Is Link Rot Destroying Stare Decisis as We Know It? the Internet-Citation Practice of the Texas Appellate Courts

Article excerpt

I. INTRODUCTION

In 1995 the first Internet-based citation was used in a federal court opinion. (1) In 1996, a state appellate court followed suit; (2) one month later, a member of the United States Supreme Court cited to the Internet; (3) finally, in 1998 a Texas appellate court cited to the Internet in one of its opinions. (4) In less than twenty years, it has become common to find appellate courts citing to Internet-based resources in opinions. (5) Because the current extent of Internet-citation practice varies by courts across jurisdictions, this paper will examine the Internet-citation practice of the Texas appellate courts since 1998.

Citation-practice research methodology is well established. The method has been used to study and report extensively on citation practices of federal, state, and selected foreign courts. (6) However, studies focused specifically on Internet-citation practice have developed only recently, initially appearing about six years after the federal courts first cited to Internet-based resources in opinions.

One of the first studies to report Internet-citation practice of courts surveyed published and unpublished opinions of the United States Supreme Court and federal Courts of Appeals between 1996 and 2001. (7) At the time not many courts were citing to Internet-based resources, and consequently the resulting data collected were relatively small. For the five-year period, the author found 361 Internet-based citations in 236 opinions. (8) The small amount of data, nevertheless, revealed a considerable increase in Internet-citation practice by federal courts. The two Internet citations identified in 1996 had increased to 361 by 2001. (9) Four years later, a more detailed and longitudinal study appeared that surveyed the Supreme Court's Internet-citation practice, expanding on the variables used in the earlier study. (10) This study isolated and tracked the Internet-citation practice of the Court over a decade, 1996 to 2006, reporting that Internet citations had reached over one-thirdT1 of the opinions issued in 2005 and 2006 terms, and that most appeared in dissenting opinions. (12) A more recent study found a significant increase in the number of opinions from the federal courts of appeals containing Internet citations from 1996 to 2009. (13)

Other studies have focused on the Internet-citation practice of selected state appellate courts. One study reviewed published and unpublished Washington appellate opinions from 1999 to 2005, (14) while a later study recorded and compared Internet citation in published opinions of the Washington and New York state courts from 2000 to 2006. (15) Both studies report overall increases in the use of Internet citations by the state appellate courts, (16) albeit not as extensive as one would suspect. A recent review of Kentucky appellate opinions from 2000 to mid-2011 essentially confirms the prior two state appellate court studies. (17) It is increasingly apparent that citing to Internet resources by courts has solidified and the practice is likely to increase with time.

These Internet-citation-practice studies have reached independent yet similar conclusions. First, even at this relatively nascent stage of Internet-citation practice, it is obvious that the courts are increasingly citing to Internet resources in opinions,18 and it is likely that this upward trend will continue. Second it appears that a correspondingly high rate of citation link rot (19) is occurring. (20) The Internet-citation-practice studies highlight the permanent loss of legal authority due to the ephemeral nature of many of the Internet sites: Many sites are not timely maintained, or are abandoned, moved, or no longer available. (21) Some commentators have alluded to the possibility that link rot is contributing to the slow erosion of one of common law's most fundamental principles--stare decisis. (22) Can courts "let the decision stand" if the cited authority is no longer available or accessible? …