The entire Federal Judiciary runs on a budget of about $8-$8.5 billion/year.[1] Think about that for a moment. One of the three co-equal branches of the US Government, and guardian of the US Constitution, operates on a budget of less than 1% of the Department of Defense's budget ($1.15 trillion), 10% of the Department of Homeland Security's ($91.6 billion), and 20% of the Department of Justice's ($42.3 billion).[2]
One of the reasons for PACER fees (and other court costs) is the Judiciary's attempt to have some financial autonomy from Congress, even though it clearly depends on Congress for almost all of its annual budget.
As others have stated, you can get case law for free elsewhere. You do need to access PACER for docket material, however. But there's even a fee exemption for "indigents, pro bono attorneys, academic researchers, and non-profit organizations."[3]
I want, as a taxpayer, to be paying the bill for government functions. Taxes are much easier to apply progressively against the citizenry than fees, which are regressive.
Encouraging agencies to self fund is how you get asset seizures; ticket traps like Maricopa, CA; regulatory capture like the agency that oversaw oilrig safety before the Deepwater Horizon blowout, and many others. It leads to the worst form of monopolistic rent taking.
Not only that, it discourages the use of government services which the taxpayer has to pay the fixed costs of regardless.
Suppose you have some litigious plaintiffs filing unmeritorious cases and then losing every case that goes to court but extracting settlements from defendants who do the math and realize it's cheaper to pay them off than to fight and win in court. If you dump a bunch of court fees and other costs on anyone who demands their day in court, more people settle (or the unmeritorous claims can extract higher settlements) and it makes the scam more profitable. Meanwhile the victims aren't a large enough voting block to get it changed on their own, and now the taxpayer isn't feeling the bite of the expense and the judges aren't feeling the wasted time in their courtrooms, even though the number and extent of people being victimized is larger.
And it's the same thing for any of it. By the time the taxpayer is paying most of the cost of operating a subway line, better that usage not be discouraged through fares so that the line sees 90% utilization instead of 60%, because you're paying the fixed costs to run it either way.
Which also makes it so you don't have to waste a lot of money on infrastructure to collect fares, which means that not only are you getting more for your money, the overall cost to the public ends up being lower if it's 100% taxes than if it's 80% taxes and 20% fares, because then half the fares aren't being wasted on fare collection.
If the government is going to pay for something then it should pay for all of it or not at all.
Note also that the rather extreme, even by American standards, racial disparities in Ferguson policing were driven by the city refusing to levy sufficient taxes, and funding itself instead on extractive fines and court fees (the latter not even requiring a proof of guilt, you'd be charged said fees just for being hauled in front of a judge).
> One of the three co-equal branches of the US Government, and guardian of the US Constitution
This is incorrect on both counts. First, the branches are not co-equal by any stretch of the imagination. They are created in order of their intended level of power. The Article I branch, Congress, manifestly has far greater enumerated power than the other branches, including being the only branch with the ability to remove members of the other two branches. The dominant check on Congress's power is really Congress itself, although admittedly the other branches have some ability to curtail abuses of Congressional power. Even so, Congress can overrule both a veto and a finding that a law is unconstitutional. It can also pack the courts, and all kinds of other things. The Article II and II branches, Executive and Judicial respectively, have progressively fewer enumerated powers.
As for the second point, the Constitution explicitly gives Congress and the States the sole power to amend the Constitution, but the Judiciary has arrogated that power to itself. That's not guarding the Constitution, it's mutilating it. Likewise, Congress has ceded much of its authority to the executive.
Anyhow this is all moot because the reality is that how the US Federal Government is run has about as much to do with the Constitution as it does with Schoolhouse Rock[1]. Some of the trappings remain, but that's all. It's observably true that none of the branches is in any way a guardian of the Constitution.
"co-equal" doesn't mean "equal". We all know that the 3 branches have different powers and different numbers of powers.
Oxford dictionary definition of "co-equal":
> equal with one another; having the same rank or importance.[1]
The point of "co-equal branches" is to say that they are separate entities and none is subordinate to the others. The "checks" are only really enforced by norms.
Congress can remove the Executive, any Justice or Judge, or eliminate every inferior Article III court altogether. It also controls the number of Justices. If one party can lawfully fire or destroy the other party, the latter is subordinate.
Subordinates always have a certain measure of power over their superiors. Sometimes idiots come back to the office with a gun because they're mad they got fired. However, when the US Constitutional system is working as it was intended to by its framers, Congress is the preeminent branch, precisely because it requires a great degree of consensus to exercise that power, unlike the other two branches. The bicameral legislature really is a great design.
Also it would be pretty amusing for the Supreme Court to attempt to rule that impeaching a Justice is unlawful. I'd love to see the creative "interpretation" in that ruling.
The judiciary is not the ultimate arbiter of what is lawful; that is congress. Not only can congress simply impeach the entire court, it can also replace almost all articles of the constitution* (and the few that formally cannot be replaced are highly problematic and likely not relevant here anyhow, and congress could do an end-run around those too - formally - by a multistep amendment). * This is of course ignoring states (which would need to side with congress), but much more importantly:
All of this is of course misleading, because far before this point, we'd have guns blazing civil war. When the government is so deeply untrusting of itself - we're talking a level that makes dems and repubs look like best buddies here - what matters is practical power, not formalities (which is also why the constitutional limits on congressional power are unwise). And let's hope we never have to find out what would happen then, because it's unlikely to be pretty.
Frankly: any limits on congress's power (and specifically the house) are hugely problematic, and contribute to side-stepping democracy in favor of other forms of currying favor. There shouldn't be any question about congress's supremacy; these questions should be fought in the court of public opinion via representative democracy, rather than historical happenstance or legal quirks. It's fine to require some high bar for dramatic changes, but it's not fine to have giants like California, Texas and Florida on the same level as Vermont and Wyoming when it comes to real, impactful issues; and just as critically - it's not OK for the constitution to make it all but impossible in practice to be altered even when a large majority in favor can be found. The current system might require lots of different phases including convincing 75% of states, meaning states with just 4% of the population have a veto, and in those you only need a majority - so, say 3% of the population needed for a veto - and additionally people don't get a say directly, so you also need to run the risk of considerable lobbying; since vested interests generally oppose change - that makes it even harder. The final nail in the coffin of change is partisanship; itself a consequence of flaws in how voting works in the US it would need the kind of constitutional amendments to fix that partisanship makes almost impossible - since anything one side propose is invariable a step too far (or not far enough, or somehow a little in the wrong way) for the other side. Unsurprisingly, there have been virtually no amendments since the very early days that actually affect the way the country is run or democratic rights as opposed to publicly impactful but hot air in terms of power stuff like the prohibition. Voters are captured by a system designed to deal with realities of its day, which is by now almost unrecognizably far away, with no route for permanent improvement.
The exceptional amendment that did pass late and influence actual democratic rights (e.g. women's right to vote) kind of proves the point - because the only reason that passed is because by human biology all states have roughly the same proportion; and political parties find it very difficult to use partisanship against them since they would have been in the vast majority of households regardless of which partisan "team" they adhere to.
They are not co-equal in the sense of equivalence. Because they have different roles and responsibilities with some minor overlap.
Congress cannot make administrative law or enforce law.
The Executive cannot appropriate money.
The Judiciary cannot enforce law or make laws.
For example: courts can issue contempt orders against the Executive branch (and many have) but the Executive branch can ignore them (as many have); Congress can pass as many laws as it wants, but unless the executive branch enforces those laws they mean little; the Executive can refuse to appoint/nominate Judges and Justices, nothing Congress or the Judiciary can do about that; and so on.
They could, but it would be kind of pointless (that is, Congress could adopt a statute giving an executive officer a non-discretionary ministerial duty to issue administrative regulation with precisely specified content, but it's just easy to pass a statute law with the same effect. Administrative lawmaking is not an independent power.)
> or enforce law.
What are the offices of Sergeant at Arms of each the House and Senate, if they aren’t law enforcement bodies directly controlled by the respective Houses of Congress?
Congress can remove any Justice or Judge. Congress can in fact altogether abolish every single inferior Article III court, because they were all created by act of Congress. Congress can change the number of Justices on the Supreme Court.
Congress can remove the Executive.
Two given parties are not "co-equal" when one and only one party can fire the other party.
> Even so, Congress can overrule both a veto and a finding that a law is unconstitutional
Congress cannot overturn a Supreme Court constitutional ruling all by itself. To enact a constitutional amendment, it needs the support of 75% of state legislatures (or, in an alternate procedure only once ever used, separately elected state ratifying conventions). Overturning a Supreme Court ruling by constitutional amendment requires cooperation of the states
(Other indirect schemes for overturning a Supreme Court constitutional ruling also need the cooperation of other parties - court packing, for example, requires cooperation of Congress and the President)
You're right, congress has given up power to other branches of government. Judicialization of government is a clear problem that has come to weaken the democratic system, despite some high profile wins by progressive groups. For example, the citizen's united decision has been a major blow on democratic representation inflicted by the judiciary in favor or the wealthy elite. This has even promoted the international influence on elections we see today, since companies may have international conflicts of interest that are much more complex than individuals.
Observably false. The Judiciary decides what they want the Constitution to say, and then engages in whatever tortuous reasoning is required to get the desired "reading." The most well known example is when the Judiciary amended the Constitution to forbid the States from outlawing abortion, but there are plenty of others. So, to get technical, Judicial interpretation as it is now practiced is pragmatically equivalent to Congress and the States' amendment power. This is obviously much more than merely striking down an unconstitutional statute.
But, as I said, the U.S. Federal Government just uses the Constitution as a fig leaf at this point. It would be nice if there were a good reference book on how the country is actually governed from an operational standpoint, including who actually writes bills, how junkets are used, the role of lobbying and blackmail, and so on. I don't imagine such a work will see the light of day until long after the end of this government, but it would be interesting.
This seems like an unfair characterization. Whether or not judicial review formally exists[1], in any system where the courts are functionally independent of the legislature it stands to reason that having the lastsay in a matter puts one in a rather consequential position that's vulnerable to easy criticism.
That's why people who think Textualism is a check on the judicial power are mistaken, IMO. Notwithstanding that the first and usually only step in traditional statutory interpretation is to apply the text of a statute according to its facial meaning, the underlying principle is to give effect to the intention of the legislature or the purpose of the law. (Most scholars will tell you those--intention vs purpose--are distinct philosophies, but I personally think it's a distinction without a difference.) Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (i.e. the insanity of the world) laid bare the ambiguity. And because no self-professed textualist applies this method with perfect consistency (including and, especially IMO, Scalia), expressions of partisan bias can be even greater as the fiction of textualism provides an effective cover, both for the judge and his critics; discretion is disguised because nobody cares when you apply a meaning with which everybody agrees--or at least which seems reasonably consonant with the application of intent or purpose--yet which is nonetheless at odds with the text on its face. Recognizing one's own inconsistencies in this regard, or proving the inconsistencies of others, is far more work than identifying and calling out specific instances of obvious partisanship--especially when the latter are admitted, like during the Warren Court years.
[1] In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases. Because the buck stops with the courts, of course they get all the flak for disagreeable decisions, and it's convenient to attribute subversive or even malicious motivations. This dynamic is exaggerated in systems with formal stare decisis because the courts effectively only get one bite at the apple. Without stare decisis courts can apply the law differently in different cases, often in response to partisan or popular reactions, which while lowering the stakes and defusing tension has its own obvious problems regarding consistency and discretion. Indeed, even in civil law countries I think there's a direct correlation between the maturity and strength of the judiciary and de facto application of stare decisis--pretense of a lack of discretion. In terms of obeyance to precedent, French or Italian courts are far more consistent than, e.g., Russian courts. Discretion invites corruption. It's no coincidence you never hear stories about how a Russian judicial opinion substantially frustrated the government or legislature. Likewise for Chinese courts, though in the commercial sphere they're far more independent than in Russia, AFAIU. Similar criticisms have been leveled at Japanese courts--e.g. the Supreme Court of Japan has only once or twice overturned a law even though it nominally has the same power as in the U.S. and there's a strong academic consensus it should have done so in many more instances. Though, the peculiarity of Japanese culture makes it difficult to ascribe it to corruption.
> Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (e.g. the insanity of the world) laid bare the ambiguity.
This is probably why originalism is more what one hears about these days. One could argue that it's just textualism with the serial numbers filed off in practice, but in theory at least an originalist would reject an absurd interpretation that was obviously counter to original legislative intent. But my cynical side agrees that textualism or originalism is just another tortuous path to reach conclusions that have already been decided on before hand.
> In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases.
There are various laws passed that granted veteran's benefits to specific individuals. There's also the Palm Sunday Compromise[1]. The latter was certainly politically controversial, and raised criticism along the lines you mention, but it was within Congress's power.
> This is probably why originalism is more what one hears about these days.
I agree. I think most conservatives tend to identify more with self-styled Originalist scholarship and perspectives. But Scalia made a name for himself academically by coining Original Meaning, which is a twist on strict textualism in the context of constitutional interpretation intended to mitigate the harmful consequences--a legislature can't resolve textual ambiguities in constitutional text as easily as it can statutes. Scalia and others spilled much ink distinguishing Originalism from Original Meaning. At least in terms of scholarship Scalia was consistent that way.
Regarding the Terry Schiavo case (which is a good point, BTW): that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law. As the Trump years have proved, and which bitter partisanship was already making clear, much of the law as we understand it is normative even in the U.S. And while I think Congress' intervention in the Schiavo case was wrong on almost every level, it's also true that violations of general principles can be used to prevent an injustice. There's often a tension between equity (i.e. fairness) as it regards particular individuals, and the maintenance of general rules and principles. Justice can be a matter of perspective and priorities. That's one reason why courts can and should jealously guard certain discretions (see, e.g., the Michael Flynn, Judge Sullivan Rule 48(a) debate) and independent powers. (EDIT: I realized after the fact that by referencing the Flynn/Sullivan dispute it's ambiguous which discretion I'm referring to--the court's or the government's--but that ambiguity kinda drives home the point regarding the importance and role of discretion. For the record I support Sullivan's position, but it's a very technical debate.) Circling back to Originalism: resolving that tension is one reason behind the emergence and support of so-called Substantive Due Process, which can be construed as the court giving effect to a right (newly discovered or simply never before honored, depending on your perspective) by refusing to give effect to the government's nominal power to violate it--i.e. by procedurally blocking the government. Which is why it's unfair to characterize Substantive Due Process as an oxymoron, at least as it was originally developed by abolitionists at the turn of the 19th century. (Since then courts have been more aggressive at using their equitable powers, which means more than procedurally blocking government actions by, e.g., refusing to hear a prosecution for sodomy or a replevin action regarding an escaped slave, courts affirmatively give effect to a right by enjoining government actions that aren't gated behind a judicial process.)
> that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law
"Lack of elegance" or "violation of social norms" or similar would (IMO) be a better wording. I see the fact that a united congress is all powerful (can freely amend the constitution, remake the government, etc) as being perfectly in line with (even essential to) the general principles of US law - that the will of the people should rule.
In a Common Law system, which the US has by design, the system formally admits that laws must be interpreted, that they can't say absolutely everything which needs to be said, and that precedent is an important part of that interpretation.
For example: Point to where the US Constitution says you have a right to privacy. Not a right to be free from "unreasonable search and seizure", but a right to be private. It isn't in there. If that means the Founders intended all medical documents to be public, then the Founders were wrong and need to be ignored on this issue; more likely, however, the Founders never felt the need to state the obvious, leaving it to the courts in case it ever came up.
Which it did. Griswold v. Connecticut was decided on the basis of a right to privacy, and that basis is what Roe v. Wade is founded on. Did the Court "amend the Constitution" by deciding that Americans have a right to privacy in medical matters? Was that something it should not have done? Modern morality would say the Court did the right thing, and privacy is an essential human right which any government worthy of the name must recognize.
That's not weird is it? I'd expect a normal, peaceful society to have less need for soldiers than police agents, and portugal is approximately as large as NYC, and not as wealthy: makes sense their military is smaller than NYC's police. I'd expect it to be smaller than their police force too (no idea if that's true, though).
A quick google suggests 50k police officers and 33k soldiers - pretty unsurprising.
"This is bigger than that" or "this is smaller than that" are not particularly useful comparisons. I could use the same tactic to make the budget seem overblown.
The budget for the US federal judiciary is bigger than the GDP of 64 countries[1]
The point is pretty incoherent then, because they're proving that indeed it's reasonable for the federal judiciary to have a larger budget and thus not demonstrating that comparing budgets leads to absurdity.
That's not a convincing argument, because it's pretty reasonable for a several orders of magnituge wealthier country to outspend a smaller economy on all kinds of stuff (including their entire GDP).
California spends about $65/citizen.[1] $90/citizen seems to compare favorably to the U.K., at least in terms of outlays. It could also simply evidence that the U.S. judiciary is underfunded.
I'm assuming the Ministry of Justice figure is exclusive of prisons. If the figure includes prisons, which cost ~$85/citizen in the U.K.[2] then court system expenditures would be greater in the U.S. (~$90) than the U.K. (~$65).
The judiciary’s fiscal dependence on the popularly elected bodies is by design and a necessary check on its power. More independent state organs habitually trend towards tyranny. In theory, a deeply unpopular, but principled stance may result in funding cuts, but will survive those; whereas an unprincipled power grab will run into a Congress ready to curtail it.
I'm not sure that comparison is really apples to apples. How much does it cost to run Congress? The presidency? That may be more apt a comparison than the budget of one of the departments
"Judiciary's attempt to have some financial autonomy" is a great way of putting "overcharging PACER users for a slush fund" to finance pet projects like camera surveillance.
Federal criminal defense attorneys must pay for PACER access out of their own pockets (in theory, they are reimbursed, often years later, often at less than the full cost). Nor can they access records in criminal cases in other districts.
Meanwhile, prosecutors don’t pay and have nationwide access.
It’s fair of course. Completely. The Rule of law™.
Hi, founder of Free Law Project here. Actually, the DOJ is the biggest PACER user and they pay a ton of money on PACER each year. Somebody FOIA'ed it a few years back, and it totals about $3-4M/year. https://free.law/pacer-facts/#what-if-i%E2%80%99m-a-governme...
There is a difference between defense attorneys having to pay out of pocket (and being reimbursed a few years later) and the DOJ paying the bill for their prosecutors.
Yes, very true, thanks. Another interesting angle is how DOJ can subpoena tech co's for, say, location information, but defense attorneys can't. So if you want exculpatory data, you have fewer avenues for getting it. The deck is stacked in a lot of ways against the defense.
Does the DOJ use RECAP? If not, could they be convinced to? It’s effectively free money for them to just push out the RECAP browser extension over a group policy to their entire user base.
Here's my pacer story: When the Microsoft antitrust case was on, I made a pacer account to follow it; and kept using it during the SCO vs linux debacle. It was a bit worrying to look at things which cost $0.10/page, but I knew that if I didn't actually go over $10 (or something), I wouldn't get charged. I never did go over the chargeable amount, but nevertheless for a few years I used to get an invoice for $0.00 - sent by airmail to the UK.
Given they never bothered to fix that bug, I guess they were raking it in.
If the fees were reasonable, fine. But I remember getting charged "8 cents" a page for search results, even for queries that yielded no results. The "No Results Found" page... 8 cents.
It gets even worse than that. Many pages are charged by the number of results or the length of the page generated. But you don't know the price until you load it and see how long the page is. Most have a cap of $3, but some don't, so when you press that button to load the next page, sometimes it just costs $100 and you really had no way to know it'd happen until it did. PACER is terrible.
There's even a warning that you should make sure to make your query as specific as possible, because if you screw up and it returns 100 pages, sucks to be you.
There's basically 0 chance this would be legal if you're a private company.
If the fees were reasonable, fine. But I remember getting charged "8 cents" a page for search results, even for queries that yielded no results. The "No Results Found" page... 8 cents.
Reminds me of the pre-internet days, when online access was charged by the minute. You'd better be damned sure you knew exactly what you were looking for before you connected to CompuServe, The Source, Delphi, or whatever.
I think today, people don't grok what a miracle it is that in many circumstances they can just aimlessly "surf" the internet and not get any incremental charges.
It's not a "miracle". Being charged per minute was efficient because you were tying up a cost-time based resource (a phone line). People don't like it because they have to keep track of another dimension of cost, but we still have parallel costs with cell phones and ISP connections (either by usage time or by transfer size-time).
You won't actually get charged if your search volume and page views are low. It is still dumb that basic functionality is nickel and dimed like it's some sort of 70's timeshare.
It’s really interesting to see people in general confront the actual costs of computing when they’re charged for asking a question. The reaction is, universally, “how dare you charge me for zero results”, as though it’s free to search for an answer - as if the time and money spent on performing that search must be given for free to all askers.
Most providers bury this cost in their revenue model and hide it from users. While PACER is probably charging more than is necessary, they’re definitely not burying it, and I’m honestly quite happy to see that.
There is an interesting parallel in that common and widespread reaction that match issues we’ve seen with essential workers during the pandemic, where for example a customer will say “Why should I wear a mask? There’s no one in here!”, somehow failing to recognize the worker as a human being in the process.
So, to translate the PACER pricing objection into the human equivalent, I present a question:
Do human librarians deserve to be paid a wage for performing a search that finds no results, or should their wages be docked if they can’t find anything?
The entire economic system of the Internet is built on the fact that the marginal cost of every action is essentially $0. It's certainly no where remotely close to 10 cents. More like 10 millionths of a cent.
I think the problem is user fees for a system that is supposedly funded by the entirety of society so we can ensure fair process. If you have to pay for literally nothing, it rankles. Instead, the system should just be funded by taxes like (most of) the courts themselves. Perhaps there could be user fees for extremely high usage, but $10 seems like an extremely low bar for $0.08 per page. The system as it exists appears to simply discourage the public from getting too nosy in the workings of the courts.
I think it should be more like the post office or public transit, where a nominal fee is charged (or none at all) but that fee is not the primary source of funding. Small fees are very effective at limiting the human tendency to abuse anything offered at $0. I agree that the current fees are higher than is necessary to prevent abuse - and I think it should be free to taxpayers.
A library card is typically a flat fee, and you can perform as many 'searches' as you want. In a bookstore, you can ask the clerks if they have books on a particular topic, and they will show you their wares. You can browse covers and abstracts for free, to help you decide whether anything is worth purchasing. Wouldn't that be a better model for PACER to follow?
Or think of it this way... how often would you go to a library or bookstore that charged you simply for looking around (additional charges apply for each aisle you walk down)?
Recap (https://free.law/recap/) is a really cool piece of civic tech to work around PACER’s absurd fees. Fantastic news that we could someday be rid of them.
I'm the director of Free Law Project, the org that makes RECAP. We're always looking for help with the extension, our APIs, etc. We have a new project, for example, we're working on called the "PACER Pray and Pay Project". It'll let you pray for a document and have somebody else buy it for you. Lots of stuff in the works. If folks are looking to help an open source org, we'd love to hear from you.
Anyone can help though without incurring a financial penalty. Install recap extension, make a PACER account, and request new documents. Extension automatically uploads what you request and it'll show up on courtlistener free for all.
Keep it under $30/quarter and PACER waives the fees.
PACER would not cooperate with this. Also, the problem with automating it is that accounts require a credit card, so you'd have to give the automation script the ability to charge your credit card (if there's a bug for example).
I don't think the idea is full headless automation but rather some way of coordinating which set of new documents should be retrieved by each volunteer (until either their free limit or willingness to donate time runs out). Maximizing efficiency in this way would presumably increase overall coverage.
It almost strikes me as sort of like a torrent or something like Folding@Home. If everyone signed up to the service and provided their credentials (lets ignore the obvious security issues here), when someone requested a document via RECAP it could use the accounts that have signed up. It would use each account until it got near the $30 threshold and then move on to the next one.
It would be interesting to let people sign up and hand over credentials for recap to automate downloading of other people's requests, with the understanding that you could cancel at any time and that if the automated downloading went over budget such that you were charged, you would be reimbursed.
Isn't RECAP piracy in some way? Granted, I don't know if these documents are protected by any copyright law, or if they're provided to users under some limited license, that would let the government sue.
Documents created by judges and other federal court employees are automatically in the public domain as works of the federal government.
PACER also includes documents filed by the parties to cases, which don't have the same cut-and-dried nature. A fair use argument probably goes a long way here but that's always more uncertain.
It's amazing how long this has taken. I had to use PACER in the late 00s, and it wasn't just the fees that were bad, it was the whole stinking system, from billing to UI. It wouldn't surprise me if it was designed by the same contractor that built TESS for the U.S. Patent and Trademark Office (another fed website sorely in need of an overhaul).
There have been mitigation efforts such as RECAP [1] (and Court Listener [2]), where documents are shuffled off to the Internet Archive when you're using PACER with a browser extension installed, but this is welcome news as this data should be freely available considering the costs involved. Tremendous win for open data advocacy, but there is still work to be done.
> Thanks to our users and our data consulting projects, the RECAP Archive contains tens of millions of PACER documents, including every free opinion in PACER. Everything in the archive is fully searchable, including millions of pages that were originally scanned PDFs. Everything that is in the RECAP Archive is also regularly uploaded to the Internet Archive, where it has a lasting home. This amounts to thousands of liberated documents daily. Finally, we make the RECAP Archive available via an API or as bulk data for journalists, researchers, startups, and developers.
My hope is that one day everything in PACER has been retrieved out for storage in the Internet Archive, and the ongoing costs for keeping the collection up to date are trivial. The user fee waiver per quarter has been raised to $30; please consider using RECAP if you're a PACER user!
> this data should be freely available considering the costs involved
The purpose of the fees is to cover the costs incurred by the court system in managing the document system so that it's self-funding rather than being paid out of the government's general revenue. In other words, while the costs required for publishing any particular document are miniscule, the point is to provide revenue for the court system.
I'm not defending it, but that's the reason the costs are so high and why the system still exists. To get rid of the PACER fees you need to convince Republican congressmen to "subsidize" the court system.
CourtListener expenses are less than $100k/year for providing storage and indexing of the PACER documents they have [1] (the Internet Archive also keeps a copy as mentioned in my above comment). There is room for the court's costs to decline substantially, and those cost control pressures on the judiciary's technology budget are what I'm interested in seeing. They are asking for far more than what they need from their user fees. I am not against reasonable user fees (I said "freely" above, and that's my faux pax), but very much against gouging because of politicians and bureaucrats.
For funsies, let's assume the entire PACER corpus is 10TB (edit: appears to be closer to 250-300 TB). Let's also assume that you want all of it OCRd, indexed, and available over a web interface and an API. Let's also assume a staff of ~5 technologists to oversee such a system. What do you think a reasonable annual budget would be for such a system? I would argue no more than $2-3 million. Let's Encrypt (non-profit for public certs) has a budget of $3.6 million and employees 13 people (as of 2019).
Perhaps the judiciary should just pay Free Law Project to host PACER, they’ve already proven they can provide a superior product cost effectively.
I'm the director of Free Law Project. For the case mentioned in the article we actually did a full expert testimony figuring out roughly how much per page it'd cost to run PACER using AWS GovCloud and a handful of other assumptions.
I’m sure that there is plenty of creative cost allocation going on.
Years ago, at a revenue funded program in a non-Federal setting, one of our roles was furnishing the organization. They would use a 5 year depreciation cycle and move groups of people every few years, leaving depreciated office furniture behind and buying new/newer stuff at the new office.
You could trace the movement by color selections. The orange and vomit green legacy of the 1970s was replaced by pottery barn colors from a swatch that one of the big shots kept in her desk. Furniture was used midrange commercial stuff instead of WW2 (literally) surplus desks and prison chairs. They would add little touches like getting posters and artwork from regional tourism groups and leftover event posters from local festivals to decorate. (Typically for free)
On some pages on the Free Law site (creators of RECAP), they talk about why the fees are way too high to "cover the costs incurred by the court system". PACER brings in over $100 million per year.
I agree that they're public records, but you even have to pay reasonable fees for FOIA requests, which are also public records. There is some cost in maintaining and distributing the records. While it's true that the government could pay for it as a public service, and I believe they should, PACER is self-funded via these fees for now. In that regard, it's actually quite a good system, unreliant on annual budgets by Congress, but instead funded via the users at a pro rata rate for how much use a user gets out of it.
Notably, the information is free up to a certain threshold.
> You even have to pay reasonable fees for FOIA requests, which are also public records…
Hm? FOIA requests are usually made to request the release of data which is not yet available to the public. Most such requests require some level of human intervention, e.g. to determine what sorts of records need to be searched, to perform manual searches on non-digitized or poorly indexed data, and to perform any necessary redaction on the retrieved data.
PACER, by contrast, is already fully automated. The court records it searches are all already digitized, and have all been cleared for release; literally the only thing which users are paying for is the operation of the service.
There are plenty of FOIA requests where the responder simply has to do a quick search of digital internal records that already exist but aren't "public" in the same way that PACER records aren't "public" because they're behind a paywall. Further, it's no longer the case that "most" such requests require human intervention such as "perform[img] manual searches on non-digitized or poorly indexed data," though it is true someone needs to check for redactions. Think of the average case being like the high touch PACER option: someone takes your FOIA request, performs an internal digital search, checks to make sure results look good, and emails them to you.
I'd say in this way they're relatively analogous, though you're partially correct in pointing out some of the differences.
Agreed this is valuable public information and should be paid for using our taxes before they’re used to pay for useless wars and more aircraft carriers
I’m not 100% in agreement with this being valuable. There are many shady people who initiate cases, and if the Pacer data was free, then many would be hurt by having been mentioned as a defendant for cases that had no merit to begin with.
The sad reality is that if someone was accused of something and later recused, many casual observers will fail to double click through everything to uncover that the defendant was cleared of any wrong doing. Even worse, many people settle whilst innocent as the cost of litigation exceeds settlement requests—-therefore even if someone did double click to learn the outcome, their reputation is tarnished nonetheless.
I hate paying the pacer fees, but if it creates a barrier to people misusing (which I am 100% certain will happen) what they find, then the Pacer fees are in fact a good thing. Put bluntly, unlocking Pacer to be free for all will have a devastating effect on minorities who have been racially targeted by bad actors in the past.
Not really. Most of what is only available on PACER is nuts and bolt lawyering.
Opinions and orders are available for free from government sources. Also, important motions and other filings are usually made available too.
It costs money to run PACER, so fees are required, like for many government services. The issue here is that the collected fees were higher than needed, providing a slush fund that did not require congressional appropriation.
Similarly, the USPTO is self-funded by user fees that are over priced. The excess fees provide a slush fund for congress.
If my drivers license user fee is funding projects unrelated to issuing me a license, yes. The issue is with soaking PACER users for court costs unrelated to PACER.
Your drivers license fee absolutely does fund projects unrelated to issuing you a license; for instance, in Illinois, they're also part of the road fund.
I signed up just to see if I could pull dockets on publically traded companies, so I'd know if there'd be litigation before others and get an edge in trading.
It was about 2 hours of using the system before I realized this would be impossible (you know, on my personal budget.) I think I made like under 10 searches and racked up over a dollar in fees. Some of the pages actually charge you per search result not even search. So if you query a term and you get 100 results, that's 100 charges.
Yes! I used it a bunch and it was free. Had a friend that was prosecuted by the feds. It was a long/complex case and I pulled up all the documents for it, multiple times. I ended up not being charged a thing! Though the pricing was very opaque. I assumed I would be charged something so was surprised a bit when it was all free. (though they should have made this much more clear)
I feel like using PACER data to inform stock trading signals is a pretty niche use case... For "regular people" that have a connection with a few cases, I think it should be free, and it was in my experience.
They raised the fee waiver to $30 in January. They say only 25% of PACER users ever exceed that threshhold.
It would be interesting to see a breakdown of who makes up the 25%.
If there was a compelling public interest in serving those users in the 25% then, theoretically, the parties in each case could make their filings publicly available; the parties have access to free copies of the filings in their case.
The reasons why parties would not want to do that -- which I trust the reader can imagine -- probably explains part of the historical reluctance to make unlimited PACER use free for everyone.
As Amercians' privacy is decimated by tech companies, the moderate amount of "privacy" afforded to parties in federal courts might actually be something worth protecting.
What is filed in federal courts is perhaps one area of people's lives that is not readily available for tech companies to vacumm up on a mass scale. Needless to say, filings routinely contain sensitive personal information.
Note I am not making an argument either way, but just presenting some points to consider.
In my experience, lawyer fees are highly decoupled from their expenses... which is to say even if PACER fees were dramatically reduced, lawyer fees will not.
Not sure how that can help poorer members of society, since most people are quite unlikely to be doing their own case law research anyway.
> Not sure how that can help poorer members of society, since most people are quite unlikely to be doing their own case law research anyway.
That's frequently the only way the poor can pursue justice. Pro se representation is a thing; sometimes they even win.
But aside from that, without knowing what courts are doing, there is no way to assure they're acting in the public interest. The public must be able to inspect the work output of the courts if a free society is to stay free.
>> Not sure how that can help poorer members of society, since most people are quite unlikely to be doing their own case law research anyway.
Legal opinions are free, for pro-se case law research: https://scholar.google.com/ etc. You need access to the filings to see if someone got screwed.
I use the filings in notable cases to help me figure out what I need to say in my own case. The State University's law school library has free access to Westlaw, and other resources (law journals, etc).
> That's frequently the only way the poor can pursue justice. Pro se representation is a thing;
The Federal Judicial Center has a report on helping the federal courts deal with unrepresented parties [2]. My local district court has a free attorney program for people like me who can't afford an attorney. My last free consultation, the attorney suggested I had a case of 'fraud on the court', which is when you get screwed by your opponent playing dirty.
Almost five years ago I'd petitioned the state court pro-se for a writ habeas corpus, on behalf of my friend, the day after I found the term mentioned in the state statutes: "habeas corpus [0]? oh how useful". The judge seemed impressed that she was able to rule in my favor. On returning to the hospital with my granted court order, I was attacked by the security guards and was charged with misdemeanors (the one hospital security guard got unhinged when I took his picture to document the situation).
> sometimes they even win.
My defense attorney was impressed with my granted pro-se habeas petition. He said he knows attorneys who couldn't do what I did as a rookie pro-se filer.
My subsequent filings have all been fine, but the various judges have found ways to avoid having to deal with them. The first judge misquoted the wording of state statutes to make my petition go away. The state court of appeals recruited one of their retired judges to dismiss my appeal. The state supreme court dismissed without comment.
Federal judges are supposedly better than state judges, on account of the lifetime appointments. I think the district court judge who had to deal with me didn't want to, so he just ignored the inconvenient parts of the case law. The court of appeals also got rid of my appeals, without addressing my contentions. Hrmph. I recently figured out how to get a new judge [1].
> But aside from that, without knowing what courts are doing, there is no way to assure they're acting in the public interest. The public must be able to inspect the work output of the courts if a free society is to stay free.
This is well said. My district court filings are all public, even though they ought to at least be anonymized (like was done in Roe v. Wade, for example). I've come to appreciate that my asking to file under seal gave the court of appeals judges and supreme court justices a convenient 'out' that allows them to avoid having to deal with me. My predicament is that don't want to give advanced notice to the perpetrators who ought to be prosecuted.
As far as these pacer fees: I'm glad my filings haven't been siphoned into courtlistener.com yet, as that means they can still be sealed...
Heh. One way it helps poorer members of society is by making it possible to do basic research on courts data so that the public can understand and take action from understanding what's happening in courts and how law is applied. This research is impossible right now without spending billions of dollars in PACER fees.
I'm not talking about opinions, I'm talking about case outcomes, involved parties, lawyers, judge info, terminated parties, dates, docket info, context, complaints. And furthermore, I'm not talking about individual cases. The interest for "normal" people largely comes from the aggregate of PACER records, with analysis done on top of that. In other words - because we can't get aggregate records of court information, we can't run analysis that would be interesting or useful for understanding what's happening. Surely you can see how this data could inform the US in understanding how the law is applied throughout. If not, I'll gladly type up a list of 50 kinds of analysis that would be interesting to normal people.
The people who would run this analysis are technical journalists with backgrounds in court data.
It feels strange to have to say this, but there are thousands, if not millions, of people who have done their own legal research who are not professional lawyers. They do this because they can't afford professional lawyers and they are in legal peril. Many of them are in prison themselves.
Sometimes. They’re supposed to be but the billing is wildly inconsistent. And I think you still have to pay a fee for the search so even downloading a “free” opinion costs at least 10¢.
The creator of CSS was sued (and ended up losing, unfairly imo but it drew the attention of the lawmakers at the end) for making an open database of court records. https://www.wiumlie.no/2018/rettspraksis/06-11-blog.html (it has links to the next posts)
I wish that every country published their court documents for free.
Just to clarify for non-lawyers, PACER is needed for certain filings, but not the four opinions themselves. There are several good websites that host these.
Not that PACER isn’t overcharging, just that it isn’t where lawyers go to get opinions, which are critically important for the practice of law.
I'm chiming in a lot, but this is only sort of true. In theory, yes, opinions and orders are free on PACER. In practice clerks have to check a box when they upload each opinion to mark it as free, and yeah....some clerks do a great job. Others do terribly. Some info here: https://free.law/pacer-facts/#written-opinions-are-free-on-p...
In my practice, all important opinions were published and freely available. Perhaps there are areas of law where coverage is spotty or delayed, but I literally never needed to use PACER because I didn't work on active litigation (just transactions, opinion letters, client memos and other research-related work).
Right, you can usually find opinions, but in many cases, that's because the provider you're using — WestLaw, Bloomberg, Justia, Google Scholar, whatever — paid for it on your behalf. They (we) have to go to PACER and buy these things too.
PACER fees are high, but at least federal records are centralized. Try searching for lawsuits at the local level. To my knowledge there is no online service at any cost that lets one hunt for civil actions. This is how the legal systems stays obfuscated for the average citizen.
The fees are ridiculous. Google Scholar is free but it’s very difficult to use if you just want records for a particular case. In my attempt to solve the problem, I created the website bankrupt11.com which offers free access to federal bankruptcy records.
I would think that it would violate Due Process if PACER or any other public court record was needed for a case, but the person needing them could not afford them...
On a related note, I would think that it would violate Due Process if any piece of information relevant to any case, legal or otherwise, were available and not provided, that is, if there was some sort of barrier (monetary, legal, or otherwise) preventing its easy and complete acquisition by the public, or whoever was involved in a case and needed it...
Gupta Wessler is an incredibly awesome firm. I recommend everyone interested in the intersection of technology and law to follow this firm and their motions.
I don't have an opinion about whether PACER's fees are too high or not, or whether metered pricing is the right plan, but our court systems are generally underfunded, severely, and that problem causes far more justice equity problems than PACER fees do.
There is no differentiating - PACER fees are a justice equity problem. It is impossible to separate one from the other. Inmates and pro se litigants need the information on PACER, too. The Courts have previously allowed these fees on the ridiculous theory that the same information was available in hard copy at the court house. It’s not equal access to justice when someone can afford to get information in two clicks and someone else needs to take a bus an hour each way.
One of the reasons for PACER fees (and other court costs) is the Judiciary's attempt to have some financial autonomy from Congress, even though it clearly depends on Congress for almost all of its annual budget.
As others have stated, you can get case law for free elsewhere. You do need to access PACER for docket material, however. But there's even a fee exemption for "indigents, pro bono attorneys, academic researchers, and non-profit organizations."[3]
[1] https://www.uscourts.gov/about-federal-courts/governance-jud... [2] https://www.usaspending.gov/#/explorer/agency [3] https://pacer.uscourts.gov/pricing-how-pacer-fees-work