and their salaries cannot be reduced.¹¹⁶ Their jobs carry considerable prestige, and no small amount of power; Chief Justice Stone once remarked, “the only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their action and fearless comment upon it.”¹¹⁷ I oppose unfair treatment of judges as much as anyone else, but it should go without saying that unfair treatment is not the same as informed public scrutiny. Citizens should have confidence that the federal judiciary will not be deterred from doing its job with integrity by the availability of such scrutiny, and for this reason the Judiciary should welcome rather than avoid it.¹¹⁸

Judges play an important and powerful role in our democracy, and citizens have a right to the fruits of studying how the courts do their, and thus our, business. Any defensible vision for the future of public access to court records should include a decision by the Judiciary to switch gears and foster an institutional attitude of openness toward the public.

14.4 Conclusion

There’s a lot of federal court data. It sits on servers in district courts around the country, with a single access point through PACER. It’s often inconvenient or impossible to use it to study the federal litigation system. Even where PACER use is technically feasible, it’s often prohibitively costly in financial terms to acquire the magnitude of data that would allow scholars to do research that would then be available to the courts and the public for free. PACER has severely limited search functionality, and individual courts decide whether even that will be open to researchers without their paying ruinous fees to download documents that are owned by the public. All the while, the Internet Archive and who knows how many other nonprofits would gladly crawl, index, and host PACER’s data for free public download.

This situation is an intolerable disgrace. It is unacceptable for a democracy to have but withhold such valuable information about the functioning of its courts. With only an imperceptible impact on the public fisc, Congress could both mandate free PACER and preserve the Judiciary’s budget.

There do not seem to be large hurdles related to privacy or pressure on judges, because the data in question are already freely available for public download – just at a deliberately high price that renders useful research infeasible. Nor is there any real technical feasibility problem, as the offer by the Internet Archive to host the data for free forever shows. This is a problem of political and attitudinal will. Congress and the Judiciary should solve it, so we can use court data to increase access to better justice.