2015 Developments in Combating “Link Rot”
By Michael Wein
One of the consequences of the greater availability and ubiquity of legal opinions online is that authors can directly hyperlink to sources, including other online decisions, and thus provide immediate access to the source material. This has led to the unintended consequence of “link rot” in appellate decisions — that is, the inclusion of links that are no longer valid. As noted in a 2013 New York Times article, at that time, 49 percent of links in online U.S. Supreme Court decisions were inoperative.
One particularly humorous link is mentioned in the New York Times piece, which, after it came out, was lampooned by the website owner:
404 Error – File Not Found
Aren’t you glad you didn’t cite to this webpage in the Supreme Court Reporter at Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2749 n.14 (2011). If you had, like Justice Alito did, the original content would long since have disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the internet age.
And if you quoted this in the NY Times, will you do a correction for the now changed text?
The first solution identified in the New York Times piece was to have a printout copy available in the hard-copy file, both internally and for the general public’s use, of all web-based citations within appellate decisions. The second was a more long-term fix that, in 2013, was apparently employed only in the 9th Circuit: a separate reservoir of links in decisions maintained as “an electronic archive” of PDF “webcites.”
There have been steps taken by appellate courts these past two months to reduce the adverse effects of link rot. For a problem first diagnosed in a Harvard Law School study (that spurred the New York Times article) less than two years ago, this is remarkably swift. On October 5, the Supreme Court, at the beginning of its term, announced an “internal rule” change that made available online a database of all citations. That database has yet to be used in a decision for the 2015 Term, though all decisions since 2005 are included. Similarly, the Fourth Circuit, on October 20, adopted “Internal Operating Procedure 35.4” that appears to provide a copy of all potentially re-creatable online links at the time the decision is issued.
So where does that leave Maryland? I’m presently unaware of any concerted effort to codify a link-rot rule in the state, though that’s unsurprising given that the two federal courts that hear Maryland-based appeals have only established their own such rules in the past six weeks. Moreover, if Maryland, as the Supreme Court and Fourth Circuit have apparently have done, designate any changes as an “internal” rule, it is debatable whether they would require consideration by the Rules Committee or any public comment. (Perhaps out of an abundance of caution, the Fourth Circuit made the specifics of its internal rule subject to public comment, but the Supreme Court did not.) If the Maryland appellate courts have the capacity to do so now on the Maryland Judiciary website, the Supreme Court model should be implemented (and publicly announced) efficiently and as soon as is practical, at least for “web-based” citations in future opinions.