Court Records Should Be Free

The discourse over PACER fees recapitulates a very common public policy conundrum, and we should all be more thoughtful about discussing it.

In the municipality where I live, we're statutorily required to replace lead service lines[†] within the next 5-10 years (I forget how many). The municipality replaces the trunk lines, and homeowners are required to replace the last hop at their own (significant) expense.

Naturally, people are extremely upset about this. They're all being forced to spend a bunch of money, out of the blue. They all want the municipality to pay for their own service line replacement. Other municipalities are doing this.

But the thing here is: there's no free money. We all pay for the service line replacement one way or the other, because the ultimate source of funds for the things the municipality pays for is our property tax levy. In fact, having the municipality pay for homeowner service line replacement is straightforwardly regressive: it's a subsidy to homeowners, paid in part out of the pockets of people who don't own.

A similar dilemma faces PACER. Overwhelmingly, PACER is used by attorneys, who are generally well-compensated professionals with a whole host of protectionist policies insulating them from market forces. Court records can, of course, be made "free". But nothing is actually free. To make those records free, you have to take money from the general fund, which means the tax payments of people who have nothing to do with the legal profession are... funding the legal profession.

That doesn't mean I think it's great that PACER charges. Speaking as a nonlawyer who uses PACER kind of weirdly a lot, it's also not good; it's pretty archaic. But it's also very cheap. I'd imagine that most of the use cases for which it isn't below the cost noise floor are cases that serve professions, in which case I have to ask what the public policy case is for subsidizing those uses.

I don't know, things are complicated.

[†] Added context: lead service lines in Chicagoland aren't necessarily immediately problematic, because the water management department here carefully manages the supply to ensure lead is mineralized; if you test your lead-service tap water for lead, you won't find any.

For the most part, RECAP just eliminates inconvenience. For matters of widespread interest, RECAP saves thousands of people from having to make PACER accounts. But the stuff that ends up on RECAP, for obvious reasons, tends to be the small minority of cases that the public is interested in, and for the most part that content is practically (sometimes literally) free.

I think RECAP rules a lot and I have the plugins enabled in the browser session I use to read PACER. I'm just saying, it's not really a liberation of all of PACER.

Federal judicial opinions are readily available online. The circuit courts and Supreme Court--i.e., the courts which actually establish precedent--post all of their opinions on their own websites. If your concern is knowing what courts (at least federal courts, where PACER is used) are saying so that you can follow the law, it's all out there for free. What PACER hosts is the rest of the case records: exhibits, briefs, motions, etc.