by Raizel Liebler
I am so pleased to announce my upcoming status as an Affiliate of the Berkman Center for Internet & Society at Harvard University. Starting in the fall, I start planning the creation of an infrastructure that both documents legal related sources of the past and prevents lost sources of the future. Considering the ambitious scope of this project, partnering with the great minds at the Berkman Center, will help me to think out and implement this project. Of course, I will continue my employment duties and my responsibilities as the co-founder/co-editrix of The Learned Fangirl.
A surprisingly large number of documents cited as legal authority cannot be accessed without great effort, and too often, they cannot be accessed at all. These practically unavailable sources include long out-of-print treatises (or individual pages from looseleafs), historical documents, documents obtained from Freedom of Information Act requests, and even internet links – which die easily.
My article, Something Rotten in the State of Legal Citation on the rate of link rot and the importance of retention of citations in Supreme Court cases published in the Yale Journal of Law and Technology was the first article that completed a detailed analysis of link rot within the Supreme Court. Adam Liptak cited me and my article in his New York Times article about Supreme Court link rot. The Yale published study helped to contribute to the additional research at Berkman by Jonathan Zittrain, Kendra Albert, and Larry Lessig that is the basis for the Perma.cc project, run by Harvard Law Library’s Library Innovation Lab, which is collecting internet links from cites in law journal articles and expanding outward to citations in court cases.
The potential scope of my project is quite vast and therefore I will be working with the Berkman Center community, engaging in the conversations that can help to make this project as useful as possible. Berkman’s mission states that it is “premised on the observation that what we seek to learn is not already recorded.” This project turns that thought back around on itself because here the materials are already recorded, but not in a way that can be fully observed. Working with Berkman will allow for learning from the hidden recorded information that is contained in opinions.
One of the critiques for this type of work will be that there is no need to add in this type of service to the public – after all, courts and their clerks verify the sources beforehand. But we as the public also serve a role to answer Juvenal’s question of “Quis custodiet ipsos custodes?” by double-checking and retaining the sources that create our law, considering what we think is solid within the law frequently isn’t. In addition to the shifting language in Supreme Court opinions, as shown by Richard Lazarus’s forthcoming Harvard Law Review article showing opinion revisions that include “truly substantive changes in factual statements and legal reasoning”, we also have at least one example in United States Supreme Court history of inaccurate information creating precedent. In the 1886 case, Santa Clara County v. Southern Pacific Railroad, dicta not included within the opinion forms the basis for the doctrine that corporations are entitled to protection under the Fourteenth Amendment.
Wouldn’t it be better for us all to be able promote accountability in our judicial system by making these cited sources available to all? And if the sources were linked directly to where they are cited in cases? What if all of us could work together to make the sources of Supreme Court cases available?
I look forward to this great opportunity, and please let me know if you have any suggestions for what you would find the most useful in this database/platform!
 My co-author and I wanted to see the first version of a specific treatise, McCarthy on Rights of Publicity and Privacy, for our article, Games are Not Coffee Mugs: Games and the Right of Publicity, 29 Santa Clara High Tech. L.J. 1 (2012), that relied on how McCarthy removed a section of the treatise recently. No problem, right? Even the Library of Congress didn’t have the oldest version – and after several rounds of interlibrary loans, we needed to rely on the earliest version of that section we could find – from 1993, despite the treatise first being published in 1987. We couldn’t make the strongest argument we could because the source wasn’t available.
 Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, 396 (1886). While reporting the decision, the official Court Reporter J.C. Bancroft Davis, included a commentary not within the actual text of the decision: “One of the points made and discussed at length in the brief of counsel for defendants in error was that ‘Corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.’ Before argument Mr. Chief Justice Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.”