District Court Opinions that Remain Hidden Despite a Longstanding Congressional Mandate of Transparency – The Result of Judicial Autonomy and Systemic Indifference

Abstract

The E-Government Act of 2002 directed the federal courts to provide access to all their written opinions, in text-searchable format, via a website. Ten years later the Judicial Conference of the United States approved national implementation of a comprehensive database of those opinions through a joint venture between the courts and the Government Publishing Office (GPO). Despite the promise implicit in these initiatives, public access to many thousands of federal district court decisions each year remains blocked. They are effectively hidden. Many court websites lack a clear link to opinions, only a bare majority of district courts transmit decisions to the GPO, and far too many courts and judges fail to take the steps necessary for opinion distribution beyond the parties. Using the large volume of district court Social Security litigation to measure and illustrate these failures, the article examines their dimensions, consequences, and causes. It concludes that the problem is a large one, that it poses a major challenge to those carrying out empirical studies and judicial analytics, and that the courts' radical decentralization combined with judicial autonomy will continue to frustrate goals of public access unless serious measures are taken at the national level. Finally, it argues that inclusion in the GPO database of federal judicial opinions should cease being optional.