It’s hard enough to write a solid legal opinion that will withstand the passage of time.
Deep research, tight reasoning, clear prose, and careful craftsmanship cannot guarantee that a particular opinion will influence the direction of future decisions. Perhaps a higher court will reverse it. Perhaps other opinions will disagree with it. Perhaps the statute at issue will be amended. Perhaps it addresses an obscure issue that doesn’t get litigated often, or a unique fact pattern that is unlikely to reoccur.
To this longstanding list of threats to precedential potential, add another one specific to the age in which we now litigate.
This pernicious condition afflicts hyperlinks to Internet content contained in opinions and other documents. The Internet’s ephemeral nature means that a significant proportion of links will stop working after a relatively short time as websites come and go; content ceases to be maintained; and data is moved, updated, or simply deleted.
Oliver Wendell Holmes never had to worry about this.
A recent New York Times article cites a study concluding that 49 percent of the hyperlinks contained in opinions by the United States Supreme Court no longer work.
One example comes from Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2749 n. 14 (2011) (Alito, J., concurring).
Justice Alito voted with the majority to declare unconstitutional a California statute prohibiting the sale or rental of violent video games to minors, albeit on narrower grounds than those embraced by the majority.
Justice Alito’s concurring opinion describes a number of especially violent and gory video games, and includes footnote cites to various Internet sites that discuss these games. A link to http://ssnat.com is provided in footnote 14 to support the concurring opinion’s assertion that one particularly repulsive video game allows players to reenact the mass murders at Columbine High School and Virginia Tech.
As of today, if you click on this link you will be greeted with a picture of a forest and this text: “404 Error – File Not Found.”
But there’s more. A cheeky message below the text asks, “Aren’t you glad you didn’t cite to this web page …?” It continues, “If you had, like Justice Alito did, the original content would have long since 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.”
A cautionary tale for writers of opinions and briefs alike.
I will think about this example the next time I am tempted to cite something from the Internet that has not been captured in a screen shot and included as part of the official appellate record.
On the bright side, I am comforted by the knowledge that this article is guaranteed to live forever on the HBA’s website. Just like the Harvest Party pictures.