THE CITATION OF WIKIPEDIA IN JUDICIAL OPINIONS

ABSTRACT Wikipedia has been cited in over four hundred American judicial opinions. Courts have taken judicial notice of Wikipedia content, based their reasoning on Wikipedia entries, and decided dispositive motions on the basis of Wikipedia content. The impermanent nature of Wikipedia entries and their questionable quality raises a number of unique concerns. To date, no law review article has comprehensively examined the citation of Wikipedia in judicial opinions or considered its long-range implications for American law. This article reports the results of an exhaustive study examining every American judicial opinion that cites a Wikipedia entry. The article begins with a discussion of cases that cite Wikipedia for a significant aspect of the case before the court. The impact of these citations on litigants' constitutional and procedural rights, the law of evidence, judicial ethics, and the judicial role in the common law adversarial system are explored. Part II discusses collateral references to Wikipedia entries. Part III proposes a set of best practices for when and how Wikipedia should be cited. Detailed statistics on the quality of Wikipedia entries cited in judicial opinions and the completeness and accuracy of citations to Wikipedia entries are provided. The article concludes with a discussion of the impact of Wikipedia citations in judicial opinions on the future of the law. TABLE OF CONTENTS INTRODUCTION I. SIGNIFICANT REFERENCES TO WIKIPEDIA A. Judicial Analysis and Reasoning Citing Wikipedia B. Taking Judicial Notice of Wikipedia Content C. Sua Sponte and Ex Parte Judicial Research Using Wikipedia D. Expert Witnesses and Wikipedia E. Motions for Summary Judgment and Wikipedia II. COLLATERAL REFERENCES TO WIKIPEDIA III. BEST PRACTICES FOR CITING WIKIPEDIA A. When Wikipedia Should Not Be Cited B. When Citing Wikipedia May be Appropriate C. How Wikipedia Should Be Cited. D. Judicial Conference Guidelines IV. THE FUTURE OF LAW CONCLUSION INTRODUCTION Citations to Wikipedia in judicial opinions first appeared in 2004 and have increased steadily ever since. Wikipedia is not just being cited for trivial matters. Courts have taken judicial notice of Wikipedia content, based their reasoning on Wikipedia entries, and decided dispositive motions on the basis of Wikipedia content. Wikipedia is not like other non-legal factual sources that have been appearing in judicial opinions for many years. (1) The impermanence of Wikipedia content, which can be edited by anyone at any time, and the dubious quality of the information found on Wikipedia raises a number of unique concerns. What happens when a future researcher, lawyer, or judge wants to retrace a court's argument but can't locate the Wikipedia entry cited in a judicial opinion? How can a future researcher be certain that the Wikipedia entry she is viewing is the same one the court looked at when deciding the case? Should the public respect and rely upon a judicial decision based on a Wikipedia entry that subsequently becomes unavailable or changes significantly? Is it ever appropriate for courts to cite Wikipedia entries in judicial opinions, and if so how should they be cited? Should judges and lawyers evaluate Wikipedia entries before citing them and if so what criteria should they use? Finally, are we witnessing "the first wave in what has become a tsunami of 'Wikipedia jurisprudence,'" (2) and what are the long term consequences for American law? Wiki comes from the Hawaiian word for quick. A wiki is a web page created through collaboration. (3) The content of some wikis, like Wikipedia for example, may be created or edited by anyone. Other wikis are more selective, allowing only certain users to update or edit their content. Cornell's legal wiki Wex is an example of a more selective wiki. Only "qualified experts" are permitted to edit content appearing on Wex. …