The Next Generation of Legal Citations Survey, and Authentication and Link Rot Issues

Link rot is a pet peeve of mine.  A posting I made on June 11, 2008, “Law School Laptop Bans,” already has a broken link to a news story and the posting isn’t even a year old yet.  And I can’t count the number of times I have found a terrific-sounding right-on-point resource in a law review footnote, only to find its URL leads to the dreaded “404 Not Found.”  But it’s more than a pet peeve issue, as this survey makes clear:

“The Next Generation of Legal Citations: A Survey of Internet Citations in the Opinions of the Washington Supreme Court and Washington Appellate Courts, 1999-2005”

Journal of Appellate Practice and Process, Vol. 9, No. 2, Fall 2007

TINA CHING, Seattle University School of Law

As more legal research is conducted online, it is reasonable to conclude that there will be a corresponding increase in citations to the Internet by judges in their opinions. With the widespread public use of the Internet to access information along with the constant changes and impermanence of websites, citing to the Internet should be an issue of increasing concern to the legal community across the country. This paper surveys the types of Internet sources the Washington state Supreme Court and Appellate Court justices are citing. It discusses the interrelated issues of link rot and the impermanence of web pages, citation format, authentication and preservation of online electronic legal information.

 

Source:  LSN Legal Information & Technology Vol. 1 No. 11,  04/29/2009

Horse-and-Buggy Dockets in the Internet Age…

Lyle Denniston, courthouse and legal news reporter since 1948, writes about the woeful state of courthouse dockets (and documents) and the difficulties this presents for accurate courthouse reporting in his article “Horse-and-Buggy Dockets in the Internet Age, and the Travails of a Courthouse Reporter,” 9 Journal of Appellate Practice and Process 299 (2007).  The first page of the article opens:

“With rare — too rare — exceptions, however, the news-gatherer on the courthouse beat is still functionally inhibited by the backwardness of most courts in the design, operation, and maintenance of their electronic dockets. . . .

The underlying premise of this criticism is simple to state: No courthouse reporter can do his or her work without prompt–sometimes, virtually immediate — access to original documents. “

As I read this article about the challenges facing reporters on the courthouse beat, I kept substituting the term “legal researcher” into the text.  The concerns about docket/document availability are shared by so many of us in the legal research world.  But, I confess, that I hadn’t really thought about the impact on news reporters. 

Denniston correctly applauds at the fine work of the Florida Supreme Court on the Bush v. Gore documents and the more recent improvements at the U.S. Supreme Court, as well as the great resources found on both the SCOTUS Blog and the SCOTUS Wiki pages.   But more needs to be done.

Perhaps, librarians should be working more closely with legal journalists to improve the access issues?  Especially in a day when media outlets and libraries are experiencing shrinking budgets, we might be wise to find new partners to help us liberate public documents.

A Modest Proposal for Regulating Unpublished, Non-Precedential Federal Appellate Opinions

“A Modest Proposal for Regulating Unpublished, Non-Precedential Federal Appellate Opinions While Courts and Litigants Adapt to Federal Rule of Appellate Procedure 32.1”

Journal of Appellate Practice and Process, Vol. 9, No. 1, p. 17, Spring 2007

SARAH E. RICKS, Rutgers School of Law – Camden

Federal appellate courts are overworked. To handle their overloaded dockets, appellate judges have adopted a wide variety of measures intended to promote efficiency, including deciding approximately eighty percent of appeals in nonprecedential opinions.

Courts and litigants currently are adapting to new Federal Rule of Appellate Procedure 32.1, which prohibits courts from restricting the citation of non-precedential opinions. Whether it is constitutional for federal appellate courts to issue non-precedential opinions is outside the scope of this essay. Putting the constitutional question aside, as a practical matter, at least for now non-precedential opinions should not be eliminated in favor of universal publication of opinions as precedent. That would be a dramatic break from several decades of federal appellate court practice. Moreover, universal publication as precedent would risk repetitive rulings and increased need for en banc overruling of inconsistent circuit precedent.

However, as an interim measure, and without ruling out future structural reforms, this essay proposes that federal appellate courts modify their internal operating procedures or local rules. Circuit courts should expressly confer persuasive value on non-precedential opinions, provide specific criteria to guide the publication decision, and permit anyone-not just parties-to move the court to reissue a non-precedential opinion as a precedential opinion. The proposed modifications would help to better ensure that non-precedential opinions are consistent with precedential opinions from the same circuit, that like cases are treated alike, that issues resolved at the appellate level need not be relitigated before district courts, and that nonprecedential opinions truly are limited to repetitive applications of settled law.

Source: LSN Litigation & Procedure Vol. 9 No. 52,  05/30/2008