Beneath the Lamp Post
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)