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RECAP in the Columbia Science and Technology Law Review

2009 December 8
by recapthelaw

The website of the Columbia Science and Technology Law Review has an excellent write-up of RECAP by Rajiv Batra. His conclusion:

As part of a trend toward opening access to American common law, RECAP’s place at the heart or the periphery of the movement remains to be seen. Like any crowdsourcing application, RECAP’s usefulness increases as more people use it. Yet PACER’s prime users are large, bill-paying law firms, which tend to be wary about adopting new technology and have little incentive to contribute documents they paid for to a free database.

“Success” for RECAP may not be mainstream adoption, however. Merely by creating the working plugin and calling attention to the problem of restricted access to court documents, CITP has advanced the cause of reforming and opening up access to PACER. That alone is “Turning PACER around.”

One point this misses is that using RECAP can directly reduce firms’ PACER fees. It’s true, of course, that most firms pass these costs along to their clients. However, in today’s economic climate, clients are increasingly pressing their law firms for cost savings. Adopting RECAP is a painless way for firms to demonstrate cost-consciousness. And the cost savings from RECAP adoption will only get bigger as RECAP’s user base continues to grow. So while we think judicial transparency is reason enough to use RECAP, installing RECAP is good for every firm’s bottom line.

In any event, Batra has written a great piece, and we encourage you to check it out.

6 Responses leave one →
  1. Schlomo McGill permalink
    June 12, 2010

    Posted at the STIL site:

    Not the worst review — the money numbers are all wrong (ie, they are wildly overinflated), but people who really know anything about PACER know this and the people who wrote RECAP have been told time and time again that their sources are not at all reliable. The truth on that front does not seem to be very important.

    I don’t think RECAP poses any real risk to unraveling PACER’s fee structure. If it did PACER would shut down. PACER’s fees do not restrict the free access that the public has always enjoyed. That’s still available at the courthouse. In fact, courthouse access is greater because certain types of documents are not available on-line via PACER (by statute) — these include immigration and Social Security cases.

    Recap itself (that is, the document repository) is interesting, but should never be relied on by legal professionals. It is almost always out of date and lacks full context. It is also subject to poisoning (injection of false or misleading material) — something that the user should be made aware of.

  2. June 14, 2010

    As I noted in my working paper, although the $150m number was incorrectly calculated, it is entirely possible that it is roughly correct or even an underestimate. Based on the new data I published today, non-EPA (PACER) expenditures since 2006 have been roughly $325m.

    As for the document authenticity questions, there is simply no technical means for us to be able to ensure authenticity because the courts themselves have not implemented a digital signing system. We make that clear in our FAQ and in a disclaimer every time a RECAP user downloads a document. Despite that reality, we have yet to see any evidence of someone injecting false documents (and we have mechanisms in place for helping to detect this). Whatever your opinion on whether RECAP threatens the PACER business model, the reality is there are now millions of free documents available.

  3. Schlomo McGill permalink
    June 23, 2010

    The problem is — you are misidentifying most of what constitutes the PACER system. I did hear that when CM/ECF was distinguished as a “non-EPA” system, chuckles were heard all around. The same goes for PACER related telecommunications expenses (about 10% of all telecommunication expenses in the courts), BNC noticing, etc. The bases of your figures is the misapprehension that PACER is a web page with a bunch of documents on it. That’s what RECAP offers, and it does have a lot of information, but it’s not PACER and it’s not something anyone but the most casual of readers should rely on.

    Have you done any research to see if the number of free documents on RECAP has surpassed the number of free documents available on PACER? That’s a trick question, I guess. 😉

  4. June 24, 2010

    As I have noted before, CM/ECF is different from PACER. While both services share the same infrastructure, CM/ECF is a free-to-use case management and filing service. PACER is a billing interface built onto the access functionality of the CM/ECF infrastructure. The costs of building and running CM/ECF are necessary regardless of whether PACER exists.

    The courts attempt a sleight of hand by calling whatever they wish to use PACER fees for an “EPA system.” But the statute does not afford them that discretion.

    If PACER-related Telecommunications cost $25.3m per year (that is the amount of PACER fees planned to be spent on the line item in 2010) PACER relies on either an inefficiently designed system or a poorly negotiated contract (or both).

    The Bankruptcy Noticing Center, Courtroom Technology, and the other line items are not PACER… end of story.

    The only reason anyone would not rely on RECAP for authentic documents is because the courts have not bothered to implement the most basic digital signing system, which would have benefits far beyond RECAP.

    RECAP has millions of free documents which are not available for free from PACER. As a total number, RECAP might have fewer, but only because we haven’t bothered to auto-import the erratically flagged free opinions on PACER (because doing so for that corpus of documents currently offers no comparative benefit to our users).

  5. Schlomo McGill permalink
    June 24, 2010

    Steve —

    Imaging EPA as a car… the PACER interface would be one of the front seats. Since seats do not need a chassis or engine (CM/ECF) or gas (fees) or highways (the PACERNet) or blinkers (notification), someone who only sees the seat can’t imagine having to put any gas in the tank.

    RECAP is a sort of Potemkin PACER, built with supplies found in a construction project on public land. It looks great as long as you don’t get close enough to look in the windows.

    As for telecommunications costs — yes, they do indicate a very inefficient and distributed system. Imagine 200 locations nationwide each with multi-meg, multi-homed connections — no DSL lines or cable modems will do — in a private network completely removed from the Internet and the Judiciary’s own data network. If you think you can do that (securely) for less then the Judiciary, you’re probably in the wrong business. As to why this system “grew up” the way it did, Title 38a, Rule 45 is instructive.

    You also seem to be unaware of contract changes in 2010 (and perhaps a few years following) that will incur significant conversion costs. This was not a Judiciary initiative, but one forced on the Judiciary by changes in the Executive (try googling “Networx”).

    CM/ECF cannot be separated from PACER. When you say that it can, you lose credibility. PACER *is* CM/ECF. It’s the very same system. It not only shares infrastrucure — it shares code and memory and disk space and network connectivity (would you suggest doubling the amount paid for EPA telecommunications to “separate” them?) and every thing else *except* the billing mechanism. You will never see changes in PACER until you see changes in CM/ECF — they are one in the same.

    I can see an argument for the courtroom technology refresh (though that program seems to have congressional assent) — everything else is *directly* EPA related. That includes notifying crime victims about hearings and other events related to the prosecution of those alleged to have done them harm.

  6. June 24, 2010

    Let’s try a more apt analogy. CM/ECF is the USPTO patent database. The patent database is essential to the well-functioning and efficiency of the USPTO. As a side-effect, it happens to get the raw patent data into a format that is easy and cheap to distribute. PACER is the USPTO’s public interface for disseminating that data (which, you will note, is provided for free to the public).

    The notion that the inefficient system “is how we were used to doing it in the era of paper,” or that it’s justifiable because “clerks have always had local control,” is hardly an excuse for perpetuating it. As long as we’re citing statute you might as well look up 28 U.S.C. 457. So what?

    I am familiar with the Networx contract. The real problem is that the Judiciary is not thinking about PACER as basic distribution of legal data (which would result in a radically different system structure) but rather as an excuse to cross-subsidize a behemoth national network.

    I am, unfortunately, intimately aware of the technical structure of CM/ECF (having designed parsers and had to fix them repeatedly to deal with the many evolving idiosyncrasies of CM/ECF — not to mention actually seeing source code when CM/ECF has certain errors and dumps source because of faulty programming). No need to lecture me. A more rational and secure PACER model would require some modest and straightforward API calls to be built into CM/ECF.

    Again, the sleight of hand of calling everything “EPA related” does not meet the statutory mandate.

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