Wikipedia’s Old-Fashioned Revolution

As one who eagerly waited for each new year book for our World Book set, and then set about diligently pasting in all of the update stickers, while eveyone else I knew was raving about Encarta, I was a bit slow to the online encyclopedia.  But as today’s Information Age column in the Wall Street Journal makes clear, Wikipedia’s underpinnings are based on traditional concepts of authority:

As Andrew Lih points out in his new book, “The Wikipedia Revolution: How a Bunch of Nobodies Created the Greatest Encyclopedia,” Wikipedia’s research principles are as traditional as its operating model is revolutionary. Founder Jimmy Wales says the only nonnegotiable policy is a “neutral point of view,” with entries edited to eliminate ideological bias. The other key principles are verifiability by authoritative sources and a related prohibition on original content.

The guidelines for adding entries to this open-to-all encyclopedia reject open-to-all sources: “Gather references both to use as source(s) of your information and also to demonstrate notability of your article’s subject matter. References to blogs, personal websites and MySpace don’t count — we need reliable sources.”

The guide credits old media and old-fashioned definitions to establish legitimacy. “These sources should be reliable; that is, they should be sources that exercise some form of editorial control.” These include “books published by major publishing houses, newspapers, magazines, peer-reviewed scholarly journals . . .

 

The Wall Street Journal, Monday, April 6, 2009, p. A13

Information Age

By L. Gordon Crovitz

Wikipedia’s Old-Fashioned Revolution

Administering CPR to the Gray Lady

 

We spend a full day talking about newspapers and their role in legal research in our class.  And throughout the class we make frequent reference to newspapers (such as, for example, searching for news coverage when legislation passes hurdles in Congress).  Of course no one in our class has actually ever purchased a newspaper (except, maybe, on November 5, 2008 ) and we read constant stories about the industry’s demise.  A really interesting (to me, anyway) article in New York magazine discusses various attempts to resuscitate the venerable “paper of record,” the New York Times, known to some as the “Gray Lady” with new applications of technology, features and deep content.

The article mentions various and intriguing uses of new technology (the “Word Train,” “Lifestream” strip and several others), but also touches upon one of the themes of our class:  authority.

The article also mentions the inclusion of primary source documents as “data dumps” along with the “reporter’s cache” of materials.  This has always been a dream of mine — to be able to read a newspaper story about a complaint filed, bill introduced, judicial opinion issued, settlement agreement signed, regulation promulgated and then find a link from the story to the actual document discussed — and not just for “hot documents” but for every legal document noted (I can dream, right?).

Here are a few paragraphs dealing with these ideas:

Perhaps most interesting, there were data dumps of documents. As Guantanamo records emerged, the Times‘ website posted the entire set of legal documentation, affixed to a search engine. Readers could click on William Glaberson’s reportage, but they could also dive into original materials, searching for a particular word or prisoner amid transcripts of legal hearings.

It is of course impossible to see into the future . . .   But Pilhofer has an application in at the Knight Foundation, a proposal for which he’s teamed up with the nonprofit newsroom ProPublica, seeking funding for software called Document Cloud. Like many innovations, it’s hard to describe until it exists, but from Pilhofer’s account, it would let news organizations display documents on the web–rich transcripts, polling, and other research tools–rendering them easily searchable, commentable, sharable. It could become a journalistic form in itself: the reporter’s cache, embedded in commentary from every corner.

“One of the New York Times” roles in this new world is authority–and that’s probably the rarest commodity on the web,” explains Pilhofer . . . . “That’s why in some respects we’re gung-ho and in other respects very conservative. Everything we do has to be to New York Times standards. Everything. And people are crazy about that. And that’s a good thing.”

(Emphasis added)

 

 

“Goosing the Gray Lady: What are these renegade cybergeeks doing at the New York Times? Maybe saving it,” by Emily Nummbaum.  New York, January 19 – 26, 2009, p. 28

Electronically Manufactured Law

“Electronically Manufactured Law”


Harvard Journal of Law and Technology, Vol. 22, 2008
Hofstra Univ. Legal Studies Research Paper No. 08-23

KATRINA FISCHER KUH, Hofstra School of law

We increasingly communicate and experience law through an electronic medium. Existing scholarship suggests that prior changes in the communication of law – from oral to scribal, scribal to moveable type, the widespread publication of cases – influenced the development of the law, including by contributing to the rise of basic concepts such as precedent. One element of the present shift in the communication of law is that the process by which we find the law has been transformed. Specifically, legal case research, once conducted exclusively through the use of print-based resources (reporter volumes, case digests, treatises), is now conducted primarily through searches of electronic legal databases. This Article employs principles of cognitive psychology to generate empirical predictions about how the shift from a print-based to an electronic research process changes researcher behavior and research outcomes. The Article then assesses the broader impacts of these changes with respect to the content and practice of law.

Specifically, the Article identifies three changes to the research process that are salient for predicting the broader impacts of the shift from print-based to electronic research: (1) Electronic researchers are not guided by the key system to the same extent as print researchers when identifying relevant theories, principles, and cases; (2) Electronic researchers do not encounter and interpret individual cases through the lens of key system information to the same extent as print researchers; and (3) Electronic researchers are exposed to more and different case texts than print researchers. The Article then considers these basic changes in light of principles of cognitive psychology, including the influence of labeling, categorization, and confirmatory bias on understanding, and offers empirical predictions about the impacts of the shift from print-based to electronic research.

First, the Article predicts that the shift to electronic research gives rise to “diversity in framing.” There will be greater divergence between researchers with regard to the theories and principles identified as potentially applicable to a set of facts and this will lead to greater disputes about what is in dispute. Second, the Article predicts that the shift to electronic research leads to more “tilting at windmills.” Researchers will have greater difficulty making accurate judgments about whether an argument has merit and will thus advance marginal theories and cases with greater frequency.

Each of these predicted changes gives rise to broader impacts on the law. In an adversarial system, judicial options for case resolution are largely defined – and constrained – by the theories proffered by counsel. Diversity in framing would expand judicial authority by providing judges with a wider variety of options for the resolution of disputes. This underlines the way in which counsel serve as gatekeepers by exercising independent judgment about which cases and theories have sufficient merit to warrant pursuit. Increased tilting at windmills may require critical reexamination of the existing limits placed on lawyers in their role as gatekeepers – such as Federal Rule of Civil Procedure 11 – to prevent a waste of judicial and client resources. A follow-up article will test the “diversity in framing” and “tilting at windmills” predictions.

Source: LSN Legal Education Vol. 5 No. 53,  12/16/2008

The Citation of Wikipedia in American Judicial Opinions

“The Citation of Wikipedia in American Judicial Opinions”

LEE F. PEOPLES, Oklahoma City University School of Law

Wikipedia has been cited almost 300 times in American judicial opinions as of September, 2008. Courts cite Wikipedia for a wide range of purposes. Some citations are merely mundane references to everyday facts well known by the general public. In other opinions Wikipedia is cited as a basis for the court’s reasoning or to support a conclusion about an adjudicative fact at issue in the case. In a notable recent case, Badasa, v. Mukasey, 2008 WL 3981817 (8th. Cir. 2008), The Eighth Circuit remanded a Board of Immigration Appeals decision because it upheld a lower court’s finding based on information obtained from Wikipedia.

This article will comprehensively examine citations to Wikipedia in American judicial opinions. The impact of references to Wikipedia in judicial opinions on law of evidence, judicial ethics, the judicial role in the common law adversarial system, the de-legalization of American law, and the future of stare decisis will be explored. Best practices for the citation of Wikis in judicial opinions will be discussed.

 

Source:  LSN Law & Society: The Legal Profession Vol. 3 No. 30,  10/14/2008

Authority in law

Authority and Authorities

Virginia Law Review, Forthcoming

FREDERICK SCHAUER, Harvard University – John F. Kennedy School of Government

Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities – cases, statutes, constitutions, regulations, articles, and books, primarily – are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.

 

Source:  LSN Jurisprudence & Legal Philosophy APS Vol. 9 No. 29,  08/15/2008