Fifteen Eighty Four

Academic perspectives from Cambridge University Press


Law as Source

Roy Shapira

Law and Reputation image Top Secret

The legal system is the bloodline for investigative journalism, yet proposed legal reforms may jeopardize it

When Spotlight won the 2015 Oscar for Best Picture, it was billed as a movie about investigative reporters holding the Catholic Church to account over child sex abuse. But the reporters could not have done it alone. The legal system helped them. The Boston Globe reporters spotted the pattern of abuse by looking at numbers of lawsuits filed against individual priests. They revealed the cover-up by getting internal Church documents from motions attached to court files. Spotlight is therefore not really a story about investigative journalism holding the powerful to account. It is rather a story about interactions between the media and the courts. The interactions are what produced accountability.

Without the legal system generating information in the process of pursuing individual lawsuits against priests, the reporters would not have had such a powerful story to tell. And without the reporters putting the pieces of the puzzle together, identifying the pattern, packaging it compellingly, and diffusing it widely, the Church would not have admitted its mistakes and changed its behavior. The legal system would probably have continued settling and sealing one individual case after another. It took media scrutiny to move the needle. Effective law enforcement led to effective media scrutiny and vice versa in a virtuous cycle.

This pattern – namely, the two democracy watchdogs (media and the courts) feeding off each other – is much broader, as current events constantly remind us. For example, Netflix recently aired “Athlete A”, which tells the story of how the Indy Star helped uncover the systemic sexual abuse scandal in USA gymnastics. It all started when The Star reporters unearthed documents that were buried in court files in Georgia, revealing USA Gymnastics’ longstanding policy of not reporting allegations to the authorities.

When done effectively, investigative journalism can greatly improve our collective lives. Yet deep-dive investigative projects are not being handed to journalists on a plate. Media outlets must commit significant resources to investigate in the face of likely opposition by the subjects of investigation. When left to its own resources, a financially strained media has a hard time holding the powerful to account.

This is where the legal system kicks in. Court documents, depositions, and regulatory reports are often the most instrumental sources of accountability journalism. To illustrate, when I analyzed the content of Pulitzer Prize-winning pieces from 1995-2015, I discovered that legal documents played a crucial role in over half of these paradigmatic cases of investigative journalism.

Investigative journalists get from court dockets facts to which they could not have been privy. Litigation (particularly American-style) grants private litigants fact-finding powers, such as requesting all relevant internal documents from their rivals. As a result, the process of discovery and depositions often yield damning inside information that journalists can then access and use to piece the puzzle together.

Litigation helps reporters not only reveal new information, but also process existing information. Judicial opinions or regulatory reports are good at fleshing out patterns of misbehavior, organizing large chunks of information, and making what happened and how it happened less complex for journalists. The mere phrase “according to court documents” boosts the perceived credibility of the story.

Recognizing that law enforcement facilitates media scrutiny (and vice versa) generates a wide array of implications.

At a general level, the law-as-source framework calls for a more cautious approach to scaling back legal intervention. Lax law enforcement leads to lax media scrutiny. Those who tell you that market forces – reputation – will be enough to deter misbehavior (as in a baby car-seat manufacturer losing clients because of bad news about the safety of its products), and go on to suggest that we do not need costly legal intervention, often miss the fact that law enforcement and reputation are interdependent. Reputational deterrence depends on effective media coverage. And effective media coverage frequently depends on litigation. Removing the law will make reputational forces weaker (less people will hear about the problems with the car-seat).

More concretely, the law-as-source framework puts a thumb on the scales against secrecy in court proceedings: it weighs against keeping settlements confidential, protecting all documents exchanged during discovery from becoming public, and so on. The timeliest, most burning issue here is the proliferation of one-sided arbitration clauses. These clauses ban class action and force consumers, workers, and suppliers to arbitrate their disputes with large companies behind closed doors. Even if, as their proponents claim, such arbitration clauses actually improve the returns to specific aggrieved parties (a highly questionable assumption), mandatory arbitration makes things worse for the rest of us by reducing the chances of media scrutiny. In a world where arbitration clauses are on the rise, journalists will be less able to dig into the misbehavior in question.

To illustrate, consider the Wells Fargo fake-accounts scandal. It was a journalistic investigation that broke the story and ignited subsequent law enforcement actions. Yet the journalistic exposé was itself heavily based on documents from wage-and-hours lawsuits filed by disgruntled Wells Fargo employees. Thanks to a 2018 U.S. Supreme Court decision, such workplace disputes are no longer aired in courts, but instead funneled into closed-door arbitration. The next time a journalist attempts to expose banking shenanigans, the inside information is more likely to remain out of her reach.

The upshot is that we cannot take the law-as-source function as given. For law to serve a meaningful sourcing function, government agencies need to grant freedom-of-information requests, judges need to resist the temptation to approve the sealing of court documents too handily, and regulators need to rethink the desirability of arbitration clauses.

Featured image by Tayeb MEZAHDIA from Pixabay

Law and Reputation by Roy Shapira
Law and Reputation by Roy Shapira

About The Author

Roy Shapira

Roy Shapira is Associate Professor at the Harry Radzyner Law School, Interdisciplinary Center (IDC), Herzliya. He has focused on the interactions between law and reputation over th...

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