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”

Making sense of the recent Congressional testimony on courts and technology

On June 25, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future. The hearings featured testimony (via Zoom, of course) from federal district judge David Campbell, Michigan Chief Justice Bridget Mary McCormack, former federal district judge (and current Executive Director of the Berkeley Judicial Institute), and Melissa Wasser of the Reporters Committee for Freedom of the Press.

The testimony was interesting, as was the choice of witnesses. The entire hearing (all 102 minutes of it) can be found directly below, with some thoughts on what transpired to follow.

Continue reading “Making sense of the recent Congressional testimony on courts and technology”

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.

 

Federal courts grapple with resumption of grand juries

As courthouses across the country slowly begin to reopen, individual federal district courts are wrestling with the best way — if at all — to convene grand juries for criminal cases. Bloomberg Law has a good article exploring some of the approaches that different courts are taking. Among them: holding grand jury proceedings in the courthouse with social distancing, holding proceedings entirely online, and simply waiting to convene grand juries until the situation improves.

Each approach obviously has strengths and weaknesses. There are the obvious health concerns about bringing people into a building. But there are also important countervailing considerations. Purely online proceedings may not allow for a fair cross-section of the community, since essential workers and those without adequate internet access (among others) may not be able to participate. At the same time, simply waiting for the pandemic to subside is inconsistent with the efficient administration of justice. As time passes, memories fade and witnesses become harder to find.

So there is no simple answer here. But a system in which courts have the discretion to tailor their approaches allows court leaders to collectively learn from their successes and setbacks.

Courts embracing video in wake of coronavirus pandemic

With coronavirus spreading worldwide, courts are increasingly closing their physical spaces and relying on video technology to keep the wheels of justice moving. The UK Supreme Court has equipped itself with high-definition cameras for livestreaming. In the US, both state and federal courts are effectively closing their courthouses and moving to videoconferencing for at least certain types of hearings.

Time will tell whether this shift portends a larger move to court-centered online dispute resolution, or whether courts will revert to their traditional courtroom operations once the health crisis is over. My sense is that it will be some of both. Courts are highly unlikely to jettison the social grandeur of the courthouse entirely, and of course no video can replace the physical intimacy of a jury trial or an evidentiary hearing. At the same time, courts would be wise to use this moment as an opportunity to craft a form of public online dispute resolution for appropriate types of cases — a form of resolution that is as (or more) effective, cheaper, and more trustworthy than private ODR.

There will be much more to say in this story as it develops. Stay healthy and sane, everyone.

Coronavirus and the legal system in Massachusetts

Like almost every law professor in the country, I will be teaching from home for the next several weeks. It’s been a quick adjustment to become competent in online learning platforms, but we’ll make it work. Someone recently pointed out that Gen Xers like me are mentally prepared for something like this, having grown up in the waning years of the Cold War. My millennial students get props for taking all of this is stride as well. In the meantime, blogging may be a bit lighter than normal as I juggle work and family from home.

Last night, the governor of Massachusetts shut down all K-12 schools, and most restaurants and bars, until April 7. The state courts are following suit with their own precautions, trying to thread the needle between providing access to justice and protecting the larger needs of the community. The trial courts have announced a triage plan, effective this Wednesday, that will rely heavily on videoconferencing and staggered schedules. The Supreme Judicial Court (SJC) entered two additional orders, one postponing all new jury trials until at least mid-April, and the other limiting access to state court facilities for anyone who is likely exposed to or carrying COVID-19.

We are in the thick of social distancing now, and these measures all make sense. It will be interesting to see how much videoconferencing and online communication with the courts is retained once things return to normal.

 

 

U.S. Supreme Court closes in response to coronavirus threat

SCOTUSBlog reports:

Shortly after the White House and Congress announced that they would close to the public due to increasing concern over the coronavirus, the Supreme Court this afternoon followed suit. In a brief notice posted on the court’s website, the court announced that it would close to the public as of 4:30 p.m. today and would remain closed “until further notice.” However, the court indicated that its building would “remain open for official business” and that filing deadlines would not be extended.

The closure comes during what would normally be a relatively quiet period at the court: The justices wrapped up their February argument session last week and are not scheduled to hear oral arguments again until March 23. There has been no word from the court on whether the March argument session will take place as scheduled and, if so, whether members of the public will be admitted to watch the argument. Yesterday the public health department in Washington, D.C., recommended that “non-essential” gatherings of more than a thousand people be canceled as one way to fight the spread of the virus. The courtroom seats approximately 400 people.

The notice announcing the closure indicated that the Supreme Court’s building was being closed to the public because of “concern for the health and safety of the public and Supreme Court employees.” Two of the justices are in their eighties: Justice Stephen Breyer is 81, while Justice Ruth Bader Ginsburg will be 87 next week. Justice Clarence Thomas is 71, while three more justices are in their sixties: Justice Samuel Alito is 69, and Chief Justice John Roberts and Justice Sonia Sotomayor are both 65.

Gabe Roth, the transparency advocate from Fix the Court, sees this as another argument for livestreaming. He sent out the following press release this afternoon:

Given the crowds that often gather in and around the Supreme Court, not to mention the advanced age of several of the justices, it’s the right call to close the building to the public until further notice.
That said, if this state of affairs continues through March 23 – the next time the justices hear arguments – the Court should at a minimum permit the public to listen to a livestream of argument audio from its website.
We believe the Court already has this capacity, as it streamed a Justice Scalia memorial service in Nov. 2016, and any technological gaps could be filled in by the nearby D.C. Circuit, which since Sept. 2018 has offered live online audio for all of its hearings.
Live audio is the smartest way to balance the now-competing concerns of public safety and public access.

Japan: a land of many courts and relatively few judges

The Japan Times has an interesting article on the relatively small number of formal judges in that country, given its large number of courts. Japan has over 1,000 courts within its judicial hierarchy, but fewer than 4,000 total judges. And many of those judges have mostly administrative, as oppossed to courtroom, roles. That poses an challenging question for a country which works to take many cases to trial: how are there enough judges to hold all the trials guaranteed under the law?

The answer lies in a combination of (1) a broad network of judicial assistants, many of whom serve as shadow judges; and (2) resolving cases short of a full-blown trial. As the article explains:

How do they manage it? They get a lot of help; there are approximately 10,000 judicial clerks (shokikan) who play a key role in case management and documentation. Those with plenty of experience might well be called “magistrates” in that they effectively run some proceedings, such as bankruptcy and enforcement matters, where the need for formal judicial determinations of fact or law is limited. Some even end up as summary court judges.

In some family and civil proceedings, lawyers are also used as part-time “judges” (though they are not referred to by that term). Family and civil courts also rely on thousands of part-time conciliators from the neighboring community (including members of the local bar association) to help disputing parties arrive at mediated settlements. District courts also host labor tribunals that resolve labor cases using a mixed panel of a real judge and representatives of both sides of the employment relationship.

Still, most these proceedings are not “trials,” the right to which is supposedly guaranteed by Article 32 of the Constitution. In English, this bit of the charter appears to guarantee “the right of access to the courts,” but in Japanese it actually refers to “the right to a trial in a court.” That many cases are not actually trials is convenient because it means they can be resolved in closed proceedings (since constitutionally only “trials” must be conducted in open court) with fewer due-process protections.

Even when a case is or becomes a full-blown trial, it is not uncommon to hear lawyers complaining about judges cutting corners in civil cases to get them off their docket. This can often involve pressuring parties to settle. Some may be tempted to attribute this to cultural factors, but settlement is also just easier for judges — they don’t have to write a judgment or worry about being overturned on appeal.

The astute reader will identify many similarities to the current state of the American civil justice system, for better or for worse.

A discouraging survey on lack of confidence in the Kenyan courts

A new study reveals that nearly half of Kenyans seek to resolve their legal disputes outside of court, either through informal means or by not pursuing a claim at all. The reasons are discouraging but unsurprising:

The top reason given for inaction was the belief that acting would not help, a view that was held by a third of the respondents.

The second most frequent rationale was that the other party was more powerful (20 per cent) than the complainant. Three in 10 Kenyans from the lowest income group say they did nothing because the other party was more powerful compared to one in 10 people in the highest income group. The numbers imply that the justice system is not seen as an equalising force by a sizable part of the population and that the experiences of those who sought legal services differed depending on income levels.

The study also found that 2 out of 3 Kenyans believe their court system generally protects the interests of the rich and powerful above all others, and only 1 in 3 felt that they can rely on the courts for fair justice.

Access to justice was hindered in other ways as well. Nearly 1 in 5 Kenyans said that they have no idea how to even initiate a legal claim. And those can file a claim may have to wait an eternity for resolution, since 1 in every 6 cases currently pending in the Kenyan courts is more than ten years old.

These problems are not unique to Kenya, of course. Every court system faces the considerable challenge of providing equal justice in a society that is inherently unequal. But the survey nevertheless brings those challenges into stark relief once more.