Freeman Engstrom et al. on Sealing Orders in Federal Courts

Nora Freeman Engstrom and others have posted to SSRN [Sealed Document]: An Empirical Study of Sealing Orders in the Federal Courts. The abstract provides:

American courts have long embraced the principle that judicial records should be presumptively public.  Public access reveals threats to public health and safety.  It makes law legible to those who must conform their conduct to it.  And it permits citizens to watch power, both public and private.  Open courts are, as the Fifth Circuit recently put it, “Law 101.” 

Standards for sealing are accordingly strict: A litigant who seeks to conceal judicial records must demonstrate a compelling interest in secrecy, and the trial court must make specific, on-the-record, document-by-document findings explaining why sealing is justified.  Failure to do so, longstanding appeals court precedent holds, constitutes an abuse of discretion.

But do trial judges actually subject motions to seal to the searching scrutiny the law demands?  Over the past half-century, this question has been the subject of speculation in scores of scholarly articles, congressional hearings, and judicial opinions.  Yet, to this point, an answer has proven elusive. 

This Article offers overdue clarity—and our results are staggering. Using docket data from over 2 million federal civil cases, and combining state-of-the-art machine learning techniques with careful hand-coding, we find that at least 90% of motions to seal are granted.  Further, although judges, when granting sealing motions, are duty-bound to supply specific on-the-record findings, most don’t.  Most do not so much as cite the governing standard, and, when a standard is offered, it’s very frequently wrong.

These findings are a lightning bolt, with sweeping implications for the open courts principle, public health and safety, judicial hierarchy, and the Advisory Committee on Civil Rules’ current deliberations.  In a litigation system already defined by the vanishing trial, courts and policymakers must confront the implications of a vanishing record.