There was broad but non-unanimous support for expanding public access to federal data. The only academic who expressed opposition was a scholar with experience working with the Judiciary. According to my notes, this scholar noted that “sometimes studying things in great detail doesn’t yield useful insights”.[3] Additionally, this scholar expressed doubt that non-FJC researchers would be likely to answer questions of policy interest any better than the FJC’s own researchers.[4] To be sure, the observation that studying things in great detail doesn’t always yield useful insights is unremarkable. On the other hand, logical thinking indicates that not studying things in detail never yields useful insights. And in my experience, it is also true that studying things in great detail sometimes does yield useful insights. That is, after all, why the FJC’s able researchers spend so much time and hard work on the studies they do conduct. At the same time, the FJC is a small agency, with a smaller set of staff who focus on research. At the workshop, we were told that there were no more than about ten FJC staff who do quantitative research using federal court data.[5] The notion that a handful of researchers is enough to answer all policy-relevant questions involving federal court data is risible. My conversations over the years with FJC staff members themselves indicate that they welcome outsiders’ involvement in quantitative research using federal court data. I regard FJC researchers as colleagues in the broad sense—colleagues with more data access but less freedom to formulate research agendas of their own choosing.

The AO generously sent three representatives to the Penn Law workshop. These representatives were very helpful in describing institutional and technical facts that were unfamiliar to many if not all the scholars present, and they were very open to the idea of creating a multi-court fee waiver exemption process (indeed, although I do not recall, it is entirely possible that the suggestion was their idea). The AO representatives were also skeptical about the economic, bureaucratic, and technological feasibility of opening up PACER. If the Judiciary took an alternative view, that could be expected to surface in a different attitude from AO representatives at a public event. The AO is the agency that administers the United States courts, and its employees’ job is to facilitate the courts’ activities. They can be expected to support and facilitate public access to data if the Judiciary supports that institutionally, and to oppose such access if the Judiciary does not support it.

That brings me to the second conference on federal court data in the Fall of 2015, the Federal Courts Civil Data Project Roundtable and hosted by the ABA Standing Committee on the American Judicial System and the Duke Law Center for Judicial Studies. This conference was held in Washington, D.C., and included several academics, practicing attorneys from various areas of the law, representatives from the FJC and the AO, and sitting judges from a variety of federal courts.

As I recall, there was broad support there as well for opening up access to federal court data, with two primary exceptions. One was the AO. One of the AO representatives explained his opposition to freer access by suggesting that it could endanger or otherwise lead to pressure on federal judges, because some of what they must properly do is controversial. Given the events of the last several years—such as the incursion into the U.S. Capitol on January 6, 2021, and the shooting of a district court judge’s family members[6]—I take very seriously the need for measures to keep judges safe from angry and/or misinformed members of the public. But it is unclear why scholarly access to federal court data would increase such dangers. Individual cases can already be accessed inexpensively, and the news media cover controversial cases anyway. What dangers exist most likely already exist. Still, if this concern is a binding one, the Judiciary could mitigate it substantially if not totally by making scholarly access to data contingent on approval and institutional affiliation as discussed above.

The other exception I remember to the broad support for liberalizing federal court data access was an Article III judge who spoke forcefully against it. This judge, whom I know from prior communications to be a devoted public servant, pointed to the example of a colleague on the bench who was the subject of a news about his crowded docket. Information about his docket had been made public due to the 1990 Civil Justice Reform Act, which mandated reporting of all motions pending longer than six months, and all cases pending longer than 3 years.[7] As I recall the story, what had happened was that when the subject of the article was appointed, his colleagues dumped their most complex and/or long-running cases on him, so that his docket was full of cases and motions that could not be expeditiously adjudicated despite the judge’s best efforts. According to the judge who spoke at the conference, the news story was both unfair and professionally embarrassing to his colleague. 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.

To be sure, there is some evidence that the Civil Justice Reform Act does distort how judges approach their dockets. In a fascinating recent study, Professors Miguel de Figueiredo, Alexandra Lahav and Peter Siegelman present evidence indicating that judges “close substantially more cases and decide more motions in the week immediately before [the CJRA six-month list] is compiled.”[8] Although they determined that average motion processing time was lower, by between 10-30 days, “duration is actually lengthened for some motions (those for which the deadline is least pressing)”.[9] Another study of the same issue, by Jonathan Petkun, uses a more rigorous statistical approach known as regression discontinuity design, together with a larger and better data set.[10] In line with de Figueiredo, Lahav and Siegelman, Petkun finds that motion and case dispositions speed up thanks to the timing of the six-month list; he also finds some different results. These studies provide evidence that publicity affects judicial behavior.

To an economist like me, who believes that people usually respond to incentives, these findings aren’t surprising. At the same time, 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.[11] 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.”[12] 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.

[1] Increasing Access to Federal Court Data Workshop held at Penn Law in Fall 2015, NSF Grant No. 1551564, https://tinyurl.com/yxcnzgzd.

[2] I invited several federal judges, but unfortunately none was able to attend. I do not attribute this to anything other than the fact that the conference came together on something of a short timeline; many judges are likely to be booked far in advance.

[3] Jonah B. Gelbach, Final Report and Summary of Workshop on Increasing Access to Federal Court Data, NSF Grant No. 1551564 (on file with author) (also noting that as of 2015 there were roughly 2 million PACER user accounts). Other information about the grant, including the required Project Outcomes Report, may be viewed at https://tinyurl.com/yxcnzgzd.

[4] Id.

[5] Further, we were told that even the FJC has only limited access to PACER data without bureaucratic approval. Id. at 11.

[6] See Nicole Hong, William K. Rashbaum and Mihir Zaveri, “‘Anti-Feminist’ Lawyer Is Suspect in Killing of Son of Federal Judge in N.J.,” July 20, 2020, https://www.nytimes.com/2020/07/20/nyregion/esther-salas.html (reporting the shooting death of the son, and serious wounding of the husband, of Judge Esther Salas of the United States District Court for the District of New Jersey.

[7] This requirement is now codified at 28 U.S.C. § 476.

[8] Miguel F. P. de Figueiredo, Alexandra D. Lahav & Peter Siegelman, The Six-Month List and the Unintended Consequences of Judicial Accountability, 105 Cornell L. Rev. 363, 364 (2020).

[9] Id.

[10] See Jonathan Petkun, Can (and Should) Judges Be Shamed? Evidence from the “Six-Month List”, March 2020 (available at https://jbpetkun.github.io/pages/working_papers/SixMonthList_WorkingDraft_20200327.pdf).

[11] Bankruptcy judges do not have such protections. However, the advent of the private service “AACER”—the Automatic Access to Court Electronic Records—has already made bankruptcy data available for public bulk searches. See https://www.aacer.com/. AACER charges for use, however, so it is not freely available to the public.

[12] Schultze, supra note 5 (quoting ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 398 (1956)).