A sweeping Stanford Law study reveals how routinely federal courts seal records, sometimes concealing information with profound implications for public health and safety.
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Evidence of dangerous drugs, defective products, and corporate misconduct is often hidden from public view through sealed court records. And federal judges are granting requests to seal records at an astonishing rate, often without applying the proper legal standard, according to the largest-ever study of the issue.
Stanford Law professors Nora Freeman Engstrom, JD ’02, and David Freeman Engstrom, JD ’02, co-directors of the Deborah L. Rhode Center on the Legal Profession, join Pam Karlan to discuss their findings. Their research reveals that roughly 90 percent of sealing requests are granted, about three-quarters go unopposed, and judges frequently fail to cite any legal standard at all.
Why is secrecy so pervasive in a justice system built on public access? The Engstroms explain how the incentives of litigants, lawyers, and judges can leave no one looking out for the public's right to know. They also discuss their push for a new federal sealing rule and why, with civil trials increasingly rare, access to court records is more important than ever.
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(00:00:00) Introduction
(00:02:08) What does it mean to seal a document?
(00:04:06) What should be sealed, and sealing vs. redaction
(00:05:55) Catch-22 and Judge Breyer’s redacted opinion
(00:06:54) How the study was done: Two million dockets and a machine learning pipeline
(00:08:20) The wrong standard (or no standard at all)
(00:10:43) Real-world consequences: Sealing and hidden public health hazards
(00:12:26) “Shadow consent”: Why sealing motions go unopposed
(00:14:49) No constituency for transparency
(00:16:06) Can the press be the fail-safe? (It’s a myth)
(00:19:35) Proposed fixes: Intervention tools and a Rhode Center staff attorney
(00:20:34) Law on the books vs. law in action: A rule of law problem
(00:22:53) Why litigation transparency matters: Regulatory, procedural, and democratic work
(00:25:55) The vanishing trial and why the papers matter
(00:27:47) Cause for optimism? Prospects for rulemaking
(00:29:12) Where to draw the line: Protective orders vs. sealing standards
(00:30:26) Rules vs. standards: What should always be sealed?
(00:32:05) Closing thoughts and where to find the article
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