Wednesday, September 03, 2008
Law in a Nutshell, Wikipedia-Style
Students have sometimes cited Wikipedia to me in class or by e-mail as their legal reference guide. Along the lines of "As Wikipedia says, Erie means...." Sometimes they've even quoted paragraphs of it to me in e-mail. Unfortunately, this brings out the curmudgeon in me. Law school could be a place to start learning some of the good habits (e.g., not citing Wikipedia to partners or judges, not writing e-mails you could live to regret) that will serve them well.
Am I just behind the times? Maybe citing Wikipedia is simply equivalent to citing a study guide/"Civil Procedure in a Nutshell" in class, which I would also discourage. Or maybe there is something special about the way Wikipedia is compiled that makes me want to have students be critical users.
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Tracked on Sep 6, 2008 7:33:14 AM
Tracked on Sep 8, 2008 2:06:54 PM
Every time someone cites Wkipedia to you, how about asking them if they've checked the edit history and discussion page for that article. ("Why?" "To see who added the claim you're citing, and when, and whether it's been discussed.") The best way to deal with this kind of issue is to engage students in a conversation on how Wikipedia works and the advantages and disadvantages of that method. I'm increasingly finding that Wikipedia's flaws consist in terrible organization within article, in selective coverage,and in hilarious mis-emphasis, rather than in factual inaccuracy (though there are still plenty of them). Wikipedia is evidence for the truth of the matters it asserts, but it's also often a miserable source for lawyers to cite (especially on matters like Erie's holding, where the primary document is something they're supposed to know how to be able to find and to comprehend).
The best argument for breaking students of the Wikipedia habit is the one you give: partners and judges are highly suspicious of it. The partners and judges may be wrong to be so suspicious as a general matter, but there are lots of things that partners and judges get wrong that junior lawyers shouldn't try to correct them on. Yay for perpetuating hierarchies!
Posted by: James Grimmelmann | Sep 3, 2008 7:44:27 AM
I tend to agree with you. I practice law in a small town (where my 12-lawyer firm is among the larger in the area). There are VERY few sources that could be cited outside of caselaw that wouldn't weaken one's case immensely. Wikipedia certainly is not among them, nor is it likely ever to be. With that said, you seem only to mention more "casual" use of the reference, not formal (papers, law reviews, etc.). I have referenced Wikipedia in emails and conversation,but that is usually not for an authoritative interpretation of some thing, but more for biographical or bibliographical sources.
One thought is to tell your students that for any email or argument they send to you involving a Wikipedia entry (or maybe just as an outright project), they must draft and publish a new wiki page on some court case which is currently not discussed on Wikipedia.
Posted by: Jonathan | Sep 3, 2008 8:37:54 AM
I've been wondering if the next generation of treatise writers might do a moderated wiki in their area of expertise. You'd harness the power of the net, provide editorial supervision to add credibility, and make yourself famous for the next generation. (Although I don't know what the tenure committee would make of it.)
Posted by: John Steele | Sep 3, 2008 9:39:06 AM
What kind of law students are you teaching? If you are bored or lazy or simply unprepared, I could see quoting or relying on Wikipedia or a case brief book. I've done it myself from time to time. But my question is how dumb to you have to be to tell the prof that you are quoting Wikipedia? Do these kids have any common sense at all?
I second Steele, btw. A wiki-treatise would not only be interesting and helpful, but make you famous, at least among the law student community.
Posted by: Bored 3L | Sep 3, 2008 10:27:56 AM
Probably worth avoiding citations to it in practise as well. See, e.g., here.
Posted by: Venkat | Sep 3, 2008 10:44:50 AM
I agree that the issue is one of critical reading, but I would question any impulse to confine it to wikipedia (or similar sources). Compare, for example: wikipedia, westlaw headnotes, and a traditional treatise. On wikipedia the creation and editing process is largely transparent, if one chooses to investigate, yet apparently highly suspect. Headnotes, the creation of which is entirely hidden both in process and "real" source (as opposed to institutional source), seem to have both strong advocates and strong detractors. Treatises are facially transparent in terms of source, but may be less so in terms of the practical reality of drafting and updating, in particular. My only point is that that an "expertise" culture is likewise suspect. All sources should be read critically. And, in a sense, that seems to be what your students are doing -- reading wikipedia and coming to you to engage in a critical (or at least questioning) dialog about its content. When was the last time a student did that with a headnote or a treatise?
Posted by: Brian Holland | Sep 3, 2008 10:45:11 AM
Jonathan, I agree with everything you say except for the "likely ever to be" part. Give it a decade, and it's quite plausible that it could become a highly trusted source for many kinds of statements.
Posted by: James Grimmelmann | Sep 3, 2008 10:48:59 AM
James, a legal wiki could, but I have doubts about Wikipedia itself. Too much chance to change authority and interpretation. If one cited Wikipedia in a court brief, could one's opponent then go change the page to their own interpretation that evening and write a brief on it? I do not see why not.
On the other hand, "wikilaw" could be a fascinating way to have a wiki edited by several lawyers in any given state or circuit, perhaps with links to the freelaw projects, thus creating a reference web for practice in states, etc.
Posted by: Jonathan | Sep 3, 2008 10:59:54 AM
HT to my friend Joseph:
Interesting. I wonder how much this varies...
Posted by: Jonathan | Sep 3, 2008 11:16:19 AM
My friend just started his first year and told me that his Torts casebook (Epstein) sends students wikipedia for further reference. "For a continuous update on the controversy, see Wikipedia, Abigail's Alliance v. von Eschenbach." So where are students getting the idea that its ok to cite wikipedia? Their casebooks apparently.
Posted by: 2Lchica | Sep 3, 2008 11:36:47 AM
I should add that for next week's reading I've assigned the wiki on Lynne Stewart, so that the students will have some background for some remarks I will make. I considered assigning a number of law review articles, media op-ed pieces, and blog posts, but found them wanting for various reasons.
Posted by: John Steele | Sep 3, 2008 11:51:05 AM
Jonathan: The way to avoid having your opponent go and change the article on you is to cite to a specific revision of the article.
Posted by: James Grimmelmann | Sep 3, 2008 12:10:29 PM
A possibility, James. I'll be interested to see where "big city" law goes. As for us small town folk, I have a suspicion I'll be retired before citations to Wikipedia are given any credence.
Posted by: Jonathan | Sep 3, 2008 12:19:50 PM
There is an 8th Circuit opinion wherein the Court defines a PIT maneuver in a footnote and cites Wikipedia as authority for the definition.
Posted by: GoHogs | Sep 3, 2008 6:11:01 PM
My torts book cites wikipeida as a place to monitor ongoing developments in right-to-die controversies. How about those things that need two independent sources and require fact-checking? what were they called again? news-papiers?
Posted by: anon | Sep 3, 2008 6:35:34 PM
It's because of all the Posner decisions 1Ls have to read. When he says it's okay, it must be okay.
Posted by: 3L | Sep 3, 2008 6:35:58 PM
Not behind the times yet, but at risk of getting left behind. Wikipedia is a terrific source for information, and new scholars will edit those pages with pride, but currently what it lacks in "scholarship" it makes up for in abundance, and ease of use. The time will come when wikipedia or something similar will be a trustworthy cite.
Cant stop the internet.
Posted by: Chris | Sep 3, 2008 6:46:25 PM
I don't understand why it would be bad for students to cite wikipedia to you in, I assume, an informal conversation or e-mail. I understand why you wouldn't want it in formal assignments. But what on Earth is wrong with a student saying "Wikipedia says X. What do you think?" Or "I read this interesting point on Wikipedia. I think it makes sense becaue A, B, and C." That seems like exactly the kind of critical engagement you'd want to encourage.
Posted by: Katie | Sep 3, 2008 6:51:29 PM
You are giving these students far too much credit. Read what he posted. Unless I am sorely mistaken, they aren't using it to foster discussion or become critically engaged; they are citing it because they are lazy or stupid and it seems like a good authority. It's pretty sad, actually.
Posted by: Bored 3L | Sep 3, 2008 7:14:52 PM
Bored 3L, since when do lazy students cite anything in an e-mail to a professor? That seems strictly extracurriculur to me. Unless Prof. Winship requires substantive, class-related emails for some reason.
Posted by: Katie | Sep 3, 2008 7:42:01 PM
Be careful not to discourage academic and intellectual honesty in truthfully revealing the source of information. Law school is both academic and professional, and accurately citing sources is a matter of academic honesty (even in an e-mail question, a good habit to get into!).
In practice, if a more senior lawyer asks for e.g. "quick" research on something or not to spend more than X billable hours, you have to be able to clearly indicate the limits of what you did (e.g. "based only upon considering the principles of the leading case cited in Smith on Sedition,..."). Honesty and revealing sources should be encouraged both as a matter of academic and professional honesty.
Now that said, I totally agree that relying upon Wikipedia for legal rsearch is not a great idea, but as a starting place to get some quick background (taken with a grain of salt) and references to other secondary sources? It can be a good idea. Students should, of course, be taught as you note the problems of relying upon any single secondary source (not just the easily-edited Wikipedia) solely or exclusively, but the honesty should still be encouraged.
In my LL.M. research, there were several occasions when I had to cite "non-scholarly" sources; but academic honesty was ingrained and I did so. I didn't use Wikipedia, but I did note IMDB and on one occasion an article (written by a lawyer) found in a Google search which came up on a quasi-pornographic site (my footnote also warned the reader -- the article had to do with a legal issue surrounding tattoos and was posted on a site displaying many such tattoos in areas of the body not usually visible).
Posted by: David | Sep 3, 2008 8:57:36 PM
If we ever intend to democratize the law and make the law available to the people it supposedly serves, wiki is the way to do it. West and Lexis will be broken of the duopoly they currently hold and "curmudgons" will simply have to accept that technology is the way forward.
Posted by: Wiki is the future | Sep 3, 2008 9:38:04 PM
Since the thread started with "Wikipedia on Erie" I thought I would read the Encyclopedia's description of the Rule to see what it says (for the first time, I might add, after having taught Erie for more than 25 years). On a quick read, there seems to be nothing blatantly wrong in the entry (there probably is, but I'm not willing to invest that much time in reading it), but it is simple-minded, confused, seriously incomplete, and takes sides in several ongoing interpretive controversies without seeming to know that it is doing that. Reproduced faithfully on an exam (though no one would ever ask "What is the Erie Rule?"), it would merit a C grade at best, and only if better written. All in all, it's pretty dismal work. The larger problem is that there is no such thing as a consensus view on Erie. John Ely disagrees with Peter Westen about where and when the Rule applies, Steve Yeazell seems to think it's a constitutional rule though this has to be wrong, some commentators think Hanna overruled Byrd (in effect, not literally), while others think Byrd states the controlling standard, some subscribe to the "unrejuvenated" (to use Ely's term) outcome-determination test of York, and still others like Harlan's 10th amendment, states' rights view (which also has to be wrong). And this only begins to identify the issues over which commentators argue. (I should add, no one of any sophistication would expect to get away with a simple "substance/procedure" description of Erie.) Anyone, or thing, that uses the expression "Erie Rule" as a consensus concept, therefore, has nothing trustworthy to teach about the subject. As for the "Wikipedia-as-coming-authority" point, authority in law depends upon pedigree as much as content, so until a legislature enacts Wikipedia, or a court adopts it, I doubt it is going to be a citation of choice in any serious discussion. It is an elevated form of a moderated blog, after all, and blogs often are just collections of individuals dealing badly with the "quiet desperation" problem. Their principal function is to remind one of why there used to be barriers to "publication."
Posted by: RJC | Sep 3, 2008 9:41:09 PM
A casebook citing (or more accurately referring to) Wikipedia probably doesn't help the cause. See Epstein, Cases and Materials on Torts, 9th Ed. at 42.
Posted by: Guest | Sep 3, 2008 9:55:00 PM
This afternoon, I did my annual presentation on why Wikipedia is unacceptable as a source for my class. Instead of telling them, I put the site up on the screen in the classroom and added Obama to the list of our university's notable alumni. I then asked them why, having seen me do this, they had any confidence in the rest of the material.
Posted by: Richard Narad | Sep 3, 2008 10:37:18 PM
Professor Winship, I am a student who is very glad to see you take a stand against Wikipedia. I can't count how many times people have used it as authority -- in class, in emails, in papers -- and it has astounded me that not a soul has (at least publicly) called their bluff. There is almost always a better source, for both the facts and for the argument the person is making. If only more people followed Professor Narad's lead! What a brilliant idea.
I will say, however, that I don't view nutshells, study guides, and their ilk in the same vein as Wikipedia. I'll confess: I've been among the guilty and I have asked an outside-class question that stemmed, at least in part, from something I read in a study guide. If it got me thinking about how it meshed with what I felt I was getting from class and the casebook, I asked the question. But again, I saved those questions for outside of class.
The way I see it, until -- and it's a big if, really -- Wikipedia can be consistently credible, let's stick with those sources that are. For now, when a classmate quotes Wikipedia, that's when I stop listening.
Posted by: JM | Sep 3, 2008 11:11:25 PM
> Jonathan, I agree with everything you say except for the "likely ever
> to be" part. Give it a decade, and it's quite plausible that it could
> become a highly trusted source for many kinds of statements.
I say Wikipedia already excels where its audience excels: technology. The first area where Wikipedia is likely to become (or already is) a highly trusted source is in entries regarding new technologies, particularly technologies relating to computers and the Internet. In some cases, this effect may be enhanced because the technologies are so new or obscure that, on balance, the Wikipedia entry simply is the best information available.
Not so with legal entries such as the one about Erie. The reason those chafe so much may relate to the fact that it just seems so unlikely to us that a true legal expert would bother (or have the time) to flesh out such entries to the point where they could be used in lieu of mainstream legal commentary. Maybe that attitude would suddenly change if, say, one of the Larrys were to sponsor a wiki treatise on constitutional law.
That said, the best application for legal wiki entries may lie not in explaining existing caselaw, but in reporting on new developments in specific legal doctrines -- e.g., a listing of recent cases that have applied a new rule announced by the Supreme Court on patent injunctions -- where traditional publications are too slow to keep up. And then, in an ideal world, one might be able to provide a succinct cite to that wiki entry to establish that there is overwhelming precedential support for a certain legal principle or, conversely, that there is demonstrated confusion or even a circuit split.
Posted by: Bryan C | Sep 4, 2008 1:01:45 AM
I remember an incident during 1L year when a student (secretly) cited a wikipedia article on his laptop while responding to a question in Socratic. The information turned out to be completely wrong--another student in the class had predicted that this person would use wikipedia, so he added the erroneous information just seconds before the erring student saw it and relied upon it. Moral of the story? Don't use wikipedia during a Socratic when the potential for hilarity is high.
Posted by: bdawkins | Sep 4, 2008 11:02:33 AM
I think many here gave Wiki too little credit. When Wikipedia started, many said that it would fail because of reasons like who would want to share, people will just write rubbish etc... but instead Wikipedia has proved that humans are generally good and willing to share and impart their knowledge to everyone. And thus Wikipedia became this popular because it's the world's largest encyclopedia. Unless you are searching for extreme controversies like Obama, Clinton, Bush etc... what you get will be factually accurate. This is the 21st century and we require 21st century mentality to improve ourselves and our society. Wikipedia is a start. Try using it more often and you will find it has more facts than even our newspaper or the very many reputable journals written by so called 'professionals' being paid by corporations and such.
More importantly times have changed. With majority of the population being well educated, unlike decades ago where the reliance is from a few selected smart individuals, people are willing to share without rewards. I find this debate more about those who are making a living off information which can be obtain freely. So it will always be about free stuff is bad, paid stuff is good. Google is the best example of why free stuff will eventually be the best.
Posted by: StevenT | Sep 4, 2008 4:45:56 PM