The Administrative Office of the Courts announced yesterday that FDSys will now include opinions from 64 federal courts. The program to integrate federal court opinions into FDSys began in 2011. In 2011, they added opinions from 12 courts. In 2012, they increased that number to 28 courts. In February of this year, they announced that they were expanding the program. And now we know they have increased the number of courts to 64. According to today’s press release, they are backfilling some jurisdictions, putting in an archive back to 2004. They claim to have 750,000 opinions in FDSys now.
According to the statement, “FDsys currently contains opinions from 8 appellate courts, 20 district courts, and 35 bankruptcy courts.” To put this in perspective, there are 17 circuit courts, 94 district courts, and 195 bankruptcy courts. All together, they are pulling opinions from 63 of 307 federal courts (roughly). That’s 21% of the federal jurisdictions in 3 years.
As usual, I feel compelled to say “it’s great that they’re doing this, BUT”—they’re focusing on the wrong things. Why are they pulling documents from district courts and bankruptcy courts? The case law that most people care about is appellate opinions that create precedent. In federal jurisdictions, this means the Circuit Courts of Appeal and the United States Supreme Court. FDSys has no SCOTUS opinions (which are freely available on the Court’s site), and only about half of the Circuit Courts of Appeal. Some district court opinions are interesting and useful, and I suppose the same is true for bankruptcy court opinions, but why are they being added ahead of the Supreme Court? 750,000 documents is a lot—my guess is they’re pulling in random orders and rulings that are part of the public record but not especially useful in legal research.
Another thing: opinions in the FDSys collection are slip opinions. I need to reiterate this point every time I see press release from the AOC, because there is an implication that they’ve given us what we need to cite the law. THEY HAVEN’T. For the non-lawyers in the crowd, slip opinions are the immediate opinions released by the court. They are official, and can be cited to in court documents, only until they are published officially by a private company. They are temporary documents. They are useful if you just want to read the law, but they are not official and they can’t be cited.
I do believe there is value to having this information in a central database that the public can search, alongside other government publications, but I think it’s absurd that the government does not own a copy of its own official work product. It’s absurd that taxpayers throw billions of dollars into a court system that issues opinions that they have to pay to read and cite. It’s even more absurd that the government itself pays to read those cases, through research contracts for Westlaw and LexisNexis. Finally, it’s absurd that the AOC thinks that migrating documents from bankruptcy courts into FDSys is somehow going to solve this problem.
There is a REAL solution, but courts don’t want to talk about it:universal citation. If the
clerks judges would put a citation on the opinion and insert paragraph numbers, it will be born digital and official. Make it available for download right away, and the private companies that have sprung up to provide alternative legal research services – some free, some cost effective – can get them up right away. Other companies are exploring ways to add value to these opinions in new and exciting ways. The government can take 3 years to move opinions around between databases and it won’t matter, because the public will use the private services instead.