Bankruptcy's Living History

The American College of Bankruptcy (ACB) in cooperation with the Biddle Law Library at the University of Pennsylvania has made available a great and often overlooked resource for scholars who prefer to study "law on the ground" instead of just the "law in the books." The National Bankruptcy Archives collects historical material regarding the development of bankruptcy, and three separate oral history projects make up a particularly interesting part of that material. These oral history projects come from Judge Randall J. Newsome, the National Conference of Bankruptcy Judges, and the Biddle Law Library's own oral histories related to bankruptcy.

On the web site, one can access transcripts of the interviews, audio recordings, and often videotapes (although more on the videotapes in a moment). Of course, the web site is open to anyone with an Internet connection who might have a professional interest or just a curiosity about bankruptcy and its history. And, who would not harbor such interests?

For scholars, this collection remains an untapped resource. There may be scholarly works that have made use of these oral histories, but none of which I am aware. Oral histories are available, for example, that provide details about the Penn Central bankruptcy as told by one of its key figures, Charles Horsky, or that describe the bankruptcy "ring" in New York City during the 1930s as related by Asa Herzog. Although these oral histories may not be the final word on any topic, their easy availability makes them a resource that responsible scholars should be consulting more often. One significant benefit of the collection is the large number of oral histories available through the web site, which at the same time is a significant hurdle to their use. There is no central index that would make use of the archives easier. Using the search function in Adobe Acrobat helps a lot, but it is still necessary to look through every oral history.

Appropriate use of oral history can present challenges. Scholars will be happy to learn an interviewer guide, which is available online, was used to help train interviewers on appropriate technique. Unfortunately and with only a few exceptions, the interview subject was allowed to edit the transcripts, which raises concerns that the interview subjects may have changed their words in subtle but important ways from what they said originally. Headings to parts of the collection read, "Please note that many of the corresponding transcripts were edited by the interviewee, and therefore may differ slightly from the audio recording." From this entry, I take it to mean the audio recordings are unedited and unabridged, making these recordings very important but, alas, unsearchable.

The video interviews on the site are somewhat curious. The heading for that portion of the collection reads, "Video recordings are abridged versions of the full interview and were recorded later." Having listened to a few of them, it appears that the video recordings cover much of the same ground as the available audio recordings and transcripts for the same subject, but the video recording is a completely different interview than the audio recording and transcript.

Finally, although the oral histories have been made available on a public web site, clicking on any one of the histories first takes you to a page regarding restrictions on use. These restrictions read:

No part of the manuscript may be quoted for publication without the permission of the Biddle Law Library Archives. Please contact the Archives for more information about copyright.

Requests for permission to quote for publication should be addressed to the Archivist, Biddle Law Library, University of Pennsylvania Law School, and should include identification of the specific passages to be quoted, anticipated use of the passages, and identification of the user.

Putting aside the issue of whether copyright law is as broad as the passage asserts--"no part of the manuscript may be quoted for publication?"--the purpose of requiring advance permission to use the materials is not clear because anyone with an Internet connection can access them. If you are giving me ready access to the materials, why require advance permission? In place of the advance permission requirement, a Creative Commons License might satisfy any concerns the keepers of the archive might have in terms of use of its intellectual property.

My intention in discussing these caveats is to take the oral histories for what they are -- serious scholarly resources. Where appropriate to the research question, bankruptcy academics should start incorporating into their work the learning contained in these oral history projects.