Federal Circuit affirms PACER fee decision

After a two-and-a-half year wait, the Federal Circuit Court of Appeals has affirmed the decision of Judge Ellen Segal Huvelle in National Veterans Legal Services et al. v. United States. The plaintiffs in that case argued that the Judicial Conference of the United States and the Administrative Office of the U.S. Courts exceeded their statutory authorization by using PACER fees to fund internal court projects that were unrelated to the administration of the PACER system itself. (PACER is part of the federal courts’ electronic filing system, which allows the public to access most documents that are filed for a 10 cent/page fee.) The government argued that funding the additional projects did not exceed the court’s authority.

In March 2018, on cross-motions for summary judgment, Judge Huvelle split the difference, concluding as a matter of statutory interpretation that the courts had properly used PACER fees to fund certain projects–including the development of the electronci filing system itself–but had overstepped its bounds in using funds to provide electronic notice to jurors, assist with state court records in Mississippi, and other tangential projects. (I previosuly explored Judge Huvelle’s opinion, and the policies underlying the larger question of PACER fees, here.)

The Federal Circuit concluded that Judge Huvelle’s opinion “got it just right.” But it also added its own gloss on the relationship between the courts and the other branches of government, as seen through the lens of PACER revenue. Continue reading “Federal Circuit affirms PACER fee decision”

Pandemic-induced court changes will remain long-term

Several courts are beginning to announce that technological changes made at the start of the coronavirus pandemic will remain for the foreseeable future. Top judicial leaders in many states have concluded that “Zoom courts are here to stay,” and are working to update their infrastructure. In addition, Ohio will continue holding webinars in lieu of court-mandated live parenting classes, and will improve the tech connection between courthouses and county jails. Meanwhile, Maine has issued official guidance for those who want to watch remote hearings, and is seeking federal funds to further update its technological capabilities.

I generally detest the philosophy of “never let a crisis go to waste,” which too often exploits catastrophes to satisfy a partisan wish list. But this is something far more organic, and the American courts will come out of this pandemic stronger and more flexible for having survived this technological trial by fire.

All 13 U.S. Courts of Appeal now feature live streaming

Many courts moved to some form of live streaming–either audio or video–since the start of the coronavirus pandemic. State courts have led the way, although federal courts have also made changes to improve public access and transparency. (Even the Supreme Court offered telephonic accessto a few arguments.) Now, Bloomberg Law reports, all thirteen federal appellate courts offer live streaming.

The courts are still coy about whether they will maintain live streaming once the pandemic subsides. Some courts will certainly hold onto it — the Second and Ninth Circuits, for example, have already been live streaming for years. But hopefully other courts will also see the benefit — and associated lack of harm — with letting the public look in on the administration of justice.

JOTWELL review of Reichman et al. on technology and the regulation of judges

I am delighted to have a new essay up on JOTWELL, reviewing Amnon Reichman, Yair Sagy, and Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges. It’s a terrific look at the Israeli’s courts’ development of case management technology, and the impact of that technology on its judges, all told through a subtle organizational lens. A snippet from the start of the review:

Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon ReichmanYair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.

Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.

Please read the whole thing!

 

The intricacies of courthouse design

Law360 has a very interesting article about the design of courthouses, a task which must balance a number of overlapping and occasionally competing goals:

  • Conveying respect for the rule of law and the courthouse as the physical “home of the law” (reminiscent of Chief Justice Taft’s moniker of the Supreme Court building as the “Temple of Justice”);
  • Assuring access to justice for court users and observers;
  • Providing adequate working space for judges and court staff; and
  • Protecting the safety of everyone in the building.

The modern courthouse is simultaneously an office building, a processing station, a public space, a secular temple, a democratic icon, an entertainment complex, and a playing field. Capturing all of those needs in one building is a profound architectural challenge.

Some of the newer courthouses were designed with extra space and wiggle room to accommodate changing needs. I especially like the design of the federal courthouse in Boston (below), notwithstanding its questionable interior artwork. But older courthouses are increasingly bursting at the seams or in need of major retrofitting, and the funding may not be available.

Moakley courthouse

Interested readers should check out the wonderful, and coffee table-worthy, Representing Justice by Judith Resnik and Dennis Curtis, which tracks the history of American courthouses and the evolving goals behind their design.

The peculiar environment of reopened courtrooms

As the summer passes its midpoint, debates are raging in every corner of the country about how to approach the coming school year. Some feel that reopening schools will place teachers and students at unacceptable risk; others note that the mental and emotional damage to children from continued social isolation requires every effort to conduct classes in person. On two points, however, everyone seems to be in agreement. First, no option is particularly good. And second, even if schools do reopen, their layout, schedule, and operation will be markedly different than before.

Courts are facing the identical crisis, as their social and constitutional responsibilities to administer justice without delay brush up against their responsibilities to protect public health. And those courts that have reopened look and feel very different than they did six months ago.

This article points out some of the changes that have been implemented in reopened state courthouses. They feel at once dramatic and mundane: requiring attorneys and clients to communicate only by passing notes through a plexiglass window, holding trials in convention centers (or even fairgrounds!), and asking attorneys and judges to hold sidebars by walkie-talkie (with white noise pumped into the courtroom to avoid others overhearing). And notwithstanding these changes, the general fear of COVID-19 exposure remains pervasive.

This is all deeply unsettling, yet there may be a silver lining. Although unwelcome, the pandemic is forcing an explosion of creativity in our institutions. Some of today’s courthouse solutions may be jettisoned as soon as it is safe to do so, but I also suspect that some will prove worthy of keeping around.

Coming soon to your local fairground: jury trials?

Court administrators have had to act nimbly during the entirety of the coronavirus pandemic, in order to balance public safety with the requirements of due process. Now, some county courts in Oregon are considering yet another creative solution: holding jury trials at local fairgrounds in order to meet the requirements of social distancing.

The fairgrounds are already owned by the respective counties where trials might be held. They are easy to get to, have ample parking, and offer wide-open and largely unused buildings, making them an attractive option for courts. Still, there are many logistics that have yet to be worked out:

So far in Deschutes County, court officials have developed lists of what will be needed at the fairgrounds. On the to-do list is to look at the costs of renting tents and other furnishings like chairs, tables, maybe a riser to put a bench up on.

Heating, air conditioning and restrooms will be needed to keep people comfortable, because jurors need to be focused only on listening to the evidence, Ashby said. Secure and private rooms are needed for lawyers to meet with clients and jurors and judges to deliberate. Boxes and boxes of computer and recording equipment must be relocated and tied in with the county IT system and the fairgrounds PA system. Security is another primary concern.

“Our number one priority is making the courthouse as safe as humanly possible,” Ashby said. “Competing with that are statutory timelines, which require us to try cases, the most pressing of which are in-custody criminal defendants.”

Plans like this are born of necessity, but it will be fascinating to see what courts learn from the experience, and how some of these options might influence court administration after the pandemic subsides.

The challenge of reopening courts

A number of recent news stories have emphasized the reluctance of many white-collar workers to go back to the office, even when their places of business are authorized to reopen. Extensive safety precautions, combined with the ability of many employees to work effectively from home, has even led some to proclaim the death of the modern office.

As admirable a job as courts have done with videoconferencing during the coronavirus pandemic, they do not have the same luxury of transitioning everyone to a long-term work-from-home arrangement. And so courts are reopening around the country. And they are finding difficult challenges in front of them. Safety and social distancing guidelines means that there is less space for observers and unsettled questions about enforcement of safety norms. Returning judges and attorneys are also facing heavily backlogged dockets and the further postponement of trials and hearings. It will require patience and creativity to get things back on an even keel.

An interesting overview of the Japanese judiciary

I am no expert in the Japanese legal system, but I was intrigued by this article (in translation, from Nippon.com) which sets out some of the history and mechanics of the country’s judicial system. In particular, I was struck by how strongly the modern judiciary has been influenced by American occupation after World War II, both positively (adoption of the political question doctrine, overt commitment to judicial independence) and less positively (e.g., direct American interference in high profile cases in the immediate postwar years). I was similarly struck by the Japan’s embrace of bureaucratic approach to judging that is common in civil law systems across Europe and Latin America.

A good, relatively short read.

 

Courthouses continue to open, carefully

As communities across the United States slowly reopen for business, courthouses are following suit. Extensive precautions and protocols are in place. I have periodically tracked how some court systems have begun their reopening processes, and here is one more: New Mexico resumes jury trials with masks, plexiglass, and cameras.

If these stories seem repetitive, it is only because I am trying to capture a taste of a very unusual time in our history. Many of the lessons to be drawn from this experience will only emerge after a period of reflection and analysis.