Running Head: JUDICIAL ARCHIVES

Judicial Archives: A Review of the Literature Kathryn Ballard LI 804XR Emporia State University

JUDICIAL ARCHIVES LITERATURE REVIEW Abstract

Growth in the field of judicial biography has created an interest in the working papers of federal judges. The preservation of non-official documents is essential for providing contextual information and telling the story behind the story. However, the ambiguities surrounding the preservation of judges papers increase the likelihood that those documents will be lost or inaccessible to future historians. This review of the literature provides an analysis of current practices, problems facing preservation, and areas for future research.

JUDICIAL ARCHIVES LITERATURE REVIEW Judicial Archives: A Review of the Literature Increasing interest in the working papers and documents of federal judges has led more libraries to explore preservation options and search for new solutions to the problems of saving and providing access to an ever-increasing amount of information on an ever decreasing budget. Additionally, issues of document ownership, the

problems of providing information while protecting privacy, official policies versus actual practices, funding, and repository policies are issues being faced by court libraries regularly. This review of the literature explores the issues of judicial papers in the published materials freely available to court libraries and students of Emporia State University. The primary sources containing relevant information were the Emporia State University Librarys electronic databases HeinOnline, and Google Scholar. HeinOnline was utilized for law reviews when a full-text version could not be accessed via Emporia State University or Google Scholar. Additionally, several items were located using Google Scholar because they cited relevant articles. Because information that directly discussed specific problems that court libraries face when dealing with judges papers was scarce, the topic was broadened to include non-court archives that contained the working papers of federal judges. The Value of Judges Papers A common theme shared by all of the resources is the value of preserving the working papers and manuscripts of federal judges. The value was predominantly described in terms of history, the shaping of cultural memory (Washington and Lee, 1992. p. 1), the most valuable source for illuminating the judicial process (A Guide to

JUDICIAL ARCHIVES LITERATURE REVIEW the Preservation of Judges Papers, 2009, p.1), an invaluable primary source of information (Historical Society of the United States Courts in the Eighth Circuit, 2001 ).

Interestingly, about half of the literature did not offer an explanation of the value of nonofficial documents, assuming that the value was intrinsic. Although working papers and manuscripts are not part of the official record, not case law, and cannot be cited in legal proceedings it was never suggested that these materials were not of value. Although the literature frequently discussed the importance of these records, there is virtually no cohesive strategy for preservation. Definitions and Ownership There is a great deal of contradictory information about the definition of a federal record. It is a definition that is essential to establishing the ownership of judicial papers and regulations that govern their preservation. Legally speaking, records include: ...all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. (44 U.S.C. 3301) The National Archives more specifically states,

JUDICIAL ARCHIVES LITERATURE REVIEW Normally case working files are records because they generally need to be organized and maintained for some specified period of time. Other likely record categories include working files used in preparing reports or studies and preliminary drafts of policy documents circulated for comment. (Disposition of Federal Records, 1997/2000) These two passages seem to clearly categorize working papers as federal records. This is important because the law requires all federal agencies submit to the office of the Archivist of the United States all federal records. When an agency wishes to dispose of records that lack preservation value, they must provide the Archivist with a list of those records and a schedule for disposing of them. Failure to comply can result in a fine and/or incarceration. Although the law covers most working papers and drafts with very limited exceptions, the National Archives provides no additional guidance in

deciding which documents should be retained and has been hesitant in questioning the determinations of government agencies. (Schrag, 1994) The judiciary has generally taken a hands-off approach, preferring to delegate the responsibility for determining the value of judicial working papers to the judges. A Guide to the Preservation of Federal Judges Papers (2009), published by the Federal Judicial Center states, The chambers papers of a federal judge remain the private property of that judge or the judges heirsJudges staffs or the clerks of court cannot determine where the papers go, and the National Archives cannot accept the collections as part of the records of the courts. (p.1)

JUDICIAL ARCHIVES LITERATURE REVIEW This policy is often reiterated in the literature as a statement of fact, or a problem to be

addressed. In only one article is the policy acknowledged to be in contrast with existing law. Several articles describe the policy as being a significant barrier to historical preservation. In the face of such completely contradictory advice it is little wonder that there is no coherent plan for handling the working papers of federal judges. Best Practices vs. Actual Practices One of the biggest issues in the preservation of judicial documents is a lack of planning. The downfall of all of the government literature on preserving federal information is that it assumes that preservation is mapped out well ahead of time. A Guide to the Preservation of Federal Judges Papers lays out a plan for identifying and organizing materials for preservation, locating a repository, and how to determine access policies for working papers. If it were done methodically over the course of a judges career the guide would be very helpful. In reality, this is rarely how it happens. It is common for federal judges to forgo retirement altogether. Often the judges themselves never address the issue of preservation and the cost and burden of preserving the papers (Watts, 2013, p. 6) falls on their heirs and employees to figure out. Frequently, the families dont care about their working papers and their employees are too busy with emptying chambers to attend to it. Many times the documents, photos, correspondence and working papers are left to the court library to handle. This seems to be an open secret that the literature fails to adequately address. A Guide to the Preservation of Federal Judges Papers dedicates two sentences to the issue,

JUDICIAL ARCHIVES LITERATURE REVIEW Most court libraries are not equipped to handle the processing and reference services required to administer collections of manuscripts and to accommodate outside researchers. Court librarians, however, can be an excellent resource for identifying regional archival repositories that may be interested in accessioning the collections of judges from the district or circuit. (2009, p. 25) The librarian is then placed in the difficult position of being an untrained archivist. Although the official policy is that the court libraries do not have the time or training to

handle archival issues, the majority of circuit court libraries have an archive or historical society to handle these documents. Because preservation must be overbroad because it is impossible to predict in advance which materials historians or citizens will want to consult (Schrag, 1994, p. 44) librarians tend to over conserve causing space and resources become significant issues. Access to Judges Papers There is an enormous amount of literature about the issues of archives and access, but few dealing with legal archives. Because the court archives are not officially acknowledged, there is no literature pertaining directly to them; however, the literature dealing with access in legal archives and repositories faces many similar issues and can easily be applied. In addition to the usual challenges of balancing access and privacy in an archival setting, judicial materials in legal archives have the added problem of client confidentiality to contend with. Although a judge does no longer has clients once they take the bench, the records have the possibility to violate privileged attorney-client relationships that occurred prior to their appointment. Confidentiality of

JUDICIAL ARCHIVES LITERATURE REVIEW client information is a cornerstone of the attorney-client relationship (Shilling, 2001, p. 2743) and must be respected as essential to the functioning of the legal system. Because of the intricacies of the law and the model code of conduct, it is difficult for librarians to know what communications would constitute a breach of trust. Even without issues of attorney-client privilege, court librarians have other

reasons to worry about access to judicial manuscripts. Often non-official documents will contain notes to or about other judges and personal information. This information has the potential to endanger the safety of judges and their families and must be taken into account when determining access policies. According to the U.S. Marshals Service, On average, about 1,350 threats/inappropriate communications against judicial members are logged each year. (Court Security, n.d., para. 2) The possibility that information contained in judges papers is more than enough reason to restrict access to their contents. Financial Obstacles to Preservation One of the most striking things about the literature was its failure to address the issue of cost. Several sources passingly mention that funding is an ongoing barrier to document preservation. Marsha Trimble not-so-helpfully suggests, If hiring an archivist is not feasible initially, an interested staff member may be sent for basic training in archives management (1991, p. 437) although she gives no further clues as to how the training will be funded. The federal judiciary does not provide any sort of tuition assistance and the cost for training must be at the employees expense. A Guide to the Preservation of Federal Judges papers states that court funds are not available for the

JUDICIAL ARCHIVES LITERATURE REVIEW preservation of judges papers (Federal Judicial Center, 2009, p. 1). It is remarkable

that although funding is an issue for archives there was virtually no information available on ways to procure funding for the preservation of legal materials. Even funding for the preservation of official court records is a problem the federal courts struggle with. The judiciary is in the unique position of having no authority to propose or approve tax increases, leaving them to an important degree dependent on legislative bodies for funding. (Martin, 2011, p. 9) They are also legally responsible for paying the National Archives to retain all federal documents for set periods of time. In 2010 alone, the judiciary spent over $6 million on records storage. This has led them to develop policies that reduce the amount of time they are required to retain non-trial court records. At the end of their retention schedule the National Archives becomes responsible for the cost of retaining documents deemed historically significant. (Third Branch, 2011) While this takes some of the burden off of the federal courts, the National Archive estimated that this would result in more than 500,000 cubic feetaccessioned into NARA in FY 2012. (2012 Performance Budget, 2011, p. I-14) Given the challenges in maintaining the collections of official court records, it is little wonder that virtually no attention has been given to the preservation of non-official chambers papers. Repositories for Judicial Papers It is surprising that repositories have no consistency in the people allowed to use their materials. There is no universal agreement on what materials are important. Even if a judge were to strictly adhere to the directions in A Guide to the Preservation of

JUDICIAL ARCHIVES LITERATURE REVIEW Federal Judges papers, there is no guarantee that the repository they select will have similar preservation priorities. The materials that an archive sees fit to retain may not always be the most historically relevant. Repositories themselves struggle to decide what items need to be preserved and valuable information is sometimes discarded. Institutional bias can impact the materials that are retained. As Randall C. Jimerson writes, The nature of the archivists role in meeting these expectations varies somewhat according to the type of institution he or she serves. (2006, p.87) It is unsettling that almost all of the recommendations for retention were lacking in any

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actual tools to assist in the preservation of archival documents. Generally, the literature either included some variant of Trimbles exhortation to insure that the records will be preserved and available for historical research (1991, p.433) or Schrags vague statement, People may reasonably disagree, however, about whether particular drafts and other working papers are appropriate for preservation. (1994, p.50) Summary The strongest common thread running through the literature was that there was no consensus as to what should be done with a judges papers. The judiciarys primary focus is on preserving precedent, not history. It is little surprise that they are hesitant to address issues that are not absolutely essential to judicial functions. The National Archives has the power, but not the resources or space to force government agencies to comply with the federal laws for document preservation. If the National Archives were to develop specific requirements for the preservation of a judges non -official documents and require legal compliance from the judiciary, it would increase the workload of both agencies at a time when they are already struggling with insufficient

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budgets. While it is reasonable for them to try to avoid incurring any costs that are not immediately necessary, it is shortsighted and the loss will be permanent. By definition, history is not concerned with present, yet it informs everything that occurs presently and has an important role in the understanding of current events. Once materials are discarded, they are gone forever and the history they contain is gone with them. The current patchwork system of legal manuscript repositories is not capable of preserving historical judicial documents with any level of consistency. The lack of guidance places court librarians in the position of making impossible judgment calls about the wishes of individuals with whom they have little more than a working relationship. The lack of acknowledgement that this common situation even exists makes it much more likely they will get the judgment calls wrong. Without functional standards for appraisal, knowing where to draw the line is almost impossible for librarians. Instead of providing unrealistic best practices for archive, librarians would be helped a good deal more by literature that provides insight into the choices and decision-making processes that have been successful. The fear of destroying history is common for those dealing with the preservation of information, and literature that discussed what did not work would reduce the number of archives making the same mistakes and provide a clearer path through the maze of contradictory information and instructions. Instead of the standard encouragement to cooperate, literature that discussed the ways in which archives have developed cooperative relationships would be incredibly helpful to archivists, donors, librarians and researchers.

JUDICIAL ARCHIVES LITERATURE REVIEW References

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A Guide to the Preservation of Federal Judges Papers (2009). Federal Judicial History Office, Washington, D.C.. Federal Judicial Center Hall, K. L. (1989). Law Librarians and the New American Legal History. Law Library Journal, 81, 1-11. Introduction. (1992). Washington and Lee Law Review, 49(1), 1. Jimerson, R. C. (2006). Ethical Concerns for Archivists. The Public Historian, 28(1), 87-92. DOI: 10.1525/tph.2006.28.1.87 Martin, P. (2011). Rewiring Old Architecture: Why US Courts Have Been So Slow and Uneven in Their Take-Up of Digital Technology. Cornell Legal Studies Research Paper, (11-12). http://dx.doi.org/10.2139/ssrn.1807188 National Archives and Records Administration (2011). 2012 Performance Budget, Retrieved from http://www.archives.gov/about/plans-reports/performancebudget/2011/2012-performance-budget.pdf National Archives and Records Administration (2000). Disposition of Federal Records: A Records Management Handbook, (Original work published 1997). Retrieved from http://www.archives.gov/records-mgmt/publications/disposition-of-federalrecords/

JUDICIAL ARCHIVES LITERATURE REVIEW National Archives and Records Administration (2000). Documenting Your Public Service. Retrieved from http://www.archives.gov/recordsmgmt/publications/documenting-your-public-service.html Schrag, P. G. (1994). The Working Papers of Federal Policymaking: Our Vanishing Public History. The Public Historian, 16(4), 3765. doi:10.2307/3378009 Shilling, P. (2000). Attorney Papers, History and Confidentiality: A Proposed Amendment to Model Rule 1.6. Fordham L. Rev., 69, 2741. Retrieved from

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http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ flr69&div=96&id=&page= The Historical Society of the United States Courts in the Eighth Circuit: What are Judges Papers (2001). Retrieved from http://www.lb8.uscourts.gov/pubsandservices/histsociety/judges_papers_about.ht ml Trimble, M. (1991). Archives and Manuscripts: New Collecting Areas for Law Libraries. Law Library Journal, 83, 429. U.S. Marshals Service (n.d.). Court Security. Retrieved from http://www.usmarshals.gov/duties/courts.htm U.S. Courts (2011). Making Room, Saving History. The Third Branch. Retrieved from http://www.uscourts.gov/News/TheThirdBranch/11-0501/Making_Room_Saving_History.aspx Vermeule, A. (1999). Judicial History. The Yale Law Journal, 108(6), 1311.

JUDICIAL ARCHIVES LITERATURE REVIEW Watts, K. A. (2013). Judges and Their Papers (SSRN Scholarly Paper No. ID 2225973). Rochester, NY: Social Science Research Network. Retrieved from http://papers.ssrn.com/abstract=2225973

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