On the Supreme Court of Texas Blog, Don Cruse, inspired by a presentation by Robert Dubose given at the Austin Bar Civil Appellate Lunch on the topic "Can I Cite Wikipedia? The Ethics of Citing Online Information on Appeal", recently wrote a posting entitled "How to Cite to Wikipedia in Appellate Briefs".
One thing I especially liked about this posting was that Mr. Cruse correctly encourages his readers to use the Permalink that Wikipedia provides for each version of an article so the reader can link directly to the exact version of the article the author relied upon rather than the most current version one receives when using the generic article URL, if they're going to cite to Wikipedia. Unfortunately, he doesn't discourage his readers from actually citing to Wikipedia in briefs or discuss when citing to Wikipedia in briefs might be appropriate, nor does he actually explain where Mr. Dubose stands on this issue. But that's not exactly why I'm writing about his post today.
In his posting, Mr. Cruse briefly acknowledges that there is a difference, especially in legal writing, between accuracy and authority, and he comes to the conclusion that "a crowdsourced reference [such as Wikipedia] can be extremely valuable as a place to start deeper research or for information more generally known" (emphasis added). Later, in support of his argument for using the Permalink to a specific version of an article, he takes the Beaumont Court of Appeals to task for using the generic article URL for a Wikipedia article because the court quoted from the article but the pertinent language has since changed.
I would argue that the court should not have cited to Wikipedia at all for a couple of reasons. First, the court was citing to Wikipedia for a description of what MySpace is instead of citing to MySpace itself (the decision was handed down in 2009, a time when MySpace was still a very popular website) or to a more authoritative (or at least stable) print resource (by 2009, I know that MySpace had been written about, and presumably described, in various books and articles). Second, what MySpace is/was is completely irrelevant for the purposes of the decision. Not only does it's description have no impact on the holding, but it has no real relevancy to the factual background as well; the court could have simply described it as a personal website.
[As an aside, one could argue that the court was trying to be as clear as possible for future readers. But this particular opinion is an unpublished opinion, and the court's concern for clarity evidently doesn't extend to all the facts; in an act of self-censorship, the court stated that one of the parties "had a message on his answering machine that stated '[i]f you don't want to leave a message, stick it up your b***.'" (despite the fact that the censored word is a common word that only the most Victorian would deem worthy of censorship, and despite the fact that published court opinions routinely contain expletives of the most not-for-TV variety). In re K.E.L., No. 09-08-00014-CV, slip op. at 6, 2009 Tex. App. LEXIS 1382, at *7, 2008 WL 5671873, at *3 (Tex. App. — Beaumont Feb. 26, 2009), available at http://www.9thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=9877.]
However, Mr. Cruse goes further and attacks the Bluebook because "The emphasis seems to be on what the researcher did (i.e., 'last visited' or 'downloaded from') rather than how the next researcher can quickly get to the right resource." He proudly cites and quotes from his critique of the new edition of the Bluebook because of "how it treats URLs as if they were the names of volumes of books rather than pinpoints to specific pages."
Although I believe there are many reasons why one should not cite to Wikipedia, the lack of quality control, even of a "crowdsourced reference", ranks pretty high for me. I believe that all authors, whether of scholarly works, of appellate briefs, or even of blogs, owe their audiences a duty to make sure, to the best of their abilities, that the information they are disseminating is accurate. If the facts they pass on are accurate, then, ultimately, I really don't care where the authors got their information (although knowing the source can either alleviate or elevate my anxiety about relying on an author's assertion). It should be obvious that going to the original source for verification (or as close to the original source as one can get) should be the best practice.
Which brings us back to Mr. Cruse and his two blog postings. His most recent post on citing to Wikipedia, an inherently unreliable resource, cites with approval his earlier post critical of the new Bluebook. However, when one reads that earlier post, one discovers that his criticism of the Bluebook's "awful" and "baffl[ing]" lack of respect for URLs stems from his reading of someone else's blog post about the new Bluebook. Based on one example of how to cite to podcasts provided by this other post, Mr. Cruse excoriates the new Bluebook for not requiring a specific URL to help the reader find the exact podcast relied on by the hypothetical author. He even laments that he "will open to the internet-related section of the new Bluebook with some apprehension, when it arrives."
Unfortunately, it appears he never did (or, perhaps, he's still waiting for his new Bluebook to arrive). Because if he had, he wouldn't have glowingly cited his Bluebook-bashing post, or, at the least, he would have added a correction to it. The rule that drew his ire, R. 18.7.3, clearly states:
"If the audio recording was accessed online, a parallel citation to its location [i.e., a specific URL] is suggested per rule 18.2.3. If the recording is only available online, it should be cited using the principles of rule 18.2.2 [which generally require a specific URL]. If there is no stable URL available to facilitate access to the source, an explanatory parenthetical should be added explaining how the source should be accessed."
The rule then provides two examples. The second example was the one reprinted in the blog posting that set Mr. Cruse off. The first example, however, clearly demonstrates that a specific URL should be included. If Mr. Cruse had gone to the original source instead of relying on someone else's summary, he would have discovered that his objections were unfounded.
Personally, I find all of this ironic. [My apologies to Mr. Cruse for using him as an example, but I do not mean to disparage him. I am merely trying to draw attention to an all-too-common mistake, one that anyone who cites to Wikipedia is potentially heading toward.]
One thing I especially liked about this posting was that Mr. Cruse correctly encourages his readers to use the Permalink that Wikipedia provides for each version of an article so the reader can link directly to the exact version of the article the author relied upon rather than the most current version one receives when using the generic article URL, if they're going to cite to Wikipedia. Unfortunately, he doesn't discourage his readers from actually citing to Wikipedia in briefs or discuss when citing to Wikipedia in briefs might be appropriate, nor does he actually explain where Mr. Dubose stands on this issue. But that's not exactly why I'm writing about his post today.
In his posting, Mr. Cruse briefly acknowledges that there is a difference, especially in legal writing, between accuracy and authority, and he comes to the conclusion that "a crowdsourced reference [such as Wikipedia] can be extremely valuable as a place to start deeper research or for information more generally known" (emphasis added). Later, in support of his argument for using the Permalink to a specific version of an article, he takes the Beaumont Court of Appeals to task for using the generic article URL for a Wikipedia article because the court quoted from the article but the pertinent language has since changed.
I would argue that the court should not have cited to Wikipedia at all for a couple of reasons. First, the court was citing to Wikipedia for a description of what MySpace is instead of citing to MySpace itself (the decision was handed down in 2009, a time when MySpace was still a very popular website) or to a more authoritative (or at least stable) print resource (by 2009, I know that MySpace had been written about, and presumably described, in various books and articles). Second, what MySpace is/was is completely irrelevant for the purposes of the decision. Not only does it's description have no impact on the holding, but it has no real relevancy to the factual background as well; the court could have simply described it as a personal website.
[As an aside, one could argue that the court was trying to be as clear as possible for future readers. But this particular opinion is an unpublished opinion, and the court's concern for clarity evidently doesn't extend to all the facts; in an act of self-censorship, the court stated that one of the parties "had a message on his answering machine that stated '[i]f you don't want to leave a message, stick it up your b***.'" (despite the fact that the censored word is a common word that only the most Victorian would deem worthy of censorship, and despite the fact that published court opinions routinely contain expletives of the most not-for-TV variety). In re K.E.L., No. 09-08-00014-CV, slip op. at 6, 2009 Tex. App. LEXIS 1382, at *7, 2008 WL 5671873, at *3 (Tex. App. — Beaumont Feb. 26, 2009), available at http://www.9thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=9877.]
However, Mr. Cruse goes further and attacks the Bluebook because "The emphasis seems to be on what the researcher did (i.e., 'last visited' or 'downloaded from') rather than how the next researcher can quickly get to the right resource." He proudly cites and quotes from his critique of the new edition of the Bluebook because of "how it treats URLs as if they were the names of volumes of books rather than pinpoints to specific pages."
Although I believe there are many reasons why one should not cite to Wikipedia, the lack of quality control, even of a "crowdsourced reference", ranks pretty high for me. I believe that all authors, whether of scholarly works, of appellate briefs, or even of blogs, owe their audiences a duty to make sure, to the best of their abilities, that the information they are disseminating is accurate. If the facts they pass on are accurate, then, ultimately, I really don't care where the authors got their information (although knowing the source can either alleviate or elevate my anxiety about relying on an author's assertion). It should be obvious that going to the original source for verification (or as close to the original source as one can get) should be the best practice.
Which brings us back to Mr. Cruse and his two blog postings. His most recent post on citing to Wikipedia, an inherently unreliable resource, cites with approval his earlier post critical of the new Bluebook. However, when one reads that earlier post, one discovers that his criticism of the Bluebook's "awful" and "baffl[ing]" lack of respect for URLs stems from his reading of someone else's blog post about the new Bluebook. Based on one example of how to cite to podcasts provided by this other post, Mr. Cruse excoriates the new Bluebook for not requiring a specific URL to help the reader find the exact podcast relied on by the hypothetical author. He even laments that he "will open to the internet-related section of the new Bluebook with some apprehension, when it arrives."
Unfortunately, it appears he never did (or, perhaps, he's still waiting for his new Bluebook to arrive). Because if he had, he wouldn't have glowingly cited his Bluebook-bashing post, or, at the least, he would have added a correction to it. The rule that drew his ire, R. 18.7.3, clearly states:
"If the audio recording was accessed online, a parallel citation to its location [i.e., a specific URL] is suggested per rule 18.2.3. If the recording is only available online, it should be cited using the principles of rule 18.2.2 [which generally require a specific URL]. If there is no stable URL available to facilitate access to the source, an explanatory parenthetical should be added explaining how the source should be accessed."
The rule then provides two examples. The second example was the one reprinted in the blog posting that set Mr. Cruse off. The first example, however, clearly demonstrates that a specific URL should be included. If Mr. Cruse had gone to the original source instead of relying on someone else's summary, he would have discovered that his objections were unfounded.
Personally, I find all of this ironic. [My apologies to Mr. Cruse for using him as an example, but I do not mean to disparage him. I am merely trying to draw attention to an all-too-common mistake, one that anyone who cites to Wikipedia is potentially heading toward.]
If what you're saying is that you agree with me about the correct citation form and the value of permalinks, but that you think the Bluebook authors aren't quite as clueless as I think they are, I can live with that.
ReplyDeleteMy understanding, however, is that Bluebook 18.2.2 still advises against using the full URL when it was "unwieldy," instead suggesting that authors explain in a parenthetical how to get to the specific resource. That's where I think the Bluebook gives bad advice. The focus should be on function, not form.
I agree whole-heartedly with your first paragraph above, Mr. Cruse. I also agree with you that the focus should be on the function, i.e. providing all of the "information designed to facilitate the clearest path of access to the cited reference" (Bluebook R. 18.2.2) so the reader can efficiently locate and examine the resource being cited, rather than the form, but I guess we'll have to agree to disagree on the proper interpretation of the Bluebook's advice regarding URLs. My reading leads me to believe that the Bluebook does not *advise* against using "unwieldy" URLs, but *permits* an author/editor to use the root URL with an explanatory parenthetical instead as an alternative to the general rule that one "cite the entire URL as it appears in the address bar of the browser" (R. 18.2.2(d)), just one of many instances where the Bluebook allows the author/editor some flexibility.
ReplyDelete