BY DAN WOLFE — Arguably one of the greatest revolutions of our time, the Internet continues to find ways to make our lives easier every day. This author remembers when his fifth-grade teacher first allowed his class to use Internet sources for history reports. Even at ten years old, this author could appreciate how much more convenient typing “World War II” into a search browser was than having to rummage through encyclopedia volumes.
The practice of law is no stranger to the revolutionary magic of the Internet. To a current law student, it seems absolutely unfathomable that a world without online databases like LexisNexis and Westlaw ever existed. With the modern ability to find any case, statute, or article at one’s fingertips, this author is in awe of brief writers of yore and their comparative time spent conducting legal research. Considering how the Internet has become so ingrained in our society, it should come as no surprise that judges are taking full advantage of this convenient medium as well. In particular, more and more judges consistently cite to websites in their opinions, making access to their sources easier and more convenient. However, as the old saying goes, “nothing is as good as it seems.”
Every law student who has taken Civil Procedure is likely familiar with Erie, Pennoyer, and Twombly. In fact, law students and practicing attorneys alike still have nightmares about these cases. However, when this author looks back on Civil Procedure, another case will always resonate in his mind: Harris v. Scott. The case involved a high-speed police chase where a police officer rammed a fleeing suspect’s car from behind, causing the suspect to crash his vehicle, leaving him paralyzed. The crux of the case dealt with whether it was necessary for the officer to have used “excessive force” in apprehending the suspect. In determining that it was necessary, the Supreme Court relied upon an actual video of the incident taken from a camera installed on the police vehicle. Justice Breyer even noted in his concurrence that anyone who was interested could follow the link provided in the majority’s opinion and watch the video. Sounds pretty neat . . . if only the link actually worked!
Apparently this issue is not an isolated occurrence. According to an article titled “In Supreme Court Opinions, Web Links to Nowhere” by New York Times journalist Adam Liptak, forty-nine percent of web links cited in Supreme Court opinions either no longer cite to the original material or no longer work at all. This percentage will only increase over time because although it is easy and convenient to create and proliferate information on the Internet, it is (ironically) just as easy and convenient to alter or remove that information as well. Furthermore, the cited materials in Court opinions are of the utmost importance to legal scholars, practitioners, and even other judges, who often times must examine this material themselves in order to better understand the Court’s holding and its reasoning. As more and more cited web links disappear, so does the precedential value of opinions no longer based on available sources. While this creates a large problem for judges in general, the problem is an extreme one—or better yet, a “supreme one”—for Supreme Court justices.
Irony also plays a role with respect to books. The same rigidity and permanence that has made books less attractive and more burdensome to deal with has ultimately made them more reliable to cite. This poses an interesting dilemma for judges, especially Supreme Court justices: Does the Court continue citing to websites with the increased awareness that their opinions may one day lack the foundation upon which their determinations are based? Or does it only cite to books or other written records with equal awareness that there is a wealth of easily accessible information, only a website away, not being utilized?
The answer is not an easy one. Because of the importance of Supreme Court opinions, the justices should not have to sacrifice available information or reliability. As Mr. Liptak opined, the Supreme Court could follow the Ninth Circuit Court of Appeals’ lead and create an electronic archive of every cited website in .pdf format. For added reliability, the Court could also keep a library of every website cited in hardcopy. This is no doubt an added burden in terms of time, resources, and space, but the overriding importance of information and reliability must reign “supreme.”
Lower courts should also follow this lead; albeit they presumably have fewer resources and a much larger caseload (meaning many more websites being cited). This creates a more difficult problem that each court must face individually. A lower court must determine whether the inclusion of websites in its opinions is worth the time and expense of maintaining an electronic archive as well as hard copies of every cited website. If not, websites should not be included, especially if they are the sole sources relied upon for any given determination.
However the courts ultimately decide to resolve this issue, it is clear that they must take some action. After all, nothing is more annoying than a computer screen reading, “404 Error – File Not Found.”
