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Wednesday, March 14, 2012

The Potential of Pacer for Scholarship and Teaching

For anyone who doesn’t know, Pacer (Public Access to Court Electronic Records) is a service of the federal court system that makes all docket filings in all federal cases electronically accessible.  It’s not free—it’s 8 cents a page—and maybe even that small cost deters academics from using it more.  (In my old office, we never even saw the bills, so I was on it constantly.)  Since I’ve been in academia, I've found it incredibly useful, and I’ve been surprised that law professors don’t use it more for research and teaching.  So I’d like to devote a couple posts to extolling its virtues, and I'm very interested to know if others have made significant use of Pacer in their own teaching and research.  More below the fold.

First, scholarship.  For the past two years, I have been working on a big empirical project on cross-border drug smuggling.  I have a short piece about some of the litigation uses for this research here, and the first big empirical paper (co-authored with the economist David Bjerk) is out for peer review right now.  What I found is that Pacer is an almost completely untapped vein of potential data.   Our first question was this: what drives the economy of cross-border drug mule recruiting?  Drug mules, as we all know, often bear the brunt of drug sentencing provisions, because they transport large quantities.  This is unjust, many people argue (including mules themselves at sentencing) because mules are the lowest-status employees of a drug trafficking organization, and are easily replaceable.  Well, is that description accurate?  To answer that, you’d need to know what they’re paid.  But obviously that’s not the kind of data that the Labor Department collects, and anecdotal accounts from agents are not particularly informative except for very general ranges.

And do mules even know what they’re carrying?  This question is obviously important for thinking about the general fairness of sentencing-by-quantity regimes, and also for evaluating the specific claim made by many mules at sentencing: “I thought it was just a small marijuana load; I didn’t know that it was really a [huge marijuana load/meth load/coke load].”  And the mules that go to trial make an even stronger claim: “I didn’t know the vehicle was loaded at all.” 

I, like many of my colleagues, was dissatisfied with the usual arguments about these claims, which—unless you could dig up some smoking-gun evidence—boiled down to “common-sense,” which is, obviously, useless here, because your law-abiding public does not have meaningful common-sense intuitions about how drug smuggling organizations are run.

So what I (and an army of RAs) have done is pull up, from Pacer, the complaints filed in more than six thousand border-smuggling cases over the past five years, to see if we can actually fill in some of the details of the industry.  The complaints, with their probable-cause narratives, tell us a lot: type of drug, size of load, type of vehicle, location of compartment, port of entry, time of day, etc., --- and crucially for us, how much the mule was being paid.  This latter detail is, fortunately, part of the standard ICE interview protocol, and so we ended up with pay data for 80% of the mules who confessed, or just over 50% overall.   From the docket, we were also able to see the actual sentence ultimately imposed.  We were then able to analyze the relationship between the type of load and the actual sentencing risk associated with that load (by regressing sentence on load for each drug, see below):

  Download Sentence Chart

I’ll save full details for anyone who asks—I’m happy to share the paper—but here’s the takeaway: there’s a definite relationship between pay and risk.  There is a market mechanism at work here that allocates pay differentially based the amount of sentencing risk the mule is taking on with a particular load.  

Now, there’s a whole lot more I could say here just about what we’ve learned about the drug-smuggling industry (e.g., basic magnitudes of pay, load size, compartment locations, regional variation; I can tell you all of that), etc., and I have a nice PowerPoint presentation that I’ve given a couple times now as a CLE talk to defense organizations.  But my point here, for this forum, is that this is new data, about our subject-matter, that is not collected and aggregated and published on government web sites.  Having case-level individual observations is enormously more powerful than having mere aggregate data.  It’s right there on Pacer, and all we have to do is grab it.   

So I’m curious whether others have tried this methodology.  One of my academic heroes in this regard, obviously, is Jeffrey Fagan (whom I had the pleasure to meet last fall at the Empirical Legal Studies Conference at Northwestern).  He supervised the creation of the mammoth database that the NYCLU is using in its lawsuit challenging the NYPD’s stop-and-frisk practices.  (You can download the 2010 one here, with 600,000 observations!) 

Tomorrow I will post on why it’s important for lawyers to be involved in this research, and the joys of cross-disciplinary collaboration. 


Posted by Caleb Mason on March 14, 2012 at 06:49 PM | Permalink


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Unlike Dave, I've not found that 75% of what I'm looking for is available on Westlaw. In addition, I like the temporal nature of searching on PACER that is, in my mind, not available on Westlaw. Being able to scan the docket sheet or to be able to use the links that allow easy flipping between objections, their responses, any replies, etc. is invaluable.

I've not used it for research, however. I've used it solely as a teaching tool. As an associate (and definitely as a law clerk to a BK judge), I used PACER all the time. Introducing our students to tools like PACER seems important if our students are ever going to be "more practice-ready."

Posted by: Matthew Bruckner | Mar 16, 2012 1:42:19 PM

I have also used PACER extensively, and found it invaluable for a massive eight-district federal docket study I completed about three years ago. Like Alex Reinert, I was able to secure fee waivers from each district; although the process was annoyingly cumbersome, each court was very gracious in granting the waiver for research purposes.

While PACER is an extremely rich source of information, there are a couple of caveats. First, because both the parties and the court can enter information, there may be inconsistencies in how documents are titled across (or even within) cases. CM/ECF contains recommended names for motions, pleadings, and so on when a lawyer is uploading a file, but ultimately lawyers can diverge from those suggestions, which means that some oddly titled but relevant documents might slip through the cracks without a watchful eye. More importantly, the public search function through PACER is much more limited than the courts’ internal search function. For example, for my study, I needed a list of all cases in each district that had closed during a certain time period. I did not have the ability to do that through PACER, although the Clerk’s Office in each district could run the list with the touch of a button. Many of the districts I contacted were willing to run the search for me, but some refused. In any event, it would be great to see the PACER search interface expand so it is more in line with what the courts can do themselves.

My experience with state dockets is that they are a mess (at least for research purposes), in large part because very few states even have an internally consistent statewide docketing system. Systems often vary from county to county, and given the rash of state budget crises, I can’t imagine many states radically upgrading their systems in the near future. (I hope I’m wrong.) For anyone interested in state docketing systems and how they compare to PACER, a good recent article is Kourlis & Gagel, Reinstalling the Courthouse Windows, 53 Vill. L. Rev. 951 (2008).

Posted by: Jordy Singer | Mar 15, 2012 8:53:42 AM

I second everything that's been said - I am an avid consumer of PACER, I think the expense is hard to justify, and I look forward to the day when state court dockets catch up. One thing to note is that Westlaw's pleadings database has, I think, about 75% coverage, and much better search functionality.

Posted by: dave hoffman | Mar 15, 2012 12:42:30 AM

I agree that PACER is a tremendous resource for doing empirical work. I have used it to study Bivens actions, and I am currently using it for a project on motions to dismiss. One frustration I have is that it has pretty awful search capability, one has to search district-by-district, and overall it is not very user-friendly.

In terms of cost, it is possible to apply for a waiver of PACER fees when one is doing academic research. But one has to apply district-by-district, and some are more open than others to granting the exemption.

Posted by: Alex Reinert | Mar 15, 2012 12:14:14 AM

Outstanding post. I too find PACER invaluable for totally run-of-the-mill small-firm clerking and Law-review-Note-writing purposes. When will states all start making dockets equally accessible?

Posted by: Jim von der Heydt | Mar 14, 2012 9:00:28 PM

I think PACER is a great tool and have used it to illustrate the types and volume of filings in complex civil litigation by having civ pro students look up federal case dockets using PACER. Just a note that an increase in the electronic public access (EPA) fee, from $.08 to $.10 per page, will take effect on April 1, 2012. And currently, the cost to access a single document is capped at $2.40, the equivalent of 30 pages. The cap does not apply to name searches, reports that are not case-specific and transcripts of federal court proceedings.

Also, PACER is functionally free for the occasional user, if not for the large-scale data miner. By Judicial Conference policy, if your usage does not exceed $10 in a quarter ($15 as of April 1), fees for that quarter are waived.

Posted by: Z32 | Mar 14, 2012 8:34:01 PM

I--and a few other profs I'm aware of--am a Criminal Justice Act panel attorney, so get free access to Pacer (at least for the cases to which I'm appointed). I work on cases with my students, so they get real-world, hands-on experience with Pacer. This is something they mention with great success in job interviews.

Posted by: Steven R. Morrison | Mar 14, 2012 8:26:48 PM

Patent folks have long been using Pacer to gather data about patent litigation - though thankfully that is being aggregated by the IP Clearinghouse (Lex Machina).

Posted by: Michael Risch | Mar 14, 2012 8:08:51 PM

I am a big fan of PACER, and I have used it to study shareholder litigation in a few of my prior articles. I will note though that Bloomberg Law now makes dockets and court filings available through their service as well. If your institution has a Bloomberg Law account, you may be able to access filings without paying eight cents per page.

Posted by: Jessica Erickson | Mar 14, 2012 7:42:42 PM

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