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Saturday, April 28, 2012

Wikipedia at the Federal Circuit Courts of Appeal

A few days ago, I was alerted to a brief article that was posted to the Law News Now portion of the ABA Journal's website (hat-tip to Mon Yin) regarding a report posted to the Wall Street Journal Law Blog that asked, "Which Federal Appeals Court Cites Wikipedia Most Often?" Since this is a topic near and dear to my heart, I decided to see if I could corroborate their findings. Sorry to get picky, but I did find some small mistakes (although the gist of the posting is still accurate).

The Law Blog posting claims that they "only recorded those instances in which an appeals court used Wikipedia for its own purposes, rather than citing it secondarily through a lower court or a party’s pleading" (emphasis added). But it then charged the Seventh Circuit with "36 citations". In reality, their lexis.com* search retrieved 36 cases, but not all of them were citing to Wikipedia for the court's "own purposes".

[*I'm not 100% sure they used lexis.com, but I can tell they didn't use Westlaw: The search necessary to be exhaustive on Westlaw, wikipedia! en.wikipedia! www.wikipedia! & da(aft 2006), only retrieves 35 cases. See Daniel J. Baker, A Jester's Promenade: Citations to Wikipedia in Law Reviews, 2002-2008, 7 ISJLP 361, 382 n.109 (2012) (explaining why such a convoluted search is necessary). The difference stems from lexis.com's retention of a decision that was withdrawn (see below).]

For example, Salmeron v. Enter. Recovery Sys., 579 F.3d 787 (7th Cir. 2009) mentions Wikipedia (at 791 n.1), but here's the context: The website Wikileaks played an important role in the factual posture of the case, and, in a footnote, the court explains that "Wikileaks styles itself as 'an uncensorable version of Wikipedia for untraceable mass document leaking and analysis.'" The court then correctly cites to the Wikileaks website. Similarly, even if it had not been withdrawn, Bd. of Regents of the Univ. of Wis. Sys. v. Phoenix Int'l Software, Inc., 630 F.3d 570 (7th Cir. 2010) provides the second discrepancy. In this case (at 577), the court mentions that one of the parties offered a Wikipedia entry as evidence to the TTAB, by which the TTAB was apparently not impressed. Clearly, neither of these cases are using Wikipedia "for its own purposes".

But then I thought, "Maybe, when they say '36 citations', they literally mean 36 individual citations." I don't think that's the case, however, because, if it is, then they missed several citations and/or cases. By my count, the 34 cases in the Seventh Circuit that cited to Wikipedia did so a total of 42 times.

Here is my breakdown by Circuit:

Circuit # of Citing Decisions (since 2007)
1st Circuit 2
2nd Circuit 2
3rd Circuit 4
4th Circuit 4
5th Circuit 1
6th Circuit 5
7th Circuit 34
8th Circuit 3
9th Circuit 17*
10th Circuit 7
11th Circuit 2
D.C. Circuit 0
Fed. Circuit 0
*Does not include a superseded decision (579 F.3d 989) that is, for our purposes, identical to the superseding decision(621 F.3d 1162).

In my opinion, there are many other aspects of these decisions that are more interesting. For example, of these 81 decisions, all but 16 were in the lead decision of the court: five were in concurrences and 11 in dissenting opinions (three of which were dissents from denials for rehearing en banc). Of the 65 lead citing decisions, 55 were unanimous decisions.

But the most interesting aspect is not which Circuits have adopted Wikipedia the most, but which judges. As one might expect, the heaviest users are from the Seventh Circuit. Judge Posner has definitely been the greatest Wikipedia champion, citing to Wikipedia in eight decisions and joining another seven Wikipedia-citing decisions, but his colleagues Judge Kanne (five authored, six joined) and Judge Evans (five authored, four joined) are not far behind. [It shouldn't be surprising that Judge Posner is a frequent citer of Wikipedia considering he was quoted in the New York Times article that started the Law Blog survey: Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. Times, Jan. 29, 2007. This article quotes Judge Posner: "Wikipedia is a terrific resource."] Outside of the Seventh Circuit, two Ninth Circuit judges lead the race: Chief Judge Kozinski has cited Wikipedia in five decisions, and Judge Bea has cited Wikipedia in four dissenting opinions.

Moreover, citation to Wikipedia by the federal circuit courts seems to ebb and flow. In 2007, there were 16 decisions that cited to Wikipedia, followed in 2008 by 20 such decisions. Reason seemed to take the advantage in 2009, when the number of decisions dropped to six, but then it shot back up to 18 in 2010, before dipping a little to 15 in 2011. So far in 2012, there have been six decisions; considering we're only a third of the way through the year, it looks like we should expect double digit citations once again.

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