Friday, December 3, 2010

More "skills" scholarship: "How Courts Use Wikipedia"

This one is by U. Buffalo Reference Librarian Joseph L. Gerken and is available at 11 J. App. Prac. & Process 191 (2010).  From the Lexis summary:

The use of Wikipedia as a gap filler in cases like these does not seem particularly problematic; indeed, in many instances, it enlightens readers about matters germane to, but not dispositive of, the issues in each case.  Following an evidentiary hearing, the trial court ruled that Patel had received a simple majority.  The court starts with the disclaimer that it does "not necessarily consider Wikipedia an authoritative source," yet it is clear that the court intends the Wikipedia entry on gangsta rap to be considered credible, if not authoritative, because the court cites Wikipedia in support of its conclusion that gangsta rap does not implicate any racial animus.  Entries that have been edited thousands of times are particularly susceptible to this risk.

The Doe decision cites two Wikipedia entries that no longer exist, so it is impossible to use the "history" function in Wikipedia to identify the entries for these terms that were in place at the time of the decision A court's citation to an entry that is unavailable to the reader is of no use to him or her.   In the course of its erudite discussion of the issue, the court averred that O'Grady's seemed to have more of the characteristics of a webzine than of a blog, citing the Wikipedia entries for those two terms.  The Palisades Collection court said nothing about using Wikipedia to support assertions of fact that are peripheral to the core issues of a case, nor does its opinion preclude using Wikipedia as a source for uncontested facts.   A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article "may be, at any moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;" (ii) Wikipedia articles are "also subject to remarkable oversights and omissions;" (iii) "Wikipedia articles . . . are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;" (iv) "another problem with a lot of content in Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;" and (v) "many articles commence their lives as partisan drafts" and may be "caught up in a heavily unbalanced viewpoint." Concerns about the Open-Edit Feature of Wikipedia A number of decisions have focused on the anyone-can-edit aspect of Wikipedia in rejecting it as an authority.  This endorsement suggests a possible niche for Wikipedia in court opinions as a source for information that simply is not available in more traditional authoritative sources, particularly when that information is not subject to dispute.


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