This seems like an unmitigated good. The law, in all forms, should be freely and publicly accessible[1].
Part of me struggles with the abject misunderstandings about law I see in both the media and the public...legal jargon and process are inherently dense/anachronistic. That being said, this seems like an opportunity both for SCOTUS to role model transparency and to try and shorten the process by which the interpretation of the sacred texts are communicated to the people.
[1] this includes things like building codes and professional standards which while legally in the public domain are still claimed as copyright and sold by organizations like the American Society of Mechanical Engineers. The EFF has some resources on this: https://www.eff.org/deeplinks/2014/01/law-belongs-public-dom...
Electronic filing systems, and freely searchable dockets/filings have been available by various clerk of courts for sometime.
Some of these clerk of courts also include public record searches, which I have used for deeds and other publicly recorded documents. Other record offices can be separate offices from the clerk of courts.
Unfortunately, clerk of court systems (online or off) are neither universal, integrated or interoperable. And though you might think SCOTUS would take the opportunity as you say, they are about the slowest moving and beholden to tradition of all the courts (as evidenced by them developing this late in the game or still not allowing video of hearings).
I'm on the side of Scalia here. If I had my druthers nothing would ever be televised, only available as transcript. Video as a medium makes people stupid (see, e.g., the modern web).
I'd probably enjoy a lot of the non verbal communication of the Justices and counsel, but you and Scalia are in good company. Its not a well know issue but one people are very sincere about. And I'm not knocking the Court when I say it's slow moving and beholden to tradition, not everything is meant to move fast and break.
If it serves as consolation, the Ninth Circuit already has an YouTube channel[1], of which I'm a frequent viewer. For some good back-and-forth, I recommend watching hearings with Judge Kozinski.
I agree that this material should be freely accessible. But I don't think it will result in unmitigated good. It will add fuel to the fire of academic legal discourse, which has been an increasingly destabilizing influence that has contributed to the politicalization and polarization of legal discourse and broader social discourse.
We'll soon see dozens, perhaps hundreds of academic papers purporting to apply statistical analysis and machine learning techniques to this new fount of material. This "data" will be used to support whatever pet theories the academics have concocted. Rather than make the law less opaque to the citizenry, this junk science will become fodder for broader social and political commentary.
Maybe improved access to the new filings will makes things better overall. Maybe the resulting fodder will make things worse overall. More than likely we'll just end up in a much more complex world heading down the same road we would have otherwise. In any event, I wouldn't call this unmitigated.
Note that my criticism is largely predicated on the fact that this is Supreme Court material. Neither academics nor social pundits have yet figured out how to mine prosaic material like building codes.[1] I wouldn't rule it out, but consider that this more prosaic material has at least as much raw substance as Supreme Court filings. The SCOTUS filings will be abused because of the meaning we imbue. You'll know all the academic papers coming out in the next few years will be bollocks precisely because, relatively speaking, these filings don't add much new substance overall. At best we should only expect this new accessibility to help budding Supreme Court litigators and other similarly niche domains. For more abstract domains the new material shouldn't move the needle; but it doubtlessly will.
[1] To be sure, there are papers that do mine this material. Their relative paucity is probably a testament to their quality.
I don't doubt that. Nor do I doubt this new material will prove equally useful to U.S. practitioners.
I can't speak for Australia, but in the U.S. legal scholarship has shifted away from traditional legal debate. The debate has become much more abstract, yet at the same time scholars purport to apply more scientific methods backed by empirical data. This is especially true in areas like anti-trust and intellectual property, but it's happening across the board in all domains. Many top law schools are literally turning into research schools. It's an odd phenomenon.
Often times this "research" is no more substantive than literary criticism, as often the only materials available to study are court materials. Professors have and will use software and statistics to try to support various political and social claims. Improved access to Supreme Court filings will prove extremely attractive.
Now, I'm not saying that it's impossible to do meaningful research with this material. My contention is merely that most of the research is crap, and that the legal academy is not well equipped for this kind of work. Making it easier to acquire will have a similar effect to a shipment of morphine bound for a hospital falling off the truck in a red light district.
That's one way to misinterpret what wahern is saying ;)
Having access to raw data is not an unmitigated good because people could (and will) intentionally misinterpret it.
It might be still be good on the balance - but there will be a variety of other consequences, good and bad, intended and unintended. Wahern's point seems to be more that it's far too early to call what the balance of all those consequences might be, and that it's not even a given that they'll be more good than bad - nevermind to make the leap to assume they'll all be good.
Cheaper than ever, barrier-free communication across the globe has it's advantages, for example - but this also leads to spammers and robocallers. I've wondered if some kind of small cost increase per call or email would help keep such things in better check.
I'm not saying that having access to the raw data will be absolutely bad. I'm saying that bad things will happen because people will intentionally misinterpret it.
I support free access to cryptography not because I think cryptography is an unmitigated good. It has and will be used for bad things. I support it because, at least in principle, I believe the good uses will outweigh the bad uses. And I will continue holding that belief absent substantial evidence to the contrary.
Similar situation here. But while many people intuitively understand that cryptography can be used for bad purposes, it's not obvious that simply improving the accessibility of Supreme Court filings could lead to anything bad. But it can and it will. Like in many other fields, law professors are under intense pressure to produce scholarship. The problem is, the law isn't like biology or chemistry. There are few if any readily ascertainable universal principles--at least, few that are more concrete than philosophy generally. It's not even like economics or sociology--which I respect even though there's much junk science there, as well--which are still amenable to material predictions, controlled experiments, and falsifiable hypotheses. For these and many other reasons, the law just isn't a suitable subject for the kind of meaningful, scientific analysis professors purport to apply. At least, not with the analytical tools typically used. The law is a mishmash of abstraction and exception, and the contours are fundamentally random and path dependent. Yet legal scholarship is increasingly expected to extrapolate substance from these random contours. Professors happily oblige. Moreover, scholarship doesn't win you many points unless it's controversial or seemingly up-ends established views. Basically, there are intense internal pressures for scholarship to fit certain narratives. And because of the obvious parallels between the law and politics, the scholarship is weaponized by think tanks and pundits to enhance the credibility of their social and political arguments.
It's one reason why Paul Ryan can believe himself a "policy wonk". Not that he isn't an analytical person or that I think his ideas are bad. But it's a preposterous notion that anybody in his position could have access to the kind of hard, relevant data and substantive analysis that good legislative and legal policy could just fall out as matter of course. That if you just studied this stuff enough the answers fall out. The flow of legal scholarship, much like some economic scholarship, is what permits this delusional equivocation between a national policymaker and a scientist in a lab or a quant running a trading platform.
What I object to is the charade. And I think the charade is harmful, though not necessarily so harmful that we should do things like prevent the publication of court materials.
FWIW, I went to law school mid-career. Best decision I ever made even though I returned to programming. And it was incredibly intellectually stimulating, both the hard legal education, as well as the more abstract policy discourse. But I came away with an abiding belief that the policy discourse has become unproductive in many ways, and this is compounded by how papers and "research" are misused; the work product is considered by many pundits, and even held out by professors and schools, as more scientifically rigorous and empirically grounded than it really is. When the debate is internal and you're discussing things with subject-matter experts, you can sort of expect people to be better able at calling out bullshit; groundless ideas are more likely to die quickly. Plus, lawyers are trained to bullshit, or at least push an argument as far as they possibly can. They're trained to work in a uniquely adversarial system where the opposing side often has the burden of disproving your argument. I don't think lawyers are more insincere than scientists, but when a lawyer is invested in an idea he's very capable at supporting it with strong analytical arguments, papering over the holes. Typical scientific discourse and peer review is far too timid by comparison. When this discourse leaks out into the wider world--indeed, when you're incentivized to pander to the demands and curiosities of the wider world in your discourse--things get out of control. And it has.
>I'm not saying that having access to the raw data will be absolutely bad. I'm saying that bad things will happen because people will intentionally misinterpret it.
People already do.
My larger point was that role modeling making the law more publically accessible is a long term good because of the societal pressures it creates over time. Hypothetical bad actors in the short term are a constant but inane critique of just about any novel idea or approach.
OT: The Supreme Court in the UK has a YouTube channel [1] where videos of judgements are posted (usually very soon after they take place). I'd be interested to know if the SCOTUS has a similar service. I can't find it on YouTube but maybe they can be accessed elsewhere?
Point for debate: Between the extremes of transparency and commodification where should we strike the publication balance?
e.g. If an organization/individual has ulterior motives (of fears) for testifying in a case other than the limited outcome of the legal question, it has the ability to sway their testimony.
The audio of the oral arguments is posted online on the website, but the decisions are not (I think). The text of the decisions is freely available on many websites, though. As for the arguments, there are also several websites which include transcripts, and even some that sync the transcript with the audio.
Ah, I misunderstood. I believe you're correct about that -- I always get the opinions from ScotusBlog, and admittedly have never looked for the opinion delivery audio.
While this idea seems great, requiring court staff to submit pro se litigants' petitions may be a non-trivial burden. Something like 40% of federal appellate work is responding to (often meritless, often incomprehensible) pro se habeas petitions[0]. I wonder if a side effect of this is additional legislation intended to dampen that burden[1] at the expense of real human liberty. I hope not, but we should balance this issue and be cautious about chilling less fortunate peoples' access to these basic civil mechanisms.
I get the feeling that (if I understand this correctly) maybe by putting the petitions out into the open for the world to see (by making it easy for anyone to review online) will cut down on the meritless petitions. After all, it's one thing to throw shit against a wall to see if it will stick (especially if it's a wall in DC that very few people ever look at), and an entirely different thing to throw shit against every wall in the entire US to see if it will stick, and not come out looking like a complete jackass.
1. This is the Supreme Court. It doesn't get random pro se petitions, it gets appeals and certain politically sensitive cases.
2. Court staff already have to deal with this paperwork, they just have to deal with it in paper. This is requiring litigants to submit their filings in electronic form, which would then be automatically added to a publically queriable database. It also saves a lot of pain for lawyers - those I know would love to avoid submitting everything on dead trees, if only their local behind-the-times court would get on board.
I think you argument...especially [1] is reasonable and fair. My response would be that much of that non-trivial burden seems largely created by the system, in an evolutionary biology sense they are defenses that have become defects, not inherent defects. This should seem like an opportunity for constructive reform...whether that is me being overly principled and idealistic is TBD.
Part of me struggles with the abject misunderstandings about law I see in both the media and the public...legal jargon and process are inherently dense/anachronistic. That being said, this seems like an opportunity both for SCOTUS to role model transparency and to try and shorten the process by which the interpretation of the sacred texts are communicated to the people.
[1] this includes things like building codes and professional standards which while legally in the public domain are still claimed as copyright and sold by organizations like the American Society of Mechanical Engineers. The EFF has some resources on this: https://www.eff.org/deeplinks/2014/01/law-belongs-public-dom...