The Potential of the Supreme Court’s Electronic Filing System For Legal Analytics

January 1st, 2015

On these pages I have ranted for years about PACER, and its absurd practice of charging per page. Beyond the impact on access to justice–how can it be that people need to pay to view public records–the balkanized approach of PACER makes legal analytics extremely difficult. Researchers have had to develop elaborate scrapers of dozens of different sites, that often change without notice, all while paying a dime a page. Sophisticated natural language processing was developed to deal with different clerks in different regions. In short, it’s a mess.

But as bad as it is for the district and circuit courts, it is EVEN worse for the Supreme Court. Today, there is NO way to get any filings from SCOTUS cases from the Supreme Court’s web site. Only opinions and oral arguments are available. Unless a cert petition or brief or amicus is posted by the ABA or SCOTUSBlog, it is impossible to get them. (And scraping either of those sites conflict with their terms of service).  The only way to obtain copies of all cert petitions is by retrieving the microfiche through a LOC depository. I’m not joking. I actually looked into the feasibility of scanning all of the microfiche at the University of Texas, at Austin. It was so expensive, I quickly abandoned the project.

However, 2016 holds some hope. In the Chief Justice’s year-end report on the Federal Judiciary–written in his usual charming and engaging manner–we learn that the Supreme Court will soon implement an electronic filing system that allows ALL pleadings to be downloaded at no cost.

The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit  documents only on paper, and Court personnel will scan and upload those documents to the system for public access. The Court will provide more information about the details of the system, including the process for attorneys to register as authorized filers, in the coming months.

This is remarkable. First, we will get *all* filing: petitions for certiorari, merits briefs, and (presumably) all amicus briefs. Second, we even get the elusive IFP petitions, which to date were only available on microfiche. Third, they’re free! No more paying per page. One can only hope that these documents will be uploaded retroactively for cases already decided.

The potential here is remarkable. Now,we can scan through and download, all of the petitions for cert, all of the briefs, and amici. This will enable massive computational research. Perhaps there will even be a method for bulk download, rather than having to deal with messy scrapers.

The LexPredict team has been researching other methods of forecasting cases, and our next target was analyzing briefs. This will make such research viable and sustainable.

Kudos to the Court for taking this lead, however late.

Alas, the Chief shows no concern for the fact that PACER continues to charge for access, describing the fee as “modest.”

But this system is not limited to attorneys. By logging onto the Public Access to Court Electronic Records (PACER) system, and paying a modest user fee—in many cases, no fee—members of the public from Alaska to Florida can instantly access and review federal court filings located in courthouses across the Nation. PACER has enabled thousands of reporters, academics, and members of the public to find court records in a way that would have been impossible before the advent of CM/ECF.

Further, the Chief explains why the various PACER sites are so balkanized:

The federal judiciary also faces implementation challenges in light of its conscious decision to maintain a decentralized system of organization. For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities, and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations. When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF, it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally. These deliberations ensure that the implementation of a national system takes due account of local experience, including both successes and failures.

Progress takes time.