You don't have to be from Indiana to be a PACER fan
PACER, or Public Access to Court Electronic Records, is an amazing resource. When litigating, it allows parties to easily file and access documents. But more importantly, PACER lifts the veil on the American court system and actually allows the public to monitor the justice system. While the people have always had this right, the costs of going to court and finding the records, pleadings, and orders must have been prohibitive.
(FN: For example, while working on a case this summer, I had to request copies of some briefs filed in a case a decade ago by opposing counsel. It was amazingly slow and definitely not cost-less. In comparison, the instant access at $0.08/page on PACER is miraculous)
Once the summer ended, I found I couldn't satisfy my curiosity about the news and the law without my own PACER account, so I signed up for one. And so far, it's paying off. I saw a story this morning on Religion & Ethics Newsweekly about a bankruptcy judge who disallowed the bankrupt's claimed expense for tithing. I'll be honest, my jaw dropped. So I dug around a little more, found the judge and case number, and found a copy of the order. I have posted a copy here.
(FN: There is no copyright on works of the federal government)
The television program barely scratched the surface of what the order contains. The judge appears to have done a very careful statutory analysis, and indeed, the result appears to be compelled by the statutory text, as modified by last year's massive bankruptcy overhaul. More interesting, the change in the statute can be traced to a specific senator, Russ Feingold (D-Wis.). I've historically been a big fan of Senator Feingold, but I cannot imagine why he introduced the amendment that prevents above-median-income debtors from taking an expense for charitable giving. As Judge Littlefield wrote,
"The court does not agree with this awkward, bifurcated Congressional framework which makes charitable giving easier for some debtors and not others. Whether tithing is or is not reasonable for a debtor in bankruptcy is for Washington to decide. However, consistency and logic would demand the same treatment of all debtors under Title 11. Until Congress amends
§1325(b)(3), the court’s hands are tied and the tithing principles that this court once applied pre BAPCPA have been effectively mooted."
Unfortunately, the order does not mention any first amendment argument that disallowing a bankrupt petitioner from tithing would prevent them from freely exercising their religion. I have not had the opportunity to take First Amendment con law (maybe it could be offered more often Boalt??), so I do not know the structure of the applicable analysis. No one forced these petitioners in bankruptcy (though how would the analysis change if they had been forced into bankruptcy?), so I could imagine a rule saying they have no basis to complain because they opted in. Nonetheless, I find the whole situation enormously troubling, and Senator Feingold's involvement greatly concerns me. Did his office really introduce legislation to change the law at the behest of credit card companies and at the expense of everyday Mormons, Catholics, etc.?
Putting these questions aside for now (since I don't know the answers yet), this illustrates the power of PACER for legal research and commentary. There has not been any notice of appeal filed in this case yet, so presumably interested students, clinics, or law professors could get involved and help provide representation in cases as they are ongoing, instead of reacting to changes in the law after the fact. PACER also opens up amazing new opportunities for legal research. Access to ongoing litigation allows students and law professors to comment on and analyze cases as they are happening, and not after the fact. What good is a note criticizing a judge's opinion once the case is closed? PACER allows interested lawyers to follow cases and get involved *before* they become final orders and then volunteer their assistance.
So, the executive conclusion: 1. the new bankruptcy statute is a mess. 2. "Sen. Feingold, you have some 'splainin' to do!" 3. PACER is an outstanding tool for legal research and clinic involvement, and I am excited to see how lawyers, professors, and students use it in the future.
--
UPDATE: Re: point 2, Sen. Feingold. Here are his remarks about his amendments to the bankruptcy bill. He says he is strongly opposed to the bill, but that his amendments will make it better. In my opinion, it looks like Sen. Feingold tried to sink the bill by introducing unappetizing amendments (note the Utah Senator's complaint discussed at the beginning of the statement). The attempt obviously failed (for the most interesting example of this, read about the inclusion of "sex" in the Civil Rights Act in Eskridge & Frickey's Legislation casebook), and now we're stuck with Sen. Feingold's "poison pill".
(FN: I'm assuming the amendment was intended as a poison pill. Sen. Feingold's statement does not mention it the amendment. I just would like to believe that this amendment stems from Sen. Feingold's opposition to the bill, and not a political contribution)
I need to go back to reading for classes I'm actually in, but I leave this mystery to the rest of the internet to poinder.
(FN: For example, while working on a case this summer, I had to request copies of some briefs filed in a case a decade ago by opposing counsel. It was amazingly slow and definitely not cost-less. In comparison, the instant access at $0.08/page on PACER is miraculous)
Once the summer ended, I found I couldn't satisfy my curiosity about the news and the law without my own PACER account, so I signed up for one. And so far, it's paying off. I saw a story this morning on Religion & Ethics Newsweekly about a bankruptcy judge who disallowed the bankrupt's claimed expense for tithing. I'll be honest, my jaw dropped. So I dug around a little more, found the judge and case number, and found a copy of the order. I have posted a copy here.
(FN: There is no copyright on works of the federal government)
The television program barely scratched the surface of what the order contains. The judge appears to have done a very careful statutory analysis, and indeed, the result appears to be compelled by the statutory text, as modified by last year's massive bankruptcy overhaul. More interesting, the change in the statute can be traced to a specific senator, Russ Feingold (D-Wis.). I've historically been a big fan of Senator Feingold, but I cannot imagine why he introduced the amendment that prevents above-median-income debtors from taking an expense for charitable giving. As Judge Littlefield wrote,
"The court does not agree with this awkward, bifurcated Congressional framework which makes charitable giving easier for some debtors and not others. Whether tithing is or is not reasonable for a debtor in bankruptcy is for Washington to decide. However, consistency and logic would demand the same treatment of all debtors under Title 11. Until Congress amends
§1325(b)(3), the court’s hands are tied and the tithing principles that this court once applied pre BAPCPA have been effectively mooted."
Unfortunately, the order does not mention any first amendment argument that disallowing a bankrupt petitioner from tithing would prevent them from freely exercising their religion. I have not had the opportunity to take First Amendment con law (maybe it could be offered more often Boalt??), so I do not know the structure of the applicable analysis. No one forced these petitioners in bankruptcy (though how would the analysis change if they had been forced into bankruptcy?), so I could imagine a rule saying they have no basis to complain because they opted in. Nonetheless, I find the whole situation enormously troubling, and Senator Feingold's involvement greatly concerns me. Did his office really introduce legislation to change the law at the behest of credit card companies and at the expense of everyday Mormons, Catholics, etc.?
Putting these questions aside for now (since I don't know the answers yet), this illustrates the power of PACER for legal research and commentary. There has not been any notice of appeal filed in this case yet, so presumably interested students, clinics, or law professors could get involved and help provide representation in cases as they are ongoing, instead of reacting to changes in the law after the fact. PACER also opens up amazing new opportunities for legal research. Access to ongoing litigation allows students and law professors to comment on and analyze cases as they are happening, and not after the fact. What good is a note criticizing a judge's opinion once the case is closed? PACER allows interested lawyers to follow cases and get involved *before* they become final orders and then volunteer their assistance.
So, the executive conclusion: 1. the new bankruptcy statute is a mess. 2. "Sen. Feingold, you have some 'splainin' to do!" 3. PACER is an outstanding tool for legal research and clinic involvement, and I am excited to see how lawyers, professors, and students use it in the future.
--
UPDATE: Re: point 2, Sen. Feingold. Here are his remarks about his amendments to the bankruptcy bill. He says he is strongly opposed to the bill, but that his amendments will make it better. In my opinion, it looks like Sen. Feingold tried to sink the bill by introducing unappetizing amendments (note the Utah Senator's complaint discussed at the beginning of the statement). The attempt obviously failed (for the most interesting example of this, read about the inclusion of "sex" in the Civil Rights Act in Eskridge & Frickey's Legislation casebook), and now we're stuck with Sen. Feingold's "poison pill".
(FN: I'm assuming the amendment was intended as a poison pill. Sen. Feingold's statement does not mention it the amendment. I just would like to believe that this amendment stems from Sen. Feingold's opposition to the bill, and not a political contribution)
I need to go back to reading for classes I'm actually in, but I leave this mystery to the rest of the internet to poinder.
posted by Tom Fletcher at 9:58 AM
2 Comments:
Another interesting consequence of PACER (and ECF more generally) is that a court can issue more-or-less real-time requests and instructions to litigants. Thus, if a filing appears to be incomplete, the court can issue an order, sua sponte, to file the missing information. Of course, the court could always do this, but it's not as practical if you have to put together a filing and serve it on everybody and then wait. Once a motion is fully briefed, a court can also now electronically file instructions to respond to particular questions or concerns at oral argument.
No offense, but this post should go down in history as one of the most boring posts ever. (You really do belong in law school) Incidentally, PACER really isn't all that great. It can be super slow.
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