Recently, we received an inquiry from Trevor Rosen of Maryland Law blog. He asked whether we had seen the opinion of the Court of Special Appeals mentioned in this article in the Baltimore Business Journal. The short answer is that we hadn't. The reason is that the case, Zietz v. Strategic Management, is an unreported opinion.
We cover all opinions of the various courts in Maryland that are publicly available on the web. However, there are huge gaps in the opinions that are available. The Court of Special Appeals issues dozens of unreported opinions. In the United States District Court, only a few judges (Chasanow, Motz, Bennett, Legg, Blake, Davis, Quarles) regularly direct that their opinions be posted. The other judges post opinions sporadically, if at all.
Presumably, the original rationale behind unpublished opinions was related to the cost of publication. That rationale no longer holds since the cost of publishing opinions on the web is trivial. Moreover, due to advances in search technology, researchers no longer face the threat of being overwhelmed by the significant increase in the number of available opinions that a change in publication practices would trigger.
In our mission statement, published on the right, we say:
We believe that it is in the best interest of both the public and the legal system for the courts to operate with the maximum possible transparency.
That goal would be advanced if both the Court of Special Appeals and the United States District Court for the District of Maryland made all of their opinions publicly available, for free, on the web.Update
In March of last year, the Administrative Office of the U.S. Courts announced a change of policy with respect to access to district court opinions via PACER:
In the spirit of the E-Government Act of 2002, modifications have been made to the District Court CM/ECF system to provide PACER customers with access to written opinions free of charge. The modifications also allow PACER customers to search for written opinions using a new report that is free of charge. Written opinions have been defined by the Judicial Conference as "any document issued by a judge or judges of the court sitting in that capacity, that sets forth a reasoned explanation for a court's decision." The responsibility for determining which documents meet this definition rests with the authoring judge.
This functionality will only be available in courts that have installed District Court CM/ECF version 2.4 or higher, and will only provide free access to opinions filed after the court is actively using version 2.4. There may still be a charge to access opinions that pre-date the court's use of version 2.4. The new report is available under the Reports menu. PACER customers can also access opinions via existing reports and queries, such as the docket report, and will not be billed for accessing the written opinion document itself, but will be billed for the report or query used to identify the document. For example, if a PACER customer runs a docket report, the customer will be charged for the docket report. If the customer then clicks on the document number hyperlink for a written opinion document, the customer will not be charged for viewing the document. Future versions of Bankruptcy CM/ECF will have similar functionality.
Our suggestion, that all of the members of the bench of the U.S.D.C. for the District of Maryland follow the practice of posting most of their opinions on the Court's website, is consonant with this policy. The MCW blog, unlike PACER, is picked up by the major search engines, is internally searchable, is available via RSS and Atom syndication, and has certain editorial enhancements such as a labeling system, which allow users to focus on opinions that deal with issues important to them. Thus, if "any document issued by a judge or judges of the [U.S.D.C. for the District of Maryland], that sets forth a reasoned explanation for a court's decision" is posted on the Court's website, the reasoning of the judges will truly be widely accessible, not lost in the haystack of PACER.