Citing Blogs in Law Journals

In late 2008 I proposed that eventually someone would use a legal blog post as an authority in their factum. Here’s to one step closer to that goal.

I just noticed that a blog post of mine on Slaw about Ron Livingston was cited in an article by Rebecca Phillips in the Fall 2010 issue of the Campbell Law Review, Constitutional Protection for Nonmedia Defendants: Should There be a Distinction Between You and Larry King?

Phillips discusses statements made by social media users used in defamation cases and its conflict with First Amendment rights. In her conclusion she mentions the Livingston suit,

…because the website’s policy is to not require posters to provide their real name, Wikipedia provides protection to a writer’s privacy unless he or she chooses to identify himself or herself. Because of these protections provided by Wikipedia, it is probable that Livingston’s suit is merely a shot-in-the-dark attempt to vindicate his reputation.

…the internet has provided another method of defaming a person or entity because it permits illegitimate “news” sources to post information on the World Wide Web with ease and a globalized effect. Despite the fact that it may sometimes be hard to point to who exactly the defendant is, it is apparent in situations such as these that the webusers making these harmful statements tend to rashly make posts that have injurious effects without acknowledging the consequences of their actions. Perhaps determining how these defendants will be treated in a lawsuit when and if these issues are presented to the judiciary will alter the way in which we all use the internet; or perhaps it will have no effect at all.

…the courts need to make a decision: Do these average citizen web-users, who are making statements to the entire world, merit the same protection granted by the First Amendment that legitimate media defendants receive? Although the courts have been able to skirt around the issue for decades, in light of the rise of citizen journalists, the time has come for a decision to be made: Is there a distinction between media and nonmedia defendants?

Ted Tjaden has already mentioned the challenges around the legal citation of blawgs, but here I can add one more.

The actual url that Phillips uses is a post on Law is Cool where I mirrored the Slaw post, something I did when I first started here to help my readership transition over. The cross-posting is clearly indicated, and presumably it would make more sense to cite the post where it was originally found.

The format of Law is Cool is also very different – it’s based on law student authorship, which is incredibly challenging to maintain as old students graduate and new students begin. There’s far less certainty of the site being maintained a decade or so from now than there would be with Slaw.

One explanation could be SEO – the Law is Cool post was just found before the Slaw post was. Another could be a comment on the Law is Cool post which pointed to further resources on the topic, making it a more valuable web reference.

Of course a blog post on online defamation and reputation management, a topic I write about quite a bit, lends itself more to a citation in an online legal journal. The question still arises as to why more blog posts are not cited in legal journals. The uncertainty of stable links is one of the main reasons in my mind.

There’s no reason not to based on content. We have the Law Professors Blog network in the U.S., which provides ample academic insight from scholarly sources. And practitioner sites which focus on specific practice areas can be just as authoritative.

An example of the dead link issue can be demonstrated by the Persuasive Authorities blog, written by several legal academics, which I mentioned in 2009 when the site was first launched. In a post on March 30, 2011, Richard Albert indicates the site will not be posting further. Considering that it’s hosted on Blogspot the content and links will presumably continue to be stable, but the issue of continuity of long-term web resources is clearly highlighted.

Internet users have traditionally for the past decade resolved the stable link issue through Internet Archive‘s Wayback Machine, which archives internet content. But both Internet Archive and Wayback Machine have their own history with litigation, and there is no guarantee that either will exist indefinitely.

Additionally, the Wayback Machine does not archive everything (especially robots.txt exclusions), and did not capture the Livingston post cited by Phillips:

One potential solution is for legal writers to use the url provided by the Wayback Machine archive. This also requires them to submit their blog references to the archive if they have not captured it, as above.

Don’t worry Rebecca Phillips, this one is on me. And thanks for the mention.

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Comments

  1. And in this respect, it’s worth reminding everyone that Slaw is archived by the Library of Congress, which, last time I looked, wasn’t fading away.

  2. Yes it is, and it’s worth mentioning.

    But I couldn’t find the post in question on the Congress page for Slaw, or the page for December 2009.

    The search function on the page also didn’t produce any results.

    Library of Congress would be an obvious solution to this issue, but there is a limited number of sites that they archive, and the functionality leaves plenty to be desired, as demonstrated above.

  3. Well, that’s a drag. I’ll get on to them to see what’s what. It might be that the Minerva project was of limited duration, though the catalog page suggests it’s ongoing — even for Slaw. Thanks for alerting me, Omar.

  4. I have cited Slaw posts, notably in an article called ‘The law Goes Electronic’ in the 2009 collection of the annual review of civil litigation, which takes its footnotes seriously. I cited (with her permission) a note from Connie Crosby about her privacy experience with Facebook (not positive, as it happened…)

    The publisher, who worked with me on the footnotes (notably about using a short-form URL for many of the URLs, which I mentioned on Slaw), raised no concerns about citing the blog.

  5. Good to know John. It’s another example of an article relating to law and the Internet, which does more easily lend to citing blog posts.

    We’ll see if it catches on even further.

  6. Omar, Great news about blog posts in Law Journals. Coincidentally, Lee Peoples has just updated his SSRN contribution abstract for The Citation of Blogs in Judicial Opinions. It is available for download and captures information as of November 2010

    His work focuses on US judgments.

  7. I’m more than happy to let everyone know that the Library of Congress does indeed continue to archive Slaw. They have a policy of putting up archived pages a year at a time, and of using a fair amount of lag time so as not to compete with the blawg. They tell me that Slaw 2010 will be up soon.

  8. Good to know Simon.
    Shaunna’s aricle is remarkably on point, and discusses both the Wayback Machine and the Library of Congress,

    Little attention has been paid to preserving blog posts in order to
    prevent this scenario from playing out…
    The way courts cite blogs makes it difficult to locate the specific post cited in the opinion using either the Internet Archive or the Library of Congress’s archive. Both archives display a list of specific dates of when a blog was archived. Users searching for a specific blog post must know the day, month, and year of the blog post they are searching for in order to access it. Unfortunately, twenty-eight out of the eighty-five opinions examined in this study do not include the specific date of the blog post in their citation. Without the specific date of the post, researchers are left guessing as to the specific post cited by the court.
    Additionally, if there were several posts on the specific day, month, and year, it becomes essential to know the time of the specific post in question. As described above, the date and timestamp of the specific blog post cited is provided in only two out of the eighty-five opinions examined in this study. The lack of a date and timestamp makes it difficult to locate a specific blog post using the Internet Archive or Library of Congress’s archive.

  9. Re: In late 2008 I proposed that eventually someone would use a legal blog post as an authority in their factum. Here’s to one step closer to that goal.

    A blog of mine (on Ablawg, http://ablawg.ca/ ) was referred to in a factum filed by the appellant in an oil and gas case. My blog was on the trial decision in Brookfield Bridge Lending Fund Inc. v. Vanquish Oil and Gas Corporation, 2008 ABQB 444.

    The [entry] is posted at http://ablawg.ca/2008/10/11/when-is-a-non-operator-entitled-to-a-constructive-trust-over-the-operator%e2%80%99s-own-assets/#comments

    I am guessing that blogs have actually been referred to in factums lots of times but we just don’t know about it. The only reason I know in this case is that counsel for the respondent drew it to my attention.

  10. Nigel, I’m not surprised it’s happened at all, which is why I’m thrilled to see the discussion emerge here.

    Do you have a copy of the factum used at the Court of Appeal, and is it available online? It would be interesting to see how it was used, and if by the appellant, how the respondent reacted to it. I notice that the Court of Appeal unfortunately did not make reference to your post in its decision.

    More importantly, what efforts did counsel make, if any, to preserve this blog link? Ablawg is not listed on the Library of Congress law page, but there is an October 17, 2008 snapshot of the page on Wayback machine which may have been entirely automated.