long cited primary sources or academic works to provide sources for facts to
incorporate previous scholarship, and to bolster arguments. The ideal citation
connects an interested reader to what the author references, making it easy to
track, down, verify and learn more from the indicated sources.” from Perma: Scoping and addressing the problem of link and
reference rot in legal citations.
Beyond Inconvenience to Malpractice
- Link rot
refers to the obvious and easily identifiable phenomenon of broken links. When the
linking page is missing we see the ubiquitous 404 error. message.
- Reference rot
is a more insidious problem. In “reference rot” the link still
works, but the content of the page has changed. The principle or facts
cited may have materially changed and new content may even contradict the original proposition being cited.
problem is confined to the (not insignificant) inconvenience of tracking down an unavailable
source. In litigation or in transactional practice, the inability to retrieve sources
of facts cited to support a client brief or transactional deal has serious
legal implications. Could a firm lose a case on appeal? Could a firm be accused
of malpractice? Could reputations and careers be hung on the frail branch of a
Until I read the “Perma” article this week I was only
aware of the concept of “link rot.” I had heard about the sobering
statistic that 49% of sources cited by the United States Supreme Court no
longer link to the original content or page.
But the concept of “reference
rot” made my hair stand on end…
the implications for academic scholarship are significant, but the
implications for law firms could be devastating. What happens when a law firm submits a brief citing a scientific study, a government report, an Open Web data
set or a press release from a company website that completely vanishes or is
materially altered? Can you imagine the young associate who has to face down
the withering stare of a partner as (s)he explains that a key source has disappeared
or contradicts the proposition for which it was cited?
Kendra Alter and Lawrence Lessig published Perma: Scoping and addressing the problem of link and
reference rot in legal citations in Harvard Law Review. Contrary to popular belief, the authors point out that it is
sometimes easier to find print sources which predate the Internet than to
find “born digital” references which no longer reside at their
original URL. The problems are not confined to the obvious scenarios: Companies
get sold and merge – and so do their websites. Private bloggers lose interest in their obsessions.
Non-profit organizations, lose funding or lose focus. A webmaster loses their job or gets promoted… Even government
websites as prestigious as the White House and the Department of Justice
have removed and altered web content without indicating that a
document has been revised and/ or replaced with a new version. The Internet
is littered with the equivalent of “space junk” and law firms — like
the Supreme Court will find themselves unable to easily locate or recover the
original Open Web sources, cited in their documents.
Worst of all –a cited website
could potentially include altered content which contradicts the
statements for which was originally referenced. There is a risk
management/malpractice elephant in the room.
No one has yet developed software to redline and track changes on the
Internet, but law firms need to consider what processes or tools they can
employ to mitigate the consequences of the mutable and transient ocean of web content. Products such as Icyte, capture copies of
web pages which you can store in a personal account, but what is a complex
organization to do?
to have date and time stamps.
2. The Internet can’t be
continuously ‘redlined” to highlight changes over time, someone needs to
develop this killer app.
2. Associates need to read and
validate all cited authority. They may get to the website and find that the
content has changed.
standard protocols for preserving cited pages. If Open Web sources are
used they should be preserved as a PDF-type file and associated with the citing document.
exception” to copyright law? Maintaining access to a source could require the copying
of a volume of source material beyond what is normally considered “fair use.”
If we can’t count on website owners to preserve access to digital content
or to “redline” changes we need a legal way to preserve whole websites, treatises, documents
5.Love ‘em or hate ‘em, Lexis, Westlaw,
Wolters Kluwer and BLaw offer a mighty
bulwark against an ocean of 404 errors. Their ability to offer permanent access
to multiple versions of cited sources will provide an important value add over
Open Web sources.
offer a solution to determine if a
source has been replaced.
content will increase demand for librarian
sleuths and knowledge management professionals.
Learn More About Link and Reference Rot
Library is hosting a program:404/File
Not Found: Link Rot, Legal Citation and Projects to Preserve Precedent. Speakers include Jonathan Zittrain one of the authors of the Perma article, Roger Skalbeck of Georgetown, Ed Walters of Fastcase and Mary Alice Baisch, Superintendent of Documents of the USGPO. Unfortunately I will travelling
and not be able to attend this program. Roger Skalbeck has agreed to author a guest blogpost on this very important Conference.
404 Error – File Not Found
And if you quoted this in the NY Times, will you do a correction for the now changed text?