NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA

Filing 55

MOTION for Leave to File Brief Amici Curiae by AMERICAN ASSOCIATION OF LAW LIBRARIES (Attachments: #1 Proposed Brief, #2 Text of Proposed Order)(Samberg-Champion, Sasha)

Case 1:16-cv-00745-ESH Document 55-1 Filed 09/05/17 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, NATIONAL
CONSUMER LAW CENTER, and
ALLIANCE FOR JUSTICE, for themselves
and all others similarly situated,
Plaintiffs,

Case No. 16-745-ESH
Judge Ellen S. Huvelle

v.
UNITED STATES OF AMERICA,
Defendant.

Proposed Brief Amici Curiae by The American Association of Law Libraries, et al.,
In Support of Plaintiffs’ Motion for Summary Judgment

Sasha Samberg-Champion
(DC Bar No. 1026113)
Stephen M. Dane
(DC Bar No. 982046)
RELMAN, DANE & COLFAX PLLC
1225 19th Street NW, Suite 600
Washington, DC 20036
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Amici Curiae

Case 1:16-cv-00745-ESH Document 55-1 Filed 09/05/17 Page 2 of 28

CORPORATE DISCLOSURE STATEMENT
Pursuant to Local Civil Rule 7(o)(5) of this Court, which requires compliance with the
requirements of Rule 29(a)(4)(A)) and Rule 26.1 of the Federal Rules of Appellate Procedure:
I, the undersigned, counsel of record for amici curiae, certify that to the best of my knowledge
and belief, the American Association of Law Libraries has no parent corporation and no publicly
held corporation holds 10% or more of its stock.
Dated: September 5, 2017
Respectfully submitted,
/s/ Sasha Samberg-Champion
Sasha Samberg-Champion
(DC Bar No. 1026113)
Stephen M. Dane
(DC Bar No. 982046)
RELMAN, DANE & COLFAX PLLC
1225 19th Street NW, Suite 600
Washington, DC 20036
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Amici Curiae

i

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iii
STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE ....................................... 1
ARGUMENT .................................................................................................................................. 2
I.

CURRENT PACER FEES PREVENT SCHOLARS FROM DOING
DEMOCRATICALLY IMPORTANT WORK ..................................................................... 4
A. Building Systems For Accessing, Teaching, And Practicing The Law .................... 4
B. Diagnosing Societal Issues By Examining The Legal Record .................................. 6
C. Studying And Contributing To Jurisprudential Development ................................ 9

II.

PACER FEES PREVENT LAW LIBRARIES FROM PROVIDING PUBLIC
ACCESS TO LEGAL INFORMATION ............................................................................. 13
A. PACER Fees Harm Patron Access And Legal Research Instruction.................... 14
B. PACER Fees Impede Law Libraries’ Responsibility To Preserve
Legal Materials.................................................................................................... 16

III.

THIS COURT MUST ENFORCE CONGRESS’S REQUIREMENT THAT THE
FEDERAL COURTS MAKE FEDERAL ELECTRONIC COURT RECORDS
“FREELY AVAILABLE TO THE GREATEST EXTENT POSSIBLE,”
BECAUSE COURT ADMINISTRATORS HAVE PROVEN UNWILLING TO
DO SO VOLUNTARILY .................................................................................................... 17

CONCLUSION ............................................................................................................................. 21

ii

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TABLE OF AUTHORITIES
Cases

Page(s)

Ashcroft v. Iqbal, 55 U.S. 662 (2009) ...........................................................................................11
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................. 11
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ........................................................... 2
Richmond Newspapers v. Virginia, 448 U.S. 555, 567 (1980) .......................................................2
Other Authorities
Administrative Office of the United States Courts, Electronic Public Access at 10, The
Third Branch, September 2000 ........................................................................................... 3
Civil Rights Litigation Clearinghouse, https://www.clearinghouse.net/about.php ........................ 6
CodeX, The Stanford Center for Legal Informatics, http://codex.stanford.edu/ ............................ 5
Clifford J. Carrubba and Tom S. Clark, Rule Creation in a Political Hierarchy, 106 AM.
Pol. Sci. R. 622, 634 (2012) .............................................................................................. 10
Cornell Legal Information Institute, https://www.law.cornell.edu/ ................................................ 4
Deborah Beim, Learning in the Judicial Hierarchy, 79 J. OF POL. 591 (2017) ............................ 10
Digital Public Library of America, https://dp.la/ ..........................................................................17
Elizabeth Y. McCuskey, Submerged Precedent, 16 Nev. L.J. 515 (2016) ................................... 19
Elizabeth Warren, Bankrupt Children, 86 MINN. L. REV. 1003 (2002)...........................................7
Erika Wayne, PACER Spending Survey, Legal Research Plus (Aug. 28, 2009),
https://perma.cc/4CEC-Z7JT ............................................................................................ 15
HathiTrust Digital Library, https://www.hathitrust.org/ ............................................................... 17
Hannah Laqueur & Ryan Copus, Synthetic Crowdsourcing: A Machine-Learning Approach
to the Problems of Inconsistency and Bias in Adjudication (October 21, 2016)
(working paper), https://ssrn.com/abstract=2694326 ....................................................... 12
Iain Carmichael, James Wudel, Michael Kim, and James Jushchuk, Comment, Examining
the Evolution of Legal Precedent through Citation Network Analysis, 96
N.C. L. REV. (forthcoming 2017). ..................................................................................... 10
J. Michael Greenwood & John Brinkema, E-Filing Case Management Services in the US
Federal Courts: The Next Generation: A Case Study, 7 Int’l J. for Ct. Admin. 3, 3
(2015), https://perma.cc/33S9-XW3Z ..............................................................................18
iii

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Jay Lawrence Westbrook, Empirical Research in Consumer Bankruptcy, 8o Tex. L. Rev.
2123, 2148 (2002) ............................................................................................................... 7
Jennifer Mascott, Who are “Officers of the United States”? 70 Stanford L. Rev.
(forthcoming 2017) ...........................................................................................................11
Joe S. Cecil, et al., Motion To Dismiss for Failure to State a Claim After Iqbal: Report
to the Judicial Conference Advisory Committee on Civil Rules, Fed.
Judicial Ctr. (2011) ........................................................................................................... 12
Judicial Transparency and Ethics: Hearing Before the H. Subcomm. on Courts,
Intellectual Property and the Internet of the H. Comm. on the Judiciary,
115th Cong. 2 (Feb. 14, 2017) ............................................................................................ 3
Judith Cobb & Joan Allen-Hart, Preserving Legal Materials in Digital Formats
(prepared for the Legal Information Preservation Alliance) (Feb. 4 2005) ...................... 16
Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion,
and the Constitutional Record (Apr. 26, 2017) (working paper),
https://ssrn.com/abstract=3019494 ................................................................................... 11
Letter from Brewster Kahle, Digital Librarian and Founder, Internet Archive, to Reps. Issa
and Nadler, H. Comm. on Courts, Intellectual Property and the Internet of the
H. Comm. on the Judiciary (Feb. 10, 2017), https://perma.cc/BT6M-4J56 ..................... 20
Letter from Professor Elizabeth Warren, Harvard Law School to The Honorable John J.
Thomas, U.S Bankr. Court, Middle District of Pa. (Jan. 4, 2008),
https://perma.cc/P2D7-9UV6 ............................................................................................. 7
Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 Writings of James Madison
103, 103 (Hunt ed., 1910) ................................................................................................... 2
Library Innovation Lab at Harvard University, http://lil.law.harvard.edu/ .................................... 5
Lonny Hoffman, Twombly and Iqbal’s Measure: An Assessment of the Federal Judicial
Center’s Study of Motions To Dismiss, 6 FED. CTS. L. REV. 1 (2011).............................. 12
Lynn M. LoPucki, Court-System Transparency, 94 IOWA L. REV. 481, 515 (2009) .................... 21
Lynn M. LoPucki, The Politics of Research Access to Federal Court Data, 80 Texas L. Rev.
2161 (2002) ......................................................................................................................... 8
Media Freedom and Information Access Clinic, https://law.yale.edu/mfia/ .................................. 5
NARA Records Disposition Schedule N1-021-10-2 ....................................................................16
Paul Conway, Preservation in the Age of Google: Digitization, Digital Preservation, and
Dilemmas, 80 Libr. Quarterly 61 (2010) ..........................................................................16
iv

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Peter W. Martin, District Court Opinions that Remain Hidden Despite a Longstanding
Congressional Mandate of Transparency – The Result of Judicial Autonomy and
Systemic Indifference (working paper) (Aug. 17, 2017) ...................................................19
Peter W. Martin, Online Access to Court Records—From Documents to Data,
Particulars to Patterns, 53 VILL. L. REV. 855, 864 (2008) ..............................................17
Preservation Policy, AALL, https://perma.cc/UKH7-M2GL ......................................................16
Rebecca Kunkel, Law Libraries and the Future of Public Access to Born-Digital
Government Information, 109 LAW LIBR. J. 67 (2017) ....................................................16
S. Rep. No. 107-174, at 23 (2002) .................................................................................................. 3
Sara S. Greene, Parina Patel, and Katherine Porter, Cracking the Code: An Empirical
Analysis of Consumer Bankruptcy Success, 101 Minn. L. Rev. 1031 (2017) ....................8
Teresa A. Sullivan, Elizabeth Warren, and Jay Lawrence Westbrook, As We
Forgive Our Debtors: Bankruptcy and Consumer Credit in America (1989) .................... 6
Teresa A. Sullivan, Elizabeth Warren, and Jay Lawrence Westbrook, Persistence
of Local Legal Culture: Twenty Years of Evidence from the Federal Bankruptcy
Courts, 17 Harv. J. L. & Pub. Pol'y 801 (1994)...................................................................6
Thomas Lee & Stephen Mouritsen, Judging Ordinary Meaning, 127 Yale L.J.
(forthcoming 2017).......................................................................................................... 11
Thomas Lee & Stephen Mouritsen, The Path Forward for Law and Corpus Linguistics,
Volokh Conspiracy (Aug. 11, 2017), http://wapo.st/2vVWG19 ...................................... 11
William M. Landes & Richard A. Posner, Legal Precedent: A Theoretical and Empirical
Analysis, 19 J.L. & Econ. 249 (1976) .................................................................................9

v

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STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE 1
The American Association of Law Libraries (AALL) is the only national association
dedicated to the legal information profession and its professionals. Founded in 1906 on the belief
that people—lawyers, judges, students, and the public—need timely access to relevant legal
information to make sound legal arguments and wise legal decisions, its nearly 4,500 members
are problem solvers of the highest order.
Deborah Beim is an Assistant Professor of Political Science at Yale University. Her
work focuses on “learning in the judicial hierarchy,” probing the ways in which law develops.
She and her colleagues across the country seek to explain the development of the law using
empirical methods that rely on fulsome legal corpuses and refinement of theoretical models.
Thomas Bruce is Director and Co-founder of Cornell Legal Information Institute.
He co-founded LII (the first legal information web site) in 1992 with Peter Martin, former Dean
of Cornell Law School. The LII publishes electronic versions of core materials in many areas of
the law, relying on the government to provide reasonable access to primary legal sources.
Phillip Malone is a Professor of Law at Stanford Law School. He is Director of the
Juelsgaard Intellectual Property and Innovation Clinic, serving clients by advocating for greater
opportunities for innovation and generativity. His work focuses on legal innovation, increased
access to justice, and facilitating open access to information and online expression.

1

Counsel for amici declare that no party’s counsel authored this brief in whole or in part; no
party or party’s counsel contributed money that was intended to fund preparing or submitting this
brief; and no person—other than amici, its members, or its counsel—contributed money that was
intended to fund the preparation or submission of this brief. The named individuals sign this brief
in their individual, not representational, capacity. Their professional affiliations are listed for
identification and contextual purposes only.
1

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Jonathan Zittrain is the George Bemis Professor of International Law and Professor
of Computer Science at Harvard University. He is Director of the Harvard Law Library, which
houses the Library Innovation Lab (LIL). LIL seeks to make electronic case law available for
free; to confront archival challenges of the legal record; and to improve tools for teaching the
law.
ARGUMENT
Popular government, without popular information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy; or, perhaps both. 2 — James Madison
As Madison knew, our democracy’s success requires that the people know how the
governmental apparatus exerts its power. Public access to federal court proceedings and records
is essential to this knowledge. Accordingly, while amici submit that plaintiffs’ construction of
the E-Government Act provision at issue on this motion is correct as a matter of pure textual
analysis and legislative history, they urge this Court also to take into account that adopting
plaintiffs’ position is likewise consistent with the fulfillment of basic democratic principles.
It is by now well-established that fundamental democratic ideals underpin the common
law, constitutional, and statutory mandates for public access to court proceedings. See, e.g.,
Richmond Newspapers v. Virginia, 448 U.S. 555, 567 (1980) (describing the “unbroken,
uncontradicted history” of common-law access to court proceedings when presented with a
judge-ordered closure of courthouse doors, and further locating such a right in the First
Amendment); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (recognizing the same
for written records maintained by the clerk). Justice Brennan observed a “special solicitude for

2

Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 WRITINGS OF JAMES MADISON
103, 103 (Hunt ed., 1910).
2

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the public character of judicial proceedings.” Richmond, 448 U.S. at 592 (Brennan, J.,
concurring in judgment). Such solicitude is due because public access to proceedings is
foundational to popular justice. Access guarantees, especially to trial court records, are
“bottomed upon a keen appreciation of the structural interest served in opening the judicial
system to public inspection.” Id.
Congress clearly intended that the E-Government Act help ensure that the adoption of efiling would make the federal court system more accessible to the public, rather than becoming a
profit center for the federal courts. Administrative Office of the United States Courts, Electronic
Public Access at 10, THE THIRD BRANCH, September 2000, at 3-4 (describing PACER as
allowing the public to “surf to the courthouse door on the Internet”); S. Rep. No. 107-174, at 23
(2002) (expressing the intent to make PACER access “freely available to the greatest extent
possible”); Judicial Transparency and Ethics: Hearing Before the H. Subcomm. on Courts,
Intellectual Property and the Internet of the H. Comm. on the Judiciary, 115th Cong. 2 (Feb. 14,
2017) (statement of Rep. Darrell Issa, Chairman) (expressing concern at the “tidy profit” that
PACER continues to make).
This brief describes how PACER’s fees have prevented scholars and libraries from
protecting and promoting essential public access benefits. Scholars and libraries play a critical
role in creating, protecting, and amplifying the democratic benefits that flow from public access
to court records. Whereas litigants may interact with court records only with respect to
individual cases, libraries and scholars need the ability to use those records to examine our
judicial system more systemically—a task that, in many cases, requires access to the full body of
PACER records and the ability to share those records.

3

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I.

Current PACER Fees Prevent Scholars from Doing Democratically Important
Work
Scholars, academic institutions, and legal clinics amplify the benefits of public access to

court records, and their work suffers when access is restricted. They rely on access to court
records in various ways to enhance the effectiveness of our legal system as a whole and ensure
greater public access to justice. Scholars, academic institutions, and legal clinics: 1) build
systems for accessing, teaching, and practicing the law, 2) diagnose societal issues by examining
the legal record, and 3) study and contribute to jurisprudential development. Each of these
components of their missions is hampered by the excessive PACER fees they currently must pay.
A. Building systems for accessing, teaching, and practicing the law
Scholars are responsible for creating many of the innovative platforms that provide
greater public access to the law and greater ability to analyze and understand it. These platforms
frequently find more use than do government sources of legal information: indeed, they are used
every day by practitioners, students, and the public.
For example, the Cornell Legal Information Institute (LII) is perhaps best known as the
first result in any web search for the United States Code or the Code of Federal Regulations. The
organization’s simple vision is that “everyone should be able to read and understand the laws
that govern them, without cost.” 3 To that end, LII publishes the law online for free (when it is
obtainable), creates materials that help people to understand the law, and develops tools that
make it easier for people to find and to understand the law.
LII is not alone. The Harvard Law Library Innovation Lab is working to make all
reported U.S. case law freely accessible online. It also is providing tools for educators to assign

3

CORNELL LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/.
4

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and excerpt raw legal materials as part of free, next-generation casebooks and is permanently
archiving online materials that are cited in court filings, opinions, and articles. 4
Meanwhile, Stanford’s Center for Legal Informatics brings together researchers, lawyers,
entrepreneurs, and technologists in order to enhance legal efficiency, court transparency, and
access to legal systems and services. 5 For example, it “incubated” Lex Machina, an innovative
tool for analyzing intellectual property jurisprudence that mines data from millions of pages of
litigation documents, many from PACER. The project was spun off as a for-profit and acquired
by LexisNexis. Unfortunately, the underlying data that powers Lex Machina—court records
derived from PACER—is expensive, driving up the cost of the service. Major law firms and
well-compensated practitioners can afford the benefits of this system; others cannot. Many
public-minded efforts to make federal trial court records more accessible to all, not just those
with ample resources, suffer the same limitation: PACER is prohibitively expensive.
Scholars do more than make information available and conduct research. They also
develop the next generation of practitioners through hands-on experience. Law school clinics
teach aspiring legal professionals; like the lead plaintiffs in the instant case, they also enhance
the public’s access to justice by directly serving the public. Yale’s Media Freedom and
Information Access Clinic (MFIA) helps clients to enforce their constitutional and statutory
rights of access to government information—often in federal court. 6
Yet, one of the most difficult-to-access bodies of government information is the corpus of
federal district court records. While individual records are reasonably obtainable (if not always
reasonably findable) via PACER, securing any significant portion of these records is fiscally

4

LIBRARY INNOVATION LAB AT HARVARD UNIVERSITY, http://lil.law.harvard.edu/.
CODEX, THE STANFORD CENTER FOR LEGAL INFORMATICS, http://codex.stanford.edu/.
6
MEDIA FREEDOM AND INFORMATION ACCESS CLINIC, https://law.yale.edu/mfia/.
5
5

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impossible. Efforts like the University of Michigan’s Civil Rights Litigation Clearinghouse have
limited resources, so the supervising faculty simply directs patrons seeking additional
information to PACER. 7 Because it is impossible to obtain a substantial corpus of PACER data,
both clinic work in general and the specific public access work of entities like MFIA can be
difficult or impractical. Access to information about the workings of the courts suffers, as does
the public’s access to justice.
B. Diagnosing societal issues by examining the legal record
Beyond providing access to the law, scholars also seek to understand how other social
phenomena manifest in legal proceedings. These endeavors, too, have been frustrated by the
high price of obtaining records through PACER.
For decades, a group of preeminent scholars has examined bankruptcy through the best
available lens: bankruptcy court records. The Consumer Bankruptcy Project gathered records
first in 1981, fueling scholarship by this group for more than twenty years. See, e.g., Teresa A.
Sullivan, Elizabeth Warren, and Jay Lawrence Westbrook, As We Forgive Our Debtors:
Bankruptcy and Consumer Credit in America (1989); Teresa A. Sullivan, Elizabeth Warren, and
Jay Lawrence Westbrook, Persistence of Local Legal Culture: Twenty Years of Evidence from
the Federal Bankruptcy Courts, 17 HARV. J. L. & PUB. POL'Y 801 (1994). In 2002, on the heels
of their second major data gathering effort, these scholars realized that their work could be at a
turning point. They had been laboriously gathering court records through manual photocopying,
but one of the scholars predicted that “empirical work in the bankruptcy field will be
revolutionized over the next few years by the arrival around the country of Case
Management/Electronic Case Filing (‘CM/ECF’).” Jay Lawrence Westbrook, Empirical

7

CIVIL RIGHTS LITIGATION CLEARINGHOUSE, https://www.clearinghouse.net/about.php.
6

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Research in Consumer Bankruptcy, 8o TEX. L. REV. 2123, 2148 (2002). One scholar warned
that the PACER fee structure could extinguish this hope, but the optimists advocated for a policy
“that permits the broadest possible access to data.” Id. at 2150.
While promoting the “broadest possible access” may have been the policy intended by
Congress when it passed the E-Government Act that same year, it was not the approach adopted
by the Administrative Office of the United States Courts (“AO”). In the following years, the
researchers were forced to make do by applying for fee waivers individually at each bankruptcy
court. See, e.g., Letter from Professor Elizabeth Warren, Harvard Law School to The Honorable
John J. Thomas, U.S Bankr. Court, Middle District of Pa. (Jan. 4, 2008), https://perma.cc/P2D79UV6 (requesting reinstatement of an expired fee waiver and describing the patchwork of
agreements with different courts). Behind the scenes, an army of research assistants tried to keep
the waivers up-to-date, and the scholars promised not to share the public court records with the
public. Id. This jury-rigged arrangement held up long enough to allow the Consumer
Bankruptcy Project team to research the rise in bankruptcies in the mid-2000’s, and to apply the
data in new domains such as medical research. 8
Then-Professor Elizabeth Warren sought to use empirical bankruptcy data as a “sort of
pathology laboratory for data and insights about other social issues.” Westbrook, supra, at 2125.
Through the legal record, she and her colleagues sought to explore economic fractures in
American society. See, e.g., Elizabeth Warren, Bankrupt Children, 86 MINN. L. REV. 1003

8

PACER fee waivers are entirely discretionary, may be revoked at any time for any reason, must
be applied for individually at each court, and must be limited in time. No PACER documents
obtained as a result of a fee waiver may be redistributed—presumably because the AO has the
economic incentive to require others to engage in otherwise unnecessary downloading so that
they will have pay for the same documents. Collectively, these limitations not only hinder the
gathering of data but expressly prohibit redistribution of the data underlying any study—a core
requirement of rigorous scholarship.
7

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(2002). However, the perpetual need to renegotiate fee waivers and restrictions on distributing
source data made the work unsustainable. Nothing has since filled the void: today’s consumer
bankruptcy empiricists are stuck working with decade-old data. See, e.g., Sara S. Greene, Parina
Patel, and Katherine Porter, Cracking the Code: An Empirical Analysis of Consumer Bankruptcy
Success, 101 MINN. L. REV. 1031 (2017).
The lack of fresh data for this badly needed research into how our bankruptcy system
works in practice is not for want of capability of PACER. Indeed, the Department of Justice, by
contrast, appears to receive free nightly updates of bankruptcy data from PACER. See
Memorandum of Understanding Between the Admin. Office of the United States Courts and the
Exec. Office for United States Trs. Concerning the Bankruptcy Data Download (Dec. 14, 2009),
https://perma.cc/UFA9-UA3X. Yet this information is not made available to the general public,
and the AO’s policies preclude researchers from replicating it.
Nor is it for want of creativity and effort from researchers, who have always gone to
remarkable lengths to acquire necessary data. Consider the backstory of the Consumer
Bankruptcy Project’s data gathering phases in 1981 and 2001, as described by Professor Lynn
LoPucki. See Lynn M. LoPucki, The Politics of Research Access to Federal Court Data, 80
TEXAS L. REV. 2161 (2002). In 1981, the team “bought photocopy machines, flew the copiers air
freight to the cities where they would collect the data, and rolled them into the clerks’ offices on
dollies.” Id. at 2166-2167. With the consent of the courts, they copied the records for a tenth of
the rate mandated by the public access fee schedule under the formal process.
In 2001, the team followed much the same process for courts that would allow it, despite
considerable advances in technology in the intervening years. The most significant improvement
they were able to make was paying moonlighting clerks to make copies using the courts’ existing
8

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photocopiers. PACER was available in many courts by 2001, but the electronic fee schedule
made it far more expensive than relying on 20-year-old technology.
C. Studying and contributing to jurisprudential development
Research enabled by public access touches the core of the common law—jurisprudential
development. In 1976, Landes and Posner set out a method for systematically analyzing
development of the law by mapping citation history. William M. Landes & Richard A. Posner,
Legal Precedent: A Theoretical and Empirical Analysis, 19 J.L. & ECON. 249 (1976). They
described what lawyers and judges already knew to be true—the accretion of citations to a given
judicial opinion could, over time, forge legal rules. In short, they described precedent.
Landes and Posner proposed that, by quantitatively examining networks of citations, they
could document—and perhaps even shape or predict—the development of the law. In classic
Chicago School style, they characterized precedents as “capital stock that yields a flow of
information services.” Id. at 250-51. The currency of our judiciary is legal precedent, and any
precedent’s value depends upon knowledge of and citation to it. Transaction costs in this legal
economy serve only to devalue the informational commodity and reduce efficiency.
Landes and Posner’s work infused empirical approaches into legal practice in a way that
presaged our contemporary electronic research tools. It also indicated that efficient service by
our justice system was bound up—figuratively and literally—with efficient access to judicial
information.
In the following 40 years, citation analysis of published opinions has flourished in
scholarship and legal research, providing lawyers and judges with far better tools for
understanding and interpreting the law. Published opinions—at least for federal Supreme Court
and circuit court decisions—are readily available. Law students now collaborate with computer
9

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science students in order to discover algorithmic approaches drawn from network science that
better explain how rules of law develop. See, e.g., Iain Carmichael, James Wudel, Michael Kim,
and James Jushchuk, Comment, Examining the Evolution of Legal Precedent through Citation
Network Analysis, 96 N.C. L. REV. (forthcoming 2017). 9
Empirical scholarship that moves beyond citation-based analysis of our higher courts,
however, has been made difficult by lack of access to court records. For example, Yale political
science professor Deborah Beim studies what she and her colleagues call “learning in the judicial
hierarchy.” Deborah Beim, Learning in the Judicial Hierarchy, 79 J. OF POL. 591 (2017). She
set out to examine the development of rules of law not simply by looking at citations, but also by
examining the actual language used by jurists at every level of the judicial hierarchy. She sought
to answer questions such as, “how and how often do terms or phrases used by district court
judges become adopted by circuit court judges or by the Supreme Court?” Her research ended
before it began because district court opinions are not accessible as a coherent electronic
corpus. 10 Colleagues in her field build models of judicial “rule creation” that theoretically apply
to the whole judiciary, but these scholars can only test their hypotheses against corpuses of
Supreme Court and circuit court opinions. See, e.g., Clifford J. Carrubba and Tom S. Clark, Rule
Creation in a Political Hierarchy, 106 AM. POL. SCI. R. 622, 634 (2012).

9

The authors of that forthcoming piece explained to amici that their work had focused solely on
Supreme Court and circuit court opinions because there were no accessible electronic corpuses
of federal trial court opinions or established scholarly citation networks. Even though law
students and faculty generally have free access to major commercial electronic databases, they
do not have the ability to download and process the public data contained therein. Nor do those
databases contain much of the relevant non-opinion data about cases.
10
Even PACER’s per-court “free opinions report” gives wildly inconsistent and inadequate
results, making any systematic study impractical.
10

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The emerging field of “corpus linguistics” analyzes language’s meaning by studying how
it is actually used in a large body of writing over time—an exercise with obvious utility to the
legal profession. Last month, a Utah Supreme Court judge and his clerk explained, “we see
corpus linguistic analysis playing a central role in legal interpretation going forward.” Thomas
Lee & Stephen Mouritsen, The Path Forward for Law and Corpus Linguistics, Volokh
Conspiracy (Aug. 11, 2017), http://wapo.st/2vVWG19. In a forthcoming article in the Yale Law
Journal, they explain one application—interpreting “ordinary meaning.” Thomas Lee &
Stephen Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. (forthcoming 2017). The use of
corpus linguistics for legal scholarship and practice is promising indeed. See, e.g., Jennifer L.
Mascott, Who are “Officers of the United States”?, 70 STANFORD L. REV. (forthcoming 2017);
see also Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and
the Constitutional Record (Apr. 26, 2017) (working paper), https://ssrn.com/abstract=3019494.
But for all of its promise, corpus-based analysis fails without a corpus. PACER fees
artificially limit access to a vast body of federal case law (the opinions themselves) and the
likewise-important case record documents and data.
Without public access to the raw material that collectively constitutes our body of
precedent, scholars cannot effectively study many of the pressing questions facing litigants and
judges. For example, the most important recent change to federal trial practice may be the
Supreme Court’s alteration of the pleading-sufficiency standard via Towmbly and Iqbal. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 55 U.S. 662 (2009). The
effect of these decisions has been as unclear as it is controversial, and the high price of PACER
documents has hindered relevant research.

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With respect to the study of Twombly and Iqbal, the Judicial Conference has
acknowledged the value of empirical research based on judicial records. It has taken the position
that the federal court system itself—relying on its unique access to PACER records—should
authoritatively study the issue and make policy recommendations, even as outside scholars are
deprived of the information necessary to conduct similar analysis. The Federal Judicial Center
(FJC) conducted an extensive study of the decisions’ empirical effects. Joe S. Cecil, et al.,
Motion To Dismiss for Failure to State a Claim After Iqbal: Report to the Judicial Conference
Advisory Committee on Civil Rules, Fed. Judicial Ctr. (2011). Scholar Lonny Hoffman
explained that the FJC’s study benefited from data that had eluded all others. Lonny Hoffman,
Twombly and Iqbal’s Measure: An Assessment of the Federal Judicial Center’s Study of Motions
To Dismiss, 6 FED. CTS. L. REV. 1 (2011). The FJC had direct access to all records in PACER,
rather than having to rely, as most scholars must, on whatever is available via searches of
commercial electronic databases. Id. at 10. That is to say, the FJC had monopoly access to the
best information about the most important evolution to federal trial practice in recent history.
Whatever one’s take on the FJC’s conclusions in this study, it is difficult to dispute that the
federal judiciary would benefit from the insight of creative and innovative research by the
nation’s best scholars. Indeed, Hoffman identified some potentially significant methodological
issues with the FJC study. Id. at 31-35. Citing the same concerns that Professor LoPucki had
raised a decade earlier, he observed that thorough empirical examination of these questions was
made impossible because scholars lacked access to data. Id. at 9 n. 18.

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When scholars have direct electronic access to public records, they can buttress the
integrity and efficiency of the justice system. 11 For example, Berkeley Law doctoral students
developed a method for detecting possible problems of inconsistency and bias using data from
the California Board of Parole. Hannah Laqueur & Ryan Copus, Synthetic Crowdsourcing: A
Machine-Learning Approach to the Problems of Inconsistency and Bias in Adjudication
(October 21, 2016) (working paper), https://ssrn.com/abstract=2694326. The systemic study of
federal trial court records has untapped potential to similarly detect and remedy instances of
individual injustice. This is where data can fuel innovation. The next generation of legal
scholars will stand not just on the shoulders of their forbears, but—hopefully—on the structural
foundation created by access to the electronic public record. When they “surf to the courthouse
door,” they should find it open.
II.

PACER Fees Prevent Law Libraries from Providing Public Access to Legal
Information
Law librarians are committed to providing the greatest possible public access to court

records. Academic law librarians also support the scholarly work of faculty and students,
conduct their own scholarly work, and teach effective legal research skills. The PACER charges
at issue here limit law libraries’ ability to provide effective patron access and equitable legal
research instruction. They also hinder law librarians’ ability to fulfill their responsibility to
preserve and provide access to legal materials.

11

It should go without saying that many other entities would likewise contribute to these ends,
including the press, public interest organizations, government employees, and practicing
attorneys.
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A. PACER fees harm patron access and legal research instruction
Because PACER fees are so high, academic law libraries have been forced to limit patron
access. The majority of law libraries require students (and sometimes faculty) to approach a
research librarian for access to PACER documents, which the librarian provides by logging into
a central library account. Others libraries limit their assistance to helping users set up their own
personal accounts. Few give the library’s PACER password directly to students and faculty.
Most libraries’ PACER passwords are kept confidential to limit “overuse” of the library’s
account.
This controlled access limits the usefulness of PACER to researchers. Research through
PACER may only be conducted during library hours, in the library. Given that much of the
modern academic’s and law student’s research is done outside of the physical library using the
library’s subscription databases and other electronic resources, this is a major impediment to
conducting legal research.
Even with controlled access, libraries that allow patrons to use their PACER passwords
cannot predict how much they will spend on PACER fees in any given month, making effective
budgeting impossible. PACER bills are entirely dependent on the interest and activity of library
users. Supporting a budget item with such unpredictability is difficult to justify, so many
libraries no longer provide direct access.
PACER fees also lead to inequitable access: wealthier schools are able to provide greater
access. In 2009, Erika Wayne, then a law librarian at Stanford Law School, conducted a survey
of law libraries and their spending on PACER. The survey found that private law school
libraries spent nearly twice as much as public law school libraries on PACER, indicating that
private law schools can afford to provide students with greater access. Wayne wrote that
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academic law librarians reported that they “were very concerned about the costs” of PACER,
with some commenting that “there is no way to limit costs”; “it gets expensive rather quickly”;
and “if PACER were cheaper . . . we would use PACER more frequently.” Erika Wayne,
PACER Spending Survey, Legal Research Plus (Aug. 28, 2009), https://perma.cc/4CEC-Z7JT.
Wayne concluded that “[t]he unknown/potential costs of using PACER hold back most law
school libraries from letting their patrons fully utilize PACER . . . We need to train our students
and equip our patrons with access to this important resource, but we can’t afford to do so.” Id.
Law libraries’ concerns are valid, because costs can mount quickly. In order to view the
Docket, Complaint, Motion for Summary Judgment, and accompanying records in the instant
case, a user would incur a charge of $25.40. For ordinary users, PACER waives fees for users
that do not accumulate more than $15 in charges per quarter. Thus, the quarterly allowance
would be void and the full amount would be due once a user looked at basic documents in a
single pending case. If patrons viewed additional relevant documents in this docket, they would
easily exceed the $50 quarterly limit.
PACER fees also hinder the ability of academic law librarians to teach law students how
to conduct effective research. Many law courses, including legal research courses taught by law
librarians, are simulation-based. Students use resources as they would in real life. And yet,
students cannot use PACER freely because it is impractical to give the entire class the library’s
PACER password. Instead, instructors choose to demonstrate PACER usage rather than
permitting their students to use the system. Thus, emerging lawyers graduate from law school
without any hands-on experience with the authoritative source of federal court records.

15

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B. PACER fees impede law libraries’ responsibility to preserve legal materials
Digital government information must be preserved to ensure its equitable, permanent, and
public accessibility. See Preservation Policy, AALL, https://perma.cc/UKH7-M2GL. PACER
fees impede law libraries’ efforts to provide permanent public access to legal information and to
develop next-generation resources to serve their patrons. Law libraries have become acutely
aware of the challenges to digital preservation, including an inability to fulfill their obligation to
preserve our digital legal record. See, e.g., Rebecca Kunkel, Law Libraries and the Future of
Public Access to Born-Digital Government Information, 109 LAW LIBR. J. 67 (2017); Paul
Conway, Preservation in the Age of Google: Digitization, Digital Preservation, and Dilemmas,
80 LIBR. QUARTERLY 61 (2010); Judith Cobb & Joan Allen-Hart, Preserving Legal Materials in
Digital Formats (prepared for the Legal Information Preservation Alliance) (Feb. 4 2005).
While law librarians are familiar with the difficulty of archiving digital information held in
proprietary commercial databases—a subject of great concern to institutions traditionally built on
physical preservation—they are frustrated that PACER makes it impossible to archive public
government records. Furthermore, court administrators have failed to send any electronic court
records to the National Archives and Records Administration as laid out in records disposition
schedules with the courts. 12

12

NARA External Affairs Liason Meg Phillips confirmed this fact in an email to Emily Feltren,
Director of Government Relations, AALL, on September 1, 2017. The reality appears to be that
the U.S. Courts have repeatedly established disposition schedules with NARA, only to put them
on indefinite hold. See, e.g., NARA Records Disposition Schedule N1-021-10-2. (signed by the
AO on June 29, 2010) (requiring deposit of electronic records within 3 years of close of case),
https://perma.cc/U6K7-6RK9. Ms. Phillips’ email stated that the relevant current disposition
schedules now bear the following disclaimer: “The Judiciary is in the process of reviewing
internal requirements to establish an effective national policy concerning the future transmission
of electronic records to NARA. The completion of the requirement analysis, clearance, and
implementation of said policy is a prerequisite to the transmission of electronic records included
in this and similar proposed schedules.” The court administrators’ failure to ever provide NARA
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With greater access to PACER, law libraries could also contribute to large-scale
cooperative digital libraries and related organizations, such as the Digital Public Library of
America 13 or HathiTrust. 14 Libraries could expand on projects like Perma.cc, a service created
by Harvard’s Library Innovation Lab that archives digital records that are cited in briefs,
opinions, and articles—generating a permanent link to an archived record. Law libraries could
mine PACER dockets and provide digital access to and preservation of materials on a local or
regional issue, or on a substantive topic. With greater access to PACER, opportunities abound
for librarians to curate and preserve the raw legal materials that are important to students,
scholars, and society.
III.

This Court Must Enforce Congress’s Requirement that the Federal Courts Make
Federal Electronic Court Records “Freely Available to the Greatest Extent
Possible,” Because Court Administrators Have Proven Unwilling to Do So
Voluntarily
The E-Government Act of 2002 was intended to reorient the federal courts’ electronic

access policies from serving primarily the interests of the courts to instead focusing on the needs
of the public. As LII co-founder Peter Martin explains, “[t]he federal courts did not establish
computer-based case management systems or subsequent electronic filing and document
management systems in order to provide the public with better access to court records. Those
systems were created because they offered major gains for judges and court administrators.”
Peter W. Martin, Online Access to Court Records—From Documents to Data, Particulars to

with any electronic court records is a longstanding problem that could be ameliorated by
allowing institutions such as libraries to help archive electronic records for posterity.
13
DIGITAL PUBLIC LIBRARY OF AMERICA, https://dp.la/.
14
HATHITRUST DIGITAL LIBRARY, https://www.hathitrust.org/.
17

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Patterns, 53 VILL. L. REV. 855, 864 (2008). This conclusion is supported by the detailed
retelling of CM/ECF and PACER development by the system architects. 15
While the potential for PACER to provide heightened public access soon became clear,
the court system’s financial dependency on PACER fees has always hamstrung its willingness to
take steps that would be in the public interest. Indeed, “[o]therwise-beneficial arrangements that
might have threatened the willingness of the commercial sector to pay PACER fees have not
been treated as realistic options.” Martin, Online Access, supra, at 870. Put simply, the AO has
a perverse incentive to maintain artificially high PACER fees and to limit functionality.
AALL has a long history of working with the AO to move it toward a model of no-fee
access. In the early 2000s, the Association worked closely with Senator Lieberman on language
that was added to the E-Government Act of 2002 to direct the Judicial Conference to charge fees
“only to the extent necessary.” For the next decade, the AALL encouraged the AO to promote
public access and partnered with the AO to expand access to PACER at law libraries. These
attempts at partnership have not succeeded in providing anything resembling full public access to
court records.
In 2006, the AALL Executive Board approved a Resolution on No-Fee FDLP Access to
PACER, which was likewise endorsed by the American Library Association (ALA). This
resolution helped motivate the Government Publishing Office (GPO) to work with the AO on a

15

The court administrators’ myopic focus on CM/ECF improvements is evident from the
extensive list of features slated for CM/ECF, and the lack of PACER improvements promised as
part of the “NextGen” effort. See J. Michael Greenwood & John Brinkema, E-Filing Case
Management Services in the US Federal Courts: The Next Generation: A Case Study, 7 Int’l J.
for Ct. Admin. 3, 3 (2015), https://perma.cc/33S9-XW3Z. The authors also note the high cost,
delays, and budget overruns on “NextGen” due to “serious management issues that have
adversely affected the project and pose a serious risk to its eventual completion.” Id. at 11. In
short, PACER fees have supported an expensive and mismanaged project, with little benefit to
PACER itself.
18

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pilot project to make PACER available at no cost to users of federal depository libraries. A
three-year pilot project was launched in 2007 at 17 federal depository libraries, 10 of which were
law libraries. This very modest experiment, which gave free PACER access to those few people
who lived near a participating library, was ended prematurely and never reinstated.
Then, in 2011, the AO and GPO announced plans to make PACER opinions available to
the public. AALL applauded the decision to make opinions available through GPO’s FDsys,
which provides access to authentic electronic information from all three branches of government.
This program, however, has turned out to be no substitute for PACER access.
One fundamental flaw in the program is the limited set of documents made available.
Only some courts transmit some opinions to the GPO for free distribution online. Each court’s
participation in the system is voluntary. Each judge’s determination of what constitutes an
opinion is discretionary. The result is wildly inconsistent publication that is useless for most
purposes. See Elizabeth Y. McCuskey, Submerged Precedent, 16 Nev. L.J. 515 (2016); Peter W.
Martin, District Court Opinions that Remain Hidden Despite a Longstanding Congressional
Mandate of Transparency – The Result of Judicial Autonomy and Systemic Indifference (working
paper) (Aug. 17, 2017).
And even if all courts transmitted all opinions—and they currently do not—the outcome
would be far inferior to the treasure trove that is buried inside PACER. Only opinions are
transmitted to the GPO, and so no other case documents are made available through this
program; indeed, there is no record at all of ongoing cases or cases for which there was no
opinion. The opinions often are stripped of obviously relevant data—such as the presiding

19

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judge—without which they are of much less use for research purposes as well as for general
public access. 16
In 2012, AALL, GPO, and the AO established the “PACER: Access and Education
Program” with the aim of increasing use of PACER at federal depository libraries, public law
libraries, and public libraries. Participating libraries, which are asked to create PACER
educational materials and training guides, are exempt from the first $50 of quarterly usage
charges. The program has experienced low participation from libraries, with approximately 15
participating as of 2017. 17
After more than a decade of attempting to work collaboratively with the AO to increase
no-fee access to PACER, the inescapable conclusion is that there is little progress to be made
through voluntary arrangements. Even as digital storage and transmission costs have
plummeted, PACER fees have increased. The goals of the E-Government Act are frustrated by
this increasing divergence between PACER fees and the costs that purportedly justify them,
particularly when the AO declines to take measures that would reduce costs still further or even
eliminate them. For example, the Internet Archive—a well-respected partner of many forwardthinking law libraries—has offered to host all PACER content for public access for free, forever.
See Letter from Brewster Kahle, Digital Librarian and Founder, Internet Archive, to Reps. Issa
and Nadler, H. Comm. on Courts, Intellectual Property and the Internet of the H. Comm. on the
Judiciary (Feb. 10, 2017), https://perma.cc/BT6M-4J56.

16

The name of the presiding judge might be useful, for example, for research on potential bias or
sentencing trends.
17
It has been difficult to determine the exact participation from libraries. This estimate was
provided by Robert Lowney, manager of the Electronic Public Access Program, AO, in an email
to Emily Feltren, Director of Government Relations, AALL, May 10, 2017.
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Professor Lynn LoPucki warned in 2002 that the field of empirical legal research as a
whole was destined to remain small and insular because of an artificial limitation created by
court administrators—access fees. Lynn M. LoPucki, The Politics of Research Access to
Federal Court Data, 80 TEXAS L. REV. 2161 (2002). LoPucki surmised that PACER’s
anachronistic fees were motivated at least in part by judges’ desire to limit scrutiny of
themselves. Id. at 2170 (noting that the annual summary databases produced by the Federal
Judicial Center are stripped of judge names prior to public release). 18 Whether his hypothesis
was correct or if the longstanding over-charging is instead motivated by court administrators’
desire to subsidize unrelated costs with PACER revenues, the fee schedule seems patently at
odds with principles of public access and the mandates of the E-Government Act. It is time for
this Court to step in and enforce Congress’s clear direction that unreasonable PACER fees
unrelated to actual costs must stop.
CONCLUSION
For the foregoing reasons, amici curiae respectfully request that this Court grant
Plaintiffs’ Motion for Summary Judgment.
Dated: September 5, 2017
Respectfully submitted,
/s/ Sasha Samberg-Champion
Sasha Samberg-Champion
(DC Bar No. 1026113)
Stephen M. Dane
(DC Bar No. 982046)
18

Years later, Professor LoPucki noted that the fee waiver system that ostensibly relieved some
burden for researchers was both ineffective and might encourage perverse outcomes: “One
problem is that the courts may grant, deny, or condition them in ways that encourage researchers
to portray the courts in a positive light.” Lynn M. LoPucki, Court-System Transparency , 94
IOWA L. REV. 481, 515 (2009) (describing how one court denied his request for waiver renewal
after he published research critical of that court).
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RELMAN, DANE & COLFAX PLLC
1225 19th Street NW, Suite 600
Washington, DC 20036
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Amici Curiae

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