« Ind. Decisions - Two Indiana opinions today from 7th Circuit | Main | Ind. Courts - Debra McVicker Lynch selected to replace retired Magistrate Judge V. Sue Shields »

Wednesday, July 30, 2008

Ind. Courts - 7th Circuit's use of Wikipedia in Home Depot case cited as "troubling"

Law prof Eugene Volokh of the widely-read Volokh Conspiracy writes today about the 7th Circuit's decision July 28th in Rickher v. Home Depot, Inc. Some quotes from Volokh:

Courts have cited Wikipedia over 300 times, and many of those cites are in my view just fine when the citation is for a tangential and uncontroversial matter. But the Seventh Circuit's use of Wikipedia in Rickher v. Home Depot, Inc., handed down Monday, strikes me as troubling.

The key issue as to one part of the plaintiff's lawsuit was the definition of "wear and tear." The plaintiff cited Webster's II New College Dictionary and Random House Webster's College Dictionary, which defined the term as “Depreciation, damage, or loss resulting from ordinary use or exposure” and “Damage or deterioration resulting from ordinary use; normal depreciation,” But the court disagreed [and cited Wikipedia]. * * *

If the judges wanted to argue based on their experience, based on logic, or based on contrary lexicographic authorities — including, for instance, the use of the phrase in other sources — that's fine, and they did that in some measure. But they cited Wikipedia as the lead authority supporting their conclusion, and as the source for their important and controversial definition; and this strikes me as troubling.

First, there does seem to me to be a serious risk of manipulation by the parties in this sort of situation. * * *

And, second, I don't see much reason to see why, even unmanipulated, Wikipedia should be a substantial authority here. We don't know who wrote the definition, so we can't rely on his knowledge. This doesn't seem likely to be the sort of definition that would attract a great deal of attention and review in case of error, so that we can rely on a possible "wisdom of crowds." Dictionaries and encyclopedias aren't perfect, and I know there are arguments that Wikipedia is on balance roughly as accurate as the Encyclopedia Britannica (as well as arguments in response). But it does seem to me that, at least until such rough equivalence of Wikipedia and other sources is further demonstrated, courts should rest their decisions about important and controverted matters on sources — such as dictionaries, technical dictionaries, or encyclopedia entries — that at least have some more indicia of likely expertise.

The NY Times had a very good article Jan. 29, 2007 that the ILB quoted here. A quote from the article:
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.”
In the Jan. 29, 2007 entry I observed:
Citation to anything on the web is nothing more than a link to the location of a document on a server located somewhere in cyberspace. The document can be removed, the server can be taken down. That is one set of problems. They are addressed by sites such as WebCite.com, which describes itself as "an archiving system for webreferences (cited webpages and websites)." More from the site:
Authors increasingly cite webpages in medical and scientific publications, which can "disappear" overnight. The problem of unstable webcitations has recently been recently referred to as an issue "calling for an immediate response" by publishers and authors.
The other set of problems involves the fact that the document may be changed, with no indication, meaning that the citation now leads to something other than that which the judge or author intended, and who is to know? Or the document may indicate it has been corrected or revised, but give no clue to what it said before. These are problems, as the ILB has written before, inherent in the Indiana General Assembly's website, as it relates to the Indiana Code, the Acts of Indiana, and the Indiana Register
.Interestingly, another prominent use by the 7th Circuit of Wikipedia references was in Judge Wood's dissent in the voter ID case, quoted in this April 5, 2007 ILB entry.

Posted by Marcia Oddi on July 30, 2008 01:38 PM
Posted to Ind. (7th Cir.) Decisions