The Oft-Cited Wikipedia

Recently, the Wall Street Journal took note of a 2007 NYTimes article which found that from 2004-2007 there were more than 100 citations to Wikipedia (the scholarly source) articles in judicial opinions. Not to be outdone, editors at the WSJ’s Law Blog did a little research and found that the Seventh Circuit cited Wikipedia 36 times, the most of any of the federal circuits. The Ninth Circuit came in a close second with 17 citations while the Tenth Circuit finished out in third place with eight cites.

The open-access nature of Wikipedia would seem to lend itself easily to revisionist history. The dangers of citing Wikipedia in court opinions are obvious, though perhaps overblown. The opinions citing Wikipedia sought authority on Blazing Saddles, the definition of “happy hour,” and Elvis’ status as “the King.” But Wikipedia purports to have a  safeguard from such scribal monkey business in its editors and secondary sources only policy.

Talk of the Nation interviewed Professor Timothy Messer-Kruse regarding his experience with the Wikipedia policy of disregarding primary sources for the preponderance of secondary sources. Professor Messer-Kruse stated that he was rebuffed by Wikipedia editors for trying to change the article on the 1886 Haymarket Riots to reflect details expressed in new-found primary sources. Knowing that his forthcoming book on the subject would be published shortly, Professor Messer-Kruse  bided his time to offer his contrary account, a seemingly solid secondary source. However, even after the publication Professor Messer-Kruse was denied again.

USC Professor Andrew Lih opined that though Professor Messer-Kruse’s’ 2011 book  represents a secondary source, because its conclusions run contrary to the majority opinion Wikipedia will not accept his account until academia agrees with him. Professor Lih defended Wikipedia’s policy on the grounds that once Professor Messer-Kruse’s take on the most iconic event in American labor history has “been steeped in the community to bubble up into the majority view,” his account will be accepted as “verifiable” or as Neal Conan put it,  once enough scholars cite Professor Messer-Kruse’s book, it will be Wikipedia fact.

California Evidence code section 452 allows courts to take judicial notice of “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.” Courts need not wait for a motion from a party but may, on its own accord, take a fact as judicial notice. Once noticed, a civil jury must accept the fact as conclusive, whereas a criminal jury may take it or leave it. So as far as the civil jury is concerned, once the Court uses Wikipedia to source a fact, the jury is stuck with it barring a showing that some meddling attorney tampered with the Wikipedia entry or that the secondary source relied upon was really just a high school kid with little understanding of string theory.

As long as judicial officers limit their use of Wikipedia to novelty and trivia, litigants are unlikely to be prejudiced by Wikipedia vandals. However, reliance on Wikipedia for “majority views”  on unsettled legal issues could lead to problems down the road.

Listen to the Talk of the Nation story here.

Via the Wall Street Journal Law Blog.

See also Jonathan Stepanian’s article, “Judicial Notice .net” in the Spring 2012 issue of ABA Litigation News.

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