It should come as no surprise that Supreme Court Justices are not the most tech-savvy bunch. After all, they still haven’t “really gotten into email.” But maybe that’s for the best. In at least one instance, the Court’s foray into new technology has been shaky.

According to a new study from Harvard Law, nearly half of all hyperlinks cited in Supreme Court opinions no longer work. This could be because the website no longer exists, the hosting service has shut down, or the document has been moved. Worse still, the link may work, but the content of the webpage may have changed. In one particularly humorous example, a link that was cited by Justice Alito in 2011 now leads to this message:

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?

This phenomenon, known as “link rot,” is not unique to legal opinions, but it poses significant problems for legal scholars and practitioners. Reviewing the sources cited in opinions and footnotes is essential to understanding the Court’s reasoning.

But all hope is not lost. The New York Times reports several possible solutions. The Supreme Court currently keeps a cached version of web materials on file, but that still limits access. A more comprehensive and accessible system is needed to create a permanent digital archive of all materials cited to in opinions and journal articles. The Ninth Circuit has already instituted such a system for such “webcites.” Though the Supreme Court is typically loathe to follow the Ninth Circuit’s approach to just about anything, it would do well to copy the Most Reversed Circuit here.

–Michael Griffin

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