Foundational and Contemporary Court Confidentiality

An integrated confidentiality system now pervades American dispute resolution. This system was created over the course of decades by legislatures, rule makers, and courts. Proponents of confidentiality have long justified expansive secrecy by claiming that the benefits of withholding litigation information outweigh any potential public harm. Recent evidence undermines this premise.

In some of the most important public-harms cases of the past two decades, critical health-and-safety information was kept secret in court files. People died or were injured in the meantime. It has also become apparent that consolidating cases in multi-district litigation has the potential to accelerate and homogenize confidentiality nationally. The recent evidence of these trends is concerning and would prompt any conscientious observer to reconsider the status quo.