Courts: In and Out of Sight, Site, and Cite

Abstract

On several occasions during the fall of 2007, groups gathered to address "'judicial transparency"—the question that animates this symposium. In addition to conferences convened by RAND's Institute for Civil Justice and UCLA Law School in Los Angeles by Villanova University outside of Philadelphia, and at Birkbeck College of the University of London, federal legislators turned their attention to what proponents called "sunshine." Two bills—one aimed at expanding judicial authority and the other at constraining it—were introduced in Congress. One proposal (the "Sunshine in the Courtroom Act of 2007") would authorize federal appellate and trial judges to permit the photographing and the televising of proceedings under certain circumstances. Another initiative (the "Sunshine in Litigation Act of 2007") would limit the power of federal judges to permit parties to seal settlements or to promise confidentiality of discovery materials in civil cases. Why has the topic of judicial transparency garnered this attention? The high visibility end of the litigation docket provides one reason. In the wake of 9/11, both civil and criminal cases have raised issues about access to information, government surveillance, and open decision-making. Citing national security, the United States government has repeatedly argued that it should not have to reveal information to federal judges charged with reviewing the lawfulness of classifications of individuals as "enemy combatants." The federal government has also sought and succeeded in obtaining dismissals—on the basis of "state's secrets"—of cases claiming that persons under its charge have been sent to countries where they have been tortured or abused.