On the Internet, Nobody Knows You're a Judge: Appellate Courts' Use of Internet Materials

I. INTRODUCTION Computer-literate researchers in the last few years have found it increasingly easy to use an Internet search engine to surf the Web, turning up dozens (or thousands) of hits--web sites with content that matches key words in the researcher's search query. Sometimes the hits are right on point; other times, they are not. Readers may recall seeing a cartoon in The New Yorker showing two dogs beside a computer terminal. One explained to the other: "On the Internet, nobody knows you're a dog." (2) Although a point of the cartoon was to highlight the anonymity Internet users may enjoy, it also illustrates that those who seek information on the Internet may unwittingly be relying on the "dogs" that their research turns up. This Article explores federal appellate judges' use of and reliance on materials found on the Internet, as evidenced by their citation and use in appellate opinions. Practitioners and scholars may be interested in learning about appellate judges' use of such materials because such data will reveal the kinds of authorities judges deem to be binding or mandatory, inform them about the kinds of materials judges find persuasive, and demonstrate what sources judges find helpful or instructive. Several questions shaped the research for this study. For example, what kinds of Internet sources are being cited in appellate opinions? What kinds of research support do the sources provide--background factual information? Footnote glosses? Or are courts using these sources as authority for legally significant facts of which they are taking judicial notice? Similarly, to what extent are courts relying upon Internet sources of law--as convenient substitutes for materials commonly found in print? As parallel citations to materials also cited in print media? As authoritative materials that are only available online? Next, are the cited sources still available on the Internet, and if so, are they identical to the way they appeared at the time they were accessed by the judicial author? Finally, if the cited sources are not presently available, why not? To answer these questions, the author set out to collect the opinions written by Supreme Court justices and federal circuit judges that cite sources found on the Internet; (3) to categorize the types of Internet sources most often cited in federal appellate opinions; and to evaluate the reliability, availability, and currency of the sources cited. In collecting the opinions, the author found decided trends, not only in the increasing number of citations to Internet-based materials, but also in the increasing number of web site addresses no longer available or accessible. Appellate judges need to know that the sources they cite may not be accessible to eventual readers of the opinion. Armed with this information, they should either choose different, and more permanent and stable, sources, or they should find ways to preserve the cited Internet materials for later researchers to consult. Too many recent opinions rely upon questionable or non-available sources, and such misplaced reliance certainly cannot be what judicial authors wanted or intended. II. LEGAL AND NONLEGAL AUTHORITY Law professors teach their students that "authority" is something that directs or persuades a law-making entity to hold a certain way. (4) The senior partner who directs the associate to find "good authority" wants the young lawyer to locate something recent, relevant, and mandatory, preferably in the nature of a statute or a case holding from the controlling jurisdiction. Thus legal researchers have traditionally looked for information that is more than just informative; they have looked for information that is unquestionably authoritative. As Professor Robert Berring explains the unique mindset of legal researchers, it is premised on the special characteristics of legal authority: The doctrines of the law are built from findable pieces of hard data that traditionally have been expressed in the form of published judicial decisions. …