January/February 2011
Article Summary:
"The Death of Twentieth-Century Authority"
Summary by Ann Fessenden, 8th Circuit Librarian

Michael Whiteman, a Professor of Law and Associate Dean at Northern Kentucky University Chase College of Law, originally presented this paper at the 2010 American Association of Law Schools’ annual meeting. In it, he explores the implications of rapidly changing practices in the sources used in legal research, especially use of Internet sources by courts. He notes that the use of generally agreed upon authorities has helped provide stability and support the doctrine of stare decisis. With the rise of Internet sources, this stability is rapidly crumbling. Nonetheless, he sees a positive aspect in that this trend makes legal sources accessible to litigants as well as their lawyers and provides attorneys and judges with a much larger base of authority to draw upon than was available in the past. However, he strongly cautions about several dangers, including the disappearance of online sources after their use, the need to identify appropriate, authoritative sources, and the need to be able to authenticate electronic primary law.

Disappearing sources. Whiteman notes that “One of the stable aspects of traditional legal authority was the confidence that an attorney would be able to retrieve the authority relied upon by a judge in formulating her opinion.” This assurance is no longer present with Internet sources, which often change or disappear entirely, a phenomenon often referred to as “link rot.” This breaks down the ability of future researchers to understand the court’s decision. He cites several studies regarding disappearing Internet citations, noting that the rate of “link rot” for cases from 1997 was as high as 84.6%.2 He suggests some possible solutions, including the Guidelines approved by the Judicial Conference of the U.S. in 2009. Whiteman also notes that more and more governmental entities are dropping print publications and moving to electronic-only publications of statutes, cases, and regulations, and stresses the importance of being able to determine that these electronic versions are the authentic, unaltered products of the governmental bodies that produced them.

Courts’ acceptance and use. The author provides examples of a court that found an attorney’s failure to use Internet sources for locating a party demonstrated a lack of adequate diligence, as well as instances when use of only the Internet to the exclusion of traditional sources was deemed inadequate. He also discussed the difficulties with courts performing their own Internet searches and then using material from outside the record in rendering their decisions. He notes that blogs are replacing law reviews as acceptable sources for legal commentary, but cautions about the importance of putting in place for emerging sources “the same checks and balances that have insured accuracy in traditional sources of authority.” One section of the article focuses on use of Wikipedia as an example of newer sources of authority, noting that it is “freely available, easy to access, and varies widely in its reliability and accuracy.” This section includes prominent discussion of the 8th Circuit case, Badasa v. Mukasey, 540 F.3d 909 (2008), in which the Court criticized an immigration judge’s reliance on Wikipedia for the meaning of a document used by an asylum seeker. The author also discusses the extent to which courts are beginning to give judicial notice to information found on the Internet, noting that this is most likely to occur with government web sites. He notes, however, that even these are likely to no longer be accessible in the future, providing an example from the 11th Circuit.

Whiteman concludes by emphasizing the importance of preserving cited authorities for future access, making sure primary authority is official and authenticated, and using the same wisdom in choosing electronic sources as lawyers and judges have applied to traditional sources of authority.

 

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