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have provided below.
I found here different articles providing analysis of problems ?sealed
records? pose to the development of common law. I will separate them
into their different types since some links actually zero in on
specific cases while others are generalities.
I am providing snippets from the articles but it will be good to read
them in their entirety so as to get a better grasp of the discussion.
ARGUMENTS AGAINST SEALING RECORDS
- ?Some arguments presuppose a presumption of universal access to all
judicial records.?
- ?Still other arguments stand for the more limited proposition that
only those settlements filed with the court that broach public health
and safety issues should be prohibited from sealing.?
- ?Antisecrecy arguments also utilize analogies to various doctrines
of law to suggest that it is unethical and perhaps illegal for courts
to approve and seal settlements that reveal evidence of wrongdoing.?
- ?Because the American legal scheme (and culture at-large) is in many
ways dependant on private parties checking the behavior of other
private parties, especially those with greater affluence and more
bargaining power, a judicial mechanism by which injured litigants can
gain access to court records without bearing gratuitous costs and by
which the public can be made aware of potential dangers to its health
and safety is essential.?
?THE PERVASIVE PROBLEM OF COURT-SANCTIONED SECRECY AND THE EXIGENCY OF
NATIONAL REFORM?
http://www.law.duke.edu/journals/dlj/articles/dlj53p807.htm#B26
- ?The problem arises where the disclosing of the existence of a
document or case involving a particular person, as opposed to some of
the information in the court record, reveals the very information the
restriction order seeks to protect. One example would be the title of
a document in a register of actions which describes the type or nature
of the information to which access restrictions is being sought.?
?PUBLIC ACCESS TO COURT RECORDS: GUIDELINES FOR POLICY DEVELOPMENT BY STATE COURTS?
http://www.courtaccess.org/modelpolicy/Guidelines16July2002.pdf
- "It makes it virtually impossible for anyone not involved in such
cases to know of their existence. Even parties involved in the cases
sometimes could not obtain copies of certain matters or access to the
docket to assure themselves as to what documents actually were filed
with the court.?
- ?Criminal defendants lose the protection of public knowledge of
their case. Without court information, there is no way for the public
and the news media to hold the courts, prosecutors and parties
accountable for their actions. And the public and the news media are
deprived of information that could trigger public discussion of
important public policy issues, such as the appropriateness of
government national security actions.?
?Scrutinizing 'Supersealed' Cases?
http://www.law.com/jsp/article.jsp?id=1069801668123
------------------------------------
IN ADOPTION CASES:
- ?It is their contention that state adoption policies, which mandate
the sealing of adoption and birth records, deprive them of a right
common to all non-adopted children; the right to know their biological
heritage.?
- ?Freedom of speech presupposes a willing speaker,57 and the courts
have been reluctant to allow the right of free speech to be extended
in order to compel an unwilling speaker to divulge information.58 In
denying adoptees any right to receive information from sealed records,
the states have assumed (correctly or incorrectly) that biological
parents are unwilling speakers.59 On this basis the court in Mills v
Atlantic City Dep't of Vital Statistics,60 ruled that an adoptee's
first amendment right to receive vital information was not so absolute
as to overcome the biological parent's right to privacy, even where
the biological parent had expressed no desire to exercise the privacy
right.?
- ?In a number of cases, adoptees have attempted to overcome sealed
records statutes by asserting that they violate Fourteenth Amendment
equal protection provisions. Adoptees argue that they are
discriminated against on the basis of their adopted status, since all
non-adoptees may freely view their original birth certificates.67
However, this constitutional argument has also proved less than
convincing to the courts.?
?SEALED ADOPTION RECORDS: KNOWING AND NOING!!?
http://www.epsplan.com/records/adoption.htm
-------------------------------
DIVORCE CASES:
- CONFLICTS IN DIFFERENT PUBLIC CASES: ?Civil proceedings have
traditionally been as open as criminal proceedings, and it would be
difficult to argue that the public's interest in civil proceedings is
necessarily any smaller. For instance, the public's interest in
obtaining access to the sealed record in a product liability case
involving a popular and fast-selling automobile would be many times
greater than its interest in a criminal case for petty larceny.?
- CONFLICT with FIRST AMENDMENT RIGHT
- SOME STATUTES GIVES TRIAL JUDGES UNLIMITED DISCRETION to SEAL
DIVORCE CASES: ?To begin with, the manner in which these statutes are
commonly applied is plainly unconstitutional. If the record can be
sealed upon the request of either party, and the media can therefore
be denied access, the law is essentially holding that where privacy
rights are invoked, those rights always supersede rights under the
first amendment."
?THE LOCK ON THE BEDROOM DOOR: MEDIA ACCESS TO HEARINGS AND RECORDS IN
DIVORCE CASES ?
http://www.divorcesource.com/research/dl/records/95mar60.shtml
---------------------------
PROBLEMS in INDIVIDUAL COURTS & CASES:
Poor Record Systems in Some Courts (Ex. Providence County Court)
- SEALED RECORDS are not REALLY SEALED: ?Sealed records are
occasionally stored in sealed envelopes attached to public case files.
In many situations, it would not be difficult for a member of the
public to remove records (including sealed records) from a case file
without the knowledge of the clerks.?
- INCONSISTENT RECORD KEEPING: ?Beyond the structural weaknesses of
the records system, inconsistent record keeping, human error, and a
lack of clear procedural guidelines further hamper public access to
records. The missing records described previously may be an example of
poor record keeping, but the information system makes it difficult to
determine where fault lies."
- INSUFFICIENT DESCRIPTION of SEALED RECORDS: ?Although most of the
motions to seal did contain descriptions of the sealed portions, those
descriptions are not always sufficient for accountability. The
descriptions of what has been sealed, in cases that do not involve
minors or criminal injury compensation, are not usually more specific
than the category descriptions listed above. In corporate lawsuits,
for example, the type of information that is sealed is described in
very general terms, often "trade secrets" or "confidential business
information." Descriptions such as these seem to be far more vague
than is necessary to protect the information that has been sealed.?
- MAJORITY of DOCUMENTS DO NOT CONTAIN an ARGUMENT for the SEALING:
?PUBLIC COURTS, PRIVATE RECORDS?
http://www.brown.edu/Departments/Taubman_Center/FOI/PDF/foi2000.pdf
- CONFLICTS OF PUBLIC SAFETY: ?Confidentiality of documents in court
proceedings lead to unnecessary injury and expense to the general
public. The rationale behind anti-secrecy rules and laws is to protect
the public. When these documents are kept sealed, and protected from
public discovery, consumers have no way of finding out of product
dangers, which leads to more unnecessary injury.?
?SECRECY AND THE CIVIL JUSTICE SYSTEM: CONFIDENTIAL SETTLEMENTS,
PROTECTIVE ORDERS AND THE PUBLIC'S RIGHT TO KNOW-A PLAINTIFFS
PERSPECTIVE?
http://www.mmmpalaw.com/CM/Articles/Articles61.asp
Search terms used:
Problems dilemma ?sealed records? ?sealed documents? ?sealing records?
?sealing documents? court ?common law?
I hope these links would help you in your research. Before rating this
answer, please ask for a clarification if you have a question or if
you would need further information.
Thanks for visiting us.
Regards,
Easterangel-ga
Google Answers Researcher |
Clarification of Answer by
easterangel-ga
on
15 Apr 2005 10:05 PDT
Hi!
I did not include the benefits of sealed records since I presumed that
from the title of the question, "How sealed court records impede
Common Law", that you want to focus the discussion on the aspect of
disadvantages.
Here is an article providing some insights on advantages of sealed records.
- "Sealing is important in maintaining the confidentially of medical
records, the identities of assault victims, and certain types of
business documents which are disputed in civil suits."
- "...sealing could also be used to protect a company or individual
from public consequences and further prosecution"
- "The law states that the judge is obligated to use reasonable means
to protect confidentiality, including granting protective orders,
holding in camera inspections and hearings (which take place in the
judge's chambers), sealing records of an action, and ordering relevant
parties not to disclose specific trade secrets. These records may
include client lists, sales tactics, or any other trade information of
a competitive nature that would be harmful to the company if publicly
known."
I hope these things would be of help.
Thanks!
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