Recently, we highlighted the use of extra-record material on appeal. In doing so, we touched on usage of the web in facilitating the practice. As a follow up, we took a closer look at recent Sixth Circuit opinions and found that an overwhelming majority of the Court’s web citations are for purposes that are neither overtly argumentative nor probably controversial. Rather, the Court appears to be capitalizing on the web’s functionality as a library to facilitate the efficient use of information. In broad strokes, the Court’s usage of the web is divided between online dictionaries, encyclopedias, scholarly articles, and background context germane to a specific dispute.
The online dictionaries, encyclopedias, and scholarly articles raise some issues concerning the sufficiency of authority. For example, we mentioned the Court’s citation to “wikinvest“ in footnote 3 of Dailey v. Medlock. But a “wiki” is a collaborative online forum where users can edit the content, which raises the question of whether we should view wikis – and certain types of wikis – as less authoritative than say Merriam Webster or Random House. And if so, how much? Likewise, the web has facilitated an explosion in the publication of academic research. Do we treat all of this scholarship the same? After all, one benefit of the traditional law review model is that we have armies of students who do the painstaking work of substantiation.
But the hardest questions in this space concern the line between context and argument, and the reality that argument is often implicit. For example, in Eden Foods, Inc. v. Sebelius, the Court reviewed part of a religious liberty challenge to the Affordable Care Act’s requirement that employer health plans provide contraception, abortion and abortifacients. As a footnote to the owner’s claim that “these procedures almost always involve immoral and unnatural practices,” the Court highlights an interview captured on “SALON.com” which calls into question the authenticity of the owner’s religious motives. The upshot of the usage was to suggest that the owner was actually motivated by a “laissez-faire, anti-government screed.” As a matter of persuasion, the salon.com interview is certainly effective in rendering the petitioner less sympathetic. But it is a harder question to gauge the appropriateness of using these extra-record sources.
The web remains an invaluable tool that we all rely on for various reasons in our day-to-day life, and its usage has become second-nature to many of us. But its role in appellate cases is still evolving and its use in briefs must be approached cautiously.
