> Common law literally means that we respect legal traditions that aren't always codified and are instead established by precedent and/or consensus via tradition.
If access to court decisions is restricted, they hardly qualify as "established by precedent and/or consensus via tradition", no?
I'm saying that the set of things that can comprise "law" in a common law legal system is impossible to define precisely. So you could always find some obscure, hard-to-obtain source documenting a legal custom that could be used as persuasive precedent.
If we stated that (say) criminal laws could not be enforced unless the defendant had access to the full body of possible codes and precedent before the crime occurred, we would literally never be able to convict a single case, ever. Because any defense attorney could just find some arcane memo and prove that the defendant could not reasonably have been expected to have access to it before the crime occurred, and that would be sufficient for excusing them of culpability. And that's not even raising the question of whether or not they could reasonably be expected to interpret and understand the text, which would be the next hurdle. (The same applies to non-criminal cases too.)
(Persuasive precedent is not binding, so it's not "law", but it's undeniably influential enough that it's necessary to understanding the law.)
I think I understand your argument from the legal perspective but what about from a public records perspective? It still feels like the precedents that have been established inside the US legal system should be publicly available without restrictions. Sure, other restricted sources may end up incorporated but restricting acccess to actual US legal decisions feels like it only benefits those few with the access for commercial gain.
Any historically accepted source should still be available for establishing precident but that doesn't mean our legal system should conceal the decisions it has made.
If nothing else access to these decisions could be a great area of study for language processing.
>but what about from a public records perspective? It still feels like the precedents that have been established inside the US legal system should be publicly available without restrictions.
Yes, I agree with that. And in many cases (but not all), they are - court documents are generally available for nominal processing fees, though there's a long way to go before I'd say this is all truly "publicly available without [unnecessary] restrictions".
With some notable exceptions like FISA, I don't think most of the secrecy is out of a desire to conceal law from citizens. It's largely the fact that our legal system is shockingly low-tech and hasn't yet caught up to what technology now allows.
That state of it is actually quite sad, to be honest. I'm in South Africa, and I am baffled at how difficult it is to get access to the Acts that were approved by parliament and form part of the body of law. It's not even about precedent, and court-decisions, rulings, etc. Just the plain law, with all the out-dated portions removed/updated.
This makes it quite difficult for me, as an individual, to interpret and act on what the law says. Sure, we all know the "basics" of criminal law: Don't steal, hurt, go where you shouldn't, etc. But everything else (regulations) is a giant black-box of "you need to speak to a lawyer" and pay them money. There are probably hundreds of sites and blogs out there trying to help/guide people about what the regulations say, but that's a poor substitute and not something you want to rely on for anything more than mundane. There needs to be a clear, government-run, up-to-date resource that has all laws.
Sure, but rent-seeking, parasite lawyers will fight to prevent that, so that they can continue to extract money from the rest of us while being a big drag on the entire economy.
> our legal system is shockingly low-tech and hasn't yet caught up to what technology now allows.
Are there ways to improve this? What do you think the hurdles to technology adoption are in this field? Is it a document formatting problem, or a hosting problem?
Do we need to create a WordPress for state and local courts to adopt?
If access to court decisions is restricted, they hardly qualify as "established by precedent and/or consensus via tradition", no?