Is link rot destroying stare decisis as we know it? The Internet-citation practice of the Texas appellate courts.

• Author: Torres, Arturo

1. INTRODUCTION

   In 1995 the first Internet-based citation was used in a federal court opinion. (1) In 1996, a state appellate court followed suit; (2) one month later, a member of the United States Supreme Court cited to the Internet; (3) finally, in 1998 a Texas appellate court cited to the Internet in one of its opinions. (4) In less than twenty years, it has become common to find appellate courts citing to Internet-based resources in opinions. (5) Because the current extent of Internet-citation practice varies by courts across jurisdictions, this paper will examine the Internet-citation practice of the Texas appellate courts since 1998.

   Citation-practice research methodology is well established. The method has been used to study and report extensively on citation practices of federal, state, and selected foreign courts. (6) However, studies focused specifically on Internet-citation practice have developed only recently, initially appearing about six years after the federal courts first cited to Internet-based resources in opinions.

   One of the first studies to report Internet-citation practice of courts surveyed published and unpublished opinions of the United States Supreme Court and federal Courts of Appeals between 1996 and 2001. (7) At the time not many courts were citing to Internet-based resources, and consequently the resulting data collected were relatively small. For the five-year period, the author found 361 Internet-based citations in 236 opinions. (8) The small amount of data, nevertheless, revealed a considerable increase in Internet-citation practice by federal courts. The two Internet citations identified in 1996 had increased to 361 by 2001. (9) Four years later, a more detailed and longitudinal study appeared that surveyed the Supreme Court's Internet-citation practice, expanding on the variables used in the earlier study. (10) This study isolated and tracked the Internet-citation practice of the Court over a decade, 1996 to 2006, reporting that Internet citations had reached over one-thirdT1 of the opinions issued in 2005 and 2006 terms, and that most appeared in dissenting opinions. (12) A more recent study found a significant increase in the number of opinions from the federal courts of appeals containing Internet citations from 1996 to 2009. (13)

   Other studies have focused on the Internet-citation practice of selected state appellate courts. One study reviewed published and unpublished Washington appellate opinions from 1999 to 2005, (14) while a later study recorded and compared Internet citation in published opinions of the Washington and New York state courts from 2000 to 2006. (15) Both studies report overall increases in the use of Internet citations by the state appellate courts, (16) albeit not as extensive as one would suspect. A recent review of Kentucky appellate opinions from 2000 to mid-2011 essentially confirms the prior two state appellate court studies. (17) It is increasingly apparent that citing to Internet resources by courts has solidified and the practice is likely to increase with time.

   These Internet-citation-practice studies have reached independent yet similar conclusions. First, even at this relatively nascent stage of Internet-citation practice, it is obvious that the courts are increasingly citing to Internet resources in opinions,18 and it is likely that this upward trend will continue. Second it appears that a correspondingly high rate of citation link rot (19) is occurring. (20) The Internet-citation-practice studies highlight the permanent loss of legal authority due to the ephemeral nature of many of the Internet sites: Many sites are not timely maintained, or are abandoned, moved, or no longer available. (21) Some commentators have alluded to the possibility that link rot is contributing to the slow erosion of one of common law's most fundamental principles--stare decisis. (22) Can courts "let the decision stand" if the cited authority is no longer available or accessible? Or if accessible, the information on the site may not be identical to when it was originally cited by the court. Consequently, it is important to document how courts are citing to Internet-based resources, perhaps, by doing so we can better determine and understand whether a shift to move away from the traditional notion of stare decisis is truly occurring. Perhaps more specifically are the Texas courts contributing to this phenomenon?

   At first blush, it appears that the Texas appellate courts have succumbed to the lure of the Internet. To determine the extent, the following selective questions guided this study. To what degree and what Internet-based resources are the courts citing? Is Internet-citation practice limited to a few justices or is it widespread? Which types of Internet sites are being cited? Are certain subject matters more likely to contain Internet-based citations? Are the courts citing to legal or non-legal sources? (23) Specifically, which Texas courts are citing to Internet resources? Finally, are the Texas courts contributing to the loss of legal authority due to link rot, as is the case in other jurisdictions? (24)

   This study surveys the 1998 to 2011 published opinions (25) of the Texas appellate courts and describes their Internet-citation practice. (26) Because of its unique nature, and to provide a basis for context, the following section briefly describes the appellate court structure in Texas. Section II discusses the methodology used in this study. Section III presents the data using multiple variables and perspectives. Finally, Section IV summarizes the finding, concludes with general observations and comments, and contemplates the need for further research.

   1. A Brief Description of the Texas Appellate Courts

   1. Supreme Court of Texas and Texas Court of Criminal Appeals

      Because Texas is one of only two states in the country to have dual supreme courts, (27) it is fitting to briefly describe its somewhat unique appellate court system. The Supreme Court of Texas has final appellate jurisdiction in civil and juvenile cases, while the Court of Criminal Appeals has similar jurisdiction as to criminal matters. (28) The justices of both courts are elected to staggered six-year terms in bipartisan statewide elections. (29) When a vacancy arises, the Governor may appoint a justice, subject to Senate confirmation, to serve out the remainder of an unexpired term until the next general election. (30) In the years between 1998 and 2011, a total of twenty-four different justices have sat on the Texas Supreme Court, sixteen of whom (or 66.6 percent) have cited to Internet-based resources. (31) During the same time, sixteen different justices sat on the Texas Court of Criminal Appeals, nine of whom (or 56.3 percent) have cited to Internet-based resources. (32)

   2. Texas Courts of Appeals

      The fourteen Courts of Appeals have intermediate appellate jurisdiction in both civil and criminal cases appealed from district or county courts. Each Court of Appeals has jurisdiction in a specific geographical region of the State. Each court is presided over by a chief justice and has at least two other justices. The specific number of justices on each court is set by statute and ranges from three to thirteen. Presently there are eighty justices authorized for these courts. Appeals in the Courts of Appeals are usually heard by a panel of three justices, unless in a particular case an en banc hearing is ordered, in which instance all the justices of that court hear and consider the case. (33) Since 2008, justices sitting on the Courts of Appeals have cited to over a hundred Internet-based resources. (34)

2. STUDY BACKGROUND: THE METHODS

   The data collected for this study are derived from all officially published opinions of the Texas Courts of Appeals, Texas Court of Criminal Appeals, and the Texas Supreme Court. (35) Multiple searches of the LexisNexis and Westlaw databases were conducted to compile the dataset. The search query for both systems was identical, "http or https or www" (without the quotes). The searches were restricted to and conducted in the respective Texas appellate court decisions database. (36) For the purpose of this study, the data was collected using multiple variables, including case name, reporter citation if available, Westlaw and LexisNexis citations, date of opinion, court, websites cited, location in the opinion where the Internet citation was cited, justice writing the opinion, issue of law, opinion type, root domain of Internet citation, type of document cited, and several other variables.

   The results of the Westlaw and LexisNexis searches were recorded in separate spreadsheets respectively along with information related to multiple variables. Ultimately the two spreadsheets were combined to make one and the "Remove Duplicates" function in Microsoft Excel was used to remove all duplicates. To safeguard data validity, the combined information was examined by two independent sources. The results of each review were then compared against the other manually to account for replication and omissions of data not reflected in the other's list. Finally, the two reconciled lists were combined to create a "master" unique database, minimizing duplicative opinions or omissions. Next, all non-published opinions. 2012 decided cases, and citations made by special courts (37) were removed from the dataset. This process netted the total number of published opinions that cited to Internet resources by Texas courts from 1998 to December 31,2011.

   In order to reduce the number of source groupings within certain variables, it was necessary to combine the data into more general categories. For example, in the "Domain" variable there were eight citations from five different foreign-country domains, six U.S. states, two .mil, and four .net domains. All twenty citations were grouped into the "Other" category.

   An Internet citation referenced multiple times was counted only...