Authentication of Primary Legal Materials and Pricing Options

Always worth reading is Intersect Alert, the one published by the SLA San Francisco Bay Region Chapter (and not to be confused with Chuck Bartowski’s Intersect).

This item about a new California Office of Legislative Counsel white paper is from the most recent issue:

Authentication of Primary Legal Materials and Pricing Options
“The recent passage of the Uniform Electronic Legal Material Act (UELMA) has brought to the forefront the issue of costs of authenticating primary legal materials in electronic format. This white paper briefly reviews five methods of electronic authentication. These methods are based on trustworthiness, file types, effort to implement, and volume of electronic documents to be authenticated. Six sample solutions are described and their relative costs are compared. The white paper also frames the legal landscape and background of authentication for primary legal materials in electronic format, and provides context and points to applicable resources. The aim of this collective effort is to promote the understanding of costs related to authentication and invite further discussion on the issue.”

http://www.mnhs.org/preserve/records/legislativerecords/docs_pdfs/CA_Authentication_WhitePaper_Dec2011.pdf

Shepardizing Science: Is an Article Fact or Fiction?

Ken Strutin, director of legal information services at the New York State Defenders Association, has an article in the September 27th issue of the New York Law Journal, “Shepardizing Science: Is an Article Fact of Fiction?,” calling for a need to create “forensic bibliometrics” tools, similar to law citators.

The author points out that “In the scientific publishing lexicon, three levels of caution, which resemble Shepard’s signals, are the most salient: Retraction, Expression of Concern and Correction.”

From the article:

   It was Frank Shepard’s methology that paved the way for Eugene Garfield’s creation of the Science Citation Index (SCI), and ultimately, the page ranking protocols used by Internet search engines. [footnote omitted]  Most legal opinions can be Shepardized, and along with a full court press of bibliometric analysis in multiple sources, this tool can provide a high level of quality assurance.  The same is not easily accomplished in the scientific disciplines.

   Aside from the tools already noted, quality control of scholarly literature would benefit from something resembling a Shepard’s for scientific research.  It would be a universal mechanism that flags retracted articles in peer review journals and treatises, in all formats and at all access points, clearing indicating which ones should not be cited or relied upon.

The article clearly sets out the reasons why “. . . an expert in the citation analysis of scientific literature can play a crucial role in litigation.”

Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate

“Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate”

HANNAH B. MURRAY, affiliation not provided to SSRN

JASON C. MILLER, Government of the United States of America – United States Court of Appeals for the Sixth Circuit

Practitioners and courts are relying more and more on Wikipedia, a free online encyclopedia that anyone can edit. Hundreds of court opinions, including at least one from every federal circuit court, and thousands of law review articles cite Wikipedia. Some opinions have relied on Wikipedia for technical information, although others only turned to the consensus website for background information on minor points.

This practice has generated controversy, with newspapers, professors, practitioners, and judges weighing in. Wikipedia in Court examines the controversy and the history of Wikipedia in court opinions before proposing a framework to determine when it is appropriate and inappropriate to rely on Wikipedia for authority in legal writing. Given the inconsistency in the legal community’s use of Wikipedia, courts and practitioners will benefit from this framework.

 

Source:  LSN Legal Writing Vol. 4 No. 32,  12/02/2009

Best Evidence and the Wayback Machine: A Workable Authentication Standard for Archived Internet Evidence

“Note, Best Evidence and the Wayback Machine: A Workable Authentication Standard for Archived Internet Evidence”

Fordham Law Review, Forthcoming

DEBORAH R. ELTGROTH, Fordham University – Fordham Law Review

This Note addresses the use of archived Internet content obtained via the Wayback Machine, a service provided by the Internet Archive that accesses the largest online digital collection of archived Web pages in the world. Given the dynamic nature of the World Wide Web, Internet content is constantly changed, amended, and removed. As a result, interim versions of Web pages have limited life spans. The Internet Archive indexes and stores Web pages to allow researchers to access discarded or since-altered versions. In the legal profession, archived Web pages have become an increasingly helpful form of proof. Intellectual property enforcers have recognized the value of the Internet Archive as a tool for tracking down infringers, but evidence from the Internet Archive has rarely been admitted at trial. This Note surveys the handful of judicial opinions and orders that comment on the admission of Internet Archive evidence and explores the conflict underlying these approaches. As an alternative to the courses they have taken, this Note urges courts to treat the introduction of archived Web pages as implicating a best evidence issue in addition to an authentication question. Under this approach, courts would decide using evidence sufficient to the purpose, but not necessarily admissible at trial, whether the archived page qualifies as a ‘duplicate’ of a page that once appeared on the Web. Beyond that, courts would apply authentication standards already developed to decide whether a reasonable jury could find, based only on admissible evidence, whether proffered evidence accurately represents the page stored on the Internet Archive server and, if necessary, whether the original page accurately represented material placed on the originating site by the site’s owner or operator. With this additional step, reliable evidence from the Wayback Machine can become as easily admitted as any other Internet-derived proof.

 

Source:  LSN Intellectual Property Law Vol. 2 No. 109,  09/30/2009

Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1

“Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1″

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

Adoption of the Federal Rule of Appellate Procedure 32.1 has had a ripple effect throughout the federal courts of appeals, but it has not brought uniformity on the issue of unpublished opinions. The federal judiciary’s practice of issuing unpublished opinions traditionally ascribed three characteristics to such opinions: unpublished, non-citeable, and non-precedential. However, local rules of the Courts of Appeals are widely varied on these characteristics. The most fundamental jurisprudential question: “what is law?” has varying answers across a supposedly uniform federal system. From the types of cases eligible for unpublication to the limits of citation of unpublished opinions to the precedential status afforded such opinions, uncertainty and ambiguity abounds.

This article, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, examines the federal judiciary’s desire for uniform rules on publication and citation (and its persistent avoidance of the precedent issue) regarding unpublished opinions. It then categorizes and analyzes the circuits’ local rules regarding publication, citation, and precedent in the wake of Federal Rule of Appellate Procedure 32.1. Finding significant discrepancies between circuit local rules in each of these three categories, the article argues for truly uniform publication, citation, and precedent rules – the most direct of which would be to end the experiment with unpublished opinions and recognize the full value of all circuit court opinions.

 

Source:  LSN Law & Courts Vol. 3 No. 59,  09/07/2009

The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age

The latest issue of the New York Law School Law Review just crossed my desk, with many interesting articles,  including this one by William R. Mills, associate librarian and professor of Legal Research:

New York Law School Law Review

Volume 53 2008/09

William R. Mills

The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age

Professor Mills’s conclusion:

The foundation of trust that underpins our system of case law reporting has now been undermined. Cases posted to many mainstream Internet legal research sources, other than Lexis or Westlaw, appear with no strong guarantee of accuracy or authenticity. Scrupulous legal researchers who wish to independently verify the accuracy of the case reports they cite from Internet sources are met with the burden of comparing the electronic reports against print versions, which are the only ones that courts deem to be official. On a large scale, this burden can prove insurmountable. Furthermore, readers of modern legal literature, when encountering citations from the National Reporter System, have good reason to harbor doubt that the authors who wrote those citations actually consulted the editions that they cited. Moreover, if the authors did not actually consult the National Reporter System, or its established electronic counterparts Lexis or Westlaw, then there is no assurance that the sources they did consult were reliably accurate.

In the digital age, the foundation of trust in our case law reporting system, and in legal citation generally, must be rebuilt. Such a rebuilding effort cannot succeed by utilizing the technology of printed books. Today’s legal researchers are increasingly abandoning print sources in favor of their Internet-based counterparts. The rebuilding of trust in the case reporting system must take place in the realm of digital technology. It must focus on implementing digital safeguards within the process of dissemination of case law databases to better ensure the accuracy and security of information found in those databases.

While court systems and other government entities will obviously play major roles in this rebuilding effort, the legal profession would be naive to expect the government alone to accomplish this work. The government, after all, has never succeeded in creating an efficient case reporting system that served the needs of lawyers nationwide.  Rather, the rebuilding of the American case reporting system for the digital age must be an effort undertaken jointly by government, professional groups, and private enterprise.  The corporate proprietors of Westlaw and Lexis, as the inheritors of the West paradigm, ought not to resist this effort, but instead join in to facilitate its speedy success. Cooperation among all parties is essential, and private enterprise would be an ultimate beneficiary. The companies that market databases of case reports to lawyers have nothing to lose and much to gain from an improved system that bolsters the trustworthiness of these products.

Unpublished opinions

A Slate piece, “Sotomayor’s Manly Man Ruling – Her bold ruling in favor of a man who claimed sex discrimination,” by Emily Bazelon, includes this paragraph on unpublished opinions:

Sotomayor agreed to issue an unsigned and unpublished opinion. The term “unpublished opinion” is a bit of a misnomer. These rulings appear in the Lexis and Westlaw databases, where lawyers do legal research. And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status. They’re shorter and often still carry less weight–they’re persuasive rather than binding precedent, in lawyer’s terms. They are not supposed to be the way judges dispose of difficult cases that raise substantive or novel legal issues. But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it’s hard to control. And in the 2nd Circuit, I’m told, there’s a premium on unanimity and consensus, so a 3-0 unpublished opinion might trump a 2-1 published one, in some cases and in some judges’ eyes.

Angels & Demons on authority

Today’s Chronicle of Higher Education has an interesting little item on how author Dan Brown of Angels & Demons came to find a Professor Langdon who is who his Professor Langdon’s character is based upon:

FORGET TOM HANKS. MEET THE REAL PROFESSOR LANGDON.: A
   typography professor at Drexel University is the real-life
   inspiration for the code-breaking academic played by Tom Hanks
   in the new film “Angels & Demons.”
   http://chronicle.com/weekly/v55/i38/38a00601.htm?utm_source=at&utm_medium=en

I’ve seen the movie Angels & Demons and just read the book on a flight (it’s a perfect airplane book — lots of short chapters and an easy read).  The book contains lots and lots of detail left out from the movie, including a paragraph about how the director of CERN (Conseil Europeen pour la Recherche Nucleaire) found Professor Langdon.  It’s a paragraph I’m going to use in our Advanced Legal Research class.

The book concerns activities by a group called the Illuminati and the CERN director did an internet seach on the word.  Below is the paragraph (p. 38 in the paperback edition), along with some other text to place it in context, it occurs during a dialog between the CERN director Kohler and Professor Langdon:

. . . [Langdon asked,] “How much do you already know?”

“Only what I had time to read on your website.  The word Illuminiti means ‘the enlightened ones.’  It is the name of some sort of ancient brotherhood.”

Langdon nodded, “Had you head the name before?”

“Not until I saw it . . . “

“So you ran a web search for it?”

“Yes.”

“And the word returned hundreds of references, no doubt.”

“Thousands,” Kohler said.  Yours, however, contained references to Harvard, Oxford, a reputable publisher, as well as a list of related publications.  As a scientist I have come to learn that information is only as valuable as its source.  Your credentials seemed authentic.”

(Emphasis added)

Irish student’s Jarre wiki hoax dupes journalists

Irish student’s Jarre wiki hoax dupes journalists

Reuters
Thursday, May 7, 2009; 5:18 AM

“When I die there will be a final waltz playing in my head,” Oscar-winning French composer Maurice Jarre once said, according to several newspapers reporting his death in March. However, the quotation was invented by an Irish student who posted it on the Wikipedia Web site in a hoax designed to show the dangers of relying too heavily on the Internet for information. The 22-year-old sociology and economics student at University College Dublin said he had expected blogs and perhaps small newspapers to use the quotes but did not believe major publications would rely on Wikipedia without further checks.

 

Source: BNA’s Internet Law News – 5/8/09

Case reversed for allowing Wikipedia entry as evidence

From the Examiner.com

Bergen judge reversed for allowing Wikipedia entry as evidence

By Jerry DeMarco

North Jersey Crime Examiner

A Bergen County judge mistakenly let a collection company lawyer cover a gap in evidence against a credit-card holder by using a Wikipedia page, a state appeals court has ruled.

. . .

“Such a malleable source of information is inherently unreliable and clearly not one whose accuracy cannot reasonably be questioned,” they added.

. . .