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March 4, 2012
Browsing On A Sunday: Do Courts Cite Internet Legal Resources?
I’m doing a lecture on Internet legal research soon and I was wondering how valid are some of the sites I teach to the courts. I find Google Scholar very useful in my day job. Has anyone ever mentioned it in an appellate opinion? Yes, it seems, once, and only very recently. The California Supreme Court issued an opinion on January 27th called Vandermost v. Bowen, --- P.3d ----, 53 Cal.4th 421, 2012 WL 246627 (Cal.), 12 Cal. Daily Op. Serv. 1119, 2012 Daily Journal D.A.R. 1110 (citations and search results generated from Westlaw) with this reference:
By contrast, academic observers have concluded that the Commission's maps, including the certified state Senate map, “represent[ ] an important improvement on the legislature-led redistricting of 2001. The new district boundaries kept more communities together and created more compact districts while at the same time increasing opportunities for minority representation.... [T]hese maps ... have the potential to modestly increase competition in California elections and the responsiveness of the legislative branch to changing voter preferences.” (Kogan & McGhee, Redistricting California: An Evaluation of the Citizens Commission Final Plans, supra, 4 Cal. Journal of Politics and Policy ____ (forthcoming Jan. 2012; available via Google Scholar at <http:// polisci2.ucsd.edu/vkogan/research/redistricting.pdf>, pp. 32–33 [as of Jan. 27, 2012] ).)
I think the Court should be citing the University of California San Diego, which is the actual source of the cited document at the end of the quote. Interestingly enough, the Court tipped its research strategy in finding the document, a forthcoming publication no less.
The Cornell Legal Information Institute gets one state hit in American Home Assur. Co., Inc. v. Unauthorized Practice of Law Committee, 121 S.W.3d 831, 2 A.L.R.6th 783, Tex.App.-Eastland, November 06, 2003 (NO. 11-02-00212-CV), and seven in the federal courts. The Oyez Project gets a reference in a federal case quoting Chief Justice Roberts’ reaction to a particular statute. The reference is to an oral argument. The citing case is Evans & Green, LLP v. Meadoworks, LLC, Slip Copy, 2012 WL 137885, W.D.Mo., January 17, 2012.
FindLaw gets a whopping 23 references, though some of those are involved around litigation involving FindLaw, and a few more relate to accessible resources by prisoners as part of access to a prison law library. The news feed at Leagle.com gets at least one mention in a 2010 Michigan case. The name “Leagle” shows up either as a personal name or as a misspelling. Justia gets five hits, though a few are in reference to litigation involving the site. As for government citation, GPO Access gets two citations, while the more current FDsys.gov has nothing yet. Regulations.gov gets five hits.
The point for me is these sites have enough respectability to be cited by the courts, meaning they have enough respectability to be used and cited by others. We teach students to use the original source, and court rules tend to enforce that concept. But with courts starting to go to legal content on the free Internet, we can’t discount some of these Internet legal sites, at least as a matter of reputation. [MG]
ED of CA actually had a suggestion that plaintiff's counse SHOULD HAVE used Google Scholar to retrieve a case.
Plaintiffs' counsel was apparently unable to find the two cases by searching by case name on Westlaw, where the court was easily able to find both cases, or by searching on Google Scholar, where the court was able to find Davis v. Harris, or by paying for access to LexisNexis. Plaintiffs' counsel also apparently failed to take advantage of the free LexisNexis service provided in the Sacramento County Public Law Library.
McCarthy v. R.J. Reynolds Tobacco Co., 2011 U.S. Dist. LEXIS 93471 (E.D. Cal. Aug. 18, 2011)
Posted by: Hannah | Mar 6, 2012 12:36:42 PM
Perhaps Mr. Giangrande can explain to me how an exact copy of the text of the electronic document issued by the original source is less "respectable" than that original for any practical purpose. Some of us are already skeptical about whether there is any significant dimension to so-called "authenticity" beyond textual accuracy; is this a call for us to slink back to those slums on the wrong side of the tracks where we so clearly belong? Or is something more than brand loyalty and book-nostalgia involved? To be sure, there is a question of what the courts will accept -- but those are arbitrary rules, born in another era, and the perceptions behind them are changing.
Put another way, what the hell do you mean by "valid", sir ?
I'm actually on your side on this one. I think law from the Internet through organizations such as yours and others I mention are reliable. Courts routinely specify in their rules what is citable and what sources to use. Typically these do not include Internet sources. The fact that the courts are starting to cite materials directly from Internet research sites is a positive thing. Conservative interpretation of court rules on the subject would likely preclude this. Continuing this trend is indeed positive. - Mark
Posted by: Thomas Bruce | Mar 5, 2012 10:55:57 AM
The point for me is these sites have enough respectability to be cited by the courts, meaning they have enough respectability to be used and cited by others
I think that's a really interesting point. As LIS professionals and information science scholars, we care about the implications of citing to a particular resource. Clearly, authors and information users don't put as much thinking into the actual citation. It may be annoying, and even misleading...but it's unavoidable.
[The key question to me, though, would be whether courts are also citing to / using other scholarly databases. And if they are not, why does Google Scholar get a privileged position?]
Posted by: Mikhail Koulikov | Mar 5, 2012 7:05:25 AM