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Wikipedia cited in court opinions:

The Eleventh Circuit case that struck down mandatory metal detectors for protest attendees (cited by Orin Kerr below) is noteworthy for one reason besides its important and likely controversial holding: It cites Wikipedia, a free online collaborative encyclopedia, for information on the Department of Homeland Security Advisory System. It is one of only two cases I've found that cite Wikipedia, the other being Bryant v. Oakpointe Villa Nursing Ctr., 471 Mich. 411 (2004), a Michigan Supreme Court case, which cites Wikipedia for information on positional asphyxia.

Now I much admire the Wikipedia project, and my hat would be off to Larry Sanger and Jimmy Wales, its cofounders, if I wore a hat. The concept of an encyclopedia that is cowritten by lots of people, each of whom has the power to edit any of its pages — with the main screening mechanism being the possibility of correction by others — sounds odd. But it seems to work pretty well; and of course the real question isn't whether the work is perfectly reliable, but (1) how reliable it is compared to the alternatives, (2) whether that's good enough for the particular use you're making of it (e.g., casual attempts to satisfy curiosity rather than decisions where someone's life or even a lot of money is on the line), and (3) whether the work's advantages in thoroughness, currency, convenience, and low cost exceed the possible reliability disadvantages. (Here, by the way, is the Wikipedia response to the arguments that free editing may make the encyclopedia too unreliable.)

Still, I wonder whether it's good for court opinions, which not only resolve disputes between parties but also effectively create law that governs future disputes, to rely on something that at least has the potential to be so easily compromised, whether as part of a deliberate strategy or not. Of course, court opinions can likewise screw up by citing to the many erroneous portions of Michael Bellesiles' work (which some have done); seemingly reputable work by a noted professor or by an established reference-work-producing organization may be mistaken, too. And I suspect the main source of error in court opinions isn't relying on simply mistaken information but rather relying on one source that says one thing when a dozen other more reliable sources that the court hasn't found say the opposite, and more persuasively. Maybe on balance Wikipedia is good enough, especially when the information that the court is drawing from it is likely to be pretty uncontroversial. Nonetheless, it strikes me as something that judges and law clerks should be cautious about using.

Incidentally, a quick search through WESTLAW's BRIEFS database, which contains a subset (but likely a very small subset) of all recent briefs filed in appellate court cases, reveals two briefs where the lawyers likewise cited Wikipedia. On the one hand, that's especially dangerous for a lawyer: If a judge or the judge's clerk knows about Wikipedia's collaborative model, and therefore doubts Wikipedia's reliability, then the citation may (fairly or not) undermine the brief's credibility. And that's especially so if the judge or the clerk looks into it more closely and finds that the Wikipedia article is indeed mistaken.

On the other hand, lawyers, even more than appellate judges, have to work quickly, and often have to cut corners on research. So maybe for some fairly tangential point, a cite to Wikipedia might be seen as the most efficient solution (though subject to the credibility loss concerns that I mention above, which may be present even if the Wikipedia entry proves to be entirely accurate).

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More on Wikipedia (Plus Updates): Eugene's excellent post on Wikipedia below led me to look through Wikipedia for its entries on some topics that I think I know pretty well. My very tentative conclusion, based on a just few sample queries, is that I hope no one relies on Wikipedia for anything very important. Its entries seem to be a strange mix of accurate statements and egregious errors.

  Consider Wikipedia's overview of the Patriot Act:
  This law provides for indefinite imprisonment without trial of non-U.S. citizens whom the Attorney General has determined to be a threat to national security. (At least two U.S. citizens, Yaser Hamdi and Jose Padilla, have also been designated "enemy combatants" and imprisoned without trial). The government is not required to provide detainees with counsel, nor is it required to make any announcement or statement regarding the arrest. The law allows a wiretap to be issued against an individual instead of a specific telephone number. It permits law enforcement agencies to obtain a warrant and search a residence without immediately informing the occupants, if the Attorney General has determined this to be an issue of national security. (For example, State University of New York - Buffalo art professor Steven Kurtz was indicted based on evidence seized during a search for bioterrorism-related materials conducted under the provisions of the PATRIOT Act. Artist Ensared by PATRIOT Act (PDF) (http://www.artinamericamagazine.com/images/AiAfrontpage09_04.pdf). The act also allows intelligence gathering at religious events. With a few exceptions, provisions of the act are due to expire on December 31, 2005.
  Pardon me for being a stickler, but there is very little in this description that is factually true. The Patriot Act does not provide for indefinite imprisonment of anyone; the detentions of Hamdi and Padilla had nothing to do with the Patriot Act; the Patriot Act has nothing to do with detention without counsel; the Act does not allow intelligence gathering at religious events; the act does not allow surreptitious warrants to be obtained on the Attorney General's approval; and very few of the provisions of the Patriot Act are set to expire in 2005.

  Wikipedia is a cool idea, but I agree with Eugene that it's something judges and lawyers shouldn't rely on very much.

  UDPATE: A few readers write in to ask, "If the entry for the Patriot Act is so bad, why don't you just correct it?" The main reason is that I suspect that as soon as I correct it, someone else will come along and "correct it back."

  If I understand accurately how Wikipedia works — a big "if," I should point out-- my views of what is in the Patriot Act are no more and no less valued by Wikipedia than the views of any other Internet user. Given the widespread misperceptions about what is in the Patriot Act, some one else is likely to come across my corrected entry and think, "What idiot wrote this? This is totally wrong!" They will then erase my entry and re-enter all the mistakes that I corrected. The "genius" of Wikipedia is that no one is there to resolve the disagreement: the loudest voice eventually wins. Unless I am willing to monitor Wikipedia's Patriot Act entry on a regular basis, there isn't much that can be done to correct the errors over the long term.

  If there are any Wikipedia experts out there who have thoughts on this problem, please send them in to orinkerr at yahoo.com.

  UPDATE #2: This site suggests that sabotaging Wikipedia entries to advance ideological agendas is not uncommon. That makes sense, I suppose: If you are an activist and you want people to believe in your view of something, why not rewrite the Wikipedia entries on the issues that you care about along the lines of your views?

  UPDATE #3: A reader writes in to note that Wikipedia's Patriot Act entry has already been changed. The paragraph noted above has been deleted, and replaced with the following:
  The law enhances the surveillance capabilities of the government (by increasing its ability to conduct electronic surveillance, tracking finances, and requesting DNA information), takes other measures to arrest international money laundering, reorganizes some priorities in regard to immigration, authorizes rewards for those citizens who help combat terrorism, provides for the appointment of an individual to monitor civil rights abuses.
  If any one else wants to work more on the entry, I would start by rewriting the discussion of what supporters say about the Patriot Act. The current version says that supporters argue that civil liberties abuses are okay. That is just bizarre; in three years of debating the Patriot Act, I don't think I have ever heard any supporter say that. Rather, supporters say that most of the claims about what is in the Patriot Act are simply false, and that the great majority of the Patriot Act was an uncontroversial update to preexisting privacy laws in response to technological change.

  While I'm at it, may I be so bold as to suggest that the Patriot Act is not historically similar to the Reichstag Fire Decree and the Alien and Sedition Acts (currently the #1 and #2 entries in the list of historically similar laws)? Also, most of the "alleged abuses" listed in the Wikipedia entry do not actually involve the Patriot Act.

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