We know the judges are a bit technophobic, but perhaps it's time to hire a few tech-savvy clerks?
Adam Liptak, for The New York Times, brought an interesting problem to light this morning, one that is somewhat unique to the courts: citations and hyperlink rot. As data and research has moved online, so have the Courts' citations. According to a pair of recent studies, the Court has cited online resources 555 times since 1996 and nearly half (49 percent) no longer work.
Imagine how hard it would be to analyze the social psychology study cited by Brown v. Board of Education if the link to the study rotted within a short time of the opinion being handed down. It's history, and precedent, lost.
The Problem, Perfectly Illustrated
In one hilarious instance, someone purchased a domain name linked to by Justice Alito and provided the following 404 error message:
Aren't you glad you didn't cite to this webpage in the Supreme Court Reporter at Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2749 n.14 (2011). If you had, like Justice Alito did, the original content would have long since disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the internet age.
The problem isn't confined to external links either. Liptak notes a problem with a video of a police chase cited by the Court, and hosted on the Court's website, that has since been relocated -- killing the link.
Ninth Circuit's Webcites
The ever-so-savvy Ninth Circuit has its own collection of PDF'd archives of every web page cited in a court opinion. If a link goes dead, one can head to the Ninth Circuit's Webcites archive (not to be confused with the similarly-tasked WebCite, which is not legal-centric), dig up the case, and find PDF copies. Of course, this is a pretty high maintenance approach.
Internet Archive Sites
There are a number of sites dedicated to preserving old version of web pages. The most popular, and comprehensive, is the Internet Archive's Wayback Machine, which covers from late 1996, to the present day. Linking to an already-archived page makes it likely that the link will stay permanent. Search Engine Showdown has a list of other similar services, such as Google Cache, as well.
Liptak cites Perma.cc, another startup, built and run by librarians, which will archive sites (or cites) and provide permanent links.
The easiest solution is often the best, right? Maybe not, but until something like Perma.cc has been launched, and has proven its utility and staying power, why not just attach copies of web sources to the opinions themselves? If file size or opinion length is a concern, create a second PDF for the appendix only, and add a link at the end of the opinion to the permanently-stored archive, like the Ninth Circuit's approach, but with more links and with easier accessibility.
- Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link, 1996-2010 (Yale Journal of Law and Technology)
- Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal Citations (SSRN)
- Book Club: Three Recent Tomes on Our Most Important Court (FindLaw's U.S. Supreme Court Blog)