Kudzu in the Courthouse: Judgments Made in the Shade

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