Follow Up: Changes to EU Case Publishing Not Included in 20th Edition of Bluebook

by Alison Shea

Last summer I wrote a short pbluebook 20ost for this blog detailing the changes to official reporting of cases from the Court of Justice of the European Union, and asked the question of how librarians would deal with this while waiting for the 20th edition of the Bluebook (BB) to be published.

Now that we have received our shiny new copies of the 20th edition, it would appear that there have been no changes to rule 21.5.2(a) that would indicate to the reader that the Reports of cases before the Court of Justice and the General Court, aka the ECR, has ceased publication in print as of January 1, 2012. Not only is the wording of this rule almost verbatim to what appeared in the 19th edition, but “Reports of cases before the Court of Justice” in T3.3 lists the coverage as 1973-date [n.b. not to nitpick even further, but this is technically incorrect, as cases decided before the English-language countries joined the EU in 1973 were translated into English and printed in special retrospective editions of the English-language ECR]; with the recent changes, the most correct coverage date range should instead read 1973-2011. Although the Court’s website indicates that the “Reports of Cases” are now published exclusively online, for BB purposes these Reports should not be cited in a similar fashion, as they obviously lack both a volume number (I for Court of Justice cases, II for General Court cases) and consecutive pagination.

The lack of direct guidance on this format change is disappointing because although rule 21.5.2(a) includes a secondary preference for citing to an electronic source “if an official reporter is not available in print”, for journal students and other users who are unaware that the ECR is simply no longer published, I can imagine that much time will be wasted searching for an ECR cite first instead of realizing that anything decided 2012-date will not have an ECR cite.

Going further, I was also disappointed to see that in this secondary preference paragraph, the BB editors have added new guidance for finding ECJ cases online outside of Curia: “for cases before June, 1997: http://old.eur-lex.europa.eu”.  This is unhelpful on a number of counts, most notably because it implies that cases decided before June 1997 cannot be located and retrieved on Curia (incorrect) and that to find cases before June 1997 one would have to use the “old” version of Eur-lex (also incorrect), which is no longer being updated and currently exists for archival purposes only. One theory as to why the BB editors would direct users to an archival site is that on the old Eur-lex one was able to go to the “Access by year” feature at the bottom of the Case-law page and select any year from 1954-onwards. In the “new” Eur-lex, under “Direct access to case law”, one can only select back until 1973. This again is not a correct assumption of coverage, as case law going back to the beginning can be retrieved via full text search, document number or CELEX number in the “new” Eur-lex.

So what is to be done? Even without any guidance in the BB, the sun will still rise in the East and law students will still come to ask for help at the reference desk. My simple solution will be to instruct law review editors and other users to cite the ECR for judgments issued from 1954-2011, and to use the electronic version via Curia for everything 2012-date. Also, let me make a small plug here for the Fordham International Law Journal’s EU Citation Manual which, although they have only made the 2010-11 version publicly available and thus this version does not address the ECR issue, goes into far greater detail on standardizing citations for EU documentation than the BB does and can be quite useful to students writing an EU-source heavy note. The further question of whether to adopt the European Case Law Identifier (ECLI) is still unresolved, but so long as the BB is fine with citations to the URL of Curia, the issue of whether to include the ECLI can wait for another day!

Introducing…Mary Rumsey as the July FCIL Librarian of the Month

1. Where did you grow up?rumsey

I was born in Chicago, moved to Tennessee and then Maryland, but grew up mostly in Wisconsin. I went to college at UW-Madison, a great experience.

2. Why did you select law librarianship as a career?

I tried a few other careers first—lawyer, Westlaw database developer, stay-at-home parent, elementary school teacher. Then, my sister became a reference librarian after spending several years in publishing. She loved it and I thought I’d try it too. Law librarianship combines my interest in law with my love of teaching and of learning new things.

3. When did you develop an interest in foreign, comparative, and international law?

I have been interested in international law since I was in junior high and the US bombed Cambodia as part of the Vietnam War. I read that the bombing was illegal, which made me realize that there was such a thing as international law (even though it is often ignored).

In law school I had a class on comparative family law, taught by Mary Ann Glendon. The foreign variations on marriage and other family law institutions fascinated me and made me curious about other differences in foreign legal systems.

4. Who is your current employer? How long have you worked there?

I’ve been working at Willamette University School of Law for less than a year, after 14 years at the University of Minnesota.

5. Do you speak any foreign languages?

I speak French with a horrendous Midwestern accent, and a bit of Spanish here and there. Fortunately, I find it much easier to read foreign languages than to speak them. I took a class on reading German for academic purposes and, with a good legal dictionary, can bludgeon my way through German texts.

6. What is your most significant professional achievement?

Somehow, this question reminds me of the contest for the tallest midget –or I guess we say “little person” now.  I suppose I would pick editing a couple of books on human rights with David Weissbrodt at Minnesota. The most fun achievement was writing an FCIL coursebook with my professional idol, Marci Hoffman.

7. What is your biggest food weakness?

Definitely chocolate.

8. What song makes you want to get up and sing/dance?

Well, lots of songs—today I’d pick Earth, Wind & Fire’s “September.” 

9. What ability or skill do you most wish you had (that you don’t have already)?

I’ve always thought the Vulcan Death Grip would be a handy skill. Or the ability to listen to people saying stupid things without rolling my eyes.

10. Aside from the basic necessities, what is one thing you cannot go a day without?

Reading books. I am a library junkie.

11. Anything else you would like to share with us?

As I’m becoming less active in FCIL-SIS stuff, I’m pleased to see all the new[er] FCIL librarians getting involved. And a quick plug for the FCIL Jumpstart List that Lyo Louis-Jacques created; if anyone has language or subject-matter expertise to share, please email me and I’ll add you as a possible resource for FCIL research.

Book Review: Indigenous Peoples, Customary Law and Human Rights – Why Living Law Matters

By: Xiaomeng (“Alex”) ZhangIndigenous Peoples

Brendan Tobin. Indigenous Peoples, Customary Law and Human Rights – Why Living Law Matters (Routledge, 2014). 302 p. Hardcover $145.00.

Brendan Tobin, a research fellow at Griffith University Law School with significant experience in the areas of environmental law, customary law, and global human rights law, makes a highly valuable contribution to the area of customary law and the rights of Indigenous Peoples through this well-written and thoroughly researched monograph.  The book not only provides insights to theoretical research but also offers practical guidance to both legal and non-legal professionals working in the area of human rights, environmental justice, and indigenous peoples’ rights.

Tobin’s principal purpose, through this book, is to “demonstrate the importance, legitimacy and durability of Indigenous Peoples’ legal regimes, their rights to regulate their internal affairs in accordance with their own laws, customs, and traditions, and the central role that customary law has to play in securing the realization of their human rights.”  Tobin starts with the premise that Indigenous Peoples’ rights of self-determination and autonomy are important and that customary legal regimes exist to protect those rights.  He also draws a large amount of empirical evidence showing the dire consequences of not recognizing “customary law and indigenous jurisdiction.”

Despite being recognized by many binding international legal instruments and some domestic legal tools, Indigenous Peoples’ rights are not effectively protected.  Tobin argues that neither the States nor legal professionals (such as Judges) fully appreciate the importance of customary law, a core component of most (if not all) Indigenous legal systems. As a result, many of customary legal principles are not given equal consideration as positive law during the dispute settlement and/or litigation process.

The problem that Tobin tries to resolve is a long-standing issue. There are many discussions on the (in)effectiveness of Indigenous Peoples’ rights protection.[1] There are many barriers that prevent effective protection of rights politically, economically, culturally, psychologically and judicially. Effective protection not only depends on recognizing the rights protected by legal instruments such as ratified international agreements, constitutions, statutes and case law, but also relies on implementation and enforcement of these legal instruments. Two major barriers to effective enforcement of customary law are due to the nature of custom and the nature of indigenous rights. The author is able to focus on both areas and make a thorough examination on both issues.

To sum up, there are three major contributions of this book. First, Tobin provides thorough analyses of the issues of ineffective protection of Indigenous Peoples’ rights and of ineffective implementation of customary law in indigenous legal regimes, drawing on a large amount of empirical data and major well-established theories in the area. Second, Tobin, in the second half of the book, closely examines the current (in)effective implementation of customary law in many practical areas, such as rights to land, right to culture, natural resources and traditional knowledge. Finally, Tobin also provides extensive footnotes and a comprehensive bibliography that would benefit other researchers in this area. Therefore, I would highly recommend this book to academic researchers and practitioners interested or working in the relevant fields. I also recommend this book to libraries of academic institutions, organizations and government agencies working closely with indigenous peoples.

[1] For example, see Jeremie Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (Ardsley, NY: Transnational Publishers, 2006).

Two Views of Runnymede: Magna Carta at the Library of Congress and the British Library

By: Gabriela Femenia 

As has been widely noted, 2015 is the 800th anniversaryLOC Magna Carta of Magna Carta, the revolutionary charter between King John I and his barons often cited as the foundation of basic Anglo-American concepts of protected liberties, rule of law, and good government.  There have been many events planned to commemorate its importance this year, and I was fortunate enough to be able to see two of the best: the traveling Lincoln Cathedral manuscript and related exhibit at the Library of Congress in December, and the magnificent display of multiple manuscripts at the British Library last month.

Magna Carta: Muse and Mentor, at the Library of Congress November 2014 – January 2015, was a ten-week exhibit sponsored by the Federalist Society, and therefore strongly focused on tracing the arc between Magna Carta, the Declaration of Independence, and the Bill of Rights. In addition to displays explaining Magna Carta’s history and featuring one of the four surviving original copies, parts of the exhibit specifically connected Magna Carta to our constitutional rights to due process, trial by jury, and habeas corpus.  A very interesting additional section on Magna Carta in popular culture demonstrated how this medieval document of limited impact in its own century has nonetheless managed to resonate deeply and broadly in the popular imagination in more recent times.

BL Magna Carta

Magna Carta: Law, Liberty, Legacy, at the British Library until September 1, 2015, was naturally much larger in scope, as many more manuscripts and objects were available for display within the United Kingdom than could travel to the U.S.  Among the highlights, the exhibit features all four surviving 1215 manuscripts, copies of the 1225 reissue, one of Thomas Jefferson’s two drafts of the Declaration of Independence, and, delightfully, a map of William Penn’s Pennsylvania detailed enough for me to identify approximately where my house is. In addition to the richness of the collection, the exhibit featured wonderfully-executed video and multimedia enhancements to assist the visitor in following Magna Carta’s evolution from its critical reissue under Henry III, through its role in the growth of the common law on both sides of the Atlantic, and down to the modern development of international human rights law.

TempleChurch

Even if you can’t make it to London, much of this additional content is available at the British Library’s website, asare high-quality images of most of the items, making it possible to experience some of the outstanding curation and to glean fun ideas for your FCIL reference and teaching activities.  If this really piques your interest in Magna Carta and its contributions to the development of both the common law and international law, you may even consider signing up for the University of London’s upcoming MOOC, Freedom and Protest:Magna Carta and its Legacies, beginning June 15.

Introducing…Anne Mostad-Jensen as the June FCIL Librarian of the Month

1. Where did you grow up?Mostad-Jensen Photo

I grew up in Kelliher, a very small town (population 262) in Northern Minnesota. It is an hour south of the Canadian border and 17 miles from Red Lake, which is the largest freshwater lake enclosed in one state.

2. Why did you select law librarianship as a career?

I did things a little backwards. I got my MLIS degree first. After finishing that degree I wanted an additional challenge and was interested in copyright issues, so I decided to go to law school. While in law school I told myself that I would be open to new opportunities and experiences outside librarianship. So I spent two summers in China – one summer at an incubator and venture capital firm and another summer at a large Chinese-Australian law firm. I really enjoyed these experiences. They were exciting, challenging, and I learned a lot. But during those experiences I always felt like I was just visiting and when I am in a library I feel like I am home. So when I graduated from law school I immediately started to apply for jobs in law libraries. (Though I did take and pass the California Bar Exam, because I thought it was important to understand the final step law school graduates go through before entering the legal profession.)

3. When did you develop an interest in foreign, comparative, and international law?

I think my interest in foreign, comparative, and international law started before I even went to law school. While pursuing my MLIS I took International Librarianship. As part of the course we attended the IFLA conference in Quebec City. While there I had had a conversation with Emilija Banionyte, who was on the EIFL Advisory Board (Electronic Information for Libraries), about global issues relating to access to information – especially trying to negotiate fair licensing agreements in Eastern European countries. I think this really planted the seed with regards to my interest in foreign, comparative, and international law. But those interests were nurtured and encouraged by Mary Sexton, the FCIL librarian at Santa Clara University School of Law, while I was in law school and following law school. Mary Rumsey and Heidi Frostestad Kuehl have also been very helpful in answering any and all questions I have had about FCIL librarianship.

4. Who is your current employer? How long have you worked there?

My current employer is Concordia University School of Law in Boise, ID. I have worked here since October 2014. But I just accepted a position as Head of Faculty Services at the University of North Dakota School of Law in Grand Forks, ND.

5. Do you speak any foreign languages?

Not fluently. My best foreign language is Danish. I speak a little Danish and understand most things I watch and read in Danish. I also speak a little Mandarin. But again, I can read more Mandarin than I can speak. If pressed, I can understand a decent amount of Swedish and Norwegian.

6. What is your most significant professional achievement?

My most significant achievement professional achievement so far is having a doctrinal faculty member be impressed enough with my contribution to a project that he invited me to co-author a law review article.

7. What is your biggest food weakness?

I have a lot of food weaknesses. But I think my biggest food weakness is lefse.

8. What song makes you want to get up and sing/dance?

Robyn’s Dancing on My Own is the first thing that comes to mind.  If you are a runner and like to run to slower music, I would recommend Antony and the Johnson’s album The Crying Light. I once ran five miles out of town on a rural Minnesotan road listening to this album without even realizing how far I had gone. Until I saw a deer leg. Just a deer leg. And realized I was over approximately two miles from the nearest house. The trip back was not nearly as enjoyable as the run out of town and I instituted a policy that I would never run more than one mile out of town in any direction.

9. What ability or skill do you most wish you had (that you don’t have already)?

The seemingly universal desire amongst all FCIL librarians – the ability to speak more foreign languages. And the ability to fly.

10. Aside from the basic necessities, what is one thing you could not go a day without?

Is coffee a basic necessity? If not, coffee.

11. Anything else you would like to share with us?

I have a twin sister who is also has an MLIS degree, but she is not a law librarian. But she does speak and read Icelandic, so she would likely be willing to help if anybody ever needs help translating or finding Icelandic legal resources.

Book Review: Statelessness: The Enigma of an International Community

By: Taryn MarksStatelessness

William E. Conklin. Statelessness: The Enigma of an International Community (Hart Publishing, 2014). 366 p. Hardcover $120.00.

Statelessness is an enigma, William Conklin writes, due to an assumption and a claim. The international community assumes that all persons are members of that community through the state of which they are a national. The international community claims that it provides protection for all members. The enigma arises because millions of persons are stateless, are not nationals of any state and thus are excluded from the international community, leaving them unprotected.

For those interested in the history of statelessness and in a thorough explanation of how and why the international community has created (or simply allowed to exist) such a large, unprotected population, Conklin’s book will be well received. Conklin’s passion for the subject is clear and his points are well-supported. However, for those hoping Conklin will present a definitive (or even a pie-in-the-sky) answer to the question of how to solve this enigma, the book may leave you frustrated.

Statelessness begins by explaining that the international community has two discourses. In the first discourse, the international community exists as the aggregate will of the states, the traditional definition of the international community. Under this view, the state is the primary actor and member of the international community; most importantly, the states always maintain independent power over domestic affairs, what Conklin call the “boundary of the reserved domain”—the boundary of power that the international community cannot touch. In the second discourse, Conklin’s implicitly preferred view, there is the international community as a whole. In the international community as a whole, the individual person is the actor and can access that community without state intervention. According to Conklin, statelessness is inevitable when the world is viewed as the aggregate will of the states because the ultimate decision as to whether to recognize the nationality of a person will always reside with the executive branch of a state. Under the international community as a whole, however, the person’s social and cultural bonds determine nationality.

Statelessness focuses on the status of those persons who, for whatever reason, no longer have a state in which they may legally live. Conklin focuses the first part of the book on the concept of statelessness, explaining how statelessness developed under the aggregate will of the states before discussing the consequences of statelessness and the reasons why statelessness has not been protected as a human right. Conklin provides numerous, often moving examples of those who are stateless: refugees from ISIS living in camps in Turkey, those who live in Palestine, nationals of the former USSR. The sources he uses are wide and varied, including international treaties, General Assembly documents, and fundamental sources of international law (such as jus cogens) to document and explain this enigma. He also pulls in sovereign and international court decisions from a variety of sources. But the strength of his analysis is significantly diminished by the repetitiveness of the first half of the book.

One almost forgets the repetitiveness of the first half of the book, however, when you reach the end of the book. In the last chapters, Conklin’s clear passion for those who have been rendered stateless stands out, and the book becomes much less repetitive. Conklin focuses on defining the social and cultural bonds that should exist between a person and her “state,” before shifting to his main question, whether the traditional sources of international law can be used to obligate states to protect a stateless person, regardless of the will of the state. Drawing a parallel to international criminal law, particularly to the ad hoc tribunals that were set up after Rwanda and Yugoslavia, Conklin argues that, like international criminal law, protecting stateless persons is implicit in international treaties. When an executive arbitrarily expels or refuses to grant a person nationality and when statelessness is recognized as a basic human right that is self-executing, the boundary of the reserved domain can be pierced. Being able to penetrate a state executive’s decisions means that the shift from an aggregate will of the states to the international community as a whole has started. That, it seems, is one of Conklin’s points: that statelessness arose because of the aggregate will of the states discourse, and that it is a good thing that the shift to the international community as a whole has begun.

Book Review: An Eye for an Eye: A Global History of Crime and Punishment

By: Amy LewontinAn Eye for an Eye

Mitchel P. Roth.  An Eye for an Eye:  A Global History of Crime and Punishment (Reaktion Books, 2014). 304 p. Hardcover $30.00.

Mitchel P. Roth’s new sweeping history of crime and punishment is a fascinating look at the way many societies, Eastern and Western, have developed methods over time to deal with behavior that is considered criminal.  Roth very early on in his introduction explains that there is no “definitive answer to the question, ‘What is crime?’” and then goes on to say that for the purposes of his book, “crime will be regarded as a legal concept, that is, what is or is not against the law”.

An Eye for An Eye traces the history of crime and punishment from Mesopotamia and the Code of Hammurabi to the modern era.  What is worth noting about the book is Roth’s thoroughness in trying to survey as many parts of the world as he can to show that the laws, practices, and motives of one society influence those of others.  Roth examines the types of crimes committed in places like China, India and many of the European nations and explains how one nation’s imprisonment and capital punishment practices influence the others.

For example, in a chapter titled, “The Transformation of Punishment”, Roth talks about the British penal reformer, John Howard visiting Russia, to learn about its system, and to understand how Russia abolished capital punishment for all crimes except first-degree murder.  Before that, Roth talks about the large penitentiary built near Philadelphia that brought Charles Dickens to the United States to visit the prison and then to denounce it for the use of solitary confinement.   Additionally, the influence of nations on their colonies and the way in which criminal laws developed due to political and social influences by many nations is what makes the book extremely interesting to read.

This is a book that can both be read cover to cover, but can also be used as a source text for students of history and criminal studies who may be interested in a particular society or a particular method of punishment for a crime.  The book is extremely well documented and the footnotes contain a wealth of information and good source material, should you need to follow up on a particular topic. Something else worth noting here is that Roth is acutely aware of the way many nations throughout history approached punishment.  Oftentimes, the class and wealth of the victim as well as the perpetrator had a large effect on the outcome.   There is much discussion of Sharia law, as well as the origins of civil and common law, as it affects the types of crimes and punishments meted out in many nations.  Roth generally maintains an objective stance in his descriptions of punishments for minor and serious crimes.  He does take certain societies to task, for their punishments, including the United States, for its very high incarceration rate.  The book covers so many types of crimes, including rape, murder, and from the modern era, financial crimes.

When I say this is a fascinating book, I should also say that it is a difficult book to read without flinching, mainly because the author examines many dark periods throughout history to seek out the types of crimes and the varied punishments that man has inflicted on man (and woman).  An Eye for an Eye is extremely well written and, for someone who enjoys reading various types of history, it is noteworthy in the breadth and the depth of the source material, including novels, newspaper accounts, as well as religious texts.  Roth also explains early on that information on every society is not necessarily readily available, and therefore he does the best he can with available source material.

I would highly recommend this book, to all types of libraries, but then caution that it is truly not for the faint of heart, as it delves into very rough subject matter in its descriptions of serious punishments throughout the world and throughout history.  It is the descriptions of the various punishments where I as a reader found myself both riveted and shaken by the cruelties of many societies.

Mitchel P. Roth has previously published several other books on prisons and crime and punishment and currently teaches Criminal Justice and Criminology at Sam Houston State University in Huntsville, Texas.