Because I intend to be prescriptive (or, when it comes to the esteemed members of the bench who may be in the audience, “suggestive,” since it is they who wield the gavels while I -- as any lawyer appearing before members of the bench -- have only words), I must confess some biases before going further. First, I believe in “sunshine in litigation” and openness of both court records and discovery. I believe that courts are public forums, and that arguments about the privacy of disputes should generally be outweighed by the public's right to know. Some have strongly argued that civil courts exist to serve “private parties bringing a private dispute.” I believe, however, that even if the dispute began as a private one, once the courts are involved it is at most a private dispute in a public forum. Once the disputants go to court, the public nature of the forum trumps the formerly private nature of the dispute.
This paper makes three arguments. First, while they have obvious duties to the parties in litigation, courts - -and the judges in charge of them -- have other duties to a broader public interest, consistent with the highest goals of judicial ethics. Second, judges can and should take an active role in protecting the public interest by ensuring that information obtained in connection with a legal dispute that directly concerns a substantial danger to the public health or safety remains available to the public regardless of the desires of the parties. Third, although theresources available to most judges are obviously limited, they can nevertheless successfully accomplish such a goal, by (1) modifying the existing court rules governing discovery and case settlement; (2) narrowing the acceptable grounds for protective orders, especially stipulated protective orders; (3) modifying the jurisdiction's ethical rules of professional conduct to prohibit lawyer collaboration in “secretizing” such information; and (4) educating and requiring the trial bench to follow these modifications and rules.
"The Judicial Function: Justice Between the Parties, or a Broader Public Interest?,"
Hofstra Law Review: Vol. 32
, Article 20.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol32/iss4/20