Of Authoritativeness and Crowd-Checking

It’s not hard to light up a debate over the digital legal information revolution and its impact on law. There’s plenty of kindling. What’s hard is to pick an issue and keep the blaze contained. And the sources of fuel keep adding up.

Dutch financial giant ING might have struck a new spark with a report last month on social media and how it impacts news reportage. The full title of the ING report is “An International Study into the Impact of Social Media on the Activities of PR Professionals & Journalists, News & News Dissemination.” It has a pleasing slideshow accompaniment and contains thought-provoking insights about how people approach information differently depending on the media in use.

From the report:

  • A third of journalists believe social media is not a reliable source of information.
  • Despite this, over half of journalists say social media is their main source of information:
    1. fact-checking (for example hearing both sides of the argument) is less expected; and
    2. crowd-checking, or using public opinion to establish whether or not something is true, is on the rise.
  • “Publish first, correct if necessary” is the new motto for almost half of journalists, and only 20% of journalists always check facts before publishing.
  • PR professionals say that since social media, journalists are getting in contact less frequently to check facts.
  • 60% of journalists said they feel less bound by journalistic rules on social media than with traditional media such as a newspaper article.

Admittedly this was a small, and largely Dutch, sample of 165 journalists and 185 PR professionals. Still, because lawyers are also information professionals, and given that social media and the legal profession share an increasingly large border, these insights can fuel debate within the law. Much ink has already been spilled (and much QWERTY clattered) on digital media, the law, and what “all of this” portends. A further dimension to “all of this” is the possibility that something inherent within social media is in tension with the traditional concept of “authority.”

This is tantalizing. Fact-checking versus crowd-checking? Isn’t it all just source-checking? “Truth” finding? Is there anything more democratic than the surging trends of collective knowledge? Is there any Truth more fallible? Does the administration of justice even want a part of any of this?

Scholars and legal commentators have long raised concerns over authenticity of digital sources, reliability, comprehensiveness of coverage, and impermanence of citations for years. Take link rot, for instance. It presents with some alarming research from the previous decade. An estimated 40% of links published in law reviews from 2001 to 2003 were broken links in 2006. See Michael Whiteman’s “The Death of Twentieth-Century Authority” for more on that (if the link still works, of course).

Most concede that new media is here to stay, however. As US law professor Ellie Margolis observes, “It is almost impossible to imagine a researcher finding relevant information, thinking about how it might affect the analysis in a piece of legal writing, be it opinion or brief, and then not using it to enhance the document.”

Slaw’s readers are an open-minded group, so I will happily admit that I’ve blogged about blogs cited in judgments before—more than once in truth—and I will probably blog about blogging about blogs again in the future. (In fact, I’m blogging it right now!)

I believe there is a place for digital legal commentary, nimble and unencumbered by orthodox publishing constraints. Initiatives like CanLII Connects and a new initiative in Australia called Primary Opinion promise crowd-sourced legal commentary in blog-like ways that speak to present questions. Still, the ING report raises good questions about instantaneousness (with social media at one end of the extreme) and authoritativeness.

The pragmatic approach to evaluating electronic information’s validity seems to be along the lines of what Betsy Lenhart, an assistant professor at the University of Cincinnati, College of Law, proposes: that we move beyond “author, date, and publisher” when validating online sources to adopt a more substantive approach for evaluating online legal sources.

Lenhart’s article, “The Seventeenth Century Meets the Internet” (2012) 9 Legal Comm. & Rhetoric: JAWLD 21, details five basic areas for evaluating legal information from the internet:

(1) The epistemology of the source—what kinds of information the document tells the reader “without actually telling the reader.”

(2) The purpose of the document—why the document was written, and what evidence in the document provides this information.

(3) The argument presented by the source.

(4) The presuppositions of the reader—what biases, presumptions, and preconceptions the reader brings to bear on the interpretation of the source.

(5) The necessity of relating one source to another—the patterns or ideas that are repeated throughout the documents the reader has seen, and what major differences are present.

Lenhart borrows a quote attributed to William Butler Yeats, “Education is not filling a bucket, but lighting a fire.” In this context, clearly to ask the questions that could result overturning our understanding about what “authority” is, is to set the blaze.

Source: Slaw Legal Information

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