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.

• Author: Ching, Tina S.

1. INTRODUCTION

   During January 2007, a storm of controversy over Wikipedia use swept across the blogosphere. From a history department banning citations to Wikipedia in student papers, (1) to companies paying for updates to its eollaboratively written articles, (2) to the citation of those articles in federal court opinions, (3) Wikipedia was being discussed everywhere. In academia at least, the discussion over the appropriate use of the online encyclopedia seemed to overpower even the debate about whether the young quarterback Rex Grossman and the Chicago Bears would overcome the laser rocket arm of Peyton Manning and the Indianapolis Colts in Super Bowl XLI.

   Some commentators denounced citing to Wikipedia because entries can be edited anonymously and multiple changes over time make it unstable. They also insisted that primary sources should be cited instead of encyclopedias no matter what the format. (4) Those supporting the use of Wikipedia articles cited studies showing its reliability of information and claimed that selective use of the website is acceptable. (5)

   Controversy of this type is not new: Many similar issues were discussed when information first began appearing on the Internet, but many Internet sources are now widely accepted as reliable. In the legal world, citations to Internet resources have become increasingly apparent. Several surveys and studies on the use of citations to primary and secondary materials in court opinions have included sections on how judges cite to sources available on the Internet. (6) The New York Times has stated that "[m]ore than 100 judicial rulings have relied on Wikipedia, beginning in 2004." (7) Law reviews are also increasingly using citations to the Internet. (8) This should come as no surprise, for information is now often only available online and is much easier to access online than in paper. For example, many government documents once available only in print are now often available only in an electronic format on the issuing agency's website. (9)

   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. Appellate courts and appellate judges in the state of Washington are no exception, because while Wikipedia citations have only recently appeared in Washington court opinions, (10) citations to Internet sources have been around for several years.

   This paper surveys the types of Internet sources the Washington state Supreme Court and Appellate Court justices are citing. The first section briefly discusses the methodology that was utilized to determine how many Internet citations the justices used in their opinions and what information was being cited. The findings of the study are then followed by a discussion of some of the major issues surrounding Internet citations in judicial opinions and an analysis of the survey results.

2. METHODOLOGY

   For the purposes of this study, the survey of court opinions is limited to Washington Supreme Court and Appellate Court decisions issued between January 1999 and December 2005. (11) Unpublished cases, which are readily available on Westlaw, were also included. (12) To determine the suitability of this topic for exploration, I began with a search on Westlaw using "http" and "www" as search terms and restricted the search to the Washington State Cases database. (13) I also did a sample search using the cases available on LegalWA.org. (14) Interestingly, my LegalWA results did have one additional case that was not produced in the Westlaw search. (15) Because a LegalWA search proved to be more problematic and time consuming than a Westlaw search, I decided to proceed with the results I obtained from Westlaw. After compiling the data, I copied and pasted each cited URL into a web browser to verify whether the link was still valid and whether it produced the cited material.

3. FINDINGS

   I have summarized, and where appropriate, expanded upon, the results of my research results in the tables and the text that follow.

   The overall number of Internet citations found during the period of the survey was surprisingly low. Just over one half of one percent of opinions included Internet citations. This calculation was made based on numbers reported annually by the Washington courts. (16) Cases that did have an Internet citation had an average of between one and two URLs. The largest number of Internet citations in a case was four.

   As Table 2 indicates, the Internet citations revealed by my research were each recorded in one of the categories described below:

   * The "Government Publications" category includes general citations to agency websites, reports, pamphlets, and other publications that are not authoritative. Among Internet citations in Washington courts, government agency publications were by far the most cited type of material. The information was generally used to support stated facts in the case.

   * The "Case Information" category includes a combination of case exhibits, documents, and reference to records of oral arguments, among them several citations to TVW, Washington's Public Affairs Network, (17) which posts oral arguments on its website.

   * The "Material Not Otherwise Classified" category includes anything that was either not easily categorized or unique. I decided that these singular materials did not each warrant an entire category.

   * The "Legislative History" category includes mostly citations to a bill's history located on the state legislature's website. (18)

   * The "Primary Sources" category includes agency decisions and local codes. (19)

   * The "Non-Governmental Publications" category includes reports from non-governmental organizations.

   The breakdown of data by domain shown in Table 3 reflects and supports the notion that most Internet citations are to government websites. Though seventy websites had a ".gov" domain, there were also eleven that had a ".us" and two with ".mil," both of which are also government domains. This adds up to a grand total of eighty-three citations, or sixty-three percent of the total. Even though my survey is based on a relatively small amount of data, these numbers reflect the courts' comfort with citing to the online version of a government agency publication for supporting facts needed to decide a case.

   One of the predictions I made prior to engaging in this study was that Division I of the Court of Appeals would have more Internet citations than the other courts. As Table 4 indicates, however, this theory was not realized. There were not an overwhelming number of cases with Internet citations from that court. Instead, I was surprised to discover, most of the Internet citations originated with the Supreme Court. With the overall low numbers from the Court of Appeals, it was not surprising to me that there were no Internet citations from the Court of Appeals Division III.

   The results of this survey show an overall increase in use of Internet citations by the Washington courts. Table 5 reflects a slight increase in Internet citation use in 2001 and a drop in 2002. I have been unable to find an adequate explanation for this change in activity. However, since 2002, there has been a steady increase in citations to the Internet, and I believe that this trend will only continue.

   It is difficult to determine if materials cited in the opinions studied were available both in print and on the Internet when they were cited, or if they were actually only available on the Internet. But assumptions can be made based on the format of the citation: According to both the seventeenth edition (20) and the eighteenth edition (21) of The Bluebook, (22) the explanatory phrase "available at" should be used when an Internet source is being used as a parallel citation, but the sixteenth edition (23) is silent on this issue. According to the seventeenth edition, an explanatory "at" should be used when the material is found only on the Internet. (24) The eighteenth edition has discontinued this notion. (25) No explanatory phrase, according to the seventeenth edition, signifies that the author accessed the information only online, (26) while it is not clear from the directions in the eighteenth edition how the information was accessed or whether it is available in print. Because the seventeenth edition of The Bluebook was used for most of the period studied, I based availability on the guidelines used in that edition.

   Considering the findings reported in Table 6, and using the rules in The Bluebook's seventeenth edition while assuming that its guidelines were followed, I found that forty-three percent of the online resources cited were also available in print as revealed by the explanatory phrase "available at." Seventeen percent of the sources were available only on line, assuming that the "at" in the citations was used as the then-current Bluebook form required. Forty percent of the sites were accessed only through the Internet, with no indication of whether they were available in print.

   As with ascertaining the continued availability of cited sources, establishing the validity of cited links was also difficult. If a URL did not bring up a valid webpage and it was obvious to me that there were unnecessary spaces within the URL, I deleted the spaces and attempted again to access the cited webpage. (27) If a webpage appeared, then I recorded the URL as valid. If even the corrected URL yielded an error message or no page was found, I recorded it as being invalid.

   I was surprised by the relatively low percentage of URLs that were valid at the time of testing. I had assumed that because the cases studied were fairly recent, the URLs would be overwhelmingly...