Whiteman on The Death of Twentieth-Century Authority

Associate Dean Michael Whiteman of the Northern Kentucky University – Salmon P. Chase College of Law has posted The Death of Twentieth-Century Authority, a paper “first presented at the 2010 [Association of American] Law Schools’ Annual Meeting.” Here is the abstract:

The case of Bush v. Gore stands out as the seminal decision that decided the disputed election of 2000, and arguably set the course of the nation for the next eight years; for legal researchers it was a herald of a different sort. With the citation in the Per Curiam opinion to an online newspaper article , Bush v. Gore fired the fatal salvo in the death of twentieth-century authority. Whereas in the past, courts relied on a stable, select group of print resources, today’s attorneys and judges are moving towards a much more free form, open research universe.

This article will explore what the title suggests as the death of Twentieth-Century authority. This article will trace the shift away from traditional authority, outlining some of the emerging problems associated with this shift, including the disappearance of online sources after their use, and the trouble with the authentication of online legal materials. An examination of what these new authorities are, as well as the growing use of these new sources follows, including the positive and negative reactions from the courts. A troubling pattern of courts taking judicial notice of these sources will be examined, and this article will conclude with a look at the positive impact reliance on these new sources of authority is having on the judicial system as a whole.

Murray & Miller, Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate

Hannah B. Murray, a J.D. candidate at the University of Michigan Law School, & Jason C. Miller, Esq., Law clerk to Circuit Judge Deborah L. Cook, United States Court of Appeals for the Sixth Circuit, have posted Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate, on SSRN. Here is the abstract:

“Practitioners and courts are relying more and more on Wikipedia, a free online encyclopedia that anyone can edit. Hundreds of court opinions, including at least one from every federal circuit court, and thousands of law review articles cite Wikipedia. Some opinions have relied on Wikipedia for technical information, although others only turned to the consensus website for background information on minor points.

“This practice has generated controversy, with newspapers, professors, practitioners, and judges weighing in. Wikipedia in Court examines the controversy and the history of Wikipedia in court opinions before proposing a framework to determine when it is appropriate and inappropriate to rely on Wikipedia for authority in legal writing. Given the inconsistency in the legal community’s use of Wikipedia, courts and practitioners will benefit from this framework.”

Peoples on the Citation of Blogs in Judicial Opinions

Professor Lee F. Peoples of the Oklahoma City University School of Law has posted the abstract of his new article, entitled The Citation of Blogs in Judicial Opinions, on SSRN. Here is the abstract:

“This article reports the results of an exhaustive study examining the citation of blogs in judicial opinions. The article begins with an exploration of opinions citing blogs for their discussion of substantive legal issues. The unique status enjoyed by several boutique blogs is examined including the importance of Douglas Berman’s Sentencing Law and Policy blog in the wake of the Supreme Court’s Blakely and Booker decisions. The citation of blogs for factual information is discussed and the impact of these citations on litigants’ constitutional and procedural rights, the law of evidence, judicial ethics, and the judicial role in the common law adversarial system are explored.

“Serious questions about the preservation of blogs cited in judicial opinions have yet to be answered. They way that blogs are cited in judicial opinions varies widely. Some judges do not provide enough information to accurately retrieve the blog post viewed by the court. Blog entries frequently change after they are posted. Some blog entries and entire blogs disappear without warning. There is currently no uniform approach to archiving or preserving blogs. Detailed statistics on the completeness and accuracy of citations to blogs in judicial opinions are provided. A set of best practices detailing when and how blogs should be cited is proposed. The Judicial Conference’s recently released Guidelines on Citing To, Capturing, and Maintaining Internet Resources in Judicial Opinions are discussed and critiqued. Solutions explored at the Future of Today’s Legal Scholarship Symposium held at the Georgetown Law Center in July of 2009 are evaluated. The article concludes with a discussion of the impact of blogs on the future of the law.”

Joergensen on Authentication in Digital Legal Repositories

John Joergensen has a valuable and detailed post at VoxPop on authentication in digital legal repositories, with discussions of practices of GPO and nongovernmental institutions. He argues that the two necessary elements of an authentication system are disclosure and digital signatures. HT to Tom Bruce

Bruce on Public Access & Textual Authority

Tom Bruce has a very interesting post, suggesting we reconsider the concepts of “free access to law” and “textual authority” of law.” He requests feedback.