The Case of the Missing Cases: Inferring Sealed U.S. Federal Cases

Abstract

In the U.S., the public right of access to court proceedings arises from the common law and the First and Sixth Amendments. However, courts have long recognized limited exceptions to this right, and certain court cases may be "sealed" (inaccessible to all but authorized parties) and thus, even the existence of such proceedings may be shielded from public scrutiny. This paper develops empirical measurement techniques to infer both the prevalence of Federal case sealing and the duration of such sealing orders in practice. Using a combination of comprehensive crawling, undocumented Web APIs, and heuristics for inferring per-court case-numbering policies, we are able to use existing online legal databases (the U.S. Courts' CM/ECF and IDB systems and the Free Law Project's CourtListener RECAP service) to tease out the presence of case sealing via "absences" in the online record. Using this approach, we provide an initial analysis of sealing practices across twenty Federal court districts, how these relate to different "kinds" of proceedings, and how our contemporary findings compare to the U.S. Courts' internal study conducted seventeen years prior.