I could accept the argument that citation in a published court decision is a more effective measure of a case’s utility only insofar as courts themselves are the eventual target market for much legal research, and that therefore, if you want to impress a judge, you’d better show her a case that impressed other judges. I’m open to that purely pragmatic approach. But I’m not yet prepared to accept that judges — or their clerks, who do a lot of the actual research — are inherently that much better at assessing the value of a given court ruling than is the legal profession at large. Judges have the same information biases, preferences and hangups as the rest of us, with the added difficulty that they’re choosing among decisions written by colleagues, friends, or appellate judges who’ll be reviewing their work. In a sufficiently large and diverse pool of caselaw Diggers (which I grant you is a prerequisite to making the system work), those biases tend to get washed out. Moreover, judicial citations can eventually become something of a closed shop — the same rulings keep showing up all the time in multiple decisions — and it’s harder for a new entry to make its way in. I’m willing to bet there’s a tremendous amount of insight to be found in judgments that populate the long tail of the caselaw population, but that don’t show up in the elite circulation of most cited cases.

All that said, I would concede that using a Digg-type system might function best, at least to begin with, as an alternative, complementary system to straight caselaw citation by judges. Judges (and their clerks) do know their stuff — I just think that the profession at large knows its stuff too, and if given the chance through a system like the one envisioned, could show it.

It would be easy enough to set up, but how much value would it deliver? Perhaps a closed community of the legal profession, rather than a free-for-all?

The other question I would have is if it would be an improvement over case law citation. One would think the cases lawyers cite before the courts would be a pretty tough methodology of authority to improve on. Do you think a ‘wisdom of the crowds’ concept would be fair better? or maybe it would simply offer an alternative & more democratic measure to value case law? I think I’d be more inclined to see it as an alternative measure concept. You?