Errors in Supreme Court Opinion Citations: 2013-2014 term

by Raizel Liebler

So last year, I wrote an article about link rot in links in Supreme Court citations (and Jonathan Zittrain, Kendra Albert, and Lawrence Lessig did a more comprehensive study, adding the term reference rot.)  The New York Times wrote about both of our studies.

I’ve been working on followup research, both about this present Supreme Court term, and more comprehensively about sources in Supreme Court opinions, because putting the Supreme Court on notice hasn’t changed their practices — they still do not have a comprehensive list of links cited on their website, like the Ninth Circuit — and there is still plenty of link rot! I talked about these issues recently at Georgetown Law, based on the research I’ve started as an affiliate scholar with the Berkman Center for Internet & Society.

Since our link rot studies were published, there has also been followup research by Richard Lazarus to be published in Harvard Law Review about the small — and not so small — changes that the Supreme Court makes to their opinions before publication. And there have been recent changes for the past term including a change in Scalia’s dissenting opinion, in EPA v. EME Homer City Generation, which originally contained a heading that read, “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority,”  which after Lazarus contacted the Court, was rewritten to state “Our Precedent.” The Wall Street Journal, no bastion of liberalism, called the error in the original dissent “cringeworthy.”

So in doing followup research about link rot in the present Supreme Court term, I wanted to make sure that each link was taken directly from the slip opinion, the preliminary release of the opinion to avoid transcription errors, which can be added by commercial vendors. But before getting to the issues about link rot and reference rot, there were a large number of errors within the links themselves.

Why is this is an issue? As I wrote in the Yale Journal of Law & Technology article:

Citations are the cornerstone upon which judicial opinions and law review articles stand. Within this context, citations provide for both authorial verification of the original source material at the moment they are used and the needed information for later readers to find the cited source. The ability to check citations and verify that citations to the original sources are accurate is integral to ensuring accurate characterizations of sources and determining where a researcher received information.

If there are transcription errors within the links, what about the other sources — especially those not a click away, such as books and treatises?

Perhaps as a social scientist, I should allow these errors to continue to exist — after all, they help to show that links in Supreme Court opinions frequently do not function. I would have more proof for link rot, but that doesn’t seem right. I want people to be able to find the sources cited by the Supreme Court more than I want to “prove” how bad the problem of non-findable sources is.

The onus is on the Supreme Court to accurately cite material. And it would be so, so simple to correct these errors!

These errors are pre-link rot because they had no possibility of working. I will be writing further about links that used to work (link rot) and where the information has changed (reference rot) in further posts. Finding these errors and how to correct them took time, time that is likely magnified by other types of errors not so easily findable.

One link is not quite an error — a dash in the middle of a word, but all of the rest are errors that even a program reading these links would note, should a program be coded that way.

So, once again, Supreme Court, you are on notice regarding your citations!

Supreme Court Cases from the  2013-2014 term with website URLs  with transcription issues from slip opinions

Harris v. Quinn, 134 S. Ct. 2618, 189 L. Ed. 2d 620, 573 U. S. ___ (2014)

Argued Jan. 21, 2014 –  Decided June 30, 2014.

http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf

• ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
• 4 Links Total:  2 links work, 2 links do not work
  • www.seiu.or/a/members/disputes-and-grievances-rights-procedures-and-best-practices.php
    • Link does not work because of missing g in .org.
    • Cited to in majority opinion by Alito, J.
    • The following link does work:  http://www.seiu.org/a/members/disputes-and-grievances-rights-procedures-and-best-practices.php
    • Citation in context: Harris v. Quinn, 134 S. Ct. 2618, 2637
      • See, e.g., SEIU: Member Resources, available at www.seiu.or/a/members/disputes-and-grievances-rights-procedures-and-best-practices.php (detailing the steps involved in adjusting grievances).

• www2.illinois.gov/cms/Employees/benefits/StateEmployee/Pages/default
  • Link does not work because of missing .aspx.
  • Cited to in majority opinion by Alito, J.
  • The following link works: https://www2.illinois.gov/cms/Employees/benefits/StateEmployee/Pages/default.aspx
  • Harris v. Quinn, 134 S. Ct. 2618, 2635 n.9
    • The Illinois Department of Central Management Services lists many such programs and benefits, including a deferred compensation program, full worker’s compensation privileges,⁸ behavioral health programs, a program that allows state employees to retain health insurance for a time after leaving state employment, a commuter savings program, dental and vision programs, and a flexible spending program.⁹
    • Footnote 9:  See www2.illinois.gov/cms/Employees/benefits/StateEmployee/Pages/default.

N.L.R.B. v. Noel Canning, 134 S. Ct. 2550, 189 L. Ed. 2d 538, 573 U. S. ___ (2014)

Argued Jan. 13, 2014 – Decided June 26, 2014.

http://www.supremecourt.gov/opinions/13pdf/12-1281_mc8p.pdf

• BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which ROBERTS, C.J., and THOMAS and ALITO, JJ., joined.
• 17 Links Total:  16 links work, 1 links do not work

• www.justice.gov/olc/opiniondocslpro-forma-sessions-opinion.pdf
  • Link does not work because of misplaced l rather than slash – but there is still link rot!
  • Cited to in majority opinion by Breyer, J.
  • The following link does work:  www.justice.gov/olc/opiniondocs/pro-forma-sessions-opinion.pdf and it leads to the following link:  http://www.justice.gov/sites/default/files/olc/opinions/2012/01/31/pro-forma-sessions-opinion.pdf
  • Citation in context: N.L.R.B. v. Noel Canning, 134 S. Ct. 2550, 2562
    • We have found memoranda offering similar advice to President Eisenhower and to every President from Carter to the present. See 36 Opinion of Office of Legal Counsel (Op. OLC) ___, ___ (2012), online at www.justice.gov/olc/opinion docslpro-forma-sessions-opinion.pdf

Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 189 L. Ed. 2d 37, 572 U. S. ___ (2014)

Argued April 28, 2014 – Decided June 2, 2014

http://www.supremecourt.gov/opinions/13pdf/13-369_1idf.pdf

• GINSBURG, J., delivered the opinion for a unanimous Court.
• 1 Link Total:  0 links work, 1 link does not work
  • http:/ /www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf
    • Link does not work, because in the slip opinion the website URL has a space between the first two / / marks and an extra space between www. and ftc.
    • Cited to in unanimous opinion by Ginsburg, J.
    • The following link does work:  http://www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf
    • Citation in context: Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129 n.7
      • See also Federal Trade Commission, The Evolving IP Marketplace: Aligning Patent Notice and Remedies With Competition 85 (2011) (quoting testimony that patent system fosters “an incentive to be as vague and ambiguous as you can with your claims” and “defer clarity at all costs”).⁷
      • Footnote 7:  Online at http:/ /www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf (as visited May 30, 2014, and available in Clerk of Court’s case file).

Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. By Any Means Necessary (BAMN), 134 S. Ct. 1623, 188 L. Ed. 2d 613 (2014)

Argued Oct. 15, 2013 – Decided April 22, 2014.

http://www.supremecourt.gov/opinions/13pdf/12-682_8759.pdf

• KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C.J., and ALITO, J., joined. ROBERTS, C.J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. BREYER, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined. KAGAN, J., took no part in the consideration or decision of the case.
• 14 Links Total: 13 links work, 1 link does not work

• http://www.lwvka.org/guide04/regents/html
  • Link does not work because of incorrect slash instead of period between regents and html
  • Cited to in dissent by Sotomayor, J.
    • Link is available at: http://www.lwvka.org/guide04/regents.html
  • Citation in context: Schuette v. BAMN, 134 S. Ct. 1623, 1661
    • For example, in 2005, one candidate pledged to “work to end so-called ‘Affirmative–Action,’ a racist, degrading system.” See League of Women Voters, 2005 General Election Voter Guide, online at http://www.lwvka.org/guide04/regents/html (all Internet materials as visited Apr. 18, 2014, and available in Clerk of Court’s case file);

United States v. Castleman, 134 S. Ct. 1405, 188 L. Ed. 2d 426 (2014)

Argued Jan. 15, 2014 – Decided March 26, 2014

http://www.supremecourt.gov/opinions/13pdf/12-1371_6b35.pdf

• SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined.
• 8 Links Total: 8 links work, 0 links do not work

• http://www.census.gov/popest/data/intercensal/st-co/files/CO-EST2001-12-00.pdf
  • Link works if you remove the hyphen inserted in the middle of census, something only a person, rather than a mechanical process would know to do.
  • Cited to in Opinion of the Court by Sotomayor, J.
  • The following link does work:  http://www.census.gov/popest/data/intercensal/st-co/files/CO-EST2001-12-00.pdf
  • United States v. Castleman, 134 S. Ct. 1405, 1413 n.7
  • So if offensive touching did not constitute “force” under § 921(a)(33)(A), then § 922(g)(9) would have been ineffectual in at least 10 States—home to nearly thirty percent of the Nation’s population⁷—at the time of its enactment.
  • Footnote 7:  See U.S. Census Bureau, Time Series of Intercensal State Population Estimates: April 1, 1990 to April 1, 2000, online at http://www.census.gov/popest/data/intercensal/st-co/files/CO-EST2001-12-00.pdf (estimating state and national populations as of July 1, 1996).

BG Grp., PLC v. Republic of Argentina, 134 S. Ct. 1198, 188 L. Ed. 2d 220 (2014)

Argued Dec. 2, 2013 – Decided March 5, 2014

• http://www.supremecourt.gov/opinions/13pdf/12-138_97be.pdf
  BREYER, J., delivered the opinion of the Court, in which SCALIA, THOMAS, GINSBURG, ALITO, and KAGAN, JJ., joined, and in which SOTOMAYOR, J., joined except for Part IV–A–1. SOTOMAYOR, J., filed an opinion concurring in part. ROBERTS, C.J., filed a dissenting opinion, in which KENNEDY, J., joined.
• 3 Links Total:  2 links work, 1 link does not work

• www.ustr.gov/sites/default/files/BIT% 20text%20for%20ACIEP%20Meeting.pdf
  • Link does not work because of an extra space between BIT% and 20 text
  • Cited to in Opinion of the Court by Breyer, J.
  • The following link works:  www.ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf
  • Citation in context: BG Grp., PLC v. Republic of Argentina, 134 S. Ct. 1198, 1210
    • See also 2012 U.S. Model Bilateral Investment Treaty, Art. 26 (entitled “Conditions and limitations on Consent of Each Party”), online at www.ustr.gov/sites/default/files/BIT% 20text% 20for% 220ACIEP% 20Meeting.pdf.

Lawson v. FMR LLC, 134 S. Ct. 1158, 188 L. Ed. 2d 158, 571 U.S. ___ (2014)

Argued Nov. 12, 2013. Decided March 4, 2014.

http://www.supremecourt.gov/opinions/13pdf/12-3_4f57.pdf

• GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C.J., and BREYER and KAGAN, JJ., joined, and in which SCALIA and THOMAS, JJ., joined in principal part. SCALIA, J., filed an opinion concurring in principal part and concurring in the judgment, in which THOMAS, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined.
• 4 Links Total:  2 links work, 2 links do not work

• www.slate.com / articles / news_and_politics / explainer/2010/01/getting_ the_ax_from_george_clooney.html
  • Link does not work because there are extra spaces in the URL
  • Cited to in dissent by Sotomayor, J.
  • The following link does work:  www.slate.com/articles/news_and_politics/explainer/2010/01/getting_the_ax_from_george_clooney.html
  • Citation in context: Lawson v. FMR LLC, 134 S. Ct. 1158, 1183 n.7
    • The majority also too quickly dismisses the prominence of “outplacement” firms, or consultants that help companies determine whom to fire. See ante, at 1166 – 1167. Companies spent $3.6 billion on these services in 2009 alone.⁷
    • Footnote 7:  Rogers, Do Firing Consultants Really Exist, Slate, Jan. 7, 2010, www.slate.com/articles/news_and_politics/explainer/2010/01/getting_the_ax_ from_george_clooney.html.