By Sydney Nelson, J.D. Candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
Data is king, or so the saying goes. But when it comes to the justice system, data is more like the trope of the princess locked away in the castle tower. However, it appears that no one is coming to save this princess—yet.
Getting a handle on the scale of data that could be rescued is itself a challenge. Within the federal judiciary, there are nearly 200 federal courts and 900 judgeships overseeing hundreds of thousands of filings a year. However, 95% of the country’s cases happen at the local level. State courts handle nearly 66 million cases a year. Each case could contain hundreds of data points across the core phases of a litigation. For example, the filing of the case, the judicial process, and the outcome will often involve dozens of fields.
Identified and relayed in a usable manner, this data would help individuals answer the question, “Where the heck is my case at?”, while enabling researchers to identify trends and patterns within our legal system. Courts themselves could use the data to improve their processes, enhance transparency, and increase access to justice. But no official standards govern availability of court-related data.
Ideally, court data should be “open data”—meaning that “anyone can freely access, use, reuse and redistribute them, for any purpose, without restrictions.” The concept emerged at the turn of the 21st century with the increased use of technology accelerating data collection and sharing. In the public sector, open government data originated from the idea that because our governing institutions collect large amounts of information, that information should be available for citizens’ use. Usability is the critical distinction—much of the data available on government websites is published but not usable (e.g., the “data” takes the form of a PDF meant to be read in isolation). To qualify as open, “the data must be re-usable, meaning they can be downloaded in open formats and read by software, and users have a legal right to re-use it.”
The concept of open data is hardly foreign to the United States government. In 2009, the Obama administration directed agencies to adopt a presumption of data openness. In his memo, President Obama emphasized how openness strengthens government and improves effectiveness through three core principles: transparency, participation, and collaboration. Transparency can foster accountability and improve trust among citizens—a quality notably absent given historically low public trust of federal court systems. Access to information increases public engagement in the courts—enabling researchers, activists, and ordinary citizens to develop and share informed opinions on judicial policy improvement. Open data also enables collaboration across government and with nonprofit and private entities, enhancing the government’s capacity to innovate and improve access to justice.
Ten years later, Congress passed “The OPEN Government Data Act” mandating that federal “agencies publish their information online as open data, using standardized, machine-readable data formats” on data.gov. The act emphasized the potential for partnerships between agencies and nongovernmental organizations to use the data to identify opportunities for innovation. The executive memo and the congressional act covered only federal agencies, so the requirements do not apply to the judiciary.
When compared against the federal government’s principles of open data, courts fail on several fronts. For example, data should be accessible and easily modifiable, but in reality extracting data from court websites requires extensive manual effort to gather and organize information from disparate sources. Data should be complete and include as many details as possible, but court records often categorize cases at generalized levels, leaving granular information buried in dockets and documents. Speaking from personal experience, data entry errors in the court records systems are too common. When the public can access record systems (another principle), many such systems charge a fee, limiting use based on financial means.
During the 117th Congress, the Senate and House attempted to pass “The Open Courts Act of 2021.” A federal appeals court spurred this bill’s development when it concluded that PACER, the federal judiciary’s records management system, overcharged users in excess of $190 million in six years. The bill’s co-sponsors asserted that the current system had “harmed access to justice, infringed on the foundational right of public access to court records, exposed sensitive data to external threats, stifled innovation, and fostered wasteful spending.” The legislation directed the federal judiciary to create a modernized court records system, with data standards for searchability, accessibility, quality, and affordability. Despite advancing out of the corresponding committees, neither version of the bill made it to a full vote in its respective chamber. While Congress has separately mandated a few specific reports on judiciary data, no baseline expectation or mandate for open data exists.
Similarly, it does not appear that any state has passed an open data act regarding judiciary case records. In practice, states vary in the type of case filing system used, data recorded, and information publicly available. This variation can make the gathering of data across states burdensome. For example, to collect information on misdemeanor cases, one law professor described contacting the administrative office of each state court system separately and then reconciling the data received. Recognizing this challenge, the Court Statistics Project, a nonprofit initiative, consolidates annual caseload data from states in the hopes of uncovering trends and shaping policy.
An open data deficit persists in the judiciary, standing in stark contrast with the benefits available. Professor Matthew Desmond’s large-scale study on eviction rates published in his book Evicted: Poverty and Profit in the American City, brought immense public attention to an issue that had otherwise been hidden in the court data. This publicity led to a national movement for tenant’s right-to-counsel, with cities and states beginning to recognize this right, showcasing the power of information to create change and improve access to justice. To continue the work his book created, Professor Desmond established the Eviction Lab, focused on pulling case filing from public record systems to track evictions.
The power of court data applies to other areas, like cash bail and debt collection, as well. A 2021 effort covering 50,000 court cases in two Pennsylvania counties showed that judges were “uniformly more likely to assign cash bail to black defendants than to white defendants,” even when the risk of skipping court was equal. In another study, Pro Publica reviewed hundreds of thousands of debt collection cases and discovered that the risk of judgement was twice as high in majority black communities than white communities, even with consistent income. In their analysis, Pro Publica emphasized that they were unable to say why there was this trend, in part due to a lack of research on debt collection lawsuits.
With the rule of law under attack, tools to improve the American legal system, close the access to justice gap, and strengthen the integrity of the judiciary become all the more essential. It is time that the judicial system frees the data princess from the tower—in the name of justice for all.
If you’re interested in more on this topic, listen to our podcast episode.