RECAP Already Proving Its Power?
posted by Deven Desai
A couple days ago I blogged about RECAP, a system that aims to enhance government transparency by increasing access to court documents. RECAP does this by making it easy for people to share PACER documents after they have paid for them. Today I read that a judge has vacated “legally significant” opinions in a tort case involving trains, high voltage wires, and teens. The case went to 3rd Circuit and was remanded. The District Court Judge vacated the opinions and directed Westlaw and Lexis/Nexis to remove them from their databases. One troubling matter is that it appears the motion to seal is not available. In addition, the decision to vacate the decisions and remove them appears to have been part of a confidential settlement agreement. I am not sure what the rules are for withdrawing a published opinion. There are probably good ones and good procedures for such a move. Then again it may be part of judge’s broad discretionary powers. Here, the way it happened has caused some concern.
In fact, one blogger has decided to post links to many of the vacated opinions, and, yes, RECAP allowed him to do that. In his view, “a court can ever truly ‘unpublish’ a decision, and that law is made every time a court decides any issue.” I am not so sure that is correct. I do think, however, that courts should be more clear as to why they take such actions. Insofar as systems like RECAP help keep government more open and prevent the expunging of records, that is perhaps an unexpected bonus feature to the transparency project. It preserves some truth.
If anyone has information and thoughts about the rules, procedures, and theories allowing a judge being able to unpublish an opinion, please share them.
August 19, 2009 at 1:55 pm
Tags: precedent, torts, unpublish an opinion
Posted in: Civil Procedure
Print This Post
Responses (5)
Max Kennerly - August 19, 2009 at 3:39 pm
Thanks for the link. To be clear, I meant “law” in that phrase in the broadest sense. Not in the narrow sense merely of reasoning which must or may be cited by a later court, but in the sense of what the courts actually did, what factored in the resolution of the dispute between the parties, and what influences the actions of later parties, lawyers and courts.
For example, the arguments adopted by the court there (and the fact they were adopted) already has, and will in the future, influence the lawyers in other similar premises liability electric shock / electrocution cases. Indeed, one could argue the “vacated” opinions are still good law, and that the sole change is the need to append to any citation “vacated pending appeal solely as the result of a settlement agreement.”
Mike Zimmer - August 19, 2009 at 7:56 pm
The whole idea of “unpublished” opinions that are in fact published seems antithetical to the rule of law. “Unpublishing” published opinions takes this to one step further of absurdity.
Deven - August 20, 2009 at 5:01 am
Max, interesting view. But as Mike suggests, are we in a world where precedent is becoming illusory or at least quite a broad idea? One can cite to unpublished work but judges can disfavor that action. Still as you point out, those opinions can help one fashion an argument that may work better with a new judge. Dissents might be seen in a similar light: opinions that guide an attorney regarding a possible avenue to pursue in a future case. I believe Rehnquist’s dissenting opinions could be a good example of that type of event.
Max Kennerly - August 21, 2009 at 11:04 am
I don’t see how it’s even possible to have a world of “illusory” precedent, since I find it implausible a court could ever wholly distance itself from the persuasive impact of precedent, even vacated and overruled precedent. Take, for example, Judge Posner’s recent reference to the fact that Justice Souter, the author of Twombly, dissented in Iqbal. Such is not a minor point, and it appears to have influenced Posner heavily, despite clearly being non-binding and even having a negative persuasive impact since it was an argument rejected by the majority.
As I wrote, law, once made, cannot be unmade. There is no way to unring the bell that the Eastern District of Pennsylvania once broadly interpreted premises liability theory in the context of a 17 year old electrocuted by a railroad catenary line. The fact that the opinions were later “vacated” for completely unknown reasons related to a settlement is relevant to a later court, but it cannot erase from a later court’s mind the fact that, once upon a time, these arguments worked and were never overruled.
Deven - August 21, 2009 at 11:33 am
Max
I don’t think we really disagree. Your broad notion of law is interesting but conflates a Supreme Court dissent with a district court opinion. Judges will as you say look at everything before them but I don’t think they will weigh them the same. In a different light, we claim that juries should disregard information. We are told that a court will not take X, Y, or Z into consideration. All of these aspects of the law claim that in fact if a court says one cannot cite to A, B, or C as the vourt will not consider it, then one cannot do it.
That being said, of course if one takes an argument and presents it to a court (or just makes the argument that has been vacated) a judge may agree.
The key to being unrung today is that someone is trying to remove any trace of the ruling so that one could not use it in the future. In that sense it is interesting that RECAP and your efforts have curtailed the ability to expunge a case that might have instructive value.
Leave a Reply