Rowe, Elizabeth A., Judicial Secrecy (December 01, 2024). Available at SSRN: https://ssrn.com/abstract=5154667 or http://dx.doi.org/10.2139/ssrn.5154667  – “This Article examines the growing phenomenon of over-sealing court records and its implications for judicial transparency. While intended to protect compelling interests such as trade secrets and other confidential information, this practice has expanded to include sealing of basic legal arguments, case citations, and even quotes from published court opinions. Through analysis of federal court dockets, this Article reveals that motions to seal are among the most common court filings, with over thirty thousand cases containing such motions in the past five years. Most troublingly, these motions go unopposed approximately 90 percent of the time, and receive very little scrutiny from judges, owing in part, to their sheer volume. While effectively the gatekeepers, judges are not always able to exercise vigilance in catching inappropriate sealing requests or protecting the public right of access. The Article organizes and labels three categories of harm resulting from this practice: burdens on accessing public information, on public values, and on court operations. Moreover, it analyzes the complex factors contributing to this problem, including (a) inconsistent rules among federal courts, and the ‘all or nothing’ approach with which courts seem to act on sealing requests, (b) the compounding effect of complex multiparty cases, where even third parties add to the cascading effect of moving to seal information, (c) the lack of advocates on behalf of the public’s interests in openness and access to judicial records, and finally (d) the role that substantive rules about protecting trade secrets might play in influencing a very liberal approach to sealing, in all other kinds of cases. By exposing how secrecy burdens transparency in one of our most critical public institutions, this Article demonstrates why maintaining public access to court records is essential for preserving the legitimacy of our judicial system.”