Blogs and Wikis As Legal Authority

Much has been said about the propriety of turning to the Web for authoritative information. As time passes, the idea that the Internet is a viable, legitimate resource is gaining ground.  There remains skepticism, to be true, as is evidenced by the negative comments to this article in the Wall Street Journal’s law blog condensing an interview with Drew Berry, chairman of McCarter & English, who had this to say about Google:

Get Yourself Smart on a Subject, Fast: When they get assignments, he says, self starters “contextualize” the issue by “Googling stuff for fifteen minutes.” Lexis and Westlaw, he says, are fine for focusing on a point of law. But the peripheral vision provided by a Web search is also invaluable. It can yield relevant law journal articles, blog posts, plaintiffs’ lawyers sites, law-firm newsletters and the like.

In a way, he says, see-what-I’ll-find Internet research is akin to the old hard-cover legal research methods which, he says, are more than powerful electronic search engines “give a feel for the evolution of the common law.”

A sturdy measure of the growing acceptance of the Internet as reference source is the citation to blogs, wikis and websites by Judges in legal opinions. We, the audience, are fascinated by this trend and there is no dearth of commentary on the subject. There are at least two online studies about the use of blogs as legal citations:  Ian Best, Cases Citing Blogs-Updated List, http://3lepiphany.typepad.com/3l_epiphany/2006/08/cases_citing_le.html (last visited August 6, 2008 and an update of Mr. Best’s list by Dave Hoffman, Court Citation of Blogs: Updated 2007 Study, http://www.concurringopinions.com/archives/2007/07/court_citation.html (last visited August 6, 2008. See the dissent in United States v. Booker, 543 U.S. 220, 278 (2005 (Stevens, J., dissenting), for such a citation by the United States Supreme Court.

As of today’s date, August 6, 2008, a Westlaw search of the term Wikipedia generated 214 hits across federal and state databases since first noted in 2004, with 62 of those cases dated on or after January 1, 2008. Wikipedia, the juggernaut of online, freely-editable-by-anyone, open source encyclopedias (I do shudder a bit when I use that word to describe it), has only been in existence since 2001.

Wikipedia was started as the content source for Nupedia. Nupedia is an English-language Web-based encyclopedia that, unlike Wikipedia, is both expert-written and peer-reviewed. See Richards, R. Jason, Courting Wikipedia, 44-APR Trial 62 (2008).  Wikipedia and Nupedia apparently parted company in 2007. Wikipedia seems to be well aware of the flaws in its system – as noted by Mr. Richards in his article, Wikipedia is armored with a serious set of disclaimers.  My favorite: “please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information.” The disclaimer language goes on to explain that the content of any article may recently have changed, vandalized or altered by someone without the proper expertise to provide you with complete, reliable or accurate information.

How’s that for authoritative? What makes Wikipedia any more valuable as a source of information than the guy sitting next to you on the train reading the latest People Magazine? Check out Mr. Richards’ article for many instances of inaccuracy, including incorrect references involving notoriously notable Judge Richard Posner of the Seventh Circuit Court of Appeals (who also has cited to the Wikipedia in a judicial opinion). Is the rise of Wikipedia, purportedly among the top ten most frequented sites, evidence that we have acquiesced in eschewing reliability for convenience? Well, I certainly have acquiesced – if you have been reading any of my prior blog entries, you may well recall my own citations to Wikipedia for definition of a term.

Ellie Margolis, in her article in the Yale Journal of Law and Technology entitled Surfin’ Safari – Why Competent Lawyers Should Research On The Web, 10 Yale J. L. & Tech. 82 (Fall, 2007), is concerned about the impermanence of the Internet and the information displayed:

The citations to blogs, Wikipedia, and other non-legal (and legal) information on the internet have raised valid concerns. The impermanence of the internet, as content is modified and/or migrates to other locations, means that a citation to a URL today may not lead to the exact same information tomorrow. For example, if a judge cites a Wikipedia entry in an opinion by using the URL, and the entry is subsequently modified, the reader of the opinion who tries to access the entry will not get the same information the judge relied on. In addition, reliability, authoritativeness, and accuracy are all important concerns, since there is often no way to know anything about the author of internet content, or be assured that the information has not been tampered with.

(Citations omitted). Mr. Richards also raises in his article a somewhat chilling concept: the idea of “opportunistic” editing of Wikipedia content by an attorney to favor a client’s case. Try that with the Encyclopedia Britannica! Mr. Richards also rightly challenges the use of Wikipedia as an evidentiary source based on the language of the Federal Rules of Evidence 201(b) regarding when a courts is permitted to take what is called “judicial notice” of a fact:

[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

For those facts that are not generally known within the territorial jurisdiction of the trial court, use of Wikipedia by a judge as a source for supporting “judicial notice” of that fact is seriously questionable since Wikipedia, by its own admission, is not “a source whose accuracy cannot reasonably be questioned.” But even Mr. Richards has some love for the big Wiki: in a somewhat tongue-in-cheek manner, he cites Wikipedia for its own definition. Sally A. ‘Irvin and Jason R. Sowards, in their report entitled ALR 2.0: When Advanced Legal Research Met Wiki, p.8, in the June Issue on the Advanced Legal Research Wiki at Wake Forest University School of Law in North Carolina point out a similar love-hate relationship:

Web 2.0 in legal scholarship is becoming almost commonplace, as if it had always been there. After all, even librarians who bemoan law students’ faithful citing to Wikipedia as the coup de grace of ‘good’ research must admit they’ve gone there once or twice themselves and recognize it for the amazing way it has organized massive amounts of information.

Which brings me to the other side of the coin. Perhaps my reason for using Wikipedia, which may or may not be shared by judges and other legal professionals, is the Rousseauian belief that people in nature are inherently good. Stay with me on this. If the vast majority, if not all, people who would bother to take the time to write a “scholarly” entry in Wikipedia are inherently good, then they would fashion their work with honesty and integrity. Or so I and many others would like to believe. Maybe it is just our human tendency to want to buy what the person next to us is so fervently selling.

Or, perhaps we should all engage in a measure of skepticism that is directly proportional to the degree of technical sophistication of the concept we employ Wikipedia, blog or other form of wiki to support. In other words, I should be far more comfortable relying on these “open source” sources for the definition of “net weight” than for the concept of “gravitational lensing.”

Whatever our reasoning, there is no denying that we attorneys are embracing on-line resources both officially and unofficially. Why, were we not among the first to accept on-line research via our treasured Westlaw and Lexis databases? Who hasn’t found an error in transcription while reading a case or article pulled from Westlaw or Lexis? As long as there is communication, there is the potential for error in translation. For better or for worse. I see no troubles, provided that we all keep in mind the pitfalls along with the benefits and measure the worth of our resources accordingly.

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