Wikipedia in Federal Courts - Part 2

A month ago, this blog, like a few others, discussed a report from the Wall Street Journal's Law Blog on federal appeals courts citing to Wikipedia. I thought it might be interesting to examine the federal district courts for citations to Wikipedia, but first a brief update:

The Seventh Circuit Is At It Again!

Since my last blog entry on this topic (dated April 28, 2012), the Seventh Circuit, which already led all circuits in number of decisions citing to Wikipedia (doubling the second place circuit, the Ninth, 34 to 17), has released four more decisions containing citations to Wikipedia!

Two of the decisions were written by Chief Judge Easterbrook (who really needs to learn how to cite to Wikipedia (or have his clerks learn how to); here's an example of his masterful citation style: "The Wikipedia article 'Hip replacement' provides an overview of the components and procedures." Plumbers & Pipefitters Local Union 719 Pension Fund v. Zimmer Holdings, Inc., 2012 U.S. App. LEXIS 10136, at *2, 2012 WL 1813700, at *1 (7th Cir. May 21, 2012)).

Judge Posner joined in two of the decisions, one written by C.J. Easterbrook and the other a per curiam decision. The fourth opinion citing to Wikipedia in the last month was a dissent written by Judge Wood, his fifth Wikipedia-citing opinion.

Now, Let's Examine the Federal District Courts.

As one would expect, there are many more citations to Wikipedia at the federal district court level than at the appellate level. But before I share my results, let me explain the parameters of my study. To be consistent, I decided to stick with the methodology as established by the writers of the original Law Blog study: Only decisions from 2007 on were examined, and the court had to be citing to Wikipedia "for its own purposes, rather than citing it secondarily through a lower court or a party's pleading." Regarding the second criteria, as will be discussed in more detail below, it was sometimes difficult to tell whether the Wikipedia entry was coming from a party's pleading, so I solved this dilemma by excluding only those citations to Wikipedia that were clearly identified as coming from one of the parties. In addition, mere mentions of Wikipedia were also excluded; the court had to be citing to Wikipedia.

My examination found that, as of this writing, Wikipedia has been cited in 436 federal district court opinions; nearly 80% of these decisions are unpublished. The Top 10 states are:

State	# of Citing Decisions (since 2007)
California	44
Illinois	38
Pennsylvania	32
Virginia	29
New York	24
Florida	20
Iowa	17
Ohio	17
Michigan	16
Connecticut	15

However, as with all statistics, they can be somewhat misleading. For example, of Illinois' 38 Wikipedia-citing decisions, 32 came from the Northern District of Illinois!! Here are the Top 10 Wikipedia-citing districts:

District	# of Citing Decisions (since 2007)
N.D. Ill.	32
W.D. Va.	29
E.D. Cal.	19
N.D. Iowa	17
W.D. Pa.	17
D. Conn.	15
E.D. Mich.	15
S.D.N.Y.	15
N.D. Ohio	15
D.N.J.	12

But what about the individual judges? Here are the Top 12 (due to ties) offenders:

Judge	District	# of Citing Decisions (since 2007)
Garfinkel*	D. Conn.	12
Standish	W.D. Pa.	11
Conrad	W.D. Va.	11
Browning	D.N.M.	9
Armstrong*	N.D. Ohio.	9
Hollows*	E.D. Cal.	8
Scoles*	N.D. Iowa	8
Robinson	D. Del.	7
Rosenbaum*	S.D. Fla.	6
Nolan*	N.D. Ill.	6
Marchant*	D.S.C.	6
Kiser	W.D. Va.	6

*Magistrate Judges

Magistrate Judges authored 168 of the 436 decisions that cited to Wikipedia; Special Masters authored four.

An Interesting (At Least to Me) Aspect

While compiling the statistics for this entry, I stumbled upon many a disturbing instance. For example, in a recent decision out of the S.D. W. Va., Judge Copenhaver, Jr. described Wikipedia as a "freely available, authoritative source[]". Delgado v. Ballard, 2012 U.S. Dist. LEXIS 16807, at *27, 2012 WL 456937, at *10 (S.D. W. Va. Feb. 10, 2012) (emphasis added). "Authoritative"?! Really?! Maybe that explains the trend of citing to Wikipedia for medical-related information.

Out of the 436 decisions identified in my study, 172 cite to Wikipedia at least once for some type of medical information, even when the court identifies a more authoritative resource for that information! For example, in Reid v. Astrue, 2009 U.S. Dist. LEXIS 38651, 2009 WL 368656 (S.D. Fla. Jan. 8, 2009), Magistrate Judge Rosenbaum notes that a particular disorder "is a psychiatric category listed in the Diagnostic and Statistical Manual of Mental Disorders where it is described as an on-going pattern of disobedient, hostile, and defiant behavior toward authority figures which goes beyond the bounds of normal childhood behavior." Id. at *10-11 n.14, 2009 WL 368656, at *3 n.14. But then she goes on to cite not to the DSM but to the Wikipedia entry for the disorder!! Id. And that's not the worst: Magistrate Judge Garfinkel from the District of Connecticut has, on multiple occasions, cited to the Wikipedia entry for the DSM itself!!

However, a pattern emerges: Of the 172 decisions citing to Wikipedia for medical-related information, at least 120 involve the Commissioner of the Social Security Administration.

Now, I know what you're thinking: "Clearly, these citations are being supplied by the plaintiffs suing the SSA for denying their claims. Surely, attorneys representing the federal government would not be citing to Wikipedia." That's what I thought too, but I was wrong. In most instances, the citations appear when the court is discussing the SSA's position. Indeed, the smoking gun was found in a decision by Magistrate Judge Boyle from the District of Idaho. In Kole v. Astrue, 2010 U.S. Dist. LEXIS 31245, 2010 WL 1338092 (D. Idaho Mar. 31, 2010), M.J. Boyle provides a verbal smack-down worthy of a standing ovation: "At this point, it must be noted that, in support of his brief, Respondent cites to Wikipedia. . . . While it may support his contention . . . , Respondent is admonished from using Wikipedia as an authority in this District again. Wikipedia is not a reliable source at this level of discourse. . . . As an attorney representing the United States, [the SSA's attorney] should know that citations to such unreliable sources only serve to undermine his reliability as counsel." Id. at *18 n.3, 2010 WL 1338092, at *7 n.3.

Unfortunately, clearly, not all district court judges, whether or not magistrate, stand with Judge Boyle. Although 2008 was the busiest year for Wikipedia citations (with 101 citing decisions), there were 94 such decisions in 2011 and 30 so far in 2012.