It’s Time to Embrace the New—Untangling the Uses of Electronic Sources in Legal Writing

Abstract

The proliferation of citation to online sources in judicial opinions and legal briefs has been well documented in recent years, yet judges and lawyers still express a great deal of trepidation and confusion over how and when materials found on the internet can be cited to support legal analysis. A key reason for this confusion is the lack of norms and standards for relying on the wide variety of materials available online. This article recognizes that, with the ease of accessing information on the internet, reliance on online materials is only going to continue to grow, and that it is time to develop norms and standards so that the legal profession can use these materials effectively and responsibly. The article begins by assessing the great variety of ways in which online materials are used, ranging from the benign, such as citation of primary legal authority published only online, to the problematic, such as the citation of adjudicative facts without taking judicial notice. The article explores some of the confusion over the use of nonlegal materials, which stems from the way that legislative and adjudicative facts have been conceived and suggests that thinking about legislative facts as a form of authority would help eliminate some of the confusion. The article exhorts readers not to be afraid of electronic sources, but to embrace them and master how to use them to the benefit of the legal system.