on citing Wikipedia in U.S. court opinions

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on citing Wikipedia in U.S. court opinions

Mark
Making the blog-rounds, there was a Utah court case that includes
surprisingly lengthy (and generally positive) discussion on whether and
when to cite Wikipedia in court decisions:

* http://www.utcourts.gov/opinions/appopin/fire_insurance081612.pdf

See footnote 1 (page 5) in the majority opinion, and a separate
concurring opinion filed by another judge solely on the
Wikipedia-citation question (starts on the bottom of page 7). My
favorite part is where they cite the Wikipedia article "Reliability of
Wikipedia" as part of the analysis.

Embarrassingly, the article of ours they cite, [[Jet Ski]], is actually
in a sort of sorry state. But they seem to do so only for the relatively
mundane usage note in the opening paragraph, which explains that "Jet
Ski" is a trademark, but is often used imprecisely, in colloquial usage,
to refer to other similar devices not manufactured by Kawasaki. I guess
the OED doesn't have a note on that yet? Or maybe they don't have OED
subscriptions over at the court? Alternately, maybe they just liked the
way we worded the explanation and wanted to quote it rather than
re-explaining the same thing in their own words.

-Mark


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Re: on citing Wikipedia in U.S. court opinions

Fred Bauder-2
> Making the blog-rounds, there was a Utah court case that includes
> surprisingly lengthy (and generally positive) discussion on whether and
> when to cite Wikipedia in court decisions:
>
> * http://www.utcourts.gov/opinions/appopin/fire_insurance081612.pdf
>
> See footnote 1 (page 5) in the majority opinion, and a separate
> concurring opinion filed by another judge solely on the
> Wikipedia-citation question (starts on the bottom of page 7). My
> favorite part is where they cite the Wikipedia article "Reliability of
> Wikipedia" as part of the analysis.
>
> Embarrassingly, the article of ours they cite, [[Jet Ski]], is actually
> in a sort of sorry state. But they seem to do so only for the relatively
> mundane usage note in the opening paragraph, which explains that "Jet
> Ski" is a trademark, but is often used imprecisely, in colloquial usage,
> to refer to other similar devices not manufactured by Kawasaki. I guess
> the OED doesn't have a note on that yet? Or maybe they don't have OED
> subscriptions over at the court? Alternately, maybe they just liked the
> way we worded the explanation and wanted to quote it rather than
> re-explaining the same thing in their own words.
>
> -Mark

I think this is probably a case of the court being candid about where
they got their information. They can't use their personal knowledge even
for such instances of judicial notice, which is what this is in essence.

There is a lot of getting information by newspaper reporters, students,
anyone really who needs it which is not cited due to the supposed total
unreliability of Wikipedia regarding even the simplest facts.

Fred


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Re: on citing Wikipedia in U.S. court opinions

Fred Bauder-2
>> Making the blog-rounds, there was a Utah court case that includes
>> surprisingly lengthy (and generally positive) discussion on whether and
>> when to cite Wikipedia in court decisions:
>>
>> * http://www.utcourts.gov/opinions/appopin/fire_insurance081612.pdf
>>
>> See footnote 1 (page 5) in the majority opinion, and a separate
>> concurring opinion filed by another judge solely on the
>> Wikipedia-citation question (starts on the bottom of page 7). My
>> favorite part is where they cite the Wikipedia article "Reliability of
>> Wikipedia" as part of the analysis.
>>
>> Embarrassingly, the article of ours they cite, [[Jet Ski]], is actually
>> in a sort of sorry state. But they seem to do so only for the
>> relatively
>> mundane usage note in the opening paragraph, which explains that "Jet
>> Ski" is a trademark, but is often used imprecisely, in colloquial
>> usage,
>> to refer to other similar devices not manufactured by Kawasaki. I guess
>> the OED doesn't have a note on that yet? Or maybe they don't have OED
>> subscriptions over at the court? Alternately, maybe they just liked the
>> way we worded the explanation and wanted to quote it rather than
>> re-explaining the same thing in their own words.
>>
>> -Mark
>
> I think this is probably a case of the court being candid about where
> they got their information. They can't use their personal knowledge even
> for such instances of judicial notice, which is what this is in essence.
>
> There is a lot of getting information by newspaper reporters, students,
> anyone really who needs it which is not cited due to the supposed total
> unreliability of Wikipedia regarding even the simplest facts.
>
> Fred

In the court's opinion judicial notice was not taken, but information
obtained about common usage of the term, "jet ski," used in the insurance
contract. Judicial notice seems to be out of bounds under some reasoning;
doubtless I do not fully understand what it means as a legal term.

Fred


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Re: on citing Wikipedia in U.S. court opinions

Newyorkbrad (Wikipedia)
I've collected a few of these over the years, in preparation for an article
I've never found the time to write ... here's another example from earlier
this year where the majority and dissenting opinions differ over
the propriety of a Wikipedia citaiton:

http://www.nycourts.gov/reporter/3dseries/2012/2012_02069.htm

Wikipedia is cited in footnote 3 to dissenting opinion (see the very end of
the decision).  The majority opinion responds that "as of yet, Wikipedia is
not recognized source material for serious jurisprudential analysis."
(Caution: the facts of the case are unpleasant.)
Newyorkbrad




On Thu, Aug 16, 2012 at 10:51 PM, Fred Bauder <[hidden email]>wrote:

> >> Making the blog-rounds, there was a Utah court case that includes
> >> surprisingly lengthy (and generally positive) discussion on whether and
> >> when to cite Wikipedia in court decisions:
> >>
> >> * http://www.utcourts.gov/opinions/appopin/fire_insurance081612.pdf
> >>
> >> See footnote 1 (page 5) in the majority opinion, and a separate
> >> concurring opinion filed by another judge solely on the
> >> Wikipedia-citation question (starts on the bottom of page 7). My
> >> favorite part is where they cite the Wikipedia article "Reliability of
> >> Wikipedia" as part of the analysis.
> >>
> >> Embarrassingly, the article of ours they cite, [[Jet Ski]], is actually
> >> in a sort of sorry state. But they seem to do so only for the
> >> relatively
> >> mundane usage note in the opening paragraph, which explains that "Jet
> >> Ski" is a trademark, but is often used imprecisely, in colloquial
> >> usage,
> >> to refer to other similar devices not manufactured by Kawasaki. I guess
> >> the OED doesn't have a note on that yet? Or maybe they don't have OED
> >> subscriptions over at the court? Alternately, maybe they just liked the
> >> way we worded the explanation and wanted to quote it rather than
> >> re-explaining the same thing in their own words.
> >>
> >> -Mark
> >
> > I think this is probably a case of the court being candid about where
> > they got their information. They can't use their personal knowledge even
> > for such instances of judicial notice, which is what this is in essence.
> >
> > There is a lot of getting information by newspaper reporters, students,
> > anyone really who needs it which is not cited due to the supposed total
> > unreliability of Wikipedia regarding even the simplest facts.
> >
> > Fred
>
> In the court's opinion judicial notice was not taken, but information
> obtained about common usage of the term, "jet ski," used in the insurance
> contract. Judicial notice seems to be out of bounds under some reasoning;
> doubtless I do not fully understand what it means as a legal term.
>
> Fred
>
>
> _______________________________________________
> WikiEN-l mailing list
> [hidden email]
> To unsubscribe from this mailing list, visit:
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>
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Re: on citing Wikipedia in U.S. court opinions

Anthony-73
In reply to this post by Mark
In the concurring opinion, Judge Voros says that "getting a sense of
the common usage or ordinary and plain meaning of a contract term is
precisely the purpose for which the lead opinion here cites Wikipedia.
 Our reliance on this source is therefore, in my judgment,
appropriate."

On this, he is grossly mistaken.  A Wikipedia entry may reflect the
common usage.  Most of the time, for most entries, it probably does.
On the other hand, it may not.  And an appeals court judge shouldn't
be digging through the edit history to figure out which one it is.
This type of analysis should, if at all, be done by an expert witness,
who could be cross examined by the opposing counsel.

As it stands, all the Wikipedia entry showed was that at one point one
person wrote what happened to appear there at the time when it was
accessed.

On Thu, Aug 16, 2012 at 10:23 PM, Mark <[hidden email]> wrote:

> Making the blog-rounds, there was a Utah court case that includes
> surprisingly lengthy (and generally positive) discussion on whether and when
> to cite Wikipedia in court decisions:
>
> * http://www.utcourts.gov/opinions/appopin/fire_insurance081612.pdf
>
> See footnote 1 (page 5) in the majority opinion, and a separate concurring
> opinion filed by another judge solely on the Wikipedia-citation question
> (starts on the bottom of page 7). My favorite part is where they cite the
> Wikipedia article "Reliability of Wikipedia" as part of the analysis.
>
> Embarrassingly, the article of ours they cite, [[Jet Ski]], is actually in a
> sort of sorry state. But they seem to do so only for the relatively mundane
> usage note in the opening paragraph, which explains that "Jet Ski" is a
> trademark, but is often used imprecisely, in colloquial usage, to refer to
> other similar devices not manufactured by Kawasaki. I guess the OED doesn't
> have a note on that yet? Or maybe they don't have OED subscriptions over at
> the court? Alternately, maybe they just liked the way we worded the
> explanation and wanted to quote it rather than re-explaining the same thing
> in their own words.
>
> -Mark

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Re: on citing Wikipedia in U.S. court opinions

Newyorkbrad (Wikipedia)
In reply to this post by Mark
I didn't realize it until just now, but we (En-WP) have articles about this:

http://en.wikipedia.org/wiki/Wikipedia:Wikipedia_in_judicial_opinions

http://en.wikipedia.org/wiki/Wikipedia:Wikipedia_as_a_court_source

These clearly need to be updated, but might be of interest.

Also of note, albeit also outdated:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1272437

http://www.nytimes.com/2007/01/29/technology/29wikipedia.html

And the best post I've found on the current case:

http://www.volokh.com/2012/08/16/citing-wikipedia-in-court-opinions/

Regards,
Newyorkbrad

On Thu, Aug 16, 2012 at 10:23 PM, Mark <[hidden email]> wrote:

> Making the blog-rounds, there was a Utah court case that includes
> surprisingly lengthy (and generally positive) discussion on whether and
> when to cite Wikipedia in court decisions:
>
> * http://www.utcourts.gov/**opinions/appopin/fire_**insurance081612.pdf<http://www.utcourts.gov/opinions/appopin/fire_insurance081612.pdf>
>
> See footnote 1 (page 5) in the majority opinion, and a separate concurring
> opinion filed by another judge solely on the Wikipedia-citation question
> (starts on the bottom of page 7). My favorite part is where they cite the
> Wikipedia article "Reliability of Wikipedia" as part of the analysis.
>
> Embarrassingly, the article of ours they cite, [[Jet Ski]], is actually in
> a sort of sorry state. But they seem to do so only for the relatively
> mundane usage note in the opening paragraph, which explains that "Jet Ski"
> is a trademark, but is often used imprecisely, in colloquial usage, to
> refer to other similar devices not manufactured by Kawasaki. I guess the
> OED doesn't have a note on that yet? Or maybe they don't have OED
> subscriptions over at the court? Alternately, maybe they just liked the way
> we worded the explanation and wanted to quote it rather than re-explaining
> the same thing in their own words.
>
> -Mark
>
>
> ______________________________**_________________
> WikiEN-l mailing list
> [hidden email]
> To unsubscribe from this mailing list, visit:
> https://lists.wikimedia.org/**mailman/listinfo/wikien-l<https://lists.wikimedia.org/mailman/listinfo/wikien-l>
>
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Re: on citing Wikipedia in U.S. court opinions

Anthony-73
In reply to this post by Fred Bauder-2
On Thu, Aug 16, 2012 at 10:51 PM, Fred Bauder <[hidden email]> wrote:
> In the court's opinion judicial notice was not taken, but information
> obtained about common usage of the term, "jet ski," used in the insurance
> contract. Judicial notice seems to be out of bounds under some reasoning;
> doubtless I do not fully understand what it means as a legal term.

http://www.utcourts.gov/resources/rules/ure/0201.htm

Wikipedia is certainly not a source "whose accuracy cannot reasonably
be questioned".

And if the fact "is generally known within the trial court’s
territorial jurisdiction", then Wikipedia isn't necessary.

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Re: on citing Wikipedia in U.S. court opinions

Phil Nash-3
In reply to this post by Newyorkbrad (Wikipedia)

----- Original Message -----
From: "Newyorkbrad" <[hidden email]>
To: "English Wikipedia" <[hidden email]>
 Sent: Friday, August 17, 2012 4:54 PM
Subject: Re: [WikiEN-l] on citing Wikipedia in U.S. court opinions


> (Caution: the facts of the case are unpleasant.)

"Unpleasant" is relative. But then, I've practised law in Liverpool.

He didn't cut his girlfriend's fingers off with bolt-cutters, for example.



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Re: on citing Wikipedia in U.S. court opinions

Anthony-73
In reply to this post by Newyorkbrad (Wikipedia)
On Fri, Aug 17, 2012 at 2:42 PM, Newyorkbrad <[hidden email]> wrote:
> And the best post I've found on the current case:
>
> http://www.volokh.com/2012/08/16/citing-wikipedia-in-court-opinions/

Am I missing something?  That's just a cut and paste of the concurring
opinion and a paragraph of the ruling.

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Re: on citing Wikipedia in U.S. court opinions

Fred Bauder-2
In reply to this post by Anthony-73
> In the concurring opinion, Judge Voros says that "getting a sense of
> the common usage or ordinary and plain meaning of a contract term is
> precisely the purpose for which the lead opinion here cites Wikipedia.
>  Our reliance on this source is therefore, in my judgment,
> appropriate."
>
> On this, he is grossly mistaken.  A Wikipedia entry may reflect the
> common usage.  Most of the time, for most entries, it probably does.
> On the other hand, it may not.  And an appeals court judge shouldn't
> be digging through the edit history to figure out which one it is.
> This type of analysis should, if at all, be done by an expert witness,
> who could be cross examined by the opposing counsel.
>
> As it stands, all the Wikipedia entry showed was that at one point one
> person wrote what happened to appear there at the time when it was
> accessed.

Sometimes we have some strange name from British English or whatever that
someone thinks is the "correct" name, totally divorced from popular
usage.

Fred


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