Kudzu in the Courthouse: Judgments Made in the Shade

3 Federal Courts Law Review 177 (2009)

39 Pages Posted: 10 Jun 2012  

Stephen W. Smith

Stanford Law School Center for Internet and Society; Texas Southern University - Thurgood Marshall School of Law

Date Written: July 12, 2009

Abstract

Sealing of judicial records is a recent phenomenon in our judicial history. Never a feature of English common law, and unheard of in this country at the time our Constitution was adopted, the first reported cases limiting public access to court records began to appear at the close of the 19th century. For most of the 20th century, court decisions and legislation had carved out limited exceptions to the public's right of access, such as divorce files, adoption records, and juvenile. By the end of the century, the legal boundaries confining government secrecy were being overrun; nowadays, the sealing of entire case files, including docket sheets, is not uncommon. Lack of transparency is a dire threat to the judicial branch, because its very legitimacy depends on public decisions after public arguments based on public records.In the words of our colonial ancestors: "Justice may not be done in a corner."

Keywords: Sealing, judicial records, public access, transparency, common law, open courts

Suggested Citation

Smith, Stephen W., Kudzu in the Courthouse: Judgments Made in the Shade (July 12, 2009). 3 Federal Courts Law Review 177 (2009). Available at SSRN: https://ssrn.com/abstract=2080279

Stephen W. Smith (Contact Author)

Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Texas Southern University - Thurgood Marshall School of Law ( email )

3100 Cleburne Street
Houston, TX 77004
United States

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