When more isn’t always better: The ambiguity of fully transparent judicial action and unrestricted publication rules

Abstract

Unrestricted publication of judicial opinions and full transparency of judicial action are often considered a means to increase information relevant for future litigants and public discourse. In this paper, we analyze a model that captures the potential for unintended consequences of such policies. Under certain conditions, unrestricted publication of judicial opinions, full transparency of judicial behavior at trial and oral argument enabled by telecasting, and other forms of surveillance of judicial behavior may induce judges to obscure their opinions and actions leading to less information for the public over time. Unrestricted publication and full transparency of judicial action should be carefully considered as a policy preference.