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Monday, January 29, 2007

NY Times: Should Courts Cite Wikipedia?

Interesting article in today's New York Times:  Courts Turn to Wikipedia, but Selectively, by Noam Cohen:

A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars ...

More than 100 judicial rulings have relied on Wikipedia, beginning in 2004, including 13 from circuit courts of appeal, one step below the Supreme Court. (The Supreme Court thus far has never cited Wikipedia.)

“Wikipedia is a terrific resource,” said Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago. “Partly because it so convenient, it often has been updated recently and is very accurate.” ut, he added: “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.” ...

Cass R. Sunstein, currently a visiting professor at Harvard Law School [said] "I love Wikipedia, but I don’t think it is yet time to cite it in judicial decisions,” he said, adding that “it doesn’t have quality control.”

He said he feared that “if judges use Wikipedia you might introduce opportunistic editing” to create articles that could influence the outcome of cases. He added, however, that he could not fault a use like Judge Posner’s, which “seems too innocuous for a basis of criticism.”

Many citations by judges, often in footnotes, are like Judge Posner’s, beside the main judicial point, appear intended to show how hip and contemporary the judge is, reflecting Professor Sunstein’s suspicion, “that law clerks are using Wikipedia a great deal.” ...

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

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