Beneath the Lamp Post
posted by Dave Hoffman
Though many bemoan the expense and terrible functionality of PACER, the federal government’s electronic docketing system, it is vastly superior to existing state alternatives. While some states have decent, and searchable, e-dockets, others do not, and it’s often quite hard to figure out the scope of the state databases. The result is that a researcher (or a lawyer) who wants to study live dockets at the state level is faced with a host of known unknowns, making aggregate statistical inference basically impossible. Even descriptive statistics about state courts are hard to verify. It’s a black hole. (With some illumination provided by the BJS and other bodies.)
This frustrates me, and if I could wave a magic wand (or controlled Google) I would create a national e-docketing system for all state filings, permitting full-text searchers across states for comprehensive data – including searches of motions and orders – in both civil and criminal litigation. The current state of the world, by contrast, directs much of the new empirical legal research to focus on federal cases and federal outcomes, because PACER provides access to the kinds of data that researchers need. The problem, of course, is that PACER collects only Federal dockets, which aren’t representative of the kind or scope of litigation nationwide. Though of course studying dockets is vastly superior to studying opinions – if you want to know what judges are doing – we’re left still peering through a dark piece of glass. Worse, I think, is that researchers end up focusing their energies on topics for which federal litigation is the dominant way of resolving legal claims. Thus, there’s much more, and much better, docket-centered empirical work about securities law and federal civil rights statutes than there is about common law adjudication.
Our sadly patchwork court records system doesn’t just hurt academics looking to illuminate doctrinal puzzles. (The horror! Tenured professors can’t write more papers!) It also means that lawyers and corporate officers may be forced to rely on anecdote and salience when deciding how to engage with the litigation system — a calculation that may lead such repeat players to develop a long-term strategy to exit the litigation system altogether. If the state courts want to preserve their business, they need to innovate. One way to do so would be to join forces in data collection, archival, and search.
(Image Source: Flicker)
May 15, 2011 at 5:49 pm
Posted in: Courts, Economic Analysis of Law, Empirical Analysis of Law
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Responses (11)
Frank Pasquale - May 15, 2011 at 6:36 pm
Agreed! There were some very interesting perspectives on the topic at this conference:
http://citp.princeton.edu/events/privacy-access/
My sense was that many of the participants wanted to develop technological systems that both protected privacy and made much more information much more readily available.
paean - May 15, 2011 at 9:51 pm
These are very good reasons for a cogent interstate system. I imagine that most courts would be more than happy to make their information available online; the only obstacle is the cost. What would be most helpful in this regard is some clever ideas about how to convert decades of paper dockets and filings into online format at a time when most states, and therefore their courts, are facing significant budget shortfalls. I would also imagine that state courts are more than willing to see expensive litigation moved to federal court where it doesn’t cost them anything; is this the case?
Jim Maloney - May 16, 2011 at 9:06 am
Re:
“It also means that lawyers and corporate officers may be forced to rely on anecdote and salience when deciding how to engage with the litigation system — a calculation that may lead such repeat players to develop a long-term strategy to exit the litigation system altogether. If the state courts want to preserve their business, they need to innovate.” [post]
and
“I would also imagine that state courts are more than willing to see expensive litigation moved to federal court where it doesn’t cost them anything; is this the case?” [paean]
Based on my experiences in state and federal court, I think paean’s take is closer to the truth: state courts (at least in my neck of the woods) have no desire to maintain their current caseload. Federal courts, while also bemoaning congested dockets, have the advantage of limited subject-matter jurisdiction, and don’t have it nearly so bad. One recent day in Brooklyn is illustrative: after an appearance in the United States District Court for the Eastern District of New York, where, in the courtroom I visited, one judge heard one case, and the hallways all around were sparsely populated, I walked a hundred yards or so to meet a colleague at Kings County Supreme Court. There, the hallways were packed with lawyers, clients, etc., and the courtroom itself (an assignment and motion part) was a mob scene, with row upon row of seats filled with lawyers, court officers calling for silence, and multiple case management tracks underway simultaneously. Back in 1991, when, as a first-year law student, I first heard the word “dispose” used as a transitive verb with “case” as its object, I was a bit shocked. Now I understand…
As for a unified, PACER-like, multistate system, it’s a wonderful dream, but it would take a great deal of effort and funding from outside the court and state budgets, money and work probably better expended on direct justice-serving initiatives. New York’s state court system, to name the one with which I am most familiar, is currently in fiscal crisis, and indeed many of the better local PACER-like initiatives (e.g., New York County Supreme Court’s SCROLL, for Supreme Court Records On-Line Library, which scans all documents into pdf and posts them online) now have their functionality imperiled because of budget cuts.
Hillel Levin - May 16, 2011 at 9:25 am
At least it is now *possible* to study federal trial courts, something that used to be effectively impossible and is still prohibitively expensive for most lawyers and even legal scholars.
But, more importantly, even if we could study state courts, we’d still only see a tiny sliver of the action, if by “action” we mean “how disputes are actually resolved or disposed of.” Most disputes will be handled informally, or through insurance-like schemes, or through formal ADR mechanisms. For all of us who really want to know how law works in the world, we will always be lost.
Jim Maloney - May 16, 2011 at 10:52 am
Hillel the Pessimist, eh?
I suppose the sentence, “For all of us who really want to know how law works in the world, we will always be lost[,]” can be uttered while standing on one foot…
Dave Hoffman - May 16, 2011 at 11:00 am
Hillel,
Some data is better than no data!
Jim,
I agree that if the court system has to do all the work of making documents digital, this won’t work. (Indeed, the result is that historic dockets may never be functionally online). But we could require, for instance, that lawyers input their “complaints” directly into a form online, in one format, with a drop down menu for various legal “causes of action” and a place for narrative fact-telling. Similarly, motion practice could be redesigned around digital forms that are easily searchable.
I get that this would be a disruptive innovation, and that there are problems with it.But if you think about litigation as providing in part a public good, then the balance right now (toward professional control over information) isn’t optimal.
Hillel Levin - May 16, 2011 at 11:08 am
Dave:
Isn’t “some data is better than no data” the rejoinder to your own critique? We have lots of data from federal courts, which is more than can be said as of just a few years ago, and here you go on about state courts!
Dave Hoffman - May 16, 2011 at 11:16 am
But Hillel, I only said that because you seemed so forlorn.
Jim Maloney - May 16, 2011 at 12:09 pm
There is a danger in the “some data is better than no data” principle, of course, which parallels the famous “three kinds of lies” (lies, damned lies, and statistics) principle attributed to both Twain and Disraeli: if the “some data” is skewed, then not having all the data may, if care is not taken, skew the conclusion. As a concrete example, suppose we could mine data for all the libel cases actually litigated to trial or dismissed on motion in the state courts of the US (as we probably can to nearly 100%), and found that, say, 88% resulted in a dismissal or verdict for defendant. It would be tempting to say that plaintiffs recovered in only 12% of cases, but maybe only 10% of libel cases went to trial or dispositive motion, with the others settling (not part of the “some data”), such that the truth is likely that plaintiffs recovered something in a majority of the the 90% that settled PLUS the 12% of the 10% that did not settle.
I have some ambivalence about Dave’s idea for a standardized lawyer-input system. Unless it were carefully conceived, it would create extra work and legal fees for little or no benefit, and part of the careful conception to make it effective would be nationwide uniformity, which is challenging for two reasons: (1) different systems may make a uniform approach across the board for all sorts of civil litigation impossible; and (2) in order to be implemented, it would have to be federally mandated. Dare I ask whether that would be within the ambit of the Article I, section 8, clause 3, commerce power, or should that morph into a new post!?
Dave Hoffman - May 16, 2011 at 12:22 pm
Jim,
I was thinking of more of a grant-to-conform system, as opposed to a mandate. And I don’t know why the federal government is the only player. If I were, say, google, I might consider providing funding to bring this information online in highly usable ways.
I agree that there are problems with the idea — among them, it isn’t at all clear that making states look more alike in their docketing systems is a good idea, if data recording through docketing reflects something substantively important/interesting about state practice and procedure. I tend to think it doesn’t, but confess I’d have to think & research more before knowing for sure.
Jim Maloney - May 16, 2011 at 1:27 pm
Dave:
A grant-to-conform system could work! I can easily imagine most states happily taking money to set up a few new rules that attorneys practicing in their courts must abide by. The contingency bar might object (more work for no short-term benefit, etc.) but the paid attorneys (defense) probably would simply pass on the relatively small additional billable time to their clients. In the long run, there ought to be a benefit to all, and that could even be translated to a short-term benefit to attorneys if the funding were used to offset attorney registration fees (pretty expensive here in NY & NJ and rising steadily) or fund other bar support initiatives.
As for who does the funding, well, naturally, I think of Uncle Sam rather than Aunt Google or Cousin Facebook, but thinking outside the box is OK, too.
Thing is, a federal program would likely have certain safeguards not necessarily present in a private program, and, as much as I distrust government generally (it’s my tradition and my job), something makes me worry even more about having an Internet Giant behind such a program. (Wasn’t there a thesis, with a resultant book and film, premised don the idea that corporations exhibit all the indicia of sociopaths?)
States tend to respond better to federal proposals, too, with not nearly as much balking from the citizens and watchdog groups as would almost certainly be the case with some corporate entity backing it.
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