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A Proposal to Crowdsource Quality Control at the Supreme Court

The Supreme Court isn't supposed to make mistakes. After all, what recourse does a litigant have when the highest court in the land, the court of last resort, gets an opinion wrong? Yet err the Court did, not just once, but twice in the same day.  The Court's first mistake came in the highly-publicized Kennedy v. Louisiana case, where an astute blogger pointed out that the Court had overlooked a federal statute authorizing the death penalty for child rape. And in Morgan Stanley Capital Group v. Pub. Utility Dist. 1 of Snohomish issued the same day, another blogger noted that the Court, describing existing safeguards to ensure the reasonableness of the market-based rates at issue, mistakenly wrote that FERC has authority to review market-based rates every four months, when actually, review takes place every three years.

So what can the Court do to improve quality control in its decisions? Tom Smith of Right Coast suggests that the Court might consider taking advantage of Web 2.0 technology to harness the "superiority of the wisdom of the interconnected crowd." (H/T Volokh). Smith writes:

It's not so mysterious, really, and not as blameworthy as it sounds.  Knowledge, as Hayek taught us, is very dispersed.  Gathering it into a central body is difficult.  Especially if you are using technology essentially unchanged from the 18th century, and computer technology from the 1980's at best.

Is there a way that the Court could take advantage of current social technologies to dramatically improve its understanding of the relevant law in any given case?  Of course there is, but I'm not holding my breath.  You could, for example, post all of the briefs in wiki format, or something similar, and then sift through the results.

Smith's proposal isn't at all far-fetched. The process of capturing the intelligence of the collective is known as crowdsourcing and it's gaining traction with political organizations, technology companies and large corporations.

I'd bet that lawyers would jump at the chance to comb through Supreme Court decisions and identify errors.  After all, imagine the public recognition that they'd receive. In a way, Smith's proposal would give every lawyer a chance to act as a Supreme Court clerk, if only for a couple of hours. 

Posted by Carolyn Elefant on July 9, 2008 at 12:38 PM | Permalink | Comments (1)


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