Penny Wise, Pound Foolish at the National Archives

In a move to save money, the Administrative Office of the U.S. Courts has decided to destroy "millions of judicial case records that have been stored in the Federal Records Centers of the National Archives for decades, says an article in the Center for Public Integrity's i Watch News.

The plan is to destroy all records on cases that did not go to trial that were filed between 1970 and 1995. For other records, the federal judiciary has reduced the current record retention time from 25 to 15 years in an effort to cut costs. All cases that went to trial or were filed before 1970 will be kept.

The amount that will be saved is not huge--"$7.7 million over the next 10 years." How much material will be destroyed? "79,000 boxes filled with civil cases, 43,000 boxes of criminal cases and over 500,000 bankruptcy records", a "cause for concern among legal historians and advocates for public access to information." These court records are the building blocks of empirical legal research.

I have personal experience of mining old federal bankruptcy records for information about early women debtors. My co-authored article, Ladies in Red: Learning from America's First Female Bankrupts, was the result of examining bankruptcy filings under the Bankruptcy Act of 1800. We used the information gleaned from the filings to tell a story about the factors that resulted in women filing for bankruptcy over 200 years ago, and to paint a picture of how women engaged in the commercial life of the times. Other scholars have conducted similar investigations with equally compelling results. Margo Schlanger and Denise Lieberman have called court records the "gold standard for litigation research," in their article, Using Court Records for Research, Teaching, and Policymaking: The Civil Rights Litigation Clearinghouse, 75 U.M.K.C. L. Rev. 153, 161 (2006), and they implore the National Archives to step up to the task of preserving the records:

In short, for anyone who hopes to understand litigation—one specific litigation or an entire field of litigation—there is no substitute for court records. Historians, sociologists, anthropologists, political scientists, legal researchers, and policymakers all need court records if they are going to understand either a type of case or a particular litigation, whether it is individually important or studied as an exemplar. There is simply no other source of information about the substantive or legal issues, the conduct of the disputes, or their resolutions. We are left, then, with an unmet need for access to court records—a need that the National Archives can and should meet, for those records within its purview.

The current plan is hardly a solution.

The plan of the judiciary ... is to have all courts identify records considered historic to prevent them from being destroyed. Historic records include cases that involve parties who are historically significant, involved an issue of national historical interest, or cases that received substantial media attention. Electronic copies of the destroyed records, however, will not be made.

How can we know today what will be important to future researchers? There is much to learn from cases that are not historic and did not receive media attention. Why is there no plan to digitize the records?

A tip of the hat to Gail Whittemore, a colleague at Pace Law School, for pointing out the i Watch Newsarticle to me.