March/April 2013
Article Summary: “Judges and Their Papers”

by Kathryn A. Watts, Professor of Law, University of Washington
88 N.Y.U. Law Review (forthcoming 2013)
Summary by Ann Fessenden, 8th Circuit Librarian

Should a judge’s papers remain the property of the government when the judge leaves the bench? Yes -- in the view of Professor Kathryn Watts, in this article due for publication soon in the New York University Law Review. She traces the history of the prevailing view that judges’ papers are private property, but then decries the inconsistent results which have resulted from that approach, including the loss to historians of many judges’ papers, especially those below the Supreme Court level.

In explaining the value of the papers of lower court judges, she uses as one of her examples the biography of Judge Richard Arnold that was published by Professor Polly Price. She notes that Price’s book, which was based in part on the judge’s papers, “sought to demonstrate that it is actually the lower federal courts that are far more important to ordinary people – especially because the percentage of cases that make it all the way to the Supreme Court is miniscule.” However Professor Watts also expresses great concern about inconsistences in the handling of Supreme Court justices’ papers, noting the distress caused to sitting justices by the speedy release of Justice Marshall’s papers, and contrasting that with those who imposed moderate time restrictions, such as the five years after death for Justice Blackmun’s papers. She also expresses great concern that the papers of several other notable 20th century justices were not preserved at all.

Besides her strong interest in a policy that preserves judges’ papers, Professor Watts bases much of her argument on the 1977 report of the National Study Commission on Records and Documents of Federal Officials. The Commission’s majority report (signed by 15 of its 17 members) recommended that the papers of all three branches be made government property. Its conclusion regarding the Judiciary stated: “As is the case with the Public Papers of Presidents and Members of Congress, the Public Papers of Federal Judges are created in the course of doing the public’s business, using Government facilities, and at public expense. The Commission can find no distinctions that would modify its conclusion that all such materials should be the property of the United States.”

The Commission’s report resulted in enactment of the Presidential Records Act of 1978 which changed the ownership of presidential papers from private to governmental and set rules for the timing of release. However, Congress took no action regarding Congressional or Judicial papers. The author clearly feels that the time for action regarding the Judiciary’s papers is long past due, and recommends legislation to mandate this. However, she does favor allowing the Judiciary to develop its own rules regarding the details of what papers should be retained, guidelines for where papers should be deposited, and access terms, including timing of release.

[The article “Judges and Their Papers” is currently available through Social Science Research Network (account registration required), or from the St. Louis library. Publication is expected soon in New York University Law Review.]