Blog

Joel Alicia has this piece in Policy Review:

 Only a generation removed from the constitutional revisions of the Warren and Burger Courts, originalism has not only established itself as a respectable interpretive theory in the federal judiciary, but it has also been taken up by some members of Congress. Even a major-party presidential candidate, Newt Gingrich, has pledged that as president he would interpret the Constitution using originalism. Such a state of affairs was unthinkable decades ago when, as Judge Robert Bork characterized the conventional wisdom of the era, lawyers came to “expect that the nature of the Constitution [would] change, often quite dramatically, as the personnel of the Supreme Court change[d].”

But it was precisely because of an article by then-Professor Bork that so much has changed and that Senator Lee’s pledge was possible. Bork’s 1971 article in the Indiana Law Journal, “Neutral Principles and Some First Amendment Problems,” is widely recognized as having launched modern originalist theory. While Professor Noah Feldman has underlined the role Justice Hugo Black played in the development of modern originalism, it was not until Bork’s article in 1971 that the modern originalist movement took flight.

It’s interesting that originalism did not really pick up steam until the GOP, through the impassioned work of Attorney General of Ed Meese, advocated it.

It was around this time in the mid-1980s that Edwin Meese, the attorney general, began publicly advocating originalism in a series of lectures and articles. Combined with the Reagan administration’s laser-like focus on confirming suitable judges to the federal bench, Meese’s speeches showed that originalism had catapulted itself from the pages of law review articles to become the default interpretive theory of the Republican Party.

One of the judges confirmed during this time was Scalia, who stepped in to play a major role in the scholarly debates of the 1980s. Brest and Powell’s criticisms presupposed that originalism was based on the original intentions of the Framers, i.e., how the Framers believed the Constitution would be interpreted in the future. If this premise was removed, Brest and Powell’s criticisms carried much less force. Scalia proposed a theoretical shift: “Change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.” Scalia argued that originalism should not focus on how the Framers thought the Constitution would be interpreted. After all, those expectations were not part of the text that was ratified, and determining those intentions was speculative. What governed was the original meaning of the text, the meaning that the public at large attached to the words of a constitutional provision when it was ratified. A scholar or judge should use all available sources to understand how the words of a provision were defined at a particular moment in history, not to understand how the Framers expected it would be defined by future interpreters.

Greg Beato has a feature in Reason on the failure that is PACER.

Let the record show that the people who created Public Access to Court Electronic Records, a.k.a. PACER, think their database of judicial records is awesome. “PACER has been one of the great success stories of the federal Judiciary,” exclaims bankruptcy judge J. Richard Leonard in the August 2010 edition of The Third Branch, a monthly newsletter published by the Administrative Office (A.O.) of the U.S. Courts. “The very good news, ha, ha, is that our users are happy,” chortles Michel Ishakian, chief of the A.O.’s Public Access and Records Management Division in a video news release that appears on the database’s website.

Not everyone, however, is so pleased with PACER, which is an Internet-based service that allows attorneys, litigants, and other interested parties to access docket sheets, judicial opinions, and other documents related to federal cases. “Its user interface sucks,” says Carl Malamud, an open government gadfly and founder of public.resource.org. “Browsers aren’t supported properly. There’s no API. There’s no batch access.”

But perhaps what galls Malamud and other PACER critics most is the system’s access fees. For the last several years, Malamud and various others, including Steve Schultze, associate director of Princeton University’s Center for Information Technology Policy, have been insisting that the government is spending way too much to develop and maintain PACER given its limited functionality, while charging users way too much to access it. On April 1, as if on cue, the A.O. raised PACER prices by 25 percent—from 8 cents to 10 cents per page. At that rate, a weekday copy of The New York Times would go for $7 or $8, and Walter Isaacson’s biography of Steve Jobs would cost $65.60.

PACER debuted in 1988 as a forward-thinking dial-up system allowing users equipped with a modem and a copy of PC Anywhere to access case materials from a handful of federal courts. Three years later, Congress decided the service should be self-supporting and authorized the federal judiciary to charge users a “reasonable” fee for accessing it. Perhaps taking inspiration from the popular 976 phone sex lines of that era, the A.O. initiated a fee of $1 per minute. The average reader could get through a 10,000-word judicial opinion for $40 or so.

Even at such seemingly exorbitant rates, PACER was a revolutionary leap forward. Prior to the service, federal courts kept exactly one paper copy of each document associated with any given case in their files. To view a document, you had to go to the courthouse itself (or send a courier on your behalf). In the dank marble bowels of some bureaucratic sanctum, you had to request the document from a slow-moving clerk, and if someone else happened to be looking at it when you made your request, you had to wait. Once you had it in your hands, you could take notes or ask the clerk to photocopy pages for you—at 50 cents per page. It was not the sort of experience that conjured up terms like user-friendly oraccessible.

But if PACER seemed mind-blowing in the early 1990s, it now seems as archaic as a barrister’s wig. You can initiate searches only by using case numbers or party names. There is no way to have the system alert you when new materials are added to the case you’re following. And most of all, there are those fees.

“What’s the alternative to PACER charging users?” counters A.O. spokesman Richard Carelli. “If it’s not users, it’s taxpayers.” Carelli points out that many PACER users do access the system for free: Judicial opinions cost nothing to download, and any user who racks up less than $15 per quarter for other materials isn’t charged. In fiscal year 2011, when the quarterly usage ceiling was $10, more than 70 percent of the approximately 450,000 accounts that used PACER during that period were not billed.

“Less than 1 percent of all accounts generate more than 65 percent of revenue,” says Carelli. The largest customer is the Department of Justice (which, of course, means taxpayers already are funding PACER, just indirectly). Other high-volume users include commercial database providers such as Lexis-Nexis and Westlaw, which repackage PACER material in more useful and user-friendly ways and then resell it at premium prices to the legal industry and back to the federal government itself. According to Carelli, 95 percent of PACER’s users incur less than $500 a year in charges. “It’s not like Grandma and Grandpa are spending their mortgage money on PACER,” he says.

Even without old folks help, PACER is a cash cow. In 1995 the service took in approximately $5 million in revenue. By 2006 its annual haul had grown to $50 million, and in 2011, Carelli tells me, the federal judiciary generated $114 million in electronic public access fees, the great majority of which came from PACER.

The A.O. uses these fees not just to maintain and develop PACER but also to underwrite other programs that it says help improve public access to the courts, such as automating bankruptcy filing notices and purchasing flat-screen video monitors for courtroom use. According to Carelli, the A.O. is raising PACER fees to cover the development costs of the next generation of Case Management/Electronic Case Filing (CM/ECF), the management system that allows attorneys and other parties to initiate federal court cases electronically instead of filing paper versions of the documents at the courthouse. (In turn, the documents that are entered via CM/ECF end up populating the database that powers PACER. It’s these documents that are returned when users submit queries.)

Should ordinary citizens be paying higher fees to help underwrite improvements to a system that makes it cheaper and easier for attorneys to file their cases, even if they’re only spending a few bucks a year? Should Lexis-Nexis? In fact, PACER’s high access fees may be limiting its potential to generate revenue. When I suggest that unlimited free access might lead to so much usage that PACER could sustain itself on bail-bond ads alone, Carelli breaks out in laughter. “I’ve been here 12 years,” he exclaims, “and I have never heard anyone mention the possibility of the federal judiciary in any way being linked with advertising.”

Twelve years ago, scores of established information providers were so busy trying to figure out how they could charge users for Web content that they missed out on a chance to be Google. Even in 2012, the federal judiciary continues to think like a legacy media company. Its apparent goal is to help traditional customers use its information for the same purposes they’ve always used it for, albeit in a more efficient fashion.

Malamud and Schultze, meanwhile, have grander aspirations. Making sure that large numbers of people have access to more than one or two cases per quarter is a start. But the truly game-changing aspect of free access involves giving developers access to the entire PACER database and letting them develop new ways to filter, analyze, and distribute this valuable information. Some of these developers would be motivated by profit, others by altruism. But in the end, the culture at large would benefit as the information contained in the relatively unexploited PACER case materials became truly accessible for the first time.

“From a citizen perspective, we could build a variety of tools that would make it far easier to understand and consolidate what’s going on in the courts and track cases that deal with issues that are particularly relevant to you,” says Schultze. Ultimately, he believes, these tools would lead to a “democratization” of judicial proceedings, giving us all a much better understanding of how the cases and judicial decisions that end up having so much impact on our lives develop and play out.

There is certainly no reason why a more open PACER would have to sacrifice its self-sustaining status. If there is anything the last two decades have taught us, it’s that a $100 million surefire revenue stream is often the greatest impediment to making $1 billion.

Guess the country?

No, this story has absolutely nothing to do with the Affordable Care Act.

Married men may eat their broccoli to keep the peace at dinner, but they may be likely to binge on unhealthy food when they leave the house, a recent study by University of Michigan researchers found.

The problem is that wives are making changes to couples’ diets without consulting their husbands, the authors of the study suggest. To get men on board with healthy eating, the authors say, communication may be key.

For the study, researchers at the University of Michigan conducted focus groups with 83 African American men. Overwhelmingly, the men agreed that their wives had more influence over what they ate than they did themselves, but that their wives usually didn’t consult them on changes to the menu at home. Often, healthy changes were made on doctor’s orders, but the men said they didn’t always like them. Still, rather than protesting, they reported going along with their wives’ decisions simply not to rock the boat.

Law Technology News interviewed several members of the Harlan Institute, and wrote an article about how FantasySCOTUS is transforming the way predictions about the Supreme Court are made:

“Wait, does Vegas take odds on u.s. supreme court decisions?” That was the question posed by George Mason University law student Josh Blackman as he kidded around with colleague Yaakov Roth, speculating on the outcome of the U.S. Supreme Court case,Citizens United vs. Federal Elections Commission in 2009. They chatted about how cool it would be for law nerds to test their skill at predicting Supreme Court rulings — like playing manager in a fantasy football league.

The next day, Blackman registered FantasySCOTUS.net, and started designing the website. Launched that November, it attracted 5,000 users who made more than 11,000 predictions for all 81 cases decided during the Supreme Court’s 2009-10 term.

With another law student, Corey Carpenter (who has a degree in economics and econometrics), Blackman analyzed the results of that first season. Overall, the predictions were like a coin toss: right slightly more than half the time. But when looking only at the “power predictors” (the serious players who made the most predictions), the accuracy rate shot to 70%.

Soon, Blackman was getting emails from high school teachers who wanted to use the site to teach students about the court and the Constitution. So they set up a non-profit educational organization, the Harlan Institute (after Supreme Court Justice John Marshall Harlan), and created a spinoff designed to be a teaching tool.

Today, about 13,000 people play on the primary site, and about 1,000 students on the educational site, says Carpenter, director of analysis for the institute. (Blackman is president.) The players are not just lawyers and law students, but include people from all walks of life who simply enjoy following the court.

In fact, last year’s “chief justice” (the title given to the highest-scoring player) is a librarian and math tutor from Queens, N.Y. Jacob Berlove, who has degrees in mathematics and Judaic studies and aspires to be an actuary, says he found the site link on a law blog, and was thrilled to find a community of like-minded people. “None of my friends really shared my interest in the court,” he says.

Berlove may capture the title again this year — as of April, he had the top score. He denies a secret formula, attributing his success to careful analysis: He knows the law, looks at precedents, and carefully reviews oral arguments looking for patterns of emphasis. He reviews the comments of each justice, to hone in on each justice’s reasoning, he says.

The work of the Harlan Institute was also featured in another article in the Law Technology News, titled “Big Data Meets Big Law.”

Another organization investigating quantitative legal prediction is the Harlan Institute, a non-profit organization that promotes interest in and education about the Supreme Court.

It grew out of what started as more of a lark by Josh Blackman, a law student and self-professed Supreme Court nerd, who in 2009 launched a web-based fantasy league for predicting Supreme Court decisions (see “Place Your Bets” for more on the league). Called Fantasy SCOTUS, the site has built up a database of crowd-sourced opinions and analyses of many Supreme Court cases.

In an academic paper published in the Northwestern Journal of Technology & Intellectual Property [Vol. 10, p. 125, 2012], Blackman and co-authors suggest that Fantasy SCOTUS could combine the crowd-sourced data with data from publicly available court filings, then use an algorithm and decision engine to make predictions: “It would be quite conceivable for a bot to crawl through all of the filings in Pacer . . . and develop a comprehensive database of all aspects of how each court works.”

I  will be presenting a paper on FantasySCOTUS at LawTechCamp at the University of Westminster in London on June 29, 2012.