49% of the Links Cited in Supreme Court Decisions Are Broken

The flip side of an Internet that is always growing is an Internet that is always changing. 

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In March of 2001, Timothy Scott, the sheriff's deputy for Coweta County, Georgia, and Victor Harris engaged in a high-speed car chase. Scott had caught Harris, then 19 years old, speeding; Harris got scared and raced away. The two ended up driving -- one in flight, the other in pursuit -- at 90 miles an hour on a two-lane road. It was raining. Harris lost control of his vehicle. Scott's own car slammed into Harris's. Harris was paralyzed in the accident.

You may know the story from there: Harris ended up suing Scott for excessive force, and the case, after years of appeals, wound up tried before the Supreme Court. And one of the pieces of evidence the defense presented was a video, courtesy of a dashboard-mounted camera, that depicted the chase from Scott's point of view. It was, Antonin Scalia remarked during oral argument, “the scariest chase I ever saw since The French Connection.”

The Court found in favor of Scott, and many legal scholars attribute the ruling, in part, to the impact of the video. Which was why the justices linked to the video the digital version of their decision. As Justice Breyer wrote in a concurrence“I suggest that the interested reader take advantage of the link in the court’s opinion, and watch it." 

The interested reader, however, would be unable to do so. The link to the video is broken. Which makes it one of a shockingly large collection of links -- citations, meant to explain and contextualize the decision-making carried out by the highest court in the land -- that have, in the years since they were first linked to, died. According to a new study conducted by Harvard law professor Jonathan Zittrain and his student Kendra Albert, a whopping 49 percent of those links are now broken. Since 1996, the researchers found, justices have cited materials found on the Internet 555 times. And, now, nearly half of those links lead "to nowhere."

In other words, the longstanding problem of link rot -- the eventual disintegration of websites -- is manifesting itself in the documentary dealings of the highest court in the land. As Adam Liptak, writing about the study for The New York Times, puts it: "The modern Supreme Court opinion is increasingly built on sand."

This is problematic, of course, and not merely because the justice system is, in its way, built on links. For most of the history of the Supreme Court, after all, Liptak notes, citations have led to analog artifacts: books, mostly, and other written documents. Citations-to-paper may have been slightly unwieldy -- some poor clerk tracking down a citation in some musty, dusty library -- but their advantage was that they didn't go anywhere. Barring a fire or a similar accident, a paper citation was a permanent citation. It was a link that was frozen in time.

Digital archives change that. While in most senses digitization is a better guarantee of permanence than analog archiving, the digitization of the web is not always so stable. The Internet is dynamic, by nature. That is both its blessing and its curse, and it means that hyperlinks are exactly what they claim to be: conduits rather than content. A link, on its own, makes no guarantee of the stuff it links to. That YouTube video may get pulled. That encyclopedia entry may get updated. That domain may die. The flip side of an Internet that is always growing is an Internet that is always changing.

It's to the good, of course, that the Court is taking advantage of the digital archiving tools available to it. As more and more of the world's cultural and intellectual commerce takes place online, it would be irresponsible for the Court not to expand there, as well. The Harvard study, however, is a good reminder that new technological capabilities often bring with them new challenges. And that's especially so when it comes to the vast network of knowledge that props up the Court and its decisions like so many marble columns. How do you codify facts that are always moving? How do you cite a web that is always changing? 

And how, also, do you determine which kind of Internet-based information deserves citation in the first place? It may be time for a more comprehensive consideration of the implications of linking when applied to Court citations. Justice Alito, Liptak notes, once offered a link to back up a claim that many dog owners use leashes that are six feet in length. The site he cited? About.com.