The U.S. House of Representatives just last week passed the Open Courts Act, bipartisan legislation which would require the federal judiciary to provide free public access to court records online and modernize the court system. And although the chances that the bill will be signed into law before a new Congress starts in January are uncertain, a team of Northwestern University researchers sees such movement as an encouraging sign.
Funded by a National Science Foundation grant, the Northwestern interdisciplinary team has also been working to make public court records more freely accessible.
Over the past year, the researchers developed SCALES (Systematic Content Analysis of Litigation Events), which leverages artificial intelligence (A.I.) to make federal litigation data and insights available to the public. The team believes these tools have the potential to transform the ways academics, scientists and researchers approach studying the legal system, as well as how journalists cover the justice system.
“Members of the public — analysts, businesses, attorneys, journalists, scholars — rely on these records to do everything from price securities, comply with federal regulations, and hold the government accountable,” said Sarath Sanga, associate professor of law at Northwestern Pritzker School of Law. “The case for making public court records freely accessible is, in our opinion, overwhelming.”
For example, in the case of qualified immunity — which largely protects police from being civilly liable for excessive use of force and is seen as a key barrier to police reform — SCALES could be used to identify and aggregate the public documents and data from thousands of federal civil rights cases brought against police agencies and officers, enabling the synthesis from data to inform further investigation.
Currently, legal scholars say they lack a clear accounting of the defense’s scope and impact because the federal courts, where most policing cases are filed, do not track police misconduct cases, much less those in which qualified immunity is raised.
As a result, researchers must engage in a slow, resource-intensive, manual process of locating the relevant set of cases in the federal courts’ Public Access to Court Electronic Records (PACER) system, gathering the key documents per case, reading them and hand-coding the information to even identify if the case is of interest.
“It’s important that we make informed and objective, data-driven decisions about important legal issues,” said Adam Pah, clinical assistant professor at the Northwestern Kellogg School of Management and the associate director of the Northwestern Institute on Complex Systems (NICO).
The research team believes empowering the public to access and analyze court records could improve legal practice and the administration of justice by dismantling these and other existing barriers. To do this, the researchers recommend a three-pronged approach:
- Make court records free to dismantle the barrier to access;
- Link courtroom data to contextual data — such as information on judges, litigants and lawyers — and build a collaborative knowledge network;
- Empower the public by providing access to the information that flows from the analyses of the federal court data.
Furthermore, in an effort to help quantify and evaluate citizens’ access to justice, the researchers used their data to examine judicial waiver decisions. Anyone who files a lawsuit in federal court must pay a $400 filing fee, along with other costs related to litigation.
“Litigants in need can file an application to waive court fees, but there is no uniform standard to review these requests,” according to David Schwartz, the Frederic P. Vose Professor of Law at Northwestern Law.
Presently, the decision to waive court fees is at the discretion of individual judges, and the researchers found that in one federal district, the waiver approval rate varied from less than 20% to more than 80%.
“If all judges reviewed fee waiver applications under the same standard, then grant rates should not systematically differ within districts,” the researchers wrote in a recent article. “We find, however, that they do.”
The researchers presented some of their findings on the matter of court fees to a group of federal judges who are responsible for amending the rules in their local district.
“On learning of the inconsistent treatment of fee waiver requests, these judges expressed interest in using our data to improve the decision-making process,” Schwartz said. “We count this as an early and encouraging validation of our claim that judges will be receptive to quantitative feedback that is straightforward, apolitical and incontrovertible.”
Meanwhile, the Open Courts Act aims for a 2025 implementation deadline.
“We argue that the Open Courts Act should become law as soon as possible,” said Sanga. “The judicial paywall is inefficient and shields an entire branch of government from scrutiny. Ten cents per page may not sound like much, but it adds up fast. A single case could easily cost $100. A year’s worth of cases would cost tens of millions.”
Read Sanga and Schwartz’s recent op-ed on the Open Courts Act: Tear Down This Judicial Paywall.
In addition to Pah, Sanga and Schwartz, co-researchers include Luis Amaral, the Erastus Otis Haven Professor of Chemical and Biological Engineering in Northwestern’s McCormick School of Engineering and the co-director of the Northwestern Institute on Complex Systems; Kris Hammond, the Bill and Cathy Osborn Professor of Computer Science at McCormick and director of Northwestern’s Master of Science in Artificial Intelligence program; computer scientists Rachel Adler at Northeastern Illinois University and Sarah Chasins at the University of California at Berkeley; legal scholars Zachary Clopton, Erin Delaney, Paul Gowder, Tom Gaylord and Peter DiCola from the Northwestern Pritzker School of Law; Charlotte Alexander and Anne Tucker at Georgia State University and Christopher Cotropia at University of Richmond; and journalism researchers Rachel Davis Mersey, formerly of Northwestern’s Medill School of Journalism, and Amy Sanders at the University of Texas at Austin.