One sentiment I’ve seen in a number of people express about our release of RECAP is illustrated by this comment here at Freedom to Tinker:
Technically impressive, but also shortsighted. There appears a socialistic cultural trend that seeks to disconnect individual accountability to ones choices. $.08 a page is hardly burdensome or profitable, and clearly goes to offset costs. If additional taxes are required to make up the shortfall RECAP seems likely to create, we all will pay more in general taxes even though only a small few ever access PACER.
Now, I don’t think anyone who’s familiar with my work would accuse me of harboring socialistic sympathies. RECAP has earned the endorsement of my colleague Jim Harper of the libertarian Cato Institute and Christopher Farrell of the conservative watchdog group Judicial Watch. Those guys are not socialists.
Still, there’s a fair question here: under the model we advocate, taxpayers might wind up picking up some of the costs currently being bourne by PACER users. Why should taxpayers in general pay for a service that only a tiny fraction of the population will ever use?
I think there are two answers. The narrow answer is that this misunderstands where the costs of PACER come from. There are four distinct steps in the process of publishing a judicial record. First, someone has to create the document. This is done by a judge in some cases and by private litigants in others. Second, someone has to convert the document to electronic format. This is a small and falling cost, because both judges and litigants increasingly produce documents using word processors, so they’re digital from their inception. Third, someone has to redact the documents to ensure private information doesn’t leak out. This is supposed to be done by private parties when they submit documents, but they don’t always do what they’re supposed to, necessitating extra work by court personnel. Finally, the documents need to be uploaded to a website where they can be downloaded by the public.
The key thing to understand here is that the first three steps are things that the courts would be doing anyway if PACER didn’t exist. Court documents were already public records before PACER came onto the scene. Anyone could (and still can) drive down to the courthouse, request any unsealed document they want, and make as many photocopies as they wish. Moreover, even if documents weren’t public, the courts would likely still be transitioning to an electronic system for their internal use.
So this means that the only additional cost of PACER, beyond the activities the courts would be doing anyway, is the web servers, bandwidth, and personnel required to run the PACER web sites themselves. But RECAP users imposes no additional load on PACER’s servers. Users download RECAP documents directly from the Internet Archive. So RECAP is entirely consistent with the principle that PACER users should pay for the resources they use.
I think there’s also a deeper answer to this question, which is that it misunderstands the role of the judiciary in a free society. The service the judiciary provides to the public is not the production of individual documents or even the resolution of individual cases. The service it provides is the maintenance of a comprehensive and predictable system of law that is the foundation for our civilization. You benefit from this system whether or not you ever appear in court because it gives you confidence that your rights will be protected in a fair and predictable manner. And in particular, you benefit from judicial transparency because transparency improves accountability. Even if you’re not personally interested in monitoring the judiciary for abuses, you benefit when other people do so.
This is something I take personally because I’ve done a bit of legal reporting myself. I obviously get some direct benefits from doing this—I sometimes get paid and it’s always fun to have people read my work. But I like to think that my writing about the law also benefits society at large by increasing public understanding and scrutiny of the judicial system. And charging for access to the law will be most discouraging to people like me who are trying to do more than just win a particular court case. Journalists, public interest advocates, academics, and the like generally don’t have clients they can bill for the expense of legal research, so PACER fees are a significant barrier.
There’s no conflict between a belief in free markets and a belief that everyone is entitled to information about the legal system that governs their lives. To the contrary, free markets depend on the “rules of the game” being fair and predictable. The kind of judicial transparency that RECAP hopes to foster only furthers that goal.
In deciding whether the government should provide a resource for “free”, one should consider whether the resource is scarce (has a non-trivial marginal cost) or plentiful (has essentially zero marginal cost). Information which exists in networked machine-readable form, and which may legally be distributed freely, is generally plentiful; the cost of providing a million people with access to a particular piece of information is often barely greater than the cost of providing ten. Note that active education about what the information means is more likely to be a scarce resource; one could freely publish information via which someone who wanted to take the time to study it could learn from it, but any sort of individual instruction is apt to have a substantial per-student marginal cost.
I have made some use of PACER to get documents for a friend who is in prison. For small amounts of use, it’s effectively free, though you have to give a credit card number, since they don’t bill you until you’ve accumulated a few dollars in charges. This avoids annoying fifty-cent charges.
I don’t have a strong opinion either way on whether there should be a charge, I’m just noting this point.
While I agree with your ethical and legal reasoning, there’s one point that is inescapable: RECAP will reduce revenue to Pacer and thence to the government. This will result in a decrease in total government revenue, which will, inevitably, transfer costs to the taxpayer.
The long version of this is as follows:
The court system as a whole is a taxpayer subsidy to private enterprise. In virtually all cases, virtually all of the benefit from the disposition of civil cases flows to one or both of the parties directly involved. (Criminal cases are a different matter, obviously.) The parties do not, by any means, come close to covering the costs of maintaining the justice system, and anything they don’t pay is a subsidy to them.
The charges for Pacer documents are an attempt for the government to capture from the direct users of the justice system some of its costs. (This BTW, is a way in which the argument about Pacer differs from that of congressional records, etc. The latter affect all citizens, not just the parties to a lawsuit.) Therefore, what’s missing from the argument in this post is that the government need not justify Pacer charges simply to defray Pacer’s specific costs. It is part of paying for the entire cost of the judiciary, and is borne (mostly, pax the reporters for the third estate) by people who use the judiciary most.
An aside:
A question for you libertarians out there is this: Why don’t you support the flat-out privatization of the court system, as, for example, libertarians support the privatization of parks? Many cases are already disposed of in arbitration, generally in a procss run by the American Arbitration Association, a private entity. Could not the government simply monitor the processes and outcomes of a private system, and see that the laws were being duly enforced? Even agreeing that “a system of courts and law is the foundation of our civilization”, why, from the libertarian point of view, must courts be owned and run by the government?
Of course, if the court system were private, its documents could be copyright, and then the issue of a RECAP wouldn’t arise.
Correct me if I’m wrong, but I believe I heard somewhere that the PACER system generates far more money than it costs to run every year. If that’s the case, then whether or not PACER starts losing money doesn’t really matter since it’s not like they are barely making enough to cover costs.
Secondly, if we’re going to make the argument that the costs of PACER should fall only on the users, what stops that argument being applied to other public records? If Congress charged for online access to proposed bill, debates on the floor, etc, it would impede efforts at government transparency and provoke a vocal outcry. Public records are kept to ensure that any citizen can make sure that government stays (relatively) honest, and those costs are assumed within the tax structure we have currently. The judiciary is a branch our government, and it has no special immunity concerning transparent records. The PACER system is merely making records more freely available, as other governmental agencies have done or tried to do in the past.
Surely he primary users of Pacer are lawyers — they will continue using Pacer because:
1. Clients pay for this.
2. If they get documents form a third party, they cannot be sure the documents are authentic.
I was wondering why pacer.resource.org isn;t mentioned on the RECAP home page?
“There’s no conflict between a belief in free markets and a belief that everyone is entitled to information about the legal system that governs their lives.”
Well, actually, there is. You’re saying, in THIS situation, in these circumstances – plutocracy does not produce the best outcome. And if one thinks about it – that’s really quite a surprising statement from a Libertarian perspective, given that the particulars – a general taxpayer subsidy to a very small group of actual users, almost all of which are quite affluent – would naively be expected to draw frothing denunciation from them. In that way, it looks like immense special-pleading with transparent justification of the public good.
After all, if “everyone is entitled to information about the legal system that governs their lives”, why isn’t everyone entitled to public education so as to be able to use that legal system that governs their lives? Oh no, you might say, that must be purchased at whatever price the market will bear, and charity will take care of the poor. But once you’ve opened the benefit door even a little bit, can you ever shut it again without an intellectual problem?
Now, of course, I happen to believe in the public good argument quite strongly. However, I do think you’re trying to handwave away one of the key flaws of Libertarianism which you’ve just been called out on, more rudely expressed as “That’s libertarians for you – anarchists who want police protection from their slaves”.
I think they’re not talking about normative costs, but the idea that PACER costs are largely fixed, in the age of cheap hardware and bandwidth. Say it takes $800 a year to power-wash the server room. (It’d be fun.) Today there are 1000 users, they average 10 pages a year, and we charge them $0.08 per page. That pays for the power-washing budget.
If tomorrow everyone switches to RECAP, and the users pull only 1 page a year instead of 10, PACER comes up $700 short, somebody goes to a budget meeting, and the rates get raised to $0.80 per page.
Now, I’m not sure that’s what would actually happen, but I think that’s the basic objection. If I were an economist, maybe I’d know the name for that phenomenon, and I’d understand why insurance companies want to limit the number of MRIs done (since MRI costs pay mostly for the machine, and those costs will be similarly divided up among patients no matter how many patients there are).
The text containing the rules and rulings of our government are the source code of our Judicial system. We need to free it for the same reason we free other code– it’s impossible to understand the system until you examine its machinery. Running a meter while we look under the hood hinders people from seeing in detail how government works. No Democracy should stand for that.
There is no argument for charging for access to judicial opinions specifically, as opposed to charging a la carte for government services generally. And the general case is especially bad in this instance, when it taxes civic knowledge and the seeking of justice and redress in our courts.